Alex Wise's shared items

If President Obama gets to sign a health-reform bill, as I believe he will, one reason may be Rep. Jay Inslee's difficult experience renovating his kitchen.

A revised Justice Department report lets John Yoo and Jay Bybee off the hook for their torture memo, writes Jason Leopold. January 31, 2010

The bare-knuckled politics of oil and gas is something the West (California, Colorado, Montana, Wyoming, etc.) and the South (Texas, Arkansas, Louisiana, etc.) is quite familiar with. The Northeast? Well, not so much. Sure, they've had their coal wars, but the oil and gas wars are only now becoming a part of contemporary politics in that region - and it is sure to be contentious, as evidenced by the simmering battle over a natural gas severance taxes and regulations in Pennsylvania.

The gas industry is salivating over the Marcellus Shale formation, which Penn State officials say contains enough gas to supply the entire U.S. for 13 years and could be worth a whopping $1 trillion in new economic development. The question now is two fold: 1) Will Pennsylvania allow those resources to be pillaged, or will it will enact a severance tax to make sure the public gets something in return? and 2) Will Pennsylvania step-up environmental regulation of drilling operations?
Twenty-eight states have severance taxes on such commodities - that is, taxes assessed when the commodity (in this case, natural gas) is severed from the earth. The idea behind these taxes is that these natural resources are inherently both a public resource and a finite resource, and therefore the private corporations severing them should give back to the public coffers a small fraction of the value of that resource. In many states, these tax revenues are devoted to trust funds for public goods like education. And these taxes have helped insulate some states like Texas, Wyoming and Montana from the massive budget deficits brought on by the national recession. Now, it looks like Pennsylvania may follow suit.

As reported by the Pittsburgh Post-Gazette, Gov. Ed Rendell (D) this week announced the leasing of 32,000 acres of state land for gas drilling, as well as a new budget proposal to impose a severance tax. He had proposed a similar tax in his last budget, but it was crushed by the gas industry's intense lobbying efforts:

In the last two years, energy companies with a stake in Pennsylvania's Marcellus shale have spent hundreds of thousands of dollars lobbying and making campaign contributions to legislators, congressmen and the governor, partly in hopes of postponing a tax on the extraction of natural gas.

Beyond trying to simply buy its agenda with campaign contributions, the gas industry makes two public arguments against severance taxes.

First, it often threatens to not develop gas deposits if such levies exist - an almost laughable bluff. Gas development is, by its nature, a captive industry. It's not like a call center that can just move - it has to be where the gas geographically exists. Tax or not, these deposits are almost guaranteed profits for the private corporations that get to develop them. Any company that would leave over a modest tax would be quickly replaced by another company. And so the politics of severance tax lends itself to what I've called Captive Industry Populism - that is, a politics that gives lawmakers a lot of latitude to assess taxes and regulation without the real fear that an industry will go somewhere else.  

The gas industry also typically loves to plead poverty when arguing against these taxes. Companies will make the case that they are already running on a supposed shoe-string budget, and any extra levy will put them out of business. But the Harrisburg Patriot-News tells the real story:

As Pennsylvania business leaders and Republican lawmakers argue against a tax on natural gas extraction in the Marcellus Shale bed, where scientists estimate the natural resource to be worth as much as $1 trillion, they might want to ponder the huge pay package heaped upon the CEO of the largest drilling rights company in the state.

Chesapeake Energy, with $34 billion in assets, owns 1.8 million acres of the Marcellus Shale bed in Pennsylvania. On April 21, Chesapeake disclosed that in 2008, it raised the salary of CEO Aubrey K. McClendon to $100 million -- or five times his previous salary.

So what you have in this tax debate in Pennsylvania - as you've had in all the other states with oil and gas politics - is a decision over whether to couple healthy profits with attendant public good or simply allowing a natural resource to be  pillaged for private profiteering and little public good?

This will be the same kind of debate that will inevitably erupt over Rendell's simultaneous proposal to beef up inspections of gas wells. The Associated Press reports that the state is planning to hire more environmental regulators to make sure gas drilling operations do not pollute groundwater supplies after 13 residential drinking-water wells in Pennsylvania were polluted by a drilling corporation last year. You can bet the industry will chafe against Rendell's beefed up enforcement effort.

Let's be clear: Severance taxes and inspections are by no means perfect.

As I wrote in a piece for the San Francisco Chronicle, its Faustian bargain can create its own political challenges for the progressive coalition down the line - namely, by making anti-environmental fossil fuel development a revenue stream for liberal causes like education and health care. Likewise, even the best regulatory regime cannot mitigate all the side effects of fossil fuel exploration.

However, despite imperfections, these are solid progressive steps in the brave new world of energy policy. A severance tax and more intense regulatory measures are the least a state should do to make sure that finite natural resources contribute to the commons. These natural resources are natural - they are here not because any one group of humans innovated or created them. That means even with the modern age's focus on property rights, they are at some level all of ours - not any one group of humans. It's not too much to ask for that ethos to be legislated as a modest tax for future generations and as new protections against pollution of other resources.

By opening the floodgates on corporate campaign money, the Supreme Court has advanced the GOP cause, says Robert Parry. January 27, 2010

Update: The review is finally up on Amazon. Please give it a "very helpful" vote.

Here's my review of John Yoo's latest book, "Crisis and Command". If you enjoy it, please press the "this review was helpful" button.

John Yoo is a serious man. He understands that the Constitution is so precious that sometimes, you have to destroy it in order the save it. To him, the Bill of Rights is a bunker on Omaha Beach, a threatening obstacle that has to be taken and burned in order to make our nation more pleasing to Our Dark Lord and Savior, Dick Cheney. Yoo wrote this book to justify such destruction.

He served this nation during very dark times. Our Great and Glorious Crusade Against The Unbelievers was underway, but Leader Bush was still stumbling, searching for a justification for His grand adventure. He needed political cover, and He needed it immediately. He summoned the Dark Lord from his undisclosed location and pleaded with him to provide it.

Cheney knew what had to be done. Saddam had to be tied to Al Qaeda. As a serious man, he understood that if evidence of such a tie was unavailable, it had to be created. Detainees would need to be coerced into making false confessions. It would require torture, an act that was considered unconstitutional at the time. Cheney turned to another serious man, Yoo--a man who would later tell Congress that the President can legally order a suspect to be burned alive or that his children be tortured--to write a justification for ignoring the Fifth and Eighth Amendments.

Yoo served the Dark Lord well by not only destroying these but by destroying the Fourth Amendment to allow domestic spying as well.

I'm giving this book five stars--not because it is well argued or well written (it isn't) but because, like Yoo, I want to help shape our nation according to Lord Cheney's righteously Stalinesque vision.

It would be a much better book if Yoo added a few things. Serious men (and all serious people are men or at least have adam's apples) would support the use of suicide bombers in the defence of freedom. Surely, the College Republicans would eagerly volunteer to send the brown, black and poor on such missions. Suicide bombing needs a champion to advocate it as policy. Yoo would be perfect in that role yet he remains silent. Why is that?

The book would also be much more interesting if Yoo described what turned him into what he's become. Was it a frequent application of an Oxo Good Grips Brushed Stainless Steel Turner to the soft sweet flesh of his behind? Was he drinking non-fluoridated water? Does he deny his essence to women?

Perhaps he can add a chapter for the next printing.

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The President wants businesses that hire new employees this year to get $5,000 per hire, in the form of a tax credit. That will come to about $33 billion. It’s good step. He’s also supporting a cut in the capital gains tax for small businesses. That makes sense; after all, small businesses generate most jobs.

But here’s the problem. Both of these measures, and many of the other tax cuts he’s proposing, give ammunition to supply-siders who think the way out of this awful economy is simply to cut taxes on businesses. If a new jobs tax credit is a good idea, why not a cut corporate in income taxes? If it’s useful to reduce capital gains taxes for small businesses, why isn’t it useful to reduce them for all businesses?

The answer, of course, is that across-the-board supply-side tax cuts for businesses don’t increase the demand for the things businesses produce. They’re useful only to the extent businesses are confident consumers are out there, able and willing to buy. Carefully targeted — as are the cuts the President is proposing — they can give businesses an extra nudge to hire. But without adequate demand, they’re useless.

So what’s the President’s new proposal for boosting overall demand? Hmmm. Turns out, he’s not really proposing anything new on that score. (Some who watched his State of the Union the other night thought they heard him call for a second stimulus. Actually, he didn’t, and as far as I can tell he doesn’t plan to.) His political advisors are telling him to emphasize deficit reduction instead. And that’s what he did Wednesday night when he talked about a “freeze” on discretionary spending, and a “commission” to look for ways to cut the deficit.

I can understand why Obama’s political advisors are pushing him in this direction. Many Americans borrowed too much during the boom years before the Great Depression, and now they’re paying the price. So they naturally analogize their own plight to that of the federal government and the economy as a whole. The government is too deep in debt, they reason. Logically, that means the only way out of the nation’s economic doldrums is for the government to mend its ways. The government has to reduce its budget deficit just like American families have to reduce theirs.

This analogy is faulty, of course. If John Maynard Keyenes taught us anything, it’s that a federal budget is not at all like a family budget. In fact, it’s precisely because families have to pull in their belts that the federal government has to let its belt out. When consumers and businesses aren’t buying much of anything, the government has to fill the gap. That’s the only way to get jobs and get the economy moving again. Once the economy is percolating, the government can pull back. By then, tax revenues will soar, and the long-term deficit will shrink. (And yes, entitlement reform is probably necessary in the long term. But here again, it’s vitally important to separate the long term from the now.)

But if the public learns the wrong set of lessons — that tax cuts for businesses are good, and deficit reduction starting now is good — there’s no hope for getting wise policies out of Congress. The debate is framed all wrong.

The President — any president — is the nation’s educator in chief. Everything he proposes contains an implicit lesson. The economic lesson President Obama ought to be teaching is that targeted tax cuts, mostly for small business, are good to the extent they give businesses a nudge toward creating more jobs. But businesses won’t begin to create lots of jobs until they have lots of customers. And that won’t happen until lots more Americans have work. The only way to get them work when businesses aren’t hiring is for government to prime the pump.

One final lesson I wish he’d teach: The best and fastest way for government to prime the pump is to help states and locales, which are now doing the opposite. They’re laying off teachers, police officers, social workers, health-care workers, and many more who provide vital public services. And they’re increasing taxes and fees. They have no choice. State constititions require them to balance their budgets. But the result is to negate much of what the federal government has tried to do with its stimulus to date.

We need a second stimulus directed at states and locales. I wish our educator-in-chief would say that loud and clear, explain why, and then do it.

(updated below - Update II - Update III)

As I wrote at the time, I thought the condemnations of Rep. Joe Wilson's heckling of Barack Obama during his September health care speech were histrionic and excessive.  Wilson and Obama are both political actors, it occurred in the middle of a political speech about a highly political dispute, and while the outburst was indecorous and impolite, Obama is not entitled to be treated as royalty.  That was all much ado about nothing.  By contrast, the behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words "not true" when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court.  It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address.  It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars.  The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations.  The Court's credibility in this regard has -- justifiably -- declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more "liberal" Justices do to the reverse (Citizens United is but the latest example).  Beyond that, the endless, deceitful sloganeering by right-wing lawyers about "judicial restraint" and "activism" -- all while the judges they most revere cavalierly violate those "principles" over and over -- exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John "balls and strikes" Roberts may be the greatest hypocrite ever to sit on the Supreme Court).  All of that is destroying the ability of the judicial branch to be perceived -- and to act -- as one of the few truly apolitical and objective institutions.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline.  On a night when both tradition and the Court's role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow -- a conservative Republican judge departing from protocol to openly criticize a Democratic President -- with Republicans predictably defending him and Democrats doing the opposite.  Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.

The Justices are seated at the very front of the chamber, and it was predictable in the extreme that the cameras would focus on them as Obama condemned their ruling.  Seriously:  what kind of an adult is incapable of restraining himself from visible gestures and verbal outbursts in the middle of someone's speech, no matter how strongly one disagrees -- let alone a robe-wearing Supreme Court Justice sitting in the U.S. Congress in the middle of a President's State of the Union address?  Recall all of the lip-pursed worrying from The New Republic's Jeffrey Rosen and his secret, nameless friends over the so-called "judicial temperament" of Sonia Sotomayor.  Alito's conduct is the precise antithesis of what "judicial temperament" is supposed to produce.  

Right-wing criticisms -- that it was Obama who acted inappropriately by using his  SOTU address to condemn the Court's decision -- are just inane.  Many of the Court's rulings engender political passions and have substantial political consequences -- few more so than a ruling that invalidated long-standing campaign finance laws.  Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling.  While the factual claims Obama made about the ruling are subject to reasonable dispute, they're well within the realm of acceptable political rhetoric and are far from being "false" (e.g., though the ruling did not strike down the exact provision banning foreign corporations from electioneering speech, its rationale could plausibly lead to that; moreover, it's certainly fair to argue, as Obama did, that the Court majority tossed aside a century of judicial precedent).  Presidents have a long history of condemning Court rulings with which they disagree -- Republican politicians, including Presidents, have certainly never shied away from condemning Roe v. Wade in the harshest of terms -- and Obama's comments last night were entirely consistent with that practice.  While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either.  And, as usual, the disingenuousness levels are off the charts:  imagine the reaction if Ruth Bader Ginsburg had done this at George Bush's State of the Union address.

What's most disturbing here is the increasing trend of right-wing Justices inserting themselves ever more aggressively into overtly political disputes in a way that seriously undermines their claims of apolitical objectivity.  Antonin Scalia goes hunting with Dick Cheney, dubiously refuses to recuse himself from a lawsuit challenging the legality of Cheney's actions, and then rules in Cheney's favor.  Scalia has an increasing tendency to make highly politicized comments about purely political conflicts, most recently defending torture in an interview with 60 Minutes.  As part of Clarence Thomas' promotional efforts to sell his book, he spent substantial time building his conservative icon status with the furthest right-wing media elements -- even parading himself around on Rush Limbaugh's radio program -- and turned himself into the food fight of the week between Democrats and Republicans.

It was clear from Sam Alito's confirmation hearing and his record of appellate opinions that he is a dogmatic, state-revering, right-wing judge.  But last night, he unmasked himself as a politicized and intemperate Republican as well.  Much of the public will view his future "judicial" and "legal" conclusions -- and those of his fellow Court members -- with an even greater degree of cynicism.  And justifiably so.  Whatever impulses led him to behave that way last night, they have nothing to do with sober judicial reasoning or apolitical restraint.

* * * * *

Three related items:  (1) I spent substantial time over the last week here and in other venues partially defending the Citizens United ruling; yesterday, Harvard Law Professor Larry Lessig responded to my arguments.  I disagree with several of his points, but as I said, this is a hard case and his objections are reasonable and worth reading; (2) Politico's Josh Gerstein notes language in Obama's speech that suggests an embrace of the GOP/Scott-Brown position on detainee rights; I'm not sure that meaning was intended, but it certainly merits a response from the White House; and (3) reactions to Obama's speech were painfully predictable:  Obama lovers swooned, Obama haters spat contempt, and the "TV pundits" did exactly what Obama said they do ("TV pundits reduce serious debates to silly arguments, big issues into sound bites"); it remains to be seen how the less committed among us will respond.  Even more important will be the extent to which Obama's actions match his rhetoric.

 

UPDATE:  In comments, both casual_observer and DCLaw1 add important points about what Alito (and Obama) did.

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[NOTE:   The comment section is temporarilly closed because I accidentally hit the "close comments" button and now can't get it re-opened; Salon technicians are frenzily working on the problem and, hopefully, it will be re-opened shortly.]

[To comment on this post, go here]

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UPDATE II:  Speaking of Citizens United, Greg Sargent reports that numerous labor and progressive groups have signed a letter urging the White House to support a pending bill to provide for public financing of campaigns as a means of addressing the disparities in corporate spending.  The letter is here.  As I argued from the beginning, that is exactly the right way to address the problems of corporate and lobbyist dominance over our political process:  it's far more effective than trying to restrict speech and, as a side benefit, doesn't violate the Bill of Rights.

 

UPDATE III:  Yale Law Professor Jack Balkin documents that roughly 25% of Franklin Roosevelt's 1937 State of the Union address was devoted to criticizing the Supreme Court and various rulings which struck down his domestic legislation.  Whatever one thinks of the one paragraph of Obama's address devoted to the Citizens United ruling, it was not "unprecedented."

President Obama today offered a set of proposals for helping America’s troubled middle class. All are sensible and worthwhile. But none will bring jobs back. And Americans could be forgiven for wondering how the President plans to enact any of these ideas anyway, when he can no longer muster 60 votes in the Senate.

The bigger news is Obama is planning a three-year budget freeze on a big chunk of discretionary spending. Wall Street is delighted. But it means Main Street is in worse trouble than ever.

A pending freeze will make it even harder to get jobs back because government is the last spender around. Consumers have pulled back, investors won’t do much until they know consumers are out there, and exports are miniscule.

In December 1994, Bill Clinton proposed a so-called “middle class bill of rights” including more tax credits for families with children, expanded retirement accounts, and tax-deductible college tuition. Clinton had lost his battle for health care reform. Even worse, by that time the Dems had lost the House and Senate. Washington was riding a huge anti-incumbent wave. Right-wing populists were the ascendancy, with Newt Gingrich leading the charge. (In an earlier posting I included Fox News but that gave them too much credit; their fulminations started a few years later.) Bill Clinton thought it desperately important to assure Americans he was on their side.

Two months later, Clinton summoned Dick Morris to the White House to figure out how Clinton could move to the right and better position himself for reelection. The answer: Balance the budget.

But in 1994, Clinton’s inconsistencies didn’t much matter. The U.S. economy was coming out of a recession. It was of no consequence that Clinton’s jobs proposals were small or that he moved to the right and whacked the budget, because within a year the great American jobs machine was blasting away and the middle class felt a lot better. Dick Morris was not responsible for Clinton’s reelection. Nor was Clinton’s move to the right. What reelected Bill Clinton in 1996 was a vigorous jobs recovery that was on the way to happening anyway.

Today, though, there’s no sign on the horizon of a vigorous recovery. Jobs may be coming back a bit in the next months but the country has lost so many (not to mention all those who have entered the workforce over the last two years and still can’t land a job) that it will be many years before the middle class can relax. Furthermore, this recession isn’t like other recessions in recent memory. It has more to do with problems deep in the structure of the American economy than with the ups and downs of the business cycle.

Like Clinton’s, Obama’s package of middle class benefits is small potatoes. They’re worthwhile but they pale relative to the size and scale of the challenge America’s middle class is now facing. Obama can no longer afford to come up with lists of nice things to do. At the least, he’s got to do two very big and important things: (1) Enact a second stimulus. It should mainly focus on bailing out state and local governments that are now cutting services and raising taxes, and squeezing the middle class. This would be the best way to reinvigorate the economy quickly. (2) Help distressed homeowners by allowing them to include their mortgage debt in personal bankruptcy — which will give them far more bargaining leverage with morgage lenders. (Wall Street hates this.)

Yet instead of moving in this direction, Obama is moving in the opposite one. His three-year freeze on a large portion of discretionary spending will make it impossible for him to do much of anything for the middle class that’s important. Chalk up another win for Wall Street, another loss for Main.

Not to convey any sense of optimism whatsoever about the prospects for meaningful health care reform, but the fact that Evan Bayh, Blanche Lincoln and Ben Nelson oppose "fixing" their own bill via reconciliation is neither surprising nor particularly impactful, as in a 50-vote environment, all are well to the right of the veto point. I don't know to what extent discussions on the strategy have begun in earnest, but if Democratic negotiators have any brains, you'd think they'd know better than to worry about what Bayh, Nelson, Lincoln, Mary Landrieu or Joe Lieberman are thinking about and see what's doable with some combination of the other 54 votes. If Bayh et. al. want to vote for the sidecar anyway, bully for them, and likewise if they think they can squeeze some sort of electoral advantage out of opposing it. But they're no longer important.

Indeed, one of the few "perks" of Scott Brown's victory and the strong likelihood of further Republican gains in the Senate in November is that we'll likely avoid the situation we saw for much of 2009 where one or two Senators had a disproportionate amount of power and could hold the entire chamber hostage. If there are, say, 53-55 Democrats remaining after the dust settles in November, policy will be formulated by a fairly broad number of moderate Democratic and Republican Senators, perhaps numbering a dozen or more depending on the issue at hand and whether the Democrats are proceeding in a 50-vote environment or a supermajority one.

If you start to see Senators that are closer to the veto point make uncomfortable noises about reconciliation -- someone like Claire McCaskill or Nelson of Florida or Mark Warner -- that's when you'll know that the strategy is doomed.