South Dakota Politics

Apology for light blogging

I am in Arkansas attending to a family emergency.  I will be largely out of wifi ranged for the next few days. 

Corporate Personhood & the English Lexicon

My esteemed Keloland colleague and NSU colleague Emeritus, David Newquist, joined the discussion of corporate personhood initiated by Cory Heidelberger and carried on by Doug Wiken and myself. In the midst of Professor Newquist's short essay, he has this:

Those who snickered at the corporations-are-persons contention were immediately assailed by the wing-dingers and informed that they were confused and ignorant and stupid.

Now I am not sure who the "wing-dingers" are, or what a wing-dinger is. The good professor is fond of attacking nameless parties. I did state that, in my opinion, Cory was confused about certain aspects of Supreme Court case Citizens United v. FEC. But I did not call him ignorant and would never call him stupid. While we frequently and fruitfully disagree, I think Cory is one of the best informed and most intelligent voices in the local blogosphere.

I am afraid I cannot say the same about Professor Newquist. The above paragraph continues as follows:

The English lexicon has from its inception defined a person as a human, an individual of specified character, the personality of a human self. To contend that a corporation, which is a political contrivance of humans with an agenda, is in any way a person is to fly in the face of an essential linguistic and semantic distinction that is deeply rooted in the language. But such affronts to literacy are not something new.

Now that highlighted part is very bold and admits of no ambiguity. Individual human beings are persons, in Newquist's view; but to contend that a corporation is "in any way a person" is an affront to literacy.

Well, when there is a dispute about the English lexicon, the thing to do is to consult an English lexicon. So I did. I looked up the word person in the Merriam-Webster Dictionary online. I found this:

6: one (as a human being, a partnership, or a corporation) that is recognized by law as the subject of rights and duties

Apparently, Merriam-Webster and its parent company, Encyclopedia Britannica, have committed an affront to literacy. M-W clearly defines partnerships and corporations as persons if the former are recognized by law as the subject of rights and duties, which they are.

Perhaps this is not good enough. So I went to the best source of information about the English lexicon "from its inception," the Oxford English Dictionary. There I discovered another affront to literacy.

7. Law. An individual (NATURAL PERSON n.) or corporate body (artificial person) recognized by the law as having certain rights and duties.

Oddly enough, the OED managed to back up its definition with quotes from English writings.

1475 Rolls of Parl. VI. 150/1 Almaner Londes, Tenementes..and Pensions, which any persone Temporell, corporat or not corporat..then had, held, posseded, or occupied.

1765 W. BLACKSTONE Comm. Laws Eng. I. i. 123 Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.

1833 Act 3 & 4 Will. IV c. 74 §1 The word 'Person' shall extend to a Body Politic, Corporate, or Collegiate, as well as an Individual.

1900 Daily News 20 Apr. 7/5 A Bill..extending to juridical persons, that is, duly registered corporations or partnerships, the right to engage in mining.

Apparently, from 1475 to 1900, the word person was used to indicate corporations. It has been and remains a commonplace of legal reasoning and political theory.

No one can blame an English professor for being ignorant of legal terminology. One could expect him to consult a dictionary regarding the plain meaning of an English word before he accuses others of an Orwellian distortion of language.

Obama Sinks His Party

Intrepid reader Erik reminds me that "It is still a long way to November. ;-)" I cannot disagree, especially with the tongue in cheek emoticon. I do not know what will happen next November, but I know all too well how wishful thinking can color my judgment.

Still, it is hard not to think that the Democratic Party is now too deep in the poop to climb out. John B. Judis at the New Republic offers compelling evidence that the root cause of the Democratic decline is the President.

I continue to hear people saying that Martha Coakley's defeat in Massachusetts had nothing or very little to do with the approval of the Obama administration in that state. For those who continue to adhere to this opinion, let's look at some other states where the decline in a candidate's polls can't be explained away by the Democratic candidate's ineptitude. What you find in those states is that in polling for the 2010 senate and gubernatorial elections, the Democrat was initially ahead but began to fall behind at roughly the same time as Obama's approval ratings also began to fall.

Judis illustrates his argument with a series of charts from Pollster.com comparing election polling in a series of states with Obama's approval rating in those same states. I won't reproduce any of this here: go to the link above and look at it. He pretty much nails down his conclusion:

I am not saying that in all these cases, the Democratic candidates didn't stumble, or that the Republican didn't shine, but viewed as a whole, they present a picture of a national decline in public support for Democratic politics and for the Obama administration radiating outward from Washington and threatening Democratic candidates in states that Democrats must generally win to carry national elections.

Since the decline is clearly national, it can't be just bad local candidates. So what is it? The national economy is clearly one drag on the party that controls the White House and both houses of Congress. But it has also been exacerbated by the fiscal policies of that same party and by the unpopular health care legislation. Maybe that's enough to explain it. But I think there is something else.

Bob Herbert, whose loathing of Republicans would win a gold medal if that were an Olympic event, thinks the problem is "Obama's credibility gap." From the New York Times:

Mr. Obama may be personally very appealing, but he has positioned himself all over the political map: the anti-Iraq war candidate who escalated the war in Afghanistan; the opponent of health insurance mandates who made a mandate to buy insurance the centerpiece of his plan; the president who stocked his administration with Wall Street insiders and went to the mat for the banks and big corporations, but who is now trying to present himself as a born-again populist.

Mr. Obama is in danger of being perceived as someone whose rhetoric, however skillful, cannot always be trusted. He is creating a credibility gap for himself, and if it widens much more he won't be able to close it.

The only thing in that passage that is questionable is the word "always" in the penultimate sentence. The President has, as I have said before, made promises promiscuous without bothering to wonder if he could keep them. On one important issue after another, he has blithely ignored his own word.

The economy is one thing dragging the Democrats down, but it would do to remember that, in 1994, the economy was in robust recovery. Bill Clinton was nonetheless so unpopular that the Republicans captured both houses. Then, as now, a deeply unpopular health care adventure tarred all Democrats.

Slick Willey came back, in part because he was slick. He may have been unscrupulous and empty of any real principles, but he was a consummate political actor. He could play any role the script required. Obama may be just as empty, but without the ability to appear as anything other than Obama. If Americans have lost faith in his leadership, it is difficult to see how he fixes that.

Money & Speech (Citizens United v. FEC)

I argue below that corporations are in fact legal persons. They were recognized as such, with rights of contract, as early as 1819, in Trustees of Dartmouth College v Woodward. If the Court had gone the other way, New Hampshire would have been able to take over Dartmouth College. Imagine George W. taking over Harvard, and you might get the substance of the case. The question, then, is not whether corporations are persons, but what rights of persons they have. The Court thinks free speech is among the rights that corporate bodies have, and I agree.

A second issue in the discussion of Citizens United v. FEC is whether freedom of speech entails the right to spend money in order to exercise that right. Critics of the decision have loudly declared that money isn't speech. Of course this is quite correct. Money isn't speech, and spending is talking. That doesn't mean that limitations on spending cannot be used by government as effective means of abridging freedom of speech. Eugene Volokh makes this point in a recent post:

[A]s I wrote a few years ago, money isn't abortion, either. Nonetheless, a law that banned the spending of money on abortion would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.

Yes. Money isn't religion either. But a law that forbade persons from spending money to build a temple, printing religious literature, or paying the travel expenses for evangelists would surely infringe on the free exercise of religion.

Here, the two questions before us resolve into one. Spending money is a necessary means to exercising certain basic rights. If I wish to express my political opinions in a letter to an editor I may have to buy pen and paper, or perhaps contract with an internet provider. Limitations on my power to spend might easily chill my freedom of speech.

Likewise, forming corporations is one of the means natural persons (individuals) use to express their political opinions and advocate their positions. The National Abortion Rights Action League, and National Right to Life are much more powerful vehicles for advocacy and for petitioning the government than all but the most wealthy individuals would have access to. Limiting corporations and the right of corporations to spend on advocacy clearly can limit individual speech.

Corporate Personhood

My friend and esteemed Keloland colleague, Cory Heidelberger, weighed in on corporate personhood on the Keloland blog. I think that Cory is confused about the case and more importantly about the issue. He writes this:

A corporation is not a person. The law and a majority of the current Supreme Court say it is, but they are wrong. As Justice John Paul Stevens said from the bench in dissent yesterday, "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

Well, maybe not; but corporations can act and be held legally responsible for their actions. If Cory is correct, then corporations could not be sued in Court. That is what legal personhood means: the name of a corporate body can appear on one side of the v. in a case name. If the law says a corporation is a legal person then, by definition, it is that kind of person.

Without legal personhood, Planned Parenthood could not have taken a position v. Casey; nor could the Church of Lukumi Babalu Aye have sued the city of Hialeah when the latter tried to legislate it out of the city limits. Neither abortion rights organizations nor churches have beliefs, feelings or desires. Moreover, corporations could have no legal rights, so the Government could step in at will and seize the Sierra Club's treasury and any property it collectively owns. Or, to put it slightly different, the Sierra Club could not own property. I doubt that Cory is really committed to any of these consequences of his declaration.

Cory says:

While I read the Supreme Court's ruling in Citizens United v. Federal Election Commission allowing corporations to donate to political campaigns…

I confess that I haven't read all 183 pages of the decision yet, but I am pretty sure this is wrong. Corporations can be restricted from donating to political campaign organizations under this ruling. But the Government cannot prevent a corporation from acting independently to buy time on TV or space in print to express an opinion about an election.

Cory goes on to accept corporate personhood, arguendo, and then he presents us with this scenario:

Suppose I, a person, amass a vast sum of money (through hard work and wise investing). I run for state senate against Russ Olson. Two weeks before the election, I offer the Madison Daily Leader, KJAM, and every other media outlet that reaches our district four times their going rate to buy every available ad space.

I think this fails as a counterpoint, since many people with vast sums of money do run for office. John Kerry did so. So did Governor Corzine in New Jersey. We see how that worked out.

But my friend's arguendo demolishes his point. If a real person like Cory could present this kind of threat to the political system, then personhood obviously isn't the issue. The issue is what freedoms persons, corporate or individual, ought to have and, as Cory's title has it, what constraints government can put on those freedoms.

I know of no one who thinks that corporate persons have all the rights under the Constitution that individual persons have. I am not sure how Chuck E. Cheese could enjoy freedom of religion, or how Victoria's Secret, without a physical body, could enjoy the freedom of assembly. But I do think that the ACLU and the NRA have the right to take positions on issues and to buy media space to advocate those positions. If they have it, so does Merck, Inc. Barring Cory's imaginary scenario, I don't think Government has the legitimate power to prevent us from hearing what these corporate bodies have to say.

For Free Speech & Against Incumbent Protection

It has been a tremendously good week for Conservatives. Scott Brown's election was, of course, the most delicious news. But it was also the week that the U.S. Supreme Court announced its opinion in Citizens United v. Federal Election Commission. More on that in a minute. If those two items weren't enough, Air America, an attempt to establish a left wing talk radio presence, filed for bankruptcy.

Here is a summary of Citizens United v. FEC, from The Volokh Conspiracy:

The Court held 5–4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8–1 (Thomas dissenting). Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech.

According to Justice Kennedy, the Court is re-embracing the principle that a speaker's corporate identity is not a sufficient basis for suppressing political speech, as held in pre–Austin cases. It would appear this holding applies equally to unions. While disclosure requirements may also burden political speech, Justice Kennedy explained, such requirements may be justified by the government's interest in ensuring that the electorate has information about spending on elections and campaigns, and the specific disclosure requirements at issue are constitutional as-applied to Citizens United.

I certainly haven't had time to read the gargantuan set of opinions (183 pages!), so I am depending here on the summaries. Here is the most commonly cited passage from Kennedy's majority opinion:

When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.

That seems to me the right way to go. The Court ought to take a very suspicious view of any limitations on political speech by any speaker, whether that speaker is Ralph Nader or The Sierra Club. This is because it not only limits the speaker, but also prevents the public from hearing what the speaker has to say.

There are two key issues here. One is corporate personhood. Some on the left reject the doctrine that corporations are persons with rights and privileges. Here I quote my favorite political scientist:

Corporate personhood just means that a corporation can be considered as a legal person in court, and that it can bear liabilities and obligations, as well rights and privileges. It has been part of western law for centuries, and for very good reasons. Corporations emerge when individuals pool their resources and talents and act as a body. Treating those corporate bodies as legal individuals is the only way that governments can effectively regulate them. But if you are going to expect corporate bodies to pay debts and accept responsibility for their acts (oil spills come to mind), you have to grant them a corresponding set of legal rights.

The second issue is what personhood rights corporations have. Obviously corporate bodies do not enjoy the same rights as individual citizens. Corporations do not get to vote. But as corporations can act so they can speak or publish their collective opinions. As the court says, to limit their speech is to limit what the public gets to read and hear.

That is the real meaning of the regulations that the Court overturned. The McCain-Feingold Act limited corporate-funded political ads in the days immediately before an election. That amounts to an incumbent protection plan. Incumbents nearly always enjoy an advantage in campaign money. Allowing corporations to directly fund political ads in the final stretch, independently of campaign organizations, reduces that advantage.

The Court upheld disclosure requirements, as it should have. Making sure that people know who is funding an ad gives the voters more information. The Court got it right.

Dead Plan Walking

ObamaCare is still twitching on the table, leaving some doubt about whether the patient could still be revived. There were three basic routes to a bill. One was for the Senate and House Democrats to promise a compromise bill. That was what they were working on before Tuesday, but such a bill cannot now pass the Senate. A second was for the House to pass the existing Senate bill word for word. That strikes me as the only viable option at this point, but Speaker Pelosi made it reasonably clear that she doesn't have the votes. The third way is to pass the Senate bill and then amend it through the reconciliation process, which would only require 51 votes. It is not clear that this could be done without abusing the reconciliation process, which is supposed to apply only to parts of a bill that result in a change of outlays or taxes.

A conservative site, NRO's Corner, says that the Democrats are serious about the latter option. John Marshall at a liberal site, TPM, has this:

My strongest sense however is not so much that decisions have been made to drop reform as that it's something like a matter of survivors walking around -- half dazed -- after some sort of natural disaster. There is no plan.

Maybe the Democrats will firm up for a final push, but a fuller account at the Politico makes that seem unlikely.

For the first time in the yearlong push, Democratic aides — and even some members — finally acknowledged privately that the fear of failure was real. And Congress recessed for the weekend without an obvious path forward as rank-and-file Democrats started splintering in different directions.

Democrats struggled all year to maintain a coalition in support of health care reform without any GOP votes. Republican Scott Brown's improbable win in Massachusetts on Tuesday now looks like it has the potential to end that almost-impossible balancing act.

It's easy to forget that the House version of the bill passed with a much narrower margin 220 (only two more votes than a bare majority) than the Senate bill. It was generally assumed that Pelosi had more votes than she needed, but allowed a lot of wary Democrats to vote against it. That may no longer be true after Tuesday's election in Massachusetts.

To see why, consider this illustration from the Boston Globe:

In U.S. House districts 2, 3, 4, 5, 9 and 10, most of the precincts were carried by Scott Brown. Now these are all Democrats reelected by strong majorities in 2008, as the chart shows. But it was enough to scare Barney Frank into throwing doubt on the legislation.

Every Democrat who has reason to fear for his or her seat, and even some that probably don't, have to wonder whether they can survive voting for any version of the Senate bill. That would be especially true if the process looks like it involves any more shenanigans.

The fat lady ain't started singing yet, but she is sure as Hell on stage and everyone is looking in her direction.

Heath Care Reform Collapses

I expected it after Tuesday, but not this quick. From the Wall Street Journal Online

WASHINGTON—House Speaker Nancy Pelosi (D., Calif.) told reporters Thursday that the House is unlikely to pass Senate health-care legislation without changes, but appeared to leave open the door for passing the bill with some modifications.

Ms. Pelosi said at her weekly press conference that "in its present form, without any change, I don't think it's possible to pass the Senate bill in the House."

Pelosi's language is equivocal, but I just don't see the Democrats have any avenue left.

Scott Brown’s Boston Tea Party

Republican Scott Brown won the Massachusetts special election over Martha Coakley fifty-two to forty-seven percent. I never expected to be typing those words six months ago. But file this one under "hoist with one's own petard." The reason that a special election took place today is Massachusetts Democrats changed the rules for filling a vacant U.S. seat back when John Kerry ran for President.

Back then, the Governor got to appoint a replacement to serve until the next regular election. But Mitt Romney was governor, and if Kerry won the Democrats didn't want Romney to be able to appoint a Republican replacement. So they changed the selection mechanism to a special election.

The result of those shenanigans is that the majority caucus in the Senate has now lost their 60^th vote. It sort of makes you believe in cosmic justice.

The election of Scott Brown is a major catastrophe for the Democrats. It is a close to a direct rebuke for the President, his party, and his policies, as could happen apart from a Presidential election. Brown kept it simple and focused mostly on his promise to be the 41^st vote to block the health care bills. He didn't limit his campaign to that issue. From Michael Barone's blog:

Scott Brown's victory was not just a rejection of Democrats' health care plans. Brown also stoutly opposed the Democrats' cap-and-trade legislation to reduce carbon emissions. He spoke out strongly for trying terrorists like the Christmas bomber in military tribunals, not in the civil court system where lawyers would advise them to quit talking. He talked about cutting taxes rather than raising them as Democrats are preparing to do.

Brown's victory represents a rejection of Obama administration policies that were a departure from those of the Bush administration. In contrast, on Afghanistan, where Obama is stepping up the fight, Brown backed Obama while his hapless left-wing opponent Martha Coakley was forced (her word) to oppose it to win dovish votes in the Democratic primary.

It strikes me as entertaining and perhaps enlightening that President Obama kept running against George W. for the entire first year of his Presidency and now the only part of his agenda that has not been rejected by the voters is the part that is just what Dubya would have done.

Massachusetts is the microcosm, and the health care legislation is the macrocosm, each serving as the stage for the Democrat's tragic flaw. They are contemptuous of public opinion. When Massachusetts voters reject gay marriage, the legislature overrules them. When it becomes clear that the health care legislation has aroused vehement opposition among the majority of voters nation-wide, Congressional Democrats try to push it through anyway. After all, they know better.

Massachusetts Update: Brown Comfortably Ahead

Two more polls came out this morning, both showing a lead for Scott Brown. The PJM poll actually had Brown's lead decrease by 5 points to a 10 point spread, but nobody believed Brown was 15 points ahead. PPP, a firm affiliated with the Democratic Party, shows Brown ahead by 5. That's sort of the kicker. Here is the Rothenberg Report:

While special elections often come down to turnout – and they therefore are more difficult to predict than normal elections – the combination of public and private survey research and anecdotal information now strongly suggests that Republican Scott Brown will defeat Democrat Martha Coakley in tomorrow's race to fill the remainder of the late-Sen. Edward Kennedy's seat.

Brown is running extremely well with Independents in the Bay State, and unless Democratic turnout exceeds everyone's expectations, Brown is headed for a comfortable win.

Could anything reverse this trend? Of course. But it isn't easy to see what it is. To be sure, the Democrats and their independent allies are spending money like drunken Congressmen. From the Washington Post:

Just how big are the stakes in the Massachusetts Senate race? Independent and party groups were set to spend nearly $5 million on television ads in the final weeks leading up to Tuesday's special election between state Attorney General Martha Coakley (D) and state Sen. Scott Brown (R).

According to ad-buy information provided to the Fix, there are 13 -- yes, 13 -- groups paying for ads in the race's final days, with Democratic groups outspending Republican-aligned by more than $1 million.

But this kind of spending is effective only when people haven't made up their minds. It might be too late for that in Massachusetts.

Up, Up in the Air

I have seen a couple of mainstream movies this week. Up, a Pixar robocartoon, and Up in the Air, an odd romance starring George Clooney, Vera Farmiga, and Anna Kendrick.

I had serious reservations about Up, owing to the fact that I am allergic to animated, talking animal movies. My idea of Hell is eternity in a theater showing nothing but animated penguins performing Chorus Line. But I like the idea of flying around in a house with balloons attached, so I sat down to watch it when the Netflix DVD arrived.

As it turned out, my instincts were sound. Up wasn't all bad, except as cinema. It began with a very touching story of a friendship that became a life-long marriage. I like that sort of thing. And I can suspend disbelief enough to ignore a house held aloft by helium drifting somehow steadily south to Angel Falls in Venezuela. But when the talking dogs flying biplanes showed up, I briefly wished that I was in Venezuela. Go see Up only if you like watching an unusually animated Ed Asner and an overweight boy scout towing a floating house, pursued by dogs with squeaky voices.

Up in the Air, by contrast, was a very well made film. I have reservations about George Clooney, but I can't deny that he is an excellent actor. Clooney plays Ryan Bingham, a man whose life consists of hotels, airports, and his job, which is firing people. I travel by air frequently enough that I can easily imagine all but the last part. He is good at his job, and he likes the airborne life precisely because it is so tenuously attached to life on the ground. He has all the magic cards that get him quickly through each gate and into each VIP club.

Bingham is a man who is happy being shallow, with no other purpose in life than to reach a magic number of frequent flyer miles. Of course he encounters someone who punctures his comfortably self-maintained cabin pressure, just at the moment when a family crisis forces him to confront a situation for which he has no script. I won't spoil anything here except to mention that Vera Farmiga's Alex Goran is deliciously sexy.

Up in the Air does something that mainstream movies only rarely do. For the most part, you have to read to get a realistic and well-marbled bite of a different life. I don't know if there anyone flies around giving unfortunate folks their walking papers, but I am sure there are people who spend most of their lives between airports and card-keyed hotel room doors. I like that taste of a different life. Up in the Air has it. I give it a thumbs up.

Faith in Massachusetts 2

 

The Massachusetts special election to fill the seat vacated by Ted Kennedy is surely the most exciting thing right now. Here are some of the reasons for its importance:

First, a Scott Brown victory would deprive the Democrats of a filibuster-proof 60 votes. That would either kill healthcare reform this year, or force the Democrats to pass it under very constrained rules.

Second, it would confirm what was suggested by the Virginia and New Jersey gubernatorial elections: a strongly anti-Democratic bias across the national electorate. It would no longer be possible to argue that the former were merely local phenomena.

Third, it would confirm what all the polls are telling us: that the electorate is robustly opposed to the Obama/Pelosi/Reid healthcare bills. Scott Brown has made this his key issue, and if it can't win in Massachusetts…

Fourth, it would send the message that support for the healthcare bills, and perhaps support for the President's domestic agenda in general, might be fatal come next November.

What if Coakley manages to win? Republicans are arguing that a narrow Coakley victory would be almost as bad for the Democrats, but I say it would be at worst half as bad. The Democrats can pass their healthcare bill and argue that it was affirmed in the only real electoral test. Items three and four would still be in play. By contrast, a strong Coakley finish would put some much needed starch in the Democratic shirt.

Right now a Brown victory looks likely. Brown is ahead in the latest three polls, and in five of the last seven. Of the last five, the Pajamas Media poll, showing Brown 15 points ahead, does not look credible, and it's difficult to judge the InsideMedford poll, showing Brown more than nine points ahead. But the American Research Group and Suffolk polls are serious, and show a three to four point lead for Brown.

Brown has been gaining yards over the last three months like he thinks he's Brett Favre. The Suffolk poll had Coakley ahead by 31 points in November. It had Brown four points ahead a week ago. Since Coakley is well known and has strong support among the state's political establishment, and Brown was all but unknown a few months ago, their situation is analogous to that of an incumbent versus a challenger. In such cases, the incumbent should be well ahead. If the challenger is ahead, the incumbent is going to lose.

I don't know who is going to win, but I do know that the Democrats think the situation is desperate. Here is the Washington Post (Paul Kane and Karl Vick) take on Obama's appearance in support of Coakley:

BOSTON -- President Obama made a last-ditch effort Sunday to resurrect the candidacy of a struggling Democrat who could provide him a critical Senate vote, returning to the city that launched him onto the national stage in 2004, this time to preserve his ambitious agenda…

Obama, whose 2004 address to the Democratic convention here set him on an arc to winning the presidency, said his entire domestic agenda -- from financial regulatory reform to climate change legislation -- would be at risk with a Brown win.

"A lot of these measures are going to rest on one vote in the United States Senate," he said. The roughly 30-minute speech was heavy on partisan rhetoric, without much appeal to the independent voters who account for nearly half the state's electorate.

If Kane and Vick are right in their reading of the President's campaign speech, the Democrats have given up the independent vote and are focusing their efforts on turning out every last Democrat. That suggests a hope only for a very narrow victory.

This is better than the Viking's game. To be sure, I am enjoying this most because I think my team is poised to win. But I am also a fan of the Republic, and this is how republican government is done.

Have Faith in Massachusetts

That was the title of Calvin Coolidge's book, which many conservatives profess to admire. Most of them haven't read it. I certainly haven't, though I do admire the fact that Coolidge could read ancient Greek.

Now I wonder whether I should read the book after all. On Tuesday, Massachusetts will hold a special election to replace the late Senator Ted Kennedy. The reason a special election is in order is that the Massachusetts state legislature changed the rules for replacing a senator years ago, to keep a Republican Governor from putting a member of his own party in if John Kerry was elected President. That sleazy maneuver may have been a very big mistake.

Recent polls are all over the place, but some of them put Republican Scott Brown ahead of Democrat Martha Coakley. What is clear is that Brown has been steadily gaining ground. This in itself is a crisis for the Democrats. They have to spend millions and put the prestige of the President on the line to try and save Coakley. If Brown comes near to winning, that will send a massive tremor through the electoral landscape.

But what if Brown wins? That will mean that almost no Democratic seat is safe, and that the Democratic base has all but disappeared. It will also present a new problem in the struggle for health care reform. A Republican win in Massachusetts would deprive the Senate Democrats of their 60^th vote. That would mean that they can only pass a health care bill by some kind of procedural shenanigan. They may very well do so, but they do so in the face of public opposition that is robustly manifest in the polls and in recent elections. Republican voters are as aroused as ever we have seen them. Independents are leaning so strongly Republican that one does not know how to interpret the data. What happens if the opposition feels like it has been cheated?

Democrats are already preparing their spin in case of a loss, which is what I would do if I were them. They are saying that Martha Coakley was another Creigh Deeds. Deeds lost the Virginia governor's race, it is said, because he ran a lousy campaign. Indeed Deeds did. But he was also swimming against a Republican wave, and it is hard to swim gracefully in the face of that.

Martha Coakley ran a much worse campaign. She assumed that the seat was hers, and was missing in action for much of the five week campaign. She took a six day vacation. She skipped debates. Meanwhile, Scott Brown was everywhere, shaking hands and getting to know the voters. Both Coakley and Brown are handsome. But Brown is smart, while Coakley has the distinct disadvantage of being stupid. When finally forced to show up for a debate, she revealed herself to be clueless about the issues. In one comment, she managed to insult both the institution of hockey and Fenway Park.

So is Coakley in trouble only because she is running a dreadful campaign? When one party consistently fields bad candidates, like Deeds and Coakley, that is a problem with the party, not the candidates. But the real problem is the Democrat's agenda. The majority of Americans place the national economy well ahead of health care as their major concern. The Democrats have spent the last year obsessed with the latter rather than the former. Worse still, most Americans, including most independents in Massachusetts, are opposed to the health care legislation that the Democrats have been pushing. If it weren't for that, Martha Coakley would be in fine shape no matter how incompetent she is.

Welcome to democracy. Ain't it grand?

Arkansas Senator won't seek reelection

On January 5th, Chris Cillizza of the Washington Post, said the following:

This month will be critical in determining what direction the open-seat landscape is headed. Will a series of Democratic lawmakers -- fresh from conversations with their families and nervous about the political environment -- decide to step aside? (Keep an eye on such congressmen as Leonard L. Boswell of Iowa and Vic Snyder of Arkansas for an early indication of which way the wind is blowing.) And would those departures prompt even more lawmakers to consider leaving on their own terms?

If that happens, an election cycle that looked like a traditional midterm round for Democrats, with losses in the 20-seat range, could become one in which control of the House is up for grabs. 

Cillizza's guess that Snyder might suddenly find family more important than politics has proven true.

Snyder, deciding to spend time with his wife, three-year-old son and one-year-old triplets, has decided not to seek re-election. Cilizza also points out that more Republicans than Democrats are retiring. This is true, but the Democrats are quickly catching up.

Another Dirty Healthcare Deal

Maybe the Democrats will not succeed in discrediting their party beyond any hope of repair while they work their health care magic. But no one can say that they didn't try.

Early on the Obama Administration cut deals with the pharmaceutical industry, protecting it against any shock from health care reform. Congressional Democrats made sure that tort lawyers would continue to feed at the health care trough, made sure that medical insurance companies couldn't threaten state monopolies on regulation, and cut Doctors fees from Medicare with one hand while restoring them with another. Oh, and they bought Nebraska Senator Nelson's vote by securing special protection for his state from the costs of health care reform. As his own poll rating plummet, Senator Nelson is now saying he was trying to secure the same protections for all the other states.

They aren't finished yet. The President has made another sweet deal. From the Politico:

The White House on Thursday cut a deal with its closest labor allies to blunt the impact of a new tax on high-cost insurance policies — and blunt their protests against the health reform plan.

Democrats couldn't eliminate the tax on union members' high-cost insurance policies altogether but did put off the effective date until 2018, but only for labor agreements and state and local government workers.

And that seems sure to open up Democrats to charges that it took yet another behind-closed-doors bargaining session with a powerful interest group to close the deal on health reform.

So the labor unions and state and local government workers join the long list of special interests protected against the costs of health care reform.

All this, of course, makes merry with the idea that the reform bills will control the costs of health care in these United States. Congress is always great at spending money, and really, really lousy at controlling costs. Nothing new here.

But I can't help wondering what most Americans will think of all this. Most Americans are not employed by the government. Most Americans are not doctors or lawyers, and most do not have a union card. Most Americans, I suspect, do not live in Nebraska. What will the most of us think when the enormous bill comes due and we realize how many special people were shielded from the cost? Just asking.

Ritter Arrested

December looks like a bad month in which to be named William Ritter. Governor Bill Ritter’s decision not to seek re-election has caused quite a buzz. Now, William Scott Ritter is making headlines as well. He has been arrested in what USA Today is calling an “online child-sex sting.” USA Today reports that this is the third time Ritter has been accused of trying to solicit underage girls, but Ritter previously claimed that the accusations were a result of his criticism of Bush’s handling of Iraq. That excuse may not work so well this time. But whether Ritter is innocent or guilty, the story is astonishing. Here is why:

In 2002, Ritter told Time Magazine that the FBI was harassing him. Indeed, he said the following:

I've been called a spy of Israel since 1996, and since I made my documentary film in 2000 the FBI has investigated me as an agent of Iraq. The FBI has also opened up an investigation into my wife calling her a KGB spy. So there is this form of harassment taking place.

If Ritter is guilty, it means one of two things. One is that he solicited sex from minors while knowing that the FBI was investigating him. The other is that he solicited sex from minors, believing that the FBI had no interest in him. This would make his statements to Time a little bit suspect – unless, of course, he assumed that under a new administration, the FBI would just stop investigating those that previous administrations believed were spies. But it is hard to imagine that a UN weapons inspector could be so naive.

If Ritter is innocent, the story is equally interesting. It would seem to lend evidence to the idea that someone actually is trying to set Ritter up. This would be a political scandal equivalent to Plamegate. Because the UN’s record with child-sex is not pretty, because this is the third time Ritter has been accused of such conduct, and because I am admittedly politically biased, I am inclined to believe he is guilty. It would be nice if he were not.

Gary Hart Demonizes Dissent

My esteemed Keloland colleague and NSU colleague emeritus, David Newquist, draws our attention to a Huffington Post by Senator Gary Hart. I agree with Professor Newquist on this much: Hart's post is worth a read.

Hart complains that a lot of elected officials are resigning because "it just isn't fun anymore." He concedes that fun isn't exactly the point, but goes on:

[H]aving held office in the 1970s and 1980s, I can testify to the fact that politics used to be more civilized, more collegial, and more, well, enjoyable. It certainly was more honorable.

He has a point, though it is a historically narrow one. Public culture today is more course than it was a few decades ago, and political culture has followed suit. But for most of our nation's history, politics was a much rougher game than it is today.

He has a better point here:

For the tea-baggers and government-haters, this [decline in public discourse] is all to the good. They claim to love our country even while hating its government. So, the worse the government performance, the more it proves their point. And the less thoughtful, intelligent, and wise the elected officials, the worse the government.

That's a fair criticism, even it goes a step too far. It is one thing to dislike or even hate the people in office and another to hate the Constitution. To confuse the two, as Hart does here, is to question the patriotism of dissenters. But he is surely right that someone who is distrustful of government may be gratified to have his or her opinions confirmed by the worst elected officials. That is a problem with dissent in particular and pessimism in general.

Consider, however, Hart's own use of the term "tea-bagger" to describe the Tea Party activists. Is Hart aware of the sexual innuendo in the term? From Wikipedia:

Teabagging is a slang term for the act of a man placing his scrotum in the mouth or on or around the face (including the top of the head) of another person, often in a repeated in-and-out motion as in irrumatio. The practice resembles dipping a tea bag into a cup of tea.

If you are going to complain about a decline in civility, maybe it were best not to use a sexually derogatory term to describe the people you are criticizing. But Hart is just warming up:

The cynics and trolls who scream like banshees at town hall meetings and scan the blogosphere to post cynical put-downs of their country's government are hurting no one but themselves. Not one of these people has the courage to stand for public office.

"Cynics" is fair enough. But trolls and banshees? Is this what Hart means by "civilized" and "congenial" and "honorable" politics? Is this kind of language likely to encourage "thoughtful, intelligent, and wise" people to enter government if they happen to disagree with Senator Hart on the issues? I'm guessing he wouldn't use such terms to describe the women in the illustration above.  Hart is not opposed to uncivil discourse; he practices it. He is only opposed to it when it comes from the other side.

He is also careless with the truth to the point of telling a lie. Consider the last line in that last passage. Richard Behney is a Tea Party activist running for Senate in Indiana. Adam Kinzinger is running with Tea Party backing for the 11th Congressional District of Illinois. I am guessing that the Tea Party movement will field a lot of candidates, and support those who seem to share their concerns. That's how politics is supposed to work.

Gary Hart claims to be defending civility. What he really wants is to demonize dissent.

Pine Ridge

My friend and esteemed Keloland colleague, Cory Heidelberger, alerts us to an article we ought to notice in the British Guardian. The article is about the Pine Ridge Reservation, and it is dispiriting reading.

The [Oglala Sioux] tribe's president, Theresa Two Bulls, is on air lamenting the death of a schoolboy, Joshua Kills Enemy, who hanged himself the day before. His funeral will be the second of the week, coming days after a 14-year-old girl took her own life in the same way. They are not the first…

Two days later, Two Bulls declares a "suicide state of emergency" in response to the deaths of the children and a spate of attempts by others to kill themselves, such as Delia Big Boy, who was 15 when she put a rope around her neck and came close to taking her own life. "It had a lot to do with my parents and alcohol abuse and what they say to you. The things they say make you think they don't love you," says the high school student, who is now 17. "I hear the same thing from my friends. There's a sense of hopelessness on the reservation. There's just not a sense of belonging. There's not a sense of a future.

It's more than a little embarrassing when it takes a left wing British magazine to tell South Dakotans what is happening within the borders of the Rushmore State.

Cory does us service by pointing out that, of all the persons running for South Dakota's lone House seat or the State House, he can find only a couple who have anything about Native American issues on their websites.

I would add a couple of observations. One is that non-Native Americans, and especially conservatives, are not allowed to have opinions about Native American affairs. If we say anything about Native American issues with which enrolled members of the tribes or Democrats in general disagree, we are told that "we just don't get it." It doesn't take much of that to discourage more than half of the residents of this state to keep quiet about the reservations.

I also note that, in that long Guardian article, full of indictments and innuendo directed toward the state and federal governments, there is scarcely a hint of what to do about the problems on the reservations. Consider this passage:

Conditions on the reservation are tough. More than 80% unemployment. A desperate shortage of housing – on average, more than 15 people live in each home and others get by in cars and trailers. More than one-third of homes lacking running water or electricity. An infant mortality rate at three times the US national average. And a dependency on alcohol and a diet so poor that half the population over the age of 40 is diabetic.

More federal funds for housing might solve part of that problem. It is not clear how the State of South Dakota, or the United States can remedy the unemployment problem. Infant mortality is notoriously resistant to policy, and alcohol abuse and diabetes likewise.

It's one thing to blame people for not caring. It's another thing to say what people who do care should do about the problems. Just right now we have a political culture that makes it very dangerous for people to say plainly what they think about sensitive issues. As long as that is the case, it will be difficult to get our politicians to pay attention to Pine Ridge.

Reid, White and Blue

Harry Reid has a knack. From the New York Times:

Senator Harry Reid, the Democratic majority leader, apologized on Saturday for once predicting that Barack Obama could become the country's first black president because he was "light-skinned" and had "no Negro dialect, unless he wanted to have one."

This has just come out of a book on the 2008 election. Reid has publically apologized and has personally apologized to the President, who gracefully accepted it.

How bad a gaff was this? First off, it doesn't look like a major crime. Senator Reid was either right or wrong in thinking that the President's complexion and dialect were assets in the Presidential election. If his comment insulted anyone, that would be the American electorate; but even if he is wrong, a sensible person could surely believe what he said.

On the other hand, it was a stupid thing to say even though he surely believed it is true. A public discussion of racial gradients is far too radioactive for someone of Reid's complexion and competence to engage in.

At worst, Reid's comment was a faux pas; however, Republicans were quick to point out that just such a faux pas ended the leadership of Trent Lott. From Real Clear Politics:

GOP Chairman Michael Steele, in appearances on two Sunday news programs, compared Reid's predicament with the circumstances that led Senate Republican leader Trent Lott to step down from that post in 2002. Lott had spoken favorably of the 1948 segregationist presidential campaign of Strom Thurmond, and in spite of apologies for those remarks at Thurmond's 100th birthday, Lott was forced out as leader.

"There is this standard where the Democrats feel that they can say these things and they can apologize when it comes from the mouths of their own. But if it comes from anyone else, it's racism," said Steele, who is black. "It's either racist or it's not. And it's inappropriate, absolutely."

Well, yes and no. Lott's 2002 comment at Strom Thurmond's 100^th birthday party was almost certainly innocently intended. He just meant to praise Thurmond's conservative record. But he used words that, taken literally, implied an endorsement of Thurmond's 1948 segregationist position. Steele is right that there is a double standard; but Lott's words, had they been genuinely intended, add up to something much worse than Reid's remarks.

It is silly to call for Reid's resignation over this. That's Republican sour grapes. If Reid should resign, it is for the simple reason that he is too badly damaged to be reelected. According to a new poll, 52% of Nevadans have an unfavorable view of him, vs. 33% favorable.

Reid would resign, I suppose, to give some other Democrat a chance of retaining his seat. Except that he can't, as he is in charge of managing the healthcare bill. That is more unfortunate news for the Democrats.

Transparencygate 2

Mickey Kaus, usually the most insightful commentator, is way off the mark on the "transparency question".

Complaints about the Dems failure to televise or otherwise open up the House/Senate health care negotiations seem near-completely hollow (as were Obama's promises during the campaign). Real legislative deals are always most efficiently cut behind closed doors, where the principals can be candid and concession-minded without fear of embarrassment, and where they can't grandstand. ... That's life. It's not like we don't know what the issues are, or that we won't find out how they've been resolved ....If the Dems let C-SPAN cover the negotiations they'd just have to find another room nearby in which to hold the real negotiations first. ...

Kaus is almost certainly right that most of the real deal-making in legislation goes on behind the scenes, and he is right about the reasons.

But that is not the real point. The point is the contradiction between what the Democrats are doing and what the President promised, solemnly, on more than one occasion, on the campaign trail. He said he'd put it on C-SPAN. He isn't living up to his word. Whether you think it's the original promise or the breaking of that promise that is the real sin, the contradiction is the issue.

Kaus misses another vital point. The Dems will still cut the deal behind closed doors even if they schedule a regular conference committee and put it on TV. But in a televised hearing, the Democrats would have to publicly defend a deal before it has been officially made or announced. Afterwards, when the bill is on the floor of each house, it will be too late to make any changes and the Dems will only have to defend the bill as a whole.

UPDATE: Mr. Obama promised on no less than eight occasions to televise the health care debates. 

Obama Transparently Breaks His Promise

It is clear that our President is promiscuous. No, not in the sense that Bill Clinton was promiscuous. Rather, the President promiscuously promises things that he cannot or has no intention of delivering.

He has gotten away with this largely because the Press has not been interested in the issue. But on one recent issue that has changed. From CBS:

President Obama wants the final negotiations on health care reform - a reconciliation of the House and Senate versions of the bill - put on a fast track, even if that means breaking an explicit campaign promise.

"The House and Senate plan to put together the final health care reform bill behind closed doors according to an agreement by top Democrats," House Speaker Nanci Pelosi said today at the White House.

The White House is on board with that, too, reports CBS News political correspondent Chip Reid. Press Secretary Robert Gibbs stressed today that "the president wants to get a bill to his desk as quickly as possible."

During the campaign, though, candidate Obama regularly promised something different - to broadcast all such negotiations on C-SPAN, putting the entire process of pounding out health care reform out in the open.

Like other promises, that you would be able to keep your health care plan, that the health care bills will not add one dime to the deficit, this isn't worth a dime. But this time the President is more or less breaking a promise to the Press. That may not have been wise.

In all fairness to the President, I think he made this promise without thinking it through. It is not practical for all deal making to be made in the open. But he did make the promise, and by breaking it he proves that his word means nothing. But we knew that already.

News from the East: Dodd Drops Out

From the Washington Post:

Embattled Connecticut Sen. Chris Dodd (D) has scheduled a press conference at his home in Connecticut Wednesday at which he is expected to announce he will not seek re-election, according to sources familiar with his plans.

Dodd's retirement comes after months of speculation about his political future, and amid faltering polling numbers and a growing sense among the Democratic establishment that he could not win a sixth term. It also comes less than 24 hours after Sen. Byron Dorgan (D-N.D.) announced he would not seek re-election.

This is actually good news for Democrats, which leaves you to imagine what bad news for them would look like. Dodd was toast. The only chance the Democrats had to hold onto that seat was for Dodd to move out of the way.

News from the North: Dorgan Drops Out

Senator Byron Dorgan of North Dakota is retiring at the end of this term. From an ABC News, The Note:

Sen. Byron Dorgan, D-ND, will have served 18 years in the Senate and 12 in the House of Representatives when he steps down at the end of his current term.

This would have been a tough seat for Democrats to defend even with Dorgan on the ballot and is perhaps a boon to Republicans looking to eat into Democrats' majorities in 2010.

I hadn't guessed that Dorgan might be in trouble. He may be retiring for personal reasons, as he says. But that's what everyone says, and right now a lot of Democrats are finding personal reasons not to run. Here is what the Bismarck Tribune has to say:

Dorgan's decision stunned members of his party, who control the Senate but are facing spirited challenges from Republicans in several states. Democrats were confident heading into the new year that Dorgan would run for re-election even as rumors intensified that Republican Gov. John Hoeven would challenge him in November.

Early polling showed Dorgan trailing Hoeven in a hypothetical contest, and Democrats expected a competitive race if the matchup materialized.

This is the same pattern evident in South Dakota, where Herseth-Sandlin is polling below 50%. Dorgan was apparently running behind Gov. Hoeven, who hadn't even announced. It looks like Dorgan decided to quit before they fired him.

The ABC Note article has this title: "Democrats Dropping like Flies." It mentions other cases of the same in Colorado and Michigan. The Michigan case is the most interesting of the lot. Lieutenant Governor John Cherry, the most popular Democrat in the race for the State House, is pulling out of the race. He is running well behind the likely Republican nominee.

The Baron of election commentary, Michael Barone, notes the significance of this on his blog:

By all the standard rules, Michigan should be a heavily Democratic state. It voted 57%-41% for Barack Obama in 2008 (the McCain campaign ostentatiously and over the public objections of Sarah Palin took it off the target list in late September) and 56%-42% for Democratic Governor Jennifer Granholm and 57%-41% for Democratic Senator Debbie Stabenow in 2006. It was a target state in 2000 and 2004, but was carried 51%-46% by Al Gore and 51%-48% by John Kerry.

The standard rule is that voters move toward Democrats in time of recession, but that doesn't seem to be happening in the state with the nation's highest unemployment (14.7% in November). Granholm has a dismal job rating, and now Cherry is dropping out of the race to succeed her. Reportedly he has had trouble raising money, which is pretty astonishing considering that he has had a long career in Michigan politics and has been a stalwart supporter of labor unions.

This suggests a collapse in the Democratic base states. Even if the economy recovers more than expected, and the Democrat's standing with it, they will be in a poor position to defend a lot of previously safe territory. That will leave fewer resources to defend weaker seats, let alone challenge weak Republicans.

Whither the Republic

We are ten months away from the midterm elections. Just right now, things look very bad for Democrats.

A lot could happen in ten months that would result in a shift in public opinion. The happiest and most obvious thing would be a surge in economic growth, coupled with dramatic job growth. Daniel Gross in Slate is predicting the former. That's a very smart thing for him to do, as he might be right and with everyone else saying the opposite he will look very smart. If he is not right, no one will pay much attention.

His argument is based on good basic economic theory: with all the cutting back, sooner or later demand will rebound somewhere and when it does the effect will ripple through the economy. But that assumes that other factors, like a ballooning national debt, will not absorb any such ripples. I am guessing we will see some recovery, but it will be ambiguous or anemic.

Even if the economy does recover, a little or a lot, job growth tends to lag behind recoveries. Consider this AP report from the New York Times:

At best, it could take until the middle of the decade for the nation to generate enough jobs to drive down the unemployment rate to a normal 5 or 6 percent and keep it there. At worst, that won't happen until much later -- perhaps not until the next decade.

It seems unlikely that the economy will save the Democrats.

A less happy possibility would be some foreign crisis that causes Americans to rally around the President. George Bush experienced a powerful, if temporary revival after 9/11, and President Obama might enjoy the same in the right circumstances.

Or not. It isn't certain that the President would benefit from a crisis. With terrorism much on our minds, his leadership so far is not inspiring confidence. A new terrorist attack or foreign policy crisis abroad might well be seen as evidence of his failure. See Jimmy Carter.

Republicans are very cheery about their prospects, but they had better do some hard thinking right now about what is happening. David Brooks, who makes a living being thoughtful, has a thoughtful column in the New York Times.

The United States opens this decade in a sour mood. First, Americans are anxious about the future. Sixty-one percent of Americans believe the country is in decline, according to the latest NBC News/Wall Street Journal survey…

Second, Americans have lost faith in their institutions. During the great moments of social reform, at least 60 percent of Americans trusted government to do the right thing most of the time. Now, only a quarter have that kind of trust.

The country is evenly divided about President Obama, but state governments are in disrepute and confidence in Congress is at withering lows…

Third, the new administration has not galvanized a popular majority. In almost every sphere of public opinion, Americans are moving away from the administration, not toward it. The Ipsos/McClatchy organizations have been asking voters which party can do the best job of handling a range of 13 different issues. During the first year of the Obama administration, the Republicans gained ground on all 13.

It's one thing for Americans to lose faith in one of the two major parties. But Brooks argues, persuasively, that there is a general loss of faith in American leadership across the board. If the bankers or the economists, the politicians or the professors, nor let us forget the news media are in favor of something, for that reason it is suspect to a large and expanding group of voters. The question now is whether this anti-establishment sentiment can be absorbed by the current party system, as generally happened in the past.

The Democrats cannot hope to assimilate it, if only for the reason that most of the politicians, almost all of the professors, every reporter or news executive not employed by Fox News, (and more of the bankers and economists than you might imagine) are Democrats. The Democrats are, in almost every realm of American culture, the establishment party. The current health reform project, pushed in opposition to public opinion, seals the case.

But the Republicans face a daunting task. The most visible expression of public disaffection is the Tea Party movement. As Brooks points out, it has more passion than any other movement right now and it is polling better than either of the two major parties. But the Tea Party people are united only by what they oppose. Can the Republicans give them something to be for?

Think back on the recent decades of American history — the way the hippies defined the 1960s; the feminists, the 1970s; the Christian conservatives, the 1980s. American history is often driven by passionate outsiders who force themselves into the center of American life.

In the near term, the tea party tendency will dominate the Republican Party. It could be the ruin of the party, pulling it in an angry direction that suburban voters will not tolerate. But don't underestimate the deep reservoirs of public disgust. If there is a double-dip recession, a long period of stagnation, a fiscal crisis, a terrorist attack or some other major scandal or event, the country could demand total change, creating a vacuum that only the tea party movement and its inheritors would be in a position to fill.

If the Republicans can absorb, moderate, and focus the Tea Party movement, they will inherit the government. If they fail at any three, all of us are in for big trouble. Welcome to 2010.

Welcome 2010

Most of America is already besotted with 2010. This is mostly because 2010 is not 2009, which seems to have generated the sort of hatred normally reserved for the Bush family and Octomom. According to a recent AP-GfK poll, three-fourths of Americans believe 2009 was a bad year, and 42% believe it was "very bad", but a remarkable 82% of Americans are optimistic about 2010. I am generally optimistic, but I do not share the hope of my fellow Americans – at least, not on the political front.

Congress still seems bent on spending money we do not have on projects that it has not thought through. It is still, in essence, trying to pass an exam without bothering to read the material or even, in some cases, to show up for class. I can say from experience that this is a good way to fail. I see very little to indicate that any governmental figure has a plan that will make the lot of the American people any better.

But there is good news. 2010 is set to be an interesting year on the technological front.The gaming world, in particular, is in for some real treats. Game makers are coming up with some brilliant ways of making virtual worlds more real. The most exciting development that I've seen so far is called Natal. It blends the real world and virtual worlds in a way that I had not thought possible. A demo of that can be found here:

Lionhead studios, creators of the popular Fable series, will reportedly, be using Natal to immerse users into the world of Fable III. Playing Fable II is like playing a Lord of the Rings movie. Fable III will almost certainly be even more realistic. With Natal support, it will be like nothing the gaming world has ever seen. It is scheduled to be released this year.

So, while we may be headed for disaster economically, socially and politically, at least we may have some pretty incredible virtual escapes. 2010, I both dread you and welcome you.

Are the Health Care Bills Unconstitutional?

Some conservatives are trying to do to Obama Care what liberals have done with great success over the last century: when you can't win at the polls or on the floor of Congress, try to get what you want from the Courts. It is tempting, as a last ditch effort to stop these appalling pieces of legislation. But it is probably futile as a practical matter, and it's bad politics either way.

Senator Orrin Hatch, Professor J. Kenneth Blackwell, and legal expert Kenneth A. Klukowski make the case in the Wall Street Journal.

President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional…

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate.

To evaluate this argument, we have to back to constitutional basics. The Constitution of the United States creates a limited government. The powers of the three branches of the Federal Government and of the states are circumscribed by that written document. Consider Section 1 of Article 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The two highlighted words make sense only as a scrupulous reminder that the powers of Congress are subject to carefully defined limits. But what are those limits?

There are two basic answers to this question. One is referred to as strict construction. Here "construction" means to construe or interpret the document. According to this doctrine, the government has only the powers that are specifically mentioned in the Constitution or that can be logically inferred from those powers. This is the doctrine that the authors above are relying on.

The second approach is less frequently named but may be called broad construction. It amounts to this: the Government lacks only such powers as the Constitutional specifically prohibits. For example, Congress cannot establish a national church. But apart from those prohibitions, it can do whatever it pleases.

The first doctrine has everything to recommend it except reality and common sense. It has always been, since the founding of the Republic, a doctrine of losers. Those who do not control Congress or the Presidency love it. But as soon as those same persons get control of the same, they suddenly discover the virtues of the second doctrine.

Case in point: Thomas Jefferson was a strict constructionist so long as the Federalists controlled the government. But then he became President and found himself in the position to purchase the vast Louisiana territory, something no where authorized in the founding document. He bought the land.

Largely because the party in power always prefers the second doctrine, that doctrine has always been the governing one. Where in the Constitution is the space program authorized, or the creation of an Air Force for that matter? This has been settled as far as Constitutional Law is concerned since McCulloch v. Maryland in 1819. Congress can pretty much do whatever the Constitution does not strictly forbid.

Requiring individuals to purchase health insurance is indeed a radical step, but just because it is new doesn't mean it is unconstitutional. I cannot see that it violates any constitutional prohibition.

On the other hand, there are institutional limitations on the powers of government. On this point, the authors may have something.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

The prerogative of the states is clearly protected under the Constitution. Congress can get them to do what it wants only by bribing them with federal funds. It cannot order them to do anything. If these bills transgress that limitation, then they transgress the Constitution. But I am not sure that that would badly damaged the health reform legislation.

If these bills are to be defeated or repealed, it will have to be the old fashioned way. Republicans will have to win votes, and move their own bills through Congress.

Keystone Kops @ the Airport 2

My esteemed Keloland colleague and NSU colleague Emeritus, David Newquist, has a thought-provoking post on the Flight 253 alleged, would-be bomber, and the public reaction to the event. Professor Newquist begins with some scathing remarks about "Monday Morning Quarterbacks."

The attempted bombing of the Detroit-bound airliner has produced a classic epidemic of Monday-morning-quarterbacking. And we hasten to point out that the term "Monday Morning Quarterback" is not exactly a compliment. It designates those people whose only sense of consequence is to sit by while other people engage in all the work and action and then bicker and criticize, even though these kibbitzers have never had what it takes to play the game in which they pose as experts.

Well, he has a point; except, of course, that democracy means that the work of experts will necessarily be judged by non-experts. It also means that anyone can say what he or she thinks as soon as he or she thinks it.

Professor Newquist is no exception, and so he blithely engages in his own Monday morning quarterbacking.

The difficulties of making sound and justifiable decisions about people who pose possible threats is covered in two Washington Post articles of intensive reporting on the Nigerian bomber and on the Fort Hood shooter. In both cases, the clues about the directions that these men took are ambiguous and not definitive.

I don't know if Professor Newquist has what it takes to play the game of security analysis, but his judgment here is at odds with the man who is in fact the coach in this game. President Obama:

It's been widely reported that the father of the suspect in the Christmas incident warned U.S. officials in Africa about his son's extremist views. It now appears that weeks ago this information was passed to a component of our intelligence community, but was not effectively distributed so as to get the suspect's name on a no-fly list…

Even without this one report there were bits of information available within the intelligence community that could have and should have been pieced together…

Had this critical information been shared it could have been compiled with other intelligence and a fuller, clearer picture of the suspect would have emerged. The warning signs would have triggered red flags and the suspect would have never been allowed to board that plane for America.

Monday Morning Quarterbacks are sometimes right in their post-game analysis. Most of us MMQ's didn't think that the clues in this case were all that ambiguous. President Obama seems to agree with us (myself included) in his conclusions.

Professor Newquist and I agree on one thing: it isn't easy to balance good security against privacy rights.

Then there is much criticism and accusation about the fact that the Nigerian's father informed the Dept. of State that his son was being radicalized by Islamic terror groups but he was not put on a list that would have prevented him from boarding a U.S.-bound flight. While the critics think he should have made the A-list of potential terrorists, they conveniently ignore the ruckus raised about just what criteria must be applied to curtail people's rights. Newt Gingrich, on the other hand, has said that we need to practice outright discrimination in order to prevent Islamic terrorists from entering the country or engaging in activities within it. Some people have been wrongfully placed on lists and some have been subjected to humiliating searches and interrogations. These instances show actions taken against people on the basis of false accusations. With the aborted airliner bombing and the shootings at Fort Hood, we are told that the security measures following 9/11 are not working as well as they should be. We even have some valid analysis as to why they have not worked. But the questions of abandoning our fundamental principles of freedom, equality, and equal protection of the law loom over all information and discussions of deterring terrorism.

Professor Newquist is wrong about the “critics.”  They celebrate the “ruckus” raised about privacy rights.  They think that that ruckus has prevented effective security measures. 

But apart from this, he lays out the problems pretty well.  But Newt Gingrich is obviously right, to make only a logical point. Airline security precisely requires "outright discrimination." We need to discriminate between the terrorists and the non-terrorists. There is no way to avoid the conclusion that religion is a clue. How many Buddhists or Animists have boarded planes with explosives sowed into their bloomers?

These days you can't board a plane without taking off your shoes. Your luggage is x-rayed and often manhandled. A machine that would scan my whole body as I get ready to depart for New Orleans would scarcely be less intrusive than what I have had to endure previously. More importantly, the worst thing that can happen to privacy rights is that they should be seen as providing opportunities for terrorists.