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Category: General

Wishes Are Totally Free

[ 61 ] August 14, 2015 |

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Mike Huckabee has asserted that his 6-6-6 Fair [sic] Tax will create SIX PERCENT GROWTH. Take that, Jeb!! As Chait notes, the logic is impeccable:

The beauty of this is that Bush can hardly call Huckabee’s promise unrealistic or made-up, without having to concede his own promise is also unrealistic and made-up, just less so. Bush has no grounds to argue against Huckabee here. Think about it. You walk into a caucus, you see 4 percent growth sittin’ there, there’s 6 percent growth right beside it. Which one are you gonna pick, man?

The Farrelly brothers indeed captured this well, but let us also recall the inner circle Hall of Fame blog post from Belle Waring:

I think Matthew Yglesias’ response to Josh Chafetz’ exercise in wishful thinking was about right, even if Brad DeLong’s is more nuanced. I’d like to note, though, that Chafetz is selling himself short. You see, wishes are totally free. It’s like when you can’t decide whether to daydream about being a famous Hollywood star or having amazing magical powers. Why not — be a famous Hollywood star with amazing magical powers! Along these lines, John has developed an infallible way to improve any public policy wishes. You just wish for the thing, plus, wish that everyone would have their own pony! So, in Chafetz’ case, he should not only wish that Bush would say a lot of good things about democracy-building and fighting terrorism in a speech written for him by a smart person, he should also wish that Bush should actually mean the things he says and enact policies which reflect this, and he should wish that everyone gets a pony. See?

It is for this reason that Lawrence Lessig’s proposal to resign* after signing one statute is such a tragic missed opportunity. If you can create a SUPER MANDATE by campaigning on a single statute combining several proposals, why stop at 3? Shouldn’t the Citizens Equality Act contain the three promised electoral reforms and the French health care system and a minimum of one clinic providing free abortions in every county and quadrupling of the budgets for civil rights and SEC enforcement and a repeal of Taft-Hartley and a pony for everyone who wants one? The chances of the bill passing would be exactly the same! We have a SUPER MANDATE in which Congress becomes helpless, why waste it? Huckabee knows what he’s doing here. I can’t wait for Trump to guarantee 20% annual GDP growth, funded entirely by the Mexican government.

*In fairness, while on its face the declaration that one will resign after getting one bill pass may seem to reflect a dilettantish attitude rather unattractive in someone purporting to run for president, it must be conceded that it has roots extending to the greatest of American political statesmen:

For reasons that are still debatable, Stern decided this was his moment, too. Stern announced on his radio show he was running for governor. [Howard] Stern had talked with the 600-700-member-strong New York Libertarian Party and would be running as a libertarian.

His platform: reinstating the death penalty, forcing construction workers to work at night and staggering highway tolls to alleviate traffic jams. Once those things were done, he’d resign and let his lieutenant governor — a former former state legislator named Stan Dworkin — take over.

“It doesn’t matter if you find me offensive,” Stern said in his March 22 announcement. “I’ll get out of office before I can really screw anything up.”

Joint Employers

[ 54 ] August 14, 2015 |


There is potentially huge news coming out of the National Labor Relations Board that would reclassify temp workers as joint employees of the company where they are temping, thus stripping away much of the reason why companies want temp workers and making them part of potential union bargaining units.

The National Labor Relations Board (NLRB) is widely expected to rule by month’s end that Browning-Ferris Industries, a Houston-based waste-disposal company, is a joint employer of workers provided to the firm by a staffing agency, experts say. As a result, the company would be forced to collectively bargain with those employees and could be held liable for any labor violations committed against them.

Such a decision could hit companies from a host of industries, including hospitality, retail, manufacturing, construction, financial service providers, cleaning services and security.

The expected action would be the latest in a string of major wins for labor groups under the Obama administration, which has already issued several sweeping executive actions on worker protections and wages.

Backers say it is a necessary step to protect a vulnerable class of temporary workers and independent contractors. But business groups fear the decision will wreak havoc throughout the private sector.

“It has the potential to change the entire way businesses operate in this country,” said Rob Green, executive director of the National Council of Chain Restaurants.

“There are so many business relationships in the economy that rely on companies providing services to other companies,” he added. “So you can imagine that any business sector could be impacted by the decision.”

This could be gigantic and is another example of how the Obama NLRB has issued decisions favoring workers.* The public persona of temp workers that companies like to employ is something like needing to bring in an extra office worker to catch up on some work or replace someone on maternity leave. But as many of you know, that’s not the case at all. Rather, companies use temporary work as one of their many strategies to shield themselves from liability, training, wages and benefits, and unions. They use pliant state legislatures to carve out broader and broader room for temporary work, effectively creating an entirely new class of worker outside of unions’ ability to organize them. So now you have cases like the Toyota plant in Kentucky, to take one of many examples, where you have long-term workers doing the exact same work as the person next to them except that they don’t work for Toyota and they don’t get the wages and benefits of their co-worker. Not only are these workers presently ineligible for unionization, but they create divides in the workforce that benefits employers by undermining solidarity. There’s absolutely no good reason for this system to exist except to benefit corporations. So you have temp workers in the California lettuce fields who have been there for 10 years and who lack the ability to improve their lives on the job. The NLRB seems to understand this and feels a correction is necessary.

*I do find it hilarious however that the reporter claims it is “the latest in a string of major wins for labor groups under the Obama administration.” Except that whole Trans Pacific Partnership thing! But hey, if you take that tiny little issue out of the equation, I suppose it’s true! But then the story itself is pretty hackish, basically just presenting the corporate point of view, including on McDonald’s controlling its franchisees labor policies but shielding themselves from responsibility through the franchise.

What Does Don Verrilli Know About Getting Crucial Conservative Votes in Tough Cases?

[ 20 ] August 14, 2015 |


Yesterday, I acknowledged that there was a at least a strong element of self-criticism in Lawrence Lessig’s rather remarkable concession that he argued at the Supreme Court assuming a theory of judicial behavior that has been discredited for decades because if theory was true it would make him feel bad about his job.  It would be nice if he didn’t forget what he had learned in his future political endeavors, but hey, it’s something.  As sleepyirv pointed out to us in comments, he seems to have forgotten his bellyflop even in the narrow field of Supreme Court advocacy:

Yet it is a measure of the pervasive partisanship that is Washington today that it doesn’t even occur to Obama’s solicitor general to suggest a politically conservative argument to Chief Justice John Roberts’s Court that, if applied honestly, might well yield a politically liberal result. That may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court. Either way, it is astonishing. Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected. And so the government leads the Court to do what most Americans expect it will do anyway: Confirm an ideology, rather than honestly follow a principle that might well track something other than simple ideology.

You have to love the condescension shown towards the solicitor general — it can’t be that he was aware of Lessig’s arguments and decided against using them, it must have been that using these brilliant arguments didn’t “occur” to him.  This is particularly rich given the implication that Verrilli is unwilling to tailor his arguments to appeal to conservatives on the Court.  Admittedly, at the time of writing Lessig didn’t know about the ACA case argued by Verrilli that resulted in Roberts (joined by Kennedy) dismembering the corpse of Adler and Cannon’s argument and declining to even send the widow a corsage, but he had seen Roberts adopt an out-of-left-field argument brought up by Verrilli at oral arguments to mostly uphold the ACA in the first place. The causal role the oral argument played is unknowable, but I think just a little modesty might be in order here.

Still, Verrilli is capable of screwing up like anyone.  Is there reason to believe he left a winning argument on the table here?  Of course not:

  • As sleepyirv, even on its own terms, Lessig’s originalist argument is weak.  The dispute about the definition of “corruption” concerns 20th century judicial doctrine, not the text of the First Amendment.  How the framers and ratifiers of the First Amendment conceived of corruption might be worth noting, but it’s hard to see how it could be dispositive here.


  • If I may be permitted to throw some cold water on the whole “liberal originalist” mode of argument, it seems to me that campaign finance law an area in which originalism is particularly useless.  First of all, there was no single “original meaning” of the free speech clause itself in 1789.  Whether the free speech protected by the First Amendment was something like the (very narrow) English common law standard or something more than that and if so how much more was a matter of substantial political contestation at the time.  And even if there was a clearly identifiable consensus on free speech, it wouldn’t help very much as applied to concrete campaign finance cases in 2013, given how radically most of the relevant considerations (the cost of campaigns, the types of media involved, the size of the constituencies legislators represent) have changed in the intervening 225 years.  I think it would be better to say that Roberts’s narrow definition of corruption is wrong because it’s wrong, not because it arguably contradicts something James Madison wrote in the 18th century.


  • Of course, whether the argument appeals to me is beside the point; what matters is whether it would appeal to the justices.  But why would we think this?  We can forget Alito, a human manifestation of the most recent Republican Party platform.  Roberts and Kennedy have never shown any particular interest in originalism or any other kind of grand theory.  The two self-described originalists on the Court are hardly consistent about it.  And in First Amendment jurisprudence, neither Scalia nor Thomas has shown any particular interest in historical analysis, apart from some narrow exceptions (such as Thomas and speech in schools) where the history lines up very well with their a priori political views.  Lessig’s belief that originalism will be appealing in this context isn’t based on anything specific about the First Amendment jurisprudence of the justices in question, but just on the idea that if the justices are conservative they must therefore find orignalist arguments appealing regardless of the context, an assumption that is transparently wrong.


  • Which brings us to a broader problem — campaign finance is not virgin doctrinal ground, but an area in which the justices have well-established, frequently expressed views.  The idea that Kennedy or Roberts are going to go “Aha! Now that I’ve seen this empirical analysis of how corruption was used by the First Congress I have to admit that my libertarian views are wrong!” is absurd.  I was going to say that this applies the logic of the seminar room to Supreme Court advocacy, although frankly the “this not nearly as clever as I think it is argument will get my colleague to abandon her firmly established view” approach rarely works in the seminar room either.


  • Lessig tries to get around this problem by arguing that there’s no necessary contradiction between adopting his approach and the Roberts Court’s prior cases: “Recognizing “dependence corruption” as a kind of corruption that would empower Congress to act would not undermine the holding in Justice Anthony Kennedy’s opinion in Citizens United.”  But this is deeply disingenuous.  As I’ve said before, I think the judgment in Citizens United was right: I don’t think the statute authorized the FEC to suppress the showing of Hillary: the Movie, but if it did then it violated the First Amendment as applied.  But what makes the decision such an intense source of controversy is not the narrow judgment of the case, but Kennedy’s opinion, which went far beyond what was necessary to decide the case at hand.  It’s true that a “dependence corruption” justification would not threaten the outcome of Citizens United, but it would certainly undermine the broader foundations of Kennedy’s opinion, and Kennedy would certainly understand this.

The thing is, one some level it’s clear Lessig understands much of this: “[t]hat may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court.”  Again, he seems to think that it’s better to be wrong if being right undermines his choice to devote so much of his career to constitutional grand theory.  I assume the millions of people who benefit from the ACA prefer Verrilli’s approach of trying to appeal to the actually existing Supreme Court rather than the imaginary one that Larry Lessig would find cool.  And it’s a little late in the day to pretend that the most basic insights of legal realism are “astonishing.”

What if Ted Kennedy had announced during his 1980 presidential campaign that one of his chief foreign policy advisers

[ 61 ] August 14, 2015 |


. . . was going to be Robert McNamara?

One of the fair-goers asked the Republican presidential candidate during his appearance on the Des Moines Register Soapbox whether he was being advised by Paul Wolfowitz, George W. Bush’s deputy secretary of defense and the architect of his Iraq War policy.

Jeb Bush tried to spin the question away from his legacy as the son and brother of the last two Republican presidents, but he did so awkwardly.

“Paul Wolfowitz is providing some advice,” Bush said. “I get most of my advice from a team that we have in Miami, Florida. Young people that are going to be … they’re not assigned, have experience either in Congress or the previous administration.”

He continued: “This game, the parlor game that’s played, you know, where you have 25, 30 or 40 people that are helping you with foreign policy, and if they have any executive experience, they’ve had to deal with two Republican administrations — who were the people that were presidents, the last two Republican? I mean, this is kind of a tough game for me to be playing, to be honest with you.”

Mmmm, beer.


[ 70 ] August 14, 2015 |


Should Democrats reject Charles Schumer as Majority Leader because of his position on the Iran deal? I’ve been wondering over the last few days if we’d see a backlash against his coronation because of it. Josh Marshall makes a strong case on why Senate Dems should find someone else.

I would take it a step further. I think Schumer should be disqualified on the basis of this decision alone. In fact, I would personally find it difficult to ever vote for Schumer again as my Senator, though I doubt he’ll lose much sleep over that since he is amazingly entrenched as New York’s senior senator.

I say all this with some regret since I’ve always liked Schumer. And I should make clear that I see fidelity to a President of one’s own party – even on an issue central to his presidency – as a non-issue in this case. The issue is that this agreement is a matter of grave importance. And Schumer’s position is wrong. Indeed, what makes it an issue for me is that it is more than wrong. His stated arguments are simply nonsensical and obviously tendentious. In this case, Schumer’s ample brain power stands as an indictment against him. There are plenty of senators who are voting against this deal because of a combination of bellicosity and partisan fervor. And there are a good number of them who either cannot or do not care to apply a real logical analysis of the question at hand. Let’s put that more bluntly, they’re either lazy or dumb. And of course this general point applies to senators on both sides of the aisle.

But Schumer is neither lazy nor dumb. And that’s why his decision is really unforgivable.

He argues for instance that even if even if the agreement keeps Iran from building nuclear warheads for a decade (false time frame, by the way), this deal makes things worse because the nuclear Iran ten years from now will be a supercharged Iran made more powerful and bold by sanctions relief.

This is a stupid argument.

So why did Schumer oppose the deal? I think he moves in circles, personal and financial, where this deal is simply anathema and he doesn’t feel he can or wants to buck that opinion. He may also believe he can have his cake and eat it too – vote against, satisfy, and stay good with key supporters and not block its adoption. This is actually what I see as the most likely answer. He may also feel uncomfortable enough on this hot seat that he simply won’t look at the logic of the situation.

I can know and frankly I don’t care. The bright line is that he’s smart enough to know better.

I’ve heard some say that this creates tension for him “on the left” in his quest to become Minority or Majority Leader. This is silly pundit talk. This isn’t the public option. This isn’t something supported by the foreign policy “left”. It’s very basic and mainstream and necessary. The fact that the neoconservatives who gamed the country into the Iraq disaster favor it does not change that.

Democratic senators who don’t reconsider support for Schumer as the leader of their caucus are making a big, big mistake. He should be ruled out of consideration for the job.

I know that much about the majority leader is position is largely procedural and that person does not totally control the caucus. And we know that Harry Reid, hardly a leftist, provided capable leadership even on issues where he personally disagreed with most of his caucus. We can also ask whether, were Schumer currently majority leader, whether the fate of the Iran deal would be any different. My sense is probably not since every senator can vote for it. But it is worrisome that on major issues with enormous national and international importance the majority leader would take untenable and dangerous positions that could lead to war and thousands of dead Americans. That’s just irresponsible and there’s no good reason for Democratic senators to vote for him when they have many other very capable options, including Dick Durbin and Patty Murray to name a couple who would like to have the job.

The Labour Party and Paranoia

[ 80 ] August 14, 2015 |


So, the Labour Party lost an election a few months ago. The rhetoric and framing of this defeat are breathlessly disasterous, such as “an awful result“, “catastrophic“, and a “calamity“, among others.  Yet, Labour increased votes (740,787) and share (Labour gained 1.5%) of the national electorate from the 2010 election (while the Conservatives likewise added votes and share, their gain was only 0.8%). This meant that Labour, as is their wont, must dive into a summer’s worth of soul searching and incrimination dressed up as a leadership election.

While Ed Miliband was selected leader in 2010 based on an electoral college system, where MPs, unions, and the membership writ large each had an equal say, the party has switched to a (more or less) one-member-one-vote system, in part to attenuate the power of unions over the selection process. As the link points out, this is ironic, considering it was the union component of the electoral college in 2010 that put Ed Miliband over the top at the expense of his brother.

Of course, it’s not quite this simple. All full party members get a vote, as do members of affiliated unions (who have to register with the party) and anybody who wants to pay £3 to become a “Labour supporter”. To this day, I’m not entirely clear on the purpose of the latter (a revenue stream, or a means to generate data) but it was a half baked scheme not only open to abuse at the margins, but worse, open to the perception of mass abuse.

Enter Jeremy Corbyn’s candidacy. The serial back bencher, representing the left wing of the party, received the necessary 35 MP nominations to stand for the leadership literally in the final hour, with many MPs stating that they would not support him, but wanted him on the list to provide for a healthy debate. Given the perception of Corbyn as an unreconstructed, Michael Foot-esque socialist, many on the right believe it’s in their interests to plonk down the three quid and cast a spoiler vote under the banner of “Tories for Corbyn“, thus ensuring the destruction of the Labour Party as a viable electoral alternative, tantamount to submitting a “resignation letter to the British people” (that quote is from Liz Kendall, best described as the Blairite candidate for leader). Stories abound of Conservatives “caught” registering as a supporters, as well as Greens or those on the hard left. The Labour Party is trying mightily to “weed out” the infiltrators, including some high profile cases (such as the comedian Mark Steel, whom the Labour Party decreed as not “supporting their values” even though the party didn’t prevent him from campaigning for Labour in the 2015 election), to several backbench Labour MPs calling for the leadership election to be suspended.

Why?  Because Jeremy Corbyn might actually win this thing. Many of the MPs who nominated him only to broaden the debate are now regretting it, as recent polling suggests that he’ll win the leadership on the first ballot.

This post isn’t about the merits of any of the four leadership contenders; I’m writing that one over the weekend and will post it on Monday. As a full party member, I get a vote, and I know how I’m going to rank all four candidates. Rather, this is about the wisdom of the system. Should Corbyn win, it’s on the back of legitimate members, not a handful of Tories (or Marxists) infiltrating the party as three-quid supporters in order to gleefully cast a vote. The numbers support this assertion; the electorate at the close of registration on Wednesday is 610,753: 299,755 full members, 189,703 affiliated members (via affiliated unions) and 121,295 registered supporters. It’s mathematically possible that the 121K registered supporters, if voting as a bloc, can swing it to Corbyn, but data from the YouGov poll suggest that £3 supporters back Corbyn only marginally more than full members. However, the perception will always be there that the win was illegitimate. Labour have enough trouble as it is framing the debate; this will only serve to compound the problem.

Is it electoral fraud to give Labour three quid to vote for Corbyn? Not at all. Hell, the only Republican I ever voted for was in the 1996 primary in the Washington State gubernatorial election. Polls had Gary Locke well ahead in the Democratic primary, so a bunch of us crossed over to the Republican primary to help nominate state senator Ellen Craswell, a prototypical batshit crazy representative of the religious right, who successfully went on to get crushed in the general election (yet somehow still managed 42% of the vote). Labour have invited such shenanigans, and have only themselves to blame for creating electoral rules that cast a modicum of doubt on the legitimacy of the outcome.

About that McQueary abomination

[ 45 ] August 14, 2015 |

I couldn’t let it pass unremarked upon either.

UPDATE: Al had his own “hot take” too:

A Pretty Good Deal

[ 41 ] August 14, 2015 |


The sound you hear is the continuing implosion of Jeb Bush.

Former Florida Gov. Jeb Bush (R) said on Thursday during a campaign stop in Iowa that “taking out Saddam Hussein turned out to be a pretty good deal,” according to multiple reports.

The Beast reported that Bush went on to say he didn’t want to hypothesize about what would have happened if his brother, former President George W. Bush, had not ordered the invasion of Iraq, which led to the toppling of Hussein.

“Then that’s back to the future and you could make a movie,” Jeb Bush said, according to the Beast.

Is that movie The Hurt Locker? Or is it In the Valley of Elah? Or some other purely fictional film about Iraq?

Bush has previously said “premature withdrawal” in Iraq created the void for the the Islamic State terror group.

I’m sure another Friedman Unit would have eliminated ISIS forever and the pure free market capitalist state his brother’s idiotic administration attempted to institute would not only have generated, but would have taken down Iran through the irresistible ideas of Milton Friedman as well!

Today in Offensive Arguments

[ 78 ] August 14, 2015 |


Above: The conservative dream for all union-dense cities with lots of black people

Kristen McQueary of the Chicago Tribune presents the conservative argument that Hurricane Katrina was awesome because it destroyed those teachers’ unions and pesky city workers’ labor contracts. She wishes it on Chicago.

Envy isn’t a rational response to the upcoming 10-year anniversary of Hurricane Katrina.

But with Aug. 29 fast approaching and New Orleans Mayor Mitch Landrieu making media rounds, including at the Tribune Editorial Board, I find myself wishing for a storm in Chicago — an unpredictable, haughty, devastating swirl of fury. A dramatic levee break. Geysers bursting through manhole covers. A sleeping city, forced onto the rooftops.

That’s what it took to hit the reset button in New Orleans. Chaos. Tragedy. Heartbreak.

Residents overthrew a corrupt government. A new mayor slashed the city budget, forced unpaid furloughs, cut positions, detonated labor contracts. New Orleans’ City Hall got leaner and more efficient. Dilapidated buildings were torn down. Public housing got rebuilt. Governments were consolidated.

An underperforming public school system saw a complete makeover. A new schools chief, Paul Vallas, designed a school system with the flexibility of an entrepreneur. No restrictive mandates from the city or the state. No demands from teacher unions to abide. Instead, he created the nation’s first free-market education system.

Hurricane Katrina gave a great American city a rebirth.

Yes, let’s wish a Hurricane Katrina on everyone! Even better, let’s wish some conservative post-hurricane governance with Michael Brown’s effective response and George W. Bush’s clear caring about the situation. And obviously New Orleans is a better place today than it was a decade ago, what with its half-rebuilt neighborhoods, migration out of much of its African-American population, and increasingly exclusive and white French Quarter. Isn’t that every conservative’s dream, to bust unions and whiten the city?

It’s been awhile since I read something so utterly loathsome. Sounds like Fred Hiatt will be giving McQueary a call soon enough.

I want to — but can’t — hate the person who roped me into this conversation

[ 57 ] August 13, 2015 |

My email was added to some conversation about whether or not Robert E. Lee was a racist or a patriot, the majority of the claims made therein were beyond ridiculous, but I ignored it because I’m not one to feed trolls who write things like “You sought to destroy the legacy of a truly great man, and you were called on by alpha males, so shut up and crawl back in the sewer you came from.”

But the sentence that followed that was one up with which I could not put, because it was delivered with absolute seriousness: “Don’t mess with bulls, you’ll get the horns.”

To which I responded, because as a child of the ’80s, I couldn’t not:
Read more…

The Swearengen Times: A Coarser Publication for a More Profane Time

[ 17 ] August 13, 2015 |


I’m fucking terrible at writing headlines, so I hired me a cocksucker who can:

Today In Bad Faith

[ 38 ] August 13, 2015 |

Ben Carson: for fetal tissue research before he was against it.

Ben Carson, a Johns Hopkins neurosurgeon and Republican presidential candidate, previously did research using human fetal tissue.

In the wake of the hidden-camera videos showing Planned Parenthood doctors discussing how to provide aborted fetuses to scientific researchers, Carson has told Fox News that the benefits of this research have been “overpromised” and “under-delivered.”

Late on Wednesday, an OB/GYN and science writer Jen Gunter revealed on her blog a 1992 study in which Carson and three other colleagues used tissue from the fetal brain and nasal cavity to better understand the development of the chambers (or “ventricles”) of the brain. These tissues “were obtained from two fetuses aborted at the ninth and and 17th week of gestation,” the paper says.

Carson’s attempt to defend his views do not quite reach a Roger Goodell level of incoherence, but it’s pretty close.


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