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Optimism or Pessimism about America

[ 240 ] June 20, 2017 |

I thought this Yglesias piece on the differences between Sanders and Clinton voters was pretty good. Basically they more or less believe the same things, with strikingly few meaningful differences. The difference is that Clinton voters are basically happy with the direction of the country and Sanders voters aren’t. Clinton voters want tweaks to the system, Sanders voters want a “revolution.” I put that in scare quotes because most either don’t really know what that word means or are romanticizing a process that can go very, very wrong. Much of this goes back to Obama, who tapped into people’s desires for a new America with soaring rhetoric that papered over a very establishment figure who governed that way. The problem with a figure, whether Trump or Bernie or whoever, who wants to “shake things up” is that they aren’t really going to be able to do that effectively, leaving their voters permanently unsatisfied. There’s no easy answer for Democrats on this. We need a candidate who inspires and who has good policy, but who is also realistic about what can get done. That’s a tough needle to thread. Hillary Clinton really didn’t do it very well, or not as well as she needed to anyway.


The Media Is Massively Failing on the AHCA

[ 47 ] June 20, 2017 |

Unlike email server management or people asking for diplomatic passports and being turned down, the media does not see an attempt to strip health care from 23 million people using an opaque process major news. JMM has a good explanation:

We almost certainly know the gist of the impact of this bill, when we figure the political and budgetary parameters Senate Republicans are operating in and the eventual need to pass a bill that emerges from a conference committee through both houses of Congress.

McConnell is taking shrewd advantage of the particular hang-ups and thought processes of most Democrats and many journalists, how they get tangled up in policy literalism and boxed out of being able to speak clearly about the political reality that is coming. To be more specific, even if they don’t quite get that this is happening, many Democrats think that there’s nothing to discuss or attack since we don’t know the fine print of the legislation despite the fact that its broad scope and impact are clear.

To look at this from another perspective, do you think if Democrats were on the verge of passing a bill, the outlines and impact of which were clear, but were keeping the legislative text secret that Republicans would be finding themselves hamstrung about raising a public stink about the bill? Of course not. Indeed, they’d be death paneling it on top of whatever was actually true about the legislation. Caring about policy, caring about the lives of people affected by legislative decision is a good thing – it’s critical to democratic self-government. But it has the byproduct or side-effect of policy literalism which is politically catastrophic. I say ‘politically’ both in the sense of winning political fights but also in the more general sense of allowing political debates in which citizens have concrete factual information upon which to make decisions. The first is only relevant to partisans; the second is highly relevant for journalists too.

Media norms that it’s only news is part of the explanation, but only part of it. If Obama and Reid had tried anything like this it sure as hell would have been major news even if there was no finished text to write about — Fred Hiatt would be calling for Obama’s impeachment daily. As a corollary to Murc’s dictum about how to the media only Democrats have agency, only Democrats are actually expected to adhere to norms.

Whatever the explanation, the media failed massively on health care during the campaign, and it’s failing massively again. Maybe it wouldn’t matter — but as Josh says, it was the wave of negative coverage generated by the CBO score that stopped the first House attempt. And whatever the outcome, this is a hugely important story the public should be informed about.

“No Americans Killed”

[ 63 ] June 20, 2017 |

Chelsea Manning’s treatment was appalling, but that doesn’t mean we have to whitewash the indiscriminate document dump of diplomatic cables that helped turn Wikileaks into a thing. With that out of the way, I present to you a Buzzfeed headline.

Except that… wait for it… that’s not what the story actually indicates.

Regarding the hundreds of thousands of Iraq-related military documents and State Department cables provided by the Army private Chelsea Manning, the report assessed “with high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.”

The report also determined that a different set of documents published the same year, relating to the US war in Afghanistan, would not result in “significant impact” to US operations. It did, however, have the potential to cause “serious damage” to “intelligence sources, informants and the Afghan population,” and US and NATO intelligence collection efforts. The most significant impact of the leaks, the report concluded, would likely be on the lives of “cooperative Afghans, Iraqis, and other foreign interlocutors.”

Oh, well, then. Just foreigners. No harm, no foul. Indeed, take a look at the redacted lists on page 3-4.

Overall, when assessing Leopold’s summary, keep in mind that entire pages of the report—and large sections on effects—are redacted; the single pull quotation, noting that the disclosure of the Iraq data set likely entailed “no direct personal impact on current and former U.S. leadership in Iraq” means exactly that. And the “serious” damage to HUMINT and SIGINT is actually kind of a big deal.

Last year, while in seventh grade, my daughter did some exercises designed to show how the very structure of news reports can generate bias. If this piece had been out, I would’ve suggested she use it for the project.

The Supreme Court and the Partisan Gerrymander

[ 49 ] June 20, 2017 |

I have a piece up at –appropriately enough — Democracy on the big gerrymandering case the Supreme Court agreed to hear next term:

Gill involves a particularly egregious case of gerrymandering. In 2010, a unified Republican government hired consultants to use sophisticated computer software in order to redraw districts in a way that would maximize Republican seats in the legislature, by concentrating likely Democratic votes and carefully diffusing Republican ones. The results were remarkable. In 2008, 29 districts in the state Assembly were within three points of the state’s presidential vote; in 2012, the first election after the gerrymander, there were only seven. And these changes produced the intended skew: Wisconsin Republicans got less than 49 percent of the vote—but won 60 of the seats in the state’s 99-member Assembly. Since then, Republicans have continued to parlay a nearly evenly split electorate into huge legislative majorities.

The potential constitutional issues with partisan gerrymandering should be obvious. An electoral map that awards 60 percent of the seats of a legislature to a party that got less than 50 percent of the vote in a two-party race is at complete odds with the essential holding of the great Warren Court decisions Baker v. Carr and Reynolds v. Sims. These decisions held that when states deliberately refused to redraw districts to reflect population shifts, with the inevitable result of effectively disenfranchising urban voters, they violated the equal protection clause of the Fourteenth Amendment. Reynolds held that in all elections, except those for the United States Senate (which is permanently malapportioned by the Constitution), legislative districts had to be drawn to reflect a “one person, one vote” standard. It is hard to see how districting that intentionally overrepresents one group of voters and underrepresents another can be constitutional under these precedents.

And yet, the Supreme Court has allowed partisan gerrymandering to get worse and worse over the years. In the 2004 case Vieth v. Jubelirer, the Supreme Court declined to rule a partisan gerrymander of the Pennsylvania legislature unconstitutional. Four justices—Antonin Scalia, William Rehnquist, Clarence Thomas, and Sandra Day O’Connor—held that partisan gerrymanders were inherently “non justiciable.” That is, even if partisan gerrymanders are unconstitutional, they are inherently a “political question” that cannot be resolved by the courts. According to Scalia’s plurality opinion, the appropriate remedy to a partisan gerrymander is the power given to Congress in Article 1, §4 to alter legislative districts, not judicial review.

But like the pre-Baker argument that all districting claims were nonjusticiable, this argument is transparently specious. For example, Democratic Congresses in the first half of the twentieth century had no incentive to alter malapportioned districts that favored state Democrats (and, therefore, also favored House incumbents because state legislatures draw congressional districts.) Petitioning a Republican Congress and President to remedy constitutional gerrymandering that favors Republicans in 2017 will be equally futile. This is precisely the kind of failure of ordinary democratic processes where judicial review is most defensible.

Despite the fact that Frankfurter’s assertions that the Supreme Court should not enter the POLITICAL THICKET of redistricting are some of the more specious in the history of the United States Reports (“the remedy available to disenfranchised voters is to petition their state representatives!”), they’re becoming Republican conventional wisdom. Indeed, their Evenwel concurrence suggests that Alito and Thomas believe Reynolds v. Sims was wrongly decided, and a Trumped-Up Court could very well severely curtail or outright overrule one-person-one-vote. And if Kennedy votes to uphold gerrymandering as extreme as Wisconsin’s, it will have been overruled de facto in any case.

Some Notes on Ziglar v. Abbasi

[ 27 ] June 20, 2017 |

Yesterday, the Supreme Court ruled that multiple Bush administration could not be sued for constitutional violations committed during the arbitrary, indefinite detentions after 9/11. A few points:

  • The Beltway rule about the Bush administration’s many illegalities remains that nobody can ever be held accountable for anything.
  • It’s worth noting that these immunity rules are purely judge-made. Kennedy, in a familiar argument, couches this judicial policy-making in the language of deference, suggesting that it’s up to Congress to determine whether executive branch officials can be held accountable for legal violations. But this is silly. The presumption should be that they’re liable for legal violations unless Congress says otherwise.
  • This is the latest iteration of a classic conservative bait-and-switch. It’s particularly dark comedy with respect to the Fourth Amendment. On the one hand, the exclusionary rule should be limited or eliminated because WHY SHOULD THE CRIMINAL GO FREE BECAUSE THE CONSTABLE HAS BLUNDERED and civil suits are a better remedy. On the other, conservative judges invent rules that immunize more and state officials from accountability for anything. 
  • Kennedy leans hard on national security justifications. But as Breyer observes, inter arma enim silent legēs has a pretty ugly track record. From the Adams to Wilson to FDR to Bush, national security has provided a pretext to deny rights to political opponents, dissenters, and unpopular racial minorities. The level of judicial deference Kennedy advocates has proven to be inappropriate again and again.


Name that Bothsiderist

[ 190 ] June 20, 2017 |

Who said it?

“There are differences between Clinton and Trump, no doubt, but they’re not different enough to save your life, to save your job, to save the planet,” [____________] told Politico. “We deserve more than two lethal choices.”

Bonus question: Name this laughing clown. (Hint – It isn’t the same person.)

“In some ways, Trump is one of the best things to happen to this country because look at how many people are getting off their posteriors,” said [____________]. “So part of me is giggling.”


Read more…

Erik Visits an American Grave, Part 90

[ 18 ] June 20, 2017 |

This is the grave of Charles McNary.

Born on a farm north of Salem, Oregon in 1874, Charles McNary grew up relatively poor after his father died when he was 9, but he moved up quickly in Oregon society due to an older brother who had gained some prosperity, plus getting to know Herbert Hoover, the only president to have spent significant time in Oregon. McNary took some courses as Willamette University and then went to Stanford in 1896, making him a relatively old student for the time. He only stayed there for a year before returning home and deciding to make a career in the law. He passed the bar in 1898 and along with his brothers, became part of the leading law firm in the state’s capital. He taught law at Willamette and then became dean.

McNary entered Oregon politics in the 1890s, becoming Marion County’s deputy recorder from 1892-96. He rose after returning to Oregon, becoming a relative Progressive who stayed within the Republican Party. He supported most of Oregon’s Progressive Era reforms around political campaigns and issues, including the initiative, referendum, recall, and direct election of senators. For this and being a loyal Republican in a time of reform, he was appointed to the Oregon Supreme Court in 1913, at the age of 38. But this was an elected office and he lost his campaign in 1914. He became chairman of the state Republican Party. After the death of Harry Lane, McNary was selected to fill his term in the Senate in 1917. He remained there until his death in 1944.

In the Senate, McNary quickly proved his mettle and became a protege of Henry Cabot Lodge. This gained him favorable committee assignments and soon he became arguably the most powerful politician in Oregon history (a low bar at this time, to be sure). Warren Harding asked him to take over as Secretary of the Interior after the Albert Fall scandal at Teapot Dome, but not being an idiot, McNary refused. He was selected as Minority Leader in 1933, where he actually supported a good bit of the New Deal and especially Roosevelt’s preparations for World War II. He also became a major proponent of government investment in hydroelectric dams, which would eventually help develop eastern Oregon by damming the Columbia River. McNary Dam on the Columbia is named for him. His name was on the Clarke-McNary Act, one of the most important bills in the history of forestry, which provided federal aid for fire protection, among many other things. He also pushed through the McNary-Haugen Farm Relief Bill, which while vetoed by the vile Calvin Coolidge, was also an important precedent for the Agricultural Adjustment Act by wanting to set price floors for farm products.

McNary became the Republican candidate for Vice-President in 1940, despite having little in common with presidential nominee Wendell Willkie. Of course, FDR wiped the floor with them. He remained in the Senate but was diagnosed with brain cancer in 1943 and died the next year. With Willkie dying shortly after, this is the only time in U.S. history that both members of a party ticket died during the period in which they would have served.

Charles McNary is buried in Belcrest Memorial Park, Salem, Oregon.

Sober Second Thoughts From the World’s Greatest Deliberative Body

[ 119 ] June 20, 2017 |

If you thought the problem with the AHCA was that the cuts to Medicaid weren’t savage enough, you’ll be pleasantly surprised:

A leading option in the Senate’s ObamaCare repeal-and-replace debate is to make even deeper cuts to Medicaid spending than the bill passed by the House, according to lobbyists and aides.

The proposal would start out the growth rate for a new cap on Medicaid spending at the same levels as the House bill, but then drop to a lower growth rate that would cut spending more, known as CPI-U, starting in 2025, the sources said.

That proposal has been sent to the Congressional Budget Office (CBO) for analysis, a Senate GOP aide said.

In addition to being a greedy attack on the poor, this is also a greedy attack on the disabled:

Most people think of Medicaid as a program for able-bodied, non-elderly adults and their children ― a form of “welfare” that some Americans tolerate and others resent because they think, rightly or wrongly, that it’s subsidizing people too lazy to work. But one-third of the program’s spending is on people with disabilities. Although they account for a much smaller fraction of Medicaid enrollees, there are roughly 9 million people in this category, and almost all have unusually severe health care needs. On average, Medicaid spends more than four times on somebody with disabilities than it does on an able-bodied adult.

As always, the lesson is that Hillary Clinton used a private email server.

The Marlow & Maher Civility Hour

[ 79 ] June 19, 2017 |

Bill Maher and Breitbart’s Alex Marlow had a chummy chinwag about free speech and where it should “pause”.

“If Obama was Julius Caesar and he got stabbed, I think liberals would be angry about that,” Maher remarked.

Had Maher asked an assistant to do a little research on this topic he would have known: He was and they didn’t.

“I don’t think they should have Trump playing Julius Caesar and getting stabbed, and I hate Trump. So we’re agreeing that there are some places where free speech does pause.”

I think sycophant to white supremacists suits Maher. It’s very him.

“It’s bad strategy certainly to put that out there because they all look like hysterical lunatics,” Marlow added.

Ah good, I was wondering when he was going to get to the projection. Dare I hope for some whining about frozen peaches?

Maher and Marlow also agreed that corporations under threat of organized boycotts should not have so much influence on free speech. Marlow pointed to his own publication in Breitbart and various anonymous campaigns of “misinformation” against the conservative publication that has led to many companies pulling ads from the site.

“What’s happened is that corporations are now deciding what’s free and fair speech, who can make a living, what opinions can make a living saying,” Marlow, 31, said. “Now you’re seeing the right fight fire with fire and want boycotts of when the left takes it too far in their Trump hatred.”

This is dumber than If you don’t speak at my kekifascist speech festival, you don’t support free speech.

“It’s a very dangerous path we’re on,” he added. “People on the left and the right who are free speech advocates need to come together and say that corporations are not going to define the First Amendment and free speech in this country.”

It would have been interesting if an intelligent person with a nose for bullshit and a backbone made of something stiffer than marshmallows had been present. That person might have asked something like Are you saying both sides should agree not to hold boycotts?

Unfortunately, there was only a smirking rubber hose that was afraid to disturb his guest with difficult questions.

“Do you think Breitbart with the politicization it is involved in, has any responsibility for the kind of violence that we see in our society, including what happened this week?” Maher asked.

“Absolutely not. As you know, the guy was a big Sanders supporter. I actually happen not to blame Bernie Sanders for it,” Marlow replied.

It would have been interesting if a non-comatose person who had done the teeniest bit of research on Breitbart had laughed in Marlow’s face. Or mentioned something like Pizzagate. But such a person would not have referred to what Blightshart gets up to as politicization.

2020 and the Democratic Message

[ 440 ] June 19, 2017 |

Sarah Jones argues that Sanders has a valuable role to play in the party going forward but probably isn’t the ideal candidate in 2020:

Still, there is a strong case for Sanders abstaining from making another presidential run. The first obstacle is obvious: He will be 79 next Inauguration Day. Basketball notwithstanding, advanced age is a vulnerability for any politician. This is particularly true of a politician who inhabits the Oval Office—and this critique applies to Joe Biden and other potential contenders of a certain age.

Second, while Sanders’s campaign ignited public interest in democratic socialism, he was hardly the perfect candidate. He could have been stronger on gun control, particularly at the beginning of the primary campaign. And he too often ceded ground on foreign policy to Clinton—an unnecessary failing, considering her deeply troubling record on the issue. These are questions that Sanders will have to answer all over again if he chooses to run in 2020, and they’re a reminder that there may be a better progressive candidate out there.

And there is the matter of his fame. Name recognition is key to victory, but it can also strangle movements. Sanders the individual now gobbles up so much airtime and column inches that he threatens to eclipse the American left, to its long-term detriment. This is hardly his fault, but Sanders must now consider the broader interests of the left.

Reasonable people can disagree about whether Sanders is the best messenger for 2020, and the issue will essentially take care of itself through the primaries. (Like Paul, I agree that Bernie’s age is a real issue, although not necessarily a dispositive one. Obviously Biden 2020 is a terrible idea.)  To echo what I said about health care earlier, the key takeaway here is that if only Bernie can carry his economic message, it can’t succeed legislatively anyway.  The better test of his effectiveness will be whether every viable aspirant for the Democratic nomination runs on a platform comparable to Sanders’s. Gillibrand’s close alliance with Bernie after the election suggests that this is highly likely.

Throw Sand in the Gears

[ 98 ] June 19, 2017 |

Chuck Schumer is finally slowing the Senate to a halt in response to the TrumpCare bill.

“If Republicans won’t relent and debate their healthcare bill in the open for the American people to see, then they shouldn’t expect business as usual in the Senate,” said Senate Minority Leader Charles Schumer (D-N.Y.).

Schumer said Republicans are “drafting this bill in secret because they’re ashamed of it, plain and simple.”

A senior Senate Democratic aide said that starting on Monday evening, Democrats will object to “all unanimous consent requests in the Senate,” though there could be a narrow exception for honorary resolutions.”

If Democrats stick to the tactics, they will be able to block any committees from meeting after the Senate has been in session for more than two hours.

Will be very interesting to see what happens here. Will it continue if the bill is forced through? How far will Democrats go? At what point will they start fretting about the norms of the Senate, as if they exist anymore?

Still, a good and necessary move.

Why, Yes, It IS Terrorism

[ 23 ] June 19, 2017 |


Just after midnight, London time, yet another attacker drove a van into a crowd of people, killing one and seriously injuring nine more. All of the victims were Muslims leaving their evening prayers in Finsbury Park.

This tragedy, on one hand, is disturbingly unsurprising, given the rise in terror attacks, virulent anti-Muslim sentiments, and hate crimes. What is surprising, on the other hand, is just how quickly and publicly this has been claimed as an act of terrorism.

There have been too many good and important pieces written on the heavy bias in reporting violence for me to begin offering links here. But we’ve all heard and/or voiced our own concerns about the way that violence by people with a particular set of physical characteristics is immediately denounced as terror, while white male mass killers are always something else (troubled, isolated, mentally ill…).

Coverage of the Portland train stabbings invoked “hate crimes,” but not terror (except, ironically, when the perpetrator himself denied being a terrorist). Even days after the attack, FBI was claiming that it was simply “too soon” to determine whether this was an act of domestic terrorism.

This morning’s killing of a Virginia teenager is, we are told, not even being considered as a hate crime (to be fair, details on this crime are still sketchy, but the victimization of a young veil-wearing Muslim woman certainly raises red flags). At the moment of writing, the Washington Post’s main page is carrying this headline just below their story on PM May’s insistence that the Finsbury Park attack was indeed an act of terror.

Now, it’s odd to find myself wanting to cheer any Theresa May statements, but props to her and everyone down to the local police who identified the attack as terrorism within eight minutes. The attacker, who was protected from angry bystanders by the local imam, is officially being held for terror offenses. May herself was quick to declare the violence “every bit as sickening” as other recent attacks.

It is awful and heart-wrenching for any community to reckon with this level of senseless and hate-filled violence. But calling terrorism by its actual name turns out to be easy enough.

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