Archive for 2012

Scalia’s Not-So-Secret Plan for World Domination

Friday, March 30th, 2012

On Monday, some wrong-headed opining in this space (we name no names, sqrjn) challenged the prescient wisdom of Dr. P.J. Hackenflack, who described the Supreme Court’s oral arguments over Obamacare in advance as a “deeply cynical…dog and pony show” staged by black-robed, right-wing “enablers of the Republican party.”

Not to put too fine a point on it.

Now that the three-day judicial ape dance is finished, however, the nakedly partisan motivations of the SCOTUS Scalia clique are once again confirmed for all the world to see (yeah, yeah, we’ll wait for the court’s formal decision, but meanwhile we’re busy checking out residency requirements to enroll in Canada’s single-payer system).

While our favorite conservative web sites overflow with predictable triumphalism, legal analysts less inclined to starboard-side shilling who closely followed the proceedings present a more reality-based portrayal of the high court majority as a kind of judicial theocracy. Determined to impose, on behalf of right-wing elites, an ideological agenda on the rest of us, the high court’s conservative cabal operates with three key principles:

1-Judicial activism. Forget Chief Justice John Roberts’ phony and pious assertion during his confirmation hearings that “judges are like umpires,” along with decades of endless conservative carping about “judges legislating from the bench.” Surprise, surprise, all their caterwauling was just a matter of what is being legislated on whom, as the ever-perceptive (Canadian!) legal writer Dahlia Lithwick demonstrated with her disheartening report on the food fight that passed for the third day of hearings:

 Look carefully at what Justice Kennedy just said: Don’t want to impose new risks on the insurance companies. Check. Striking down all of the 2,700-page statute—much of which regulates breastfeeding, Native American health, black lung treatment, and other things unrelated to the individual mandate—that’s the new judicial restraint…

Again, like the day before, not much law happens this morning. It’s all mainly a sort of free-form ramble by the justices over the complexities of congressional lawmaking. Justice Scalia opines freely on how hard it will be to repeal the remainder of the Affordable Care Act if the court leaves some portion of it standing: “You can’t repeal the rest of the act because you’re not going to get 60 votes in the Senate to repeal the rest…”

The afternoon offers yet another opportunity for the court to forgo reading text and citing cases—the things they are meant to be good at—so they can have a good old-fashioned, foot-stomping policy debate about Bad Stuff the Federal Government Might Some Day Do. The theory that the states get such a great deal from the Medicaid expansion that they are “coerced” into participating was always deemed far-fetched. So much so that no lower court accepted the argument. But that didn’t stop the justices from having it briefed and argued, because, well, if the individual mandate can be struck down on the prospect that Congress may someday pass a broccoli mandate, the Medicaid expansion should surely be struck down on the likelihood that the secretary of Health and Human Services is like a gun-waving hostage taker forcing you to choose between “your money and your life.”

2-The political interests of the Republican Party. After Bush v. Gore and Citizens United, the partisan hackery of Scalia et al should no longer shock us. But still.

Both Northwestern University law professor Andrew Koppelman and Harvard Law professor (and former Reagan Solicitor General) Charles Fried make clear the eagerness with which the conservatives align themselves directly with Tea Party and other Republican politicians on even the most spurious issues:

Even the most preposterous arguments are magically elevated to respectability if they are arrayed against the (Affordable Health Care Act)…

Obama owns the healthcare bill, so anything that can gum up its works is a Republican victory – and all 26 of the state challengers, attorney generals and governors, are Republicans. But all those working poor people are not Democratic Party operatives. They are ordinary folk trying to get by. The decision to pursue this litigation displays a calculated viciousness and cruelty that we have not seen in American politics in some time. It is like getting back at my enemy by hurting his children or his pets.

3- Comfort the comfortable and afflict the afflicted. Far beyond the health care issue, as American University law professor Jamin Raskin reports, the current term docket is filled with other key cases that point to the probability the Roberts court will move to roll back decades of settled issues and legal precedent on behalf of corporations, entrenched special interests and the 1%.

The problem is that it is not a court committed to the rights of the people or to strong democracy unencumbered by corporate power. Indeed, it acts with most energy vindicating the rights of the powerful and the unjust. Alas, this hardly makes it an outlier in American history…

(The) Court’s ideological politics are in full swing these days as the 5-4 conservative majority fleshes out one-sided doctrines in areas from corporate political rights to corporate commercial speech rights to affirmative action to Congressional power to union rights. This is a Court that almost always chooses corporate power over democratic politics and popular freedoms. In a Court of logic and precedent, a Court without aversion to the channels of popular democracy, the challenge to Obamacare would be a total non-starter. But here we are again, waiting to see whether the Court will follow the path of justice or the path of power.

We’d never say “we told you so.” In the end, of course, Obama has only himself to blame for the court’s attack on his signature health care legislation.

The individual mandate, an erstwhile conservative framework for health insurance reform, represented his first and most spectacular naïve failure to find common ground with a party that was clear from the start about its desire and intention to destroy his presidency.

If he was determined to push for sweeping health care reform at the early point in his presidency when his popularity and influence were at their peak (why not, oh say, the economy instead?) the vast amount of political capital he squandered on the issue would have been far better spent fighting for a public option plan or simply to extend and expand Medicare, more elegant solutions more attuned to his base, with much less legal vulnerability.

In reluctantly backing the mandate legislation at the time as a half-loaf solution, we noted that:

The sad fact is that Barack Obama’s wimp-out on his signature issue has resulted in a legislative end game defined by a default bill in the Senate that’s god-awful. Riddled with half-measures, the bill is framed and defined by the institutionalized transfer of hundreds of billions of public dollars to the same, rapacious private insurance industry that shaped the dysfunctional system supposedly being transformed.

Even its worthwhile nods to reform – efforts to end the industry’s disgraceful practices on pre-existing conditions, rescissions and lifetime benefit caps – are largely dependent upon regulatory enforcement by the states, woefully over-matched by the legal firepower of insurance companies, as David Dayen  argues most persuasively at Fire Dog Lake.

So now, Obama will be left holding the bag on weak, compromise legislation repellent to Democratic advocates on the left and Republican opponents on the right. Worse, a new NBC/Wall Street Journal poll shows that less than one-third of Americans say that the stinky cheese that Obama now supports as “reform” is a good idea – a number that has steadily eroded since he jettisoned his support for the public option. Worse, more people, by 44-41%, say it would be better to do nothing than to pass the measures before Congress.

Yes we can!


Budget Maven Ross Leaving CA with Sadness, Hope

Wednesday, March 28th, 2012

By Jean Ross
Special to Calbuzz

I have often described myself as profoundly Californian, so it is with some degree of trepidation that I prepare to head east in search of new challenges after nearly two rewarding decades heading the California Budget Project (CBP). Some might ask whether two plus decades of examining California’s budget isn’t enough challenge for one lifetime.

A disproportionate share of the income gains over the past two decades has gone to the very top of California’s income distribution, while the incomes of the vast majority of Californians have fallen behind. This is true despite continued productivity gains that have led to strong growth in corporate profits. During this same period, the state has lurched from one budget crisis to next, leading one colleague to note that the term “crisis” loses meaning when it is used to refer to the status quo.

During this generation of widening inequality – from 1987 to 2009, the longest period for which we have consistent data — the combined income of all Californians increased by $219 billion, after adjusting for inflation. One-third of that amount — $78 billion, an amount slightly less than the 2011-12 General Fund budget – went to the wealthiest 1 percent of California taxpayers, 144,000 individuals. In contrast, just 2.5 percent went to the middle fifth of state taxpayers. In fact, the incomes of the bottom 80 percent of California taxpayers failed to keep pace with inflation over that same period of time.

Public policies can and should work to narrow income gaps. Yet, as a result of changes in state and federal tax and spending priorities, public programs close a smaller share of income gap today than they did a generation ago. Here in California, choices made to balance recent years’ budgets have slashed cash assistance payments back to where they were in the mid-1980s, and cuts to public schools have caused class sizes to explode and diminished young Californians’ ability to get the college degree that provides an increasingly essential ticket to economic success.

California’s challenges reflect the profound disinvestment in public structures and systems that began with the passage of Proposition 13 in 1978 and continued with repeated rounds of tax cuts that reduced the revenues available to support public services, even at the depths of the state’s budget crisis. As a result, state General Fund tax collections as a share of the state’s economy will be lower in 2012-13, even if the voters approve the governor’s proposed tax measure, than in all but one year since 1987.

A balanced approach: Yet, I prepare to depart with some degree of optimism: 2012 offers Californians the opportunity to stabilize the state’s financial condition and lay the foundation for restoring luster to the Golden State. The work of the CBP is guided by the belief that public policies and programs can and should work to improve the lives of all Californians, with a particular emphasis on low- and middle-income Californians.

This is why we have consistently argued for a balanced approach to addressing the state’s fiscal challenges. To that end, the CBP recently endorsed Gov. Brown’s proposed tax initiative. We took that position because the governor’s measure, unlike some others potentially headed to the November 2012 ballot, provides significant revenues with the flexibility needed move the budget towards balance.

The mid-March compromise between the governor and the California Federation of Teachers’ “millionaires’ tax” combines the best of both measures: the flexibility of the governor’s measure, along with the certainty it provides for the 2011 shift of public safety programs to local government, with additional progressivity, a long time period, and somewhat more revenues inspired by the CFT’s proposal.

Voters’ approval of the compromise tax measure won’t solve all of the state’s budget problems or even provide sufficient revenues to restore recent spending cuts. It would, however, end the state’s fiscal free fall, provide stability, and send a critically important signal that we, as Californians, value and are willing to pay for the public services that led to the state’s historic position as an economic and cultural leader in the global arena.

California is, and always will be, the place I call home. It is a place, in the words of the great Carey McWilliams, in need of, “men and women who can match, in the scale of their imagination and the depth of their insight, the extraordinary diversity, power, and challenge which is implicit in this immense and fabulous province which sprawls along the Pacific like a tawny tiger.”

Jean Ross will be leaving the California Budget Project, where she has served as executive director since 1995, at the end of March, to become the US Program Officer for Transparent, Effective, and Accountable Government at the Ford Foundation.

Why a Governor’s Party is His Own Worst Enemy

Monday, March 26th, 2012

Throughout 2011, Gov. Jerry Brown’s fundamental antagonist in Sacramento was the Republican minority in the Legislature which refused, under threat of decapitation by the Grover of Norquist, to give him the four votes he needed to place on the ballot a proposal to temporarily extend tax increases that had been approved by his Republican predecessor.

When, as a candidate in 2010, he had promised to repair California and restore its fiscal health, he had miscalculated two things: 1) the increased hyper-partisan atmosphere in Sacramento since his previous tour of duty and 2) the limits of his own personal charm, persuasiveness and influence.

But for a governor of California in recent years – at least since the days of Pete Wilson and Willie Brown, when leaders had power and deals could be made and enforced — finding that one’s most difficult challenge is the opposition party is actually an anomaly. For Gray Davis, Arnold Schwarzenegger — and this year Jerry Brown — the most debilitating opposition force in Sacramento is the extreme wing of his own party.

For His Royal Grayness, it was the unruly left wing of the Democratic Party. For the philandering Schwarzmuscle, it was the right wing of the Republican Party (which no longer even considers him one of them).

And now in 2012, for Gov. Gandalf, it is once again the “progressive” wing of the Democratic Party, for a while led by the Courage Campaign and the California Federation of Teachers but now in the hands of zillionairess lawyer Molly Munger.

Flying on one wing: Why is it that the left and right wings of the Democratic and Republican parties are so damaging to governors from their own party?

First of all, to become governor of California, one must appeal to a broad spectrum of voters, hold one’s own party loyalists and pick up a majority of the independent and moderate voters who are the fulcrum of power in statewide elections. A governor must be able to lead San Francisco and San Diego, Lodi and Los Angeles, San Bernardino and Santa Cruz.

But as long as gerrymandering was the norm – and politicians could design Assembly and Senate districts to fit their partisan and ideological needs – members of the Legislature represented only one tiny, homogeneous portion of California where the only battle was in a party primary in which the most partisan and ideological candidates succeeded. Left-wing Democrats and right-wing Republicans – with no interest in statewide consensus – held sway in Sacramento, whether or not anything got done.

There were other reasons why state government became dysfunctional. We spelled them out in detail back in June of 2009 in our Calbuzz Classic “How California Became Ungovernable” (plenty of free parking).

With the creation of new legislative districts by an independent commission and with the new, untested top-two primary system in place for the first time this June and November, we’ll begin to see if part of the ungovernablility problem is addressed by sending to Sacramento legislators who have to appeal more broadly to middle-of-the-road voters than they’ve had to in the past.

The fairly drawn districts – reflecting California’s actual demographic composition and not some phony protect-the-incumbent political geography – may even render another of our classic reasons moot: If Democrats obtain a two-thirds majority in both houses of the Legislature, the noxious requirement for a two-thirds vote to approve a revenue measure may also dissolve (at least for now).

A ballot measure altering term limits – reducing the total number of years a legislator may serve to 12 from 14 – could (if it passes) have an effect, by allowing a member to remain in one house the whole time, thus potentially increasing the power of the Assembly Speaker and the Senate President Pro Tem. That could restore some measure of party discipline needed to make consensus deal-making possible.

The Jerry and Molly show: But two other problems we identified – budget initiatives and boom-or-bust taxation – are actually aggravated by the tax-increase measures proposed by Gov. Brown and the headstrong Ms. Munger.

Brown is selling his tax as a boost to education. This is, as our old friend George Skelton has noted, something of a bait and switch since even Brown’s redoubtable adviser, Steve Glazer, acknowledged to Calbuzz that all the funds raised will not provide additional new money for schools. Moreover, because he was pushed from the left by the Courage Campaign and the CFT, his tax measure will rely more on the fortunes of rich people and less on the broad public through sales taxes than he had hoped for. (And it’s easy to understand why Brown would want to oversell his measure: according to the latest USC/LA Times poll, more than six in 10 voters like what he’s selling.)

But at least his measure wouldn’t further restrict options with dedicated funding like Munger’s income-tax-increase-for-nearly-everyone measure would. Her measure is another example of someone attempting to lead from the left creating headaches for a governor attempting to lead from the center.

As Calbuzz Poet Laureate William Butler Yeats wrote just 19 years before Gov. Gandalf was born:

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Jerry Brown is a centrist. Like Wilson, Davis, Schwarzenegger, he is trying to hold the center while those filled with passionate intensity flap and swirl around him. It is no service to the civic good for those on his left to set loose mere anarchy.

Another SCOTUS coup d’etat? Not since the Bush-Gore decision has the right-wing of the U.S. Supreme Court made such an outrageous, non-democratic power grab as it positioned to do in deciding the constitutionality of Obamacare. By scheduling six hours of oral argument on the case this week — more than any other matter in nearly a half-century — the court’s Roberts-Scalia-Alito-Thomas clique now has legal cover to carry out the partisan political agenda many legal experts fear it will soon carry out by overturning health care reform.

As Linda Greenhouse, the ex-New York Times reporter who superbly covered the court for years, has made clear, there is no serious question that the action by Congress in establishing the health insurance mandate, the central issue in the case, is authorized by the Commerce Clause. For Roberts et al to produce this made-for-cable dog and pony show to suggest there are sweeping constitutional issues raised by the legislation is a deeply cynical bid to once more serve as purely political enablers of the Republican Party.