Winning by losing

Today's New York Times' opinion section contains an interesting and apparently unintended juxtaposition of articles.

The first discusses the ongoing reaction to last year's Supreme Court ruling on eminent domain, Kelo v. New London.

Sometimes, Supreme Court cases have a way of highlighting issues that had been absent from the national agenda, and the cases can provoke reactions that have a far greater impact than the ruling itself. ....

Dana Berliner, a lawyer with the Institute for Justice, the libertarian legal group that represented the homeowners in both the Connecticut and Ohio cases, said the United States Supreme Court decision, Kelo v. New London, gave rise to “a tidal wave of outrage.”

“The decision brought to light this incredible rift between what lawyers and cities thought was the law and what the American people thought was the law,” Ms. Berliner said. “This is certainly the situation of losing the battle and winning the war.”

And Kelo isn't an isolated incident. Our history is filled with examples of court rulings that prompted legislative changes that eventually overthrew the original ruling. A 1972 Supreme Court ruling, for example, is the reason many states now have so-called "shield" laws protecting journalists from having to reveal confidential sources.

Or, as one observer put it:

“I always tell my students,” said Douglas Laycock, a law professor at the University of Texas, “that one of the best things you can do is lose a case in the Supreme Court.”

The article notes that most such backlashes are "conservative, populist reactions to decisions that seem elitist.” That fact notwithstanding, the second article, a few pages later, applies similar logic to another issue: gay marriage, and recent adverse court rulings in New York and Washington state.

These defeats have demoralized supporters of gay marriage, but I see a silver lining. If heterosexual instability and the link between heterosexual sex and human reproduction are the best arguments opponents of same-sex marriage can muster, I can’t help but feel that our side must be winning. Insulting heterosexuals and discriminating against children with same-sex parents may score the other side a few runs, but these strategies won’t win the game.

So I’m confident that one day my son will live in a country that allows his parents to marry. His parents are already married, as far as he’s concerned, as my boyfriend and I tied the knot in Canada more than a year and a half ago. We recognize, even if the courts do not, that it’s in his best interest for us to be married.

He's not really arguing that there has been a backlash in favor of gay marriage. Indeed, recent events show the reverse: rulings in favor of gay marriage in Vermont and Massachusetts led to bans on gay marriage (and civil unions) in several states.

But that's current voters; future voters are a different matter. Young adults have much less of an issue with gays than their elders do. Hence my ongoing prediction that in 20 years gay marriage will be a fact, as those young adults become steady voters.

Conventional wisdom notes that people grow more conservative as they get older, and I think that's true. So perhaps those young adults will turn against gay marriage as they get older. But the conventional wisdom applies most strongly to areas where self interest plays a role. Young people, who have little, are more supportive of wealth distribution; as they get older they become more supportive of laws that let them keep what they've earned. The bigger a stake people have in the current system, the more they will support it and oppose radical change.

With gay marriage there's no self-interest factor; even most opponents of gay marriage admit that allowing gays to marry wouldn't affect their own relationship. So it comes down to what people think of homosexuality, and that's not the sort of belief that is likely to swing a whole lot as people age.

Given that, it might be tempting to describe these articles as illustrating short-term vs. long-term outcomes. But that's not really the case. Kelo, for instance, is both a short-term and a long-term winner.

So what's the distinction? I think it's simple. The Kelo case provoked such loud, bipartisan outrage because it seemed to attack a fundamental American value: the right to be secure in one's property, regardless of how well or poorly that property is managed in the eyes of outsiders.

Opposition to gay marriage reflects no such underlying value. It's a personal decision, driven at least partly by the belief that homosexuality is wrong. And not just wrong, but so wrong that homosexual relationships are objectively inferior to heterosexual relationships and thus not deserving of the same rights.

And that's simply not the consensus. There are plenty of people who feel discomfort about homsexuality; but not all of them believe that their discomfort justifies discrimination -- especially because, whatever you think in the general case, there are plenty of homosexual couples that have better relationships and make better parents than many heterosexual couples. Opposition to gay marriage thus finds itself in conflict with another underlying American value: our sense of fair play and equality under the law.

Rulings that offend an underlying value do not stand for long. Hence, Kelo. And hence gay marriage in the long run.

eminent domain, gay marriage, politics, midtopia

MLB's assault on fantasy leagues

For the past eight years I've run a fantasy-football league for a group of friends and colleagues. It's strictly small time: The $10-per-owner annual fee covers the cost of hosting the league, with enough left over for minor prizes: The Super Bowl winner and total points winner get their $10 back; the Super Bowl winner also gets a small trophy.

We're people who play for fun, not money. If the cost of playing went up substantially, we'd have to reconsider our hobby.

Which is why I find a recent move by Major League Baseball to be, well, disturbing.

In a federal lawsuit, Major League Baseball claims that it owns Joe Mauer's hits, Justin Morneau's home runs, Johan Santana's strikeouts -- and the statistics of every other player in the major leagues. If fantasy leagues want to use player statistics in their games, baseball says, they better be prepared to pay.

MLB's argument is based on the established principle that players -- and the league -- have the right to control the commercial use of their "names and likenesses." That's why a golf-club manufacturer can't use a picture of Tiger Woods to sell clubs unless he gets Tiger's permission -- and pays him handsomely.

But what MLB is asserting is that a professional ballplayer's statistics fall under that doctrine. So even if you count all of a player's at-bats yourself, you still have to pay the league in order to use that information for commercial purposes.

A fallback argument is that even if you can use the statistics, you cannot use player or team names and images without paying MLB.

I don't play fantasy baseball, but if MLB were to win this suit, other leagues -- including the NFL -- could try the same thing. Fantasy sports would likely get a lot more expensive and centrally controlled, and I'd have to find a new hobby.

I'm no lawyer, but MLB's case seems shaky to me, especially regarding statistics. Private services have long provided game statistics to newspapers, for example. Those services are also how fantasy sites get the statistics they need. MLB never had a problem with that, even though such services are clearly profiting from the league's "names and likenesses."

They may have a better case regarding names and images, but that turns on whether the fantasy sites are using that information for a purely commercial purpose -- a la the golf-club ad -- or are merely presenting facts and information, a use protected by the First Amendment.

In any case it's a dumb move on MLB's part. Fantasy sports engender good will and increased fan interest in baseball. Indeed, it's about the only way I can ever imagine becoming interested in baseball, which I find tedious to watch -- and frustrating, too, since there's no way I'll be able to see all 162 games in a standard season.

In it's greed-fueled quest for control, MLB threatens to damage a hobby that probably has helped baseball's bottom line far more than it has harmed it. It's the sports equivalent of Digital Rights Management, in which publishers are destroying they're online market through greed and fear.

That's my take. Here's a good (and amusing) analysis of the case from Legal Affairs magazine, which notes a few fun facts:

1. The NBA lost a similar case back in the 1990s, in which they asserted copyright ownership of player statistics; the result is that "real-time" statistics are public domain.

2. Baseball won a similar case in the 1970s against two Minnesota game companies, saying the use of player names and statistics in such games was improper. They won, and now such games require MLB licensing.

3. But MLB also won a 1996 case in which it claimed that it had the right to use video of a player without that player's permission, based on freedom of the press principles.

That MLB can be self-servingly hypocritical should surprise no one. Still, the case does raise some legitimate questions about where the line should be drawn, and will probably revolve around resolving the conflicting rulings in the three cases above. I just hope that rationality wins the day -- or that MLB realizes that its case is ill-considered even if valid.

fantasy league, baseball, politics, midtopia

Grudging baby steps

The White House, forced by the Supreme Court to come up with a fairer way to try terror detainees, isn't really embracing the idea.

Legislation drafted by the Bush administration setting out new rules on bringing terror detainees to trial would allow hearsay evidence to be introduced unless it was deemed “unreliable” and would permit defendants to be excluded from their own trials if necessary to protect national security, according to a copy of the proposal.

First, let's remember that this is only a draft. Part of the purpose of a draft is to gather internal and external opinions on various provisions. The final draft could well leave out parts that I find problematic.

That said, this demonstrates the problem with having the rules drawn up by the people who captured the detainees and have an interest in "proving" their guilt, if only to validate the initial detention.

Hearsay evidence is a good example. It can be complicated, but generally it works like this: At Bob's trial, Sam testifies that he heard Dave say Bob was a terrorist.

If you aren't sure what the problem with that is, play a game of Telephone some time. There's a reason that hearsay generally isn't admissible in U.S. courts.

There are exceptions, of course, and the administration proposal would allow it only if the testimony is deemed "probative and reliable" -- whatever that means. That would be left entirely to the discretion of the judge hearing the case.

The proposal does not contain a speedy trial provision, and in fact says that a defendant could be held until hostilities are completed -- whatever that means -- even if found not guilty.

Without further detail, those proposals are simply destructive. On the other hand, some of the concerns are real but the proposed solution inadequate. For example, the administration wants to modify the rules of evidence to take into account the messy circumstances of capture. As the proposal says, "the United States cannot safely require members of the armed forces to gather evidence on the battlefield as though they were police officers."

This is true, but that is not a reason to simply ignore evidence requirements. The bill would again leave such decisions up to the judge, which seems like a license for wildly varying standards of evidence. At a minimum, the bill needs to spell out basic guidelines and guiding principles for consistency's sake.

The biggie, though, is this:

One of the most difficult issues the administration faces is whether a provision of the Geneva Conventions, known as Common Article Three, applies to detainees; the Supreme Court ruled that it did. The measure says explicitly that the Geneva Conventions “are not a source of judicially enforceable individual rights."

In other words, the administration is asking Congress to expressly forbid another lawsuit like Hamdan's, and remove the courts as a source of relief for prisoners whose rights are violated.

This might be acceptable if there was a reasonable and effective alternative recourse available. But the administration does not appear interested in providing one.

The good news is that Congress is ultimately responsible for laying out the rules; this is merely an administration wish list. I respect many of the administration's concerns; I simply do not trust them to reach a solution that is reasonably protective of defendant rights. They have too much self-interest in the outcome.

civil liberties, terrorism, Geneva Convention, Guantanamo, Gitmo, politics, midtopia

The downside of tax cuts

I've argued before that debt-fueled stimulus is a bad idea. Bush has borrowed $2 trillion and dumped it into the economy. That will certainly have a positive effect on short-term economic growth, just like maxing out a credit-card works pretty well in the short term.

But that's the wrong way to look at the issue, because it will take decades to pay off the money he borrowed to achieve that effect -- and that's the best case scenario, where economic growth remains strong, spending grows at little more than the rate of inflation and all the additional revenue goes to debt repayment. Needless to say, the likelihood of any of that happening, much less all three, is slim at best.

Now the Treasury Department seems to agree with me.

The federal government will need to either cut spending or raise taxes down the road to pay for extending President Bush's recent tax cuts, the Treasury Department said in a report released yesterday, dismissing the idea popular with many Republicans that such sacrifices can be avoided.

No duh, right? What's interesting is that the report reached this conclusion despite using a new methodology called "dynamic analysis", an approach supported by the administration because they think it will better show the "hidden" benefits of supply-side economics.

The Treasury report was its first using "dynamic analysis," an approach that looks at how tax changes alter consumer and business behavior in ways that affect the economy's growth.

A reduction in income tax rates, for example, might initially reduce the government's revenue, but over time might encourage more people to work, and to put in longer hours, increasing tax payments to the government over time.

I don't mind the new methodology, as long as the assumptions it uses are reasonable. Economic behavior is complex, and if a new model comes along that appears to do a better job of predicting that behavior, I'm willing to try it.

But even using this supply-side-friendly method, the economics of tax cuts come up short.

The Treasury report released yesterday relieved "a lot of fears that dynamic scoring would lead to the view that cutting taxes raises revenue," said Jason Furman, a senior fellow at the liberal Center on Budget and Policy Priorities. Rather, the report "pours a huge bucket of cold water on the exaggerated claims that tax cuts transform the economy and pay for themselves."

On the contrary, Furman said, the Treasury's estimates suggest that, under the best long-run scenario, the tax cuts' boost to tax payments would offset less than 10 percent of their initial cost.

Whoops.

Short-term, targeted tax cuts to provide short-term stimulus are an okay idea, as long as they're not carried to extremes. Deficit spending in a national emergency is acceptable. Reining in spending is a good idea. Keeping taxes low is a good idea.

But Bush has cut taxes, supercharged spending and launched a mind-numbingly expensive invasion, all at the same time. The mind boggles at the size of the bill the administration and their Congressional allies are handing to our children and grandchildren.

We are supposedly responsible adults. Let's start acting like it, and start paying our own bills instead of pushing them on to future generations.

Update: Forgot the link to the actual report.

deficit, taxes, budget, economy, politics, midtopia

Discredited tactics

A week ago, the UN issued a report noting that 14,000 Iraqi civilians had been killed in the first six months of this year -- evidence that the violence in Iraq is spreading, not shrinking.

A lot of war opponents used this to point out the obvious: that the credibility of the administration on this -- from Dick Cheney's "last throes" comment to Donald Rumsfeld's dismissal of "dead-enders" -- has become all but nonexistent.

Others have noted that perhaps blaming the media for "only reporting the bad news" was a smokescreen after all.

And lately we've been seeing a lot more grim and realistic assessments of the situation from unlikely suspects: Congressional war supporters, the military, the Iraqi government -- even the administration itself.

But that hasn't stopped some ardent war backers from resorting to tried-and-discredited arguments in an attempt to maintain their fantasy of progress in Iraq. Here are a few of them, from political discussion sites I read:

IRRELEVANT WAR COMPARISON
Compare these casualties to those suffered in World War II, as if the situations were at all comparable. By that logic the American Civil War was just a light disagreement, since it didn't kill anywhere near as many people as World War II.

IRRELEVANT CRIME COMPARISON
An actual quote: "How many die in the US every year from various forms of violence? I am betting that the ratio is comparable."

First, the comparison is of apples and oranges. We're not talking about civil homicides and assaults here; we're talking about IEDs, car bombs, sectarian massacres and armed insurgency.

Second, Iraq's population is 1/11th that of ours. This figure is comparable to 300,000 Americans being killed each year by insurgents and death squads.

Third, even if this comparison were valid, there were 17,000 U.S. homicides in 2003. So the Iraqis are experiencing a rate of violent death that is 20 times ours.

ATTACK THE MESSENGER
Another actual quote: " Well, why doesn't the UN get off their Kofi Anan fat butts and do something about it? I'll tell you why: because they are worthless.....100% worthless. And if they are not willing to do that....then they need to shut their freaking mouths!!"

The underlying suggestion here is that we can ignore the report because it came from the UN, which isn't doing anything to stop the violence.

The inherent illogic in that argument aside, it ignores two things: that the United States has rejected the idea of a UN military presence, and that the sketchy security situation makes it difficult for UN agencies to perform humanitarian and reconstruction work -- though they're trying.

MOST OF IRAQ IS PEACEFUL
This argument quotes a March 2006 report that most of the violence is limited to three of Iraq's 18 provinces.

Besides relying on a report that is four months old, this argument ignores several things:

1. Those three provinces contain a third of Iraq's population.

2. "Most" doesn't mean "all": 25 percent of the attacks were occurring outside those provinces.

3. Most insurgencies and civil wars only affect a small geographic area at any given time.

4. The violence is spreading, both geographically and in intensity.

We can never have a reasoned discussion on what to do in Iraq -- and the fight against terror in general -- unless we can agree on the reality facing us. Those posing these arguments discredit only themselves, not their entire side. But we need to show no tolerance for such arguments from either side, because all they do is provide an excuse not to think clearly about the situation.

Iraq, terrorism, politics, midtopia

Redistricting reform

The Moderate Voice has an excellent roundup on redistricting reform, in the form of the Fairness and Independence in Redistricting Act making the rounds in Congress (follow these links for the Senate and House versions of the bill). The prospect for passage this session is (naturally) slim, but it's a good one to let your representative know you care about.

gerrymandering, redistricting, politics, midtopia

Sue the president

While I'm not happy with Specter's weak response to warrantless surveillance, I do approve of his readiness to settle another constitutional question -- Bush's use of signing statements.

A powerful Republican committee chairman who has led the fight against President Bush’s signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.

“We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president’s acts declared unconstitutional,” Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor.

As I've said before, if the statements are just rhetoric, fine. But if Bush is actively ignoring parts of laws he doesn't like, he needs to be stopped. I hope a suit will illuminate how the statements are used and let us judge.

constitution, signing statements, Specter, Bush, politics, midtopia

What it will take to elect moderates

Here's the guest post I wrote for Unity08 yesterday.

A lot of other bloggers here have expounded on what it means to be a moderate, and on the evils of partisanship, and what's wrong with the current way of doing things.

Me, I want to talk about the practicalities.

I strongly believe in the ideal behind Unity08. If we can make moderates a force of their own -- just as conservatives and liberals have become forces within, but separate from, the two major parties -- we can achieve several interrelated objectives. Among them:

1. Forcing elected officials to pay attention to moderates, rather than their partisan bases.

2. Giving moderate Republicans and Democrats a base of support independent of their party. That will make them less beholden to their party, which should lead to fewer party-line votes and more thoughtful and independent political debate.

3. Offering a lever for those moderates to recapture their parties and reestablish the long tradition of "meet in the middle" that the last 15 years of partisanship have all but erased.

4. Reasserting pragmatism over ideology, leading to legislation that thoughtfully addresses complex problems, instead of pursuing oversimplified or actively harmful agendas in order to conform to some predetermined principle.

The question, though, is how to achieve this in a winner-take-all electoral system dominated by two major parties, who have gerrymandered most districts to make them "safe" for one party or the other. Where is our leverage?

First we need to demonstrate the political clout of moderates. Sites such as this are a start, providing much-needed organization. But what will really force the parties to pay attention is fundraising. If supporting moderate viewpoints generates huge sums of cash, the parties will become more moderate. Rhetoric and ideology have power, but money is king.

So contribute to moderate candidates, wherever they may be. Support (or create) moderate PACs. Volunteer for campaigns. When party fundraisers call, tell them that you have already contributed to the moderates in the party and if they want a party-level donation they need to start addressing your concerns on a party level as well.

Even more importantly, convince others to do the same. If moderates indeed represent a large and decisive slice of the electorate, the parties will get the message loud and clear. Even if it doesn't lead directly to election victories, it will strengthen the hand of moderates in both parties.

All the money in the world, though, will still have trouble overcoming gerrymandering. In the last midterm election in 2002, 96 percent of incumbents won re-election -- down from 98 percent in 1998. How will moderates make inroads when the whole system is designed to insulate incumbents from the electorate?

This one requires a multipronged approach, with both short- and long-term strategies.

In the short term, the key is to note that seats are gerrymandered to make them safe for parties, not particular ideologies. If you don't care about the party label, then the answer is simple: work to help moderates win their party's nomination in a particular district. The more we can make a race be a choice between two moderates, the more we can make the gerrymandered system work for us by electing -- and protecting -- moderates.

At a minimum that means voting in primaries, and doing your homework on the candidates. But that's not really enough, since at that point you're just picking from a pre-selected group of candidates. What it really takes is getting involved in the party of your choice, so that moderate candidates stand a better chance of surviving the internal party debates that precede the public primaries. Anything that weakens the strangehold that partisans have on party organizations will help move the parties toward the center.

In the long term, moderates should actively support two initiatives intended to weaken the two-party duopoly: some form of instant-runoff voting, and some sort of district-drawing method that would force districts to be constructed according to objective criteria, with as little political involvement as possible.

That's the strategy in a nutshell: reward parties and candidates for moderate stances, work to build moderate influence within parties, all while establishing electoral conditions that will enable moderates to get elected without being unduly beholden to their party bosses. It won't be easy, and it won't happen overnight. But that's what politics is: hard work. Let's get to it.

redistricting, gerrymandering, instant-runoff voting, politics, midtopia

Guest post at Unity08

I've been asked to be a guest poster at Unity08, the site dedicated to fielding a moderate presidential ticket in 2008. My first post is up there now, on the main page; the permalink is here.

Tommorrow I'll put the guest post up here at Midtopia, after it's had a day to itself over at Unity.

I also crosspost at Donklephant and Blogcritics, although everything of mine that you find there (other than comments) I post here first.

I strongly support the idea behind Unity08, and encourage you to check it out and see what you can do to help.

unity08, politics, midtopia

Chickenhawk?

Jeff Jacoby had a generally good column yesterday on the incoherence of the term "chickenhawk."

"Chicken hawk" isn't an argument. It is a slur -- a dishonest and incoherent slur. It is dishonest because those who invoke it don't really mean what they imply -- that only those with combat experience have the moral authority or the necessary understanding to advocate military force.

He's right. Lack of combat or military experience does not somehow disqualify someone from rendering judgments on the use of military force. If it did, Clinton -- or Reagan, for that matter -- had no business being president.

But Jacoby ignores the larger point behind the use of terms like "Chickenhawk": that it's easy to order people into harm's way when you and yours aren't risking anything yourselves. The amount of military power at the president's disposal can feel pretty intoxicating -- unless you're versed in the gory details of its application. There is a very real long-term problem if more and more decisionmakers have no personal experience with the military organization they are deploying.

That does not justify terms like "Chickenhawk", but the larger point is a legitimate part of the debate over how our military gets used, and how the military fills its ranks.

Jacoby also messes up his first -- albeit minor -- point:

After all, US foreign policy would be more hawkish, not less, if decisions about war and peace were left up to members of the armed forces. Soldiers tend to be politically conservative, hard-nosed about national security, and confident that American arms make the world safer and freer.

I'd be pretty willing to bet money against him on that. Soldiers are more conservative, true. But they're also more realistic -- and thus more cautious -- about the use of force.

Heck, Jacoby disproves his own point with two examples in the same column:

George C. Marshall, our greatest soldier-statesman after George Washington, opposed shipping arms to Britain in 1940. His boss, Franklin D. Roosevelt, with nary a day in uniform, thought otherwise....

General George B. McLellan had a distinguished military career, eventually rising to general in chief of the Union armies; Abraham Lincoln served but a few weeks in a militia unit that saw no action. Whose wisdom better served the nation -- the military man who was hypercautious about sending men into battle, or the "chicken hawk" president who pressed aggressively for military action?

In both cases, it was the military man preaching caution -- and the civilian pushing for more aggressive action. Another example would be the Joint Chiefs during the first Gulf War, who counseled going in massively or not at all.

I strongly support civilian control over the military, and thus agree with Jacoby's main point. But his understanding of the military mindset is limited. That's understandable for someone who never served, but perhaps he should be more careful with his generalizations -- especially when he proves them wrong with his own words.

P.S.: Every time I hear the word "Chickenhawk", it makes me want to go re-read the excellent book by the same name, the memoir of a helicopter pilot in Vietnam. If you want a real feel for what it was like to be such a pilot -- and the physical and emotional toll it took -- this is the book for you. My copy has been torn, mutilated and dropped in a lake -- and I still re-read it regularly.

military, chickenhawk, politics, midtopia

A mouth without teeth

In today's Washington Post, Arlen Specter defends his flawed deal with the White House over its warrantless surveillance program. His main point:

Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.

That may be his intent, but by not pressing the point he avoids a resolution of the issue. If the president has inherent authority, let's establish that once and for all. All Specter's bill does is allow the current murky situation to continue.

And I'm not impressed by this part:

The negotiations with administration officials and the president himself were fierce. The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president's contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval.

Of course the president didn't want binding restrictions in this matter. So what? The entire purpose of Congressional oversight is to restrict the power of the executive branch. If the president thinks such a restriction is unconstitutional, let him challenge it in court -- and resolve the matter once and for all. By refusing to go that route, Specter is giving the administration wiggle room -- which, experience shows, Bush will use for all it's worth.

Specter's unconvincing final paragraph:

In my opinion, it is intolerable to let this matter drift indefinitely. If someone has a better idea for legislation that would resolve the program's legality or can negotiate a better compromise with the president, I will be glad to listen.

Okay, here's mine: write a bill that orders Bush to use the FISA process, or whatever process Congress thinks should be used. Negotiations be damned; let Congress have the cojones to do their job. Then let Bush challenge that bill in court, using his "inherent authority" argument. Have both sides agree to expedited consideration before the Supreme Court. And thus settle the question once and for all.

There are pitfalls to that approach: if the final bill does not have substantial support in Congress, Bush could veto it rather than go the court route. But if the bill is pitched as a simple way to decide the limits of Bush's authority, it ought to garner reasonably wide support.

An alternative might be to pass a bill that simply asserts Congressional authority in this matter, without specific restrictions -- then pass a separate bill containing specific measures. The first bill can be used to force a court decision on the overall constitutionality, while the second is where Congress hammers out the contentious details.

But one way or the other, let's settle it.

FISA, surveillance, terrorism, Specter, Bush, politics, midtopia

ABA on signing statements

The American Bar Association -- admittedly, not a big fan of President Bush -- today releases a report on his use of signing statements.

Administration officials describe the practice as "routine" and comparable to the use of such statements by previous presidents.

But the ABA notes that Bush has issued more such statements than all previous presidents combined -- depending on how you count -- and that he often uses them to challenge the legality of various provisions, rather than simply make a statement or indicate how the law will be implemented.

And the administration's defense would be more believable were it not for all the other evidence that Bush believes in an ultrapowerful "unitary" presidency, which often ignores Congress, relies on "presidential authority" to ignore inconvenient laws and does not need to be scrutinized -- as when Bush blocked the Justice Department's inquiry into warrantless wiretapping.

The Cato Institute lays out the troubling aspects of Bush's signing-statement addiction quite clearly:

If the presidential signing statements are no big deal, why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

We elected a president, not a king. He does not get to decide for himself which laws are constitutional and which aren't; that's the job of the judicial branch. A spineless Congress deserves a large share of the blame for not acting as the strong check it was conceived as. But Bush has not just taken Congressional acquiescence and run with it -- he has found new and sweeping ways to simply ignore even those few restraints that Congress has imposed.

If the statements are just talk, fine. But if they are shaping policy -- if Bush truly is ignoring portions of the law he doesn't like -- then we have a problem.

ABA, signing statements, Bush, politics, midtopia

IRS cuts estate-tax attorneys

While Congress fought to partially gut the estate tax, the IRS has decided to back off on enforcement of the tax -- by cutting the number of attorneys who audit such returns in half.

The folks pointing this out are the ones poised to lose their jobs, so take what they say with a grain of salt. Meanwhile, the administration says the cuts are related to the legislation -- with fewer people qualifying for the estate tax, fewer auditors are needed to examine them.

Fair enough, as far as it goes. But consider this:

Estate tax lawyers are the most productive tax law enforcement personnel at the I.R.S. For each hour they work, they find an average of $2,200 of taxes that people owe the government.

Why would you cut your most productive auditors?

Further, there seems to be a shifting ground as to how much fraud such auditors uncover. Six years ago, the IRS said that 85 percent of large taxable gifts it audited shortchanged the government. And for the past five years "officials at both the I.R.S. and the Treasury have told Congress that cheating among the highest-income Americans is a major and growing problem."

But now, in justifying the cuts, an IRS spokesman says that only 10 percent of estate audits bring in worthwhile amounts of money.

The IRS will get vilified no matter what it does. And I'm willing to consider the statistical arguments in favor of the cuts. But cutting their most productive people when everyone agrees that cheating by the rich is a huge problem doesn't make much sense on the face of it -- especially when they have to ignore what they've been saying for the past five years in order to justify it.

estate tax, IRS, politics, midtopia

Open mic nights

The blogosphere has been abuzz with the recent "unguarded moment" incidents involving President Bush -- one with Tony Blair and the other with Angela Merkel, in which Bush walked up behind her and started giving her a surprise backrub.

Couple that with other such moments from Bush -- such as the time he and Karl Rove discussed a reporter by way of an expletive -- and I have only one observation.

When Condi Rice is caught in unguarded moments, it gives me increased respect for her. When Bush is caught in unguarded moments, it.... doesn't.

G8, Rice, Merkel, Blair, Bush, politics, midtopia

The bed you make

A militant Islamic cleric -- banned from Britain for saying Britain was partly to blame for last year's London bombings -- is now stuck in Beirut -- and begging Britain to save him.

A hard-line Muslim cleric barred from Britain for glorifying violence said on Friday he tried to get on board a British warship to flee Beirut but was turned back.

"The answer was, 'unless you have a British passport you are not entitled to come on board'," Omar Bakri told Sky News on Friday.

Unpopular views should not be a death sentence. But it seems a bit ironic to be seeking help from the same country he vilified.

Britain, Islam, terrorism, Lebanon, Bakri, politics, midtopia

DeLay PAC fined, shut down

But I'm sure it's all just a misunderstanding.

The political action committee used as a vehicle to power in Congress by Representative Tom DeLay has agreed to pay $115,000 in fines for violations of federal campaign rules and will close its doors permanently, the Federal Election Commission said Thursday.

According to an agreement with the commission, Mr. DeLay’s committee, Americans for a Republican Majority, agreed to the fines to settle accusations that it had failed to report more than $322,000 in debts and other obligations to its vendors and had misrepresented more than $240,000 in other financial activity in 2001 and 2002.

The PAC was going to close anyway, thanks to DeLay's retirement. But the fine is substantial, as is the detailing of wrongdoing. And it illustrates DeLay's habit of skating close to -- and, it appears, over -- the edge of legality.

Good riddance to bad rubbish.

FEC, ethics, DeLay, politics, midtopia

Centrist Democrats convene

The Democratic Leadership Council, bastion of Clintonism, is meeting this weekend in Denver.

The Denver gathering is scheduled to hear from the putative Democratic frontrunner for 2008, Senator Clinton, as well as other possible contenders such as Senator Bayh of Indiana, Governor Vilsack of Iowa, and Governor Richardson of New Mexico.

Their main conflict is not with Republicans but with the netroots left epitomized by Howard Dean and DailyKos.

The tension dates back to the last presidential race when council officials threw cold water on the populist, Webdriven campaign of Howard Dean. Dr. Dean, who is now chairman of the Democratic National Committee, derided the council as the "Republican wing of the Democratic Party." A sharp-tongued aide for a Dean rival told the New Republic that the Vermont governor's Internet-savvy backers resembled the grotesque denizens of the "bar scene from ‘Star Wars.'"

The conflict between the two camps is so intense that when Mrs. Clinton appeared before the council last year and called for a halt to the internecine fighting, bloggers unleashed attacks on her that are still reverberating. A newspaper report in May that Mrs. Clinton hoped to create a unified Democratic agenda under the council's aegis received two reactions from a leading liberal blogger, Markos Moulitsas of DailyKos.com, "LOL," shorthand for "laugh out loud," and "DOA," meaning "dead on arrival."

I'm of a couple of minds about this.

I think the Democrats need to have a knock-down, drag-out battle for the soul of the party. But they also need to be a big-tent party. That makes defining the party's "soul", much less fighting for it, a difficult task. In an ideal world, the party would define a few broad principles and let each individual candidate decide on specific policy positions. The trouble is that such a necessarily vague appeal will be inherently less persuasive than more ideological rhetoric. So the practical often loses out to the seductive.

Then there's the practical problem of reconciling certain policies with a big-tent approach:

Mr. Sirota scoffed at the notion that, with Mrs. Clinton's prodding, the DLC can lead a "big tent" coalition. "You can't put the steelworkers, working class people, in the same tent with an organization that continues to push trade policies that sell out workers," he said. "I don't care how big a tent you have. You just can't do it."

That's another reason to stick to broad principles on the party level while working with individual candidates to craft policy. All in all, though, I like the philosophy behind the DLC -- an effort to confront the entrenched interests of the old Democratic Party. I like much of what the DLC advocates. I do wonder on occasion if they have been co-opted by the Clintonistas, but as long as they stand by their stated principles, I'm happy.

Which is good, because while I like Howard Dean, I think some of the policies he embraced in 2004 were ill-advised. And the Kossacks can be just plain nuts. I find them more palatable than fire-breathing conservatives, if only because they're generally less bloodthirsty. But I have no interest in seeing them become the dominant force within one of the major parties.

So I wish the DLC well. If they can establish firm control of the party while giving the netroots faction a place to express itself within the party, it would bode well for moderates -- and Democrats -- in the upcoming elections.

DLC, politics, midtopia

War backers finally begin confronting reality

As civilian deaths continue to mount in Iraq, even GOP lawmakers are moderating their rhetoric about the war.

Rank-and file Republicans who once adamantly backed the administration on the war are moving to a two-stage new message, according to some lawmakers. First, Republicans are making it clear to constituents they do not agree with every decision the president has made on Iraq. Then they boil the argument down to two choices: staying and fighting or conceding defeat to a vicious enemy.

The shift is subtle, but Republican lawmakers acknowledge that it is no longer tenable to say the news media are ignoring the good news in Iraq and painting an unfair picture of the war. In the first half of this year, 4,338 Iraqi civilians died violent deaths, according to a new report by the U.N. Assistance Mission for Iraq. Last month alone, 3,149 civilians were killed -- an average of more than 100 a day.

Even Rep. Gil Gutknecht, once a strong supporter of the war, is having doubts.

Congressman Gil Gutknecht found the situation in Iraq more bleak than he anticipated during a weekend visit to the war zone, and said a partial withdrawal of some American troops might be wise.

Gutknecht, a strong supporter of the war since it began in March of 2003, told reporters in a telephone conference call Tuesday that American forces appear to have no operational control of much of Baghdad.

“The condition there is worse than I expected,” he said. “... I have to be perfectly candid: Baghdad is a serious problem.”

Gutknecht went on to say that “Baghdad is worse today than it was three years ago."

Gutknecht spent most of his time inside the Green Zone. On the one hand, you might attempt to dismiss his observations because he didn't actually get out into the field to see things for himself. On the other hand, if things are noticeably bad even in the most heavily fortified part of Iraq, imagine how bad it is outside the wall.

The man who last month said "Now is not the time to get wobbly" now says "I guess I didn't understand the situation." He now supports a partial troop withdrawal to make it clear to Iraqis that they need to step up and take responsibility for their own security.

That security continues to deteriorate despite the fact that we have trained nearly 300,000 Iraqi troops. That grim fact suggests our entire strategy -- to "stand down as they stand up" -- may be flawed, especially because elements of the Shiite-dominated armed forces are thought to be associated with the militias and death squads that are helping foment sectarian violence.

Eyewitnesses at some scenes of sectarian cleansing in Sunni areas report that gunmen travel in government vehicles. Others note that attackers travel from one neighborhood to another through police checkpoints, apparently unchallenged.

Some U.S. officials acknowledge privately that their hopes that Prime Minister Nouri al-Maliki will be able to rein in Shiite militias and persuade Sunni insurgents to negotiate may be misplaced. Many of the government's leaders, they note, are themselves linked to Shiite or Kurdish militias.

"I keep hope up -- it's misguided perhaps -- that cooler heads will prevail," said a U.S. defense official in Iraq, who spoke on condition of anonymity. "I have to believe that; otherwise all of this has been a tremendous, tremendous fiasco."

Iraq has turned into the tar baby that war opponents long worried it would. War supporters are now reduced to saying that even if we can't go forward, we can't go back -- all we can do is sit there and bleed and hope for the best.

That's not a strategy. A strategy would involve sending in enough troops to establish a certain minimal level of security. That would provide the breathing space to rebuild infrastructure and governmental authority. We've never had enough troops to do the job right, and in that sense our current predicament was entirely predictable.

Achieving our stated objective means deploying enough troops and enough rebuilding aid to secure a strategically significant portion of the country -- including Baghdad. If we are unwilling or unable to do that-- and there has long been a disconnect between our rhetoric in Iraq and the resources we have committed to the job -- then we should admit that our objective is unachievable at acceptable cost and withdraw. Half measures lead to quagmires, and those serve nobody.

Finding sufficient troops may involve going hat in hand to various countries we have been bad-mouthing up until now. It may involve unwelcome exercises in humility and admission of errors. It may involve major drawdowns of U.S. troop levels elsewhere in the world. It may involve even more deployments of reserve units, and more frequent deployments of active-duty ones. But those are the choices facing us. Either get serious about winning, or leave. Anything else is a disservice to both Americans and Iraqis.

terrorism, Iraq, politics, midtopia

Sheik condemns Hezbollah

In an illustration of just how many divides there are in the Mideast, a prominent Saudi Arabian cleric has issued a fatwah against Hezbollah.

This isn't what one might hope: a moderate cleric taking a stand against terrorism or Islamic extremism. The cleric in question is a Sunni Wahhabi Arab fundamentalist -- a group that is generally part of the problem rather than the solution when it comes to Islamic terrorism.

No, this is an example of a Sunni Arab deciding that Shiite Persians are worse than Israeli Jews in this particular instance.

As Israel and Hezbollah turn back the clock in Lebanon, simply listing the divides provides an idea of what the region is up against:

1. Islam/Judaism and Islam/Christianity.

2. Within Islam, Sunni/Shiite.

3. Within those two, fundamentalist sects like Wahhabism and Salafism that often consider "heretic" Muslims to be a bigger problem than non-Muslims.

4. Arabs and Iranians (Persians) both dislike Israel, but they also dislike each other. And everyone dislikes the Kurds. And never mind the dozens of other religious and ethnic splinters like the Maronite Christians and Druze in Lebanon.

5. Tribal divides within ethnic groups.

6. The usual political divides driven by regional or economic interests.

Given that level of parsing, I would venture to say that there is very little one can do in the Middle East that won't end up drawing opposition from a majority of the region's population; their interests are simply too atomized.

When there are a limited number of players and compelling mutual interest, much can be achieved -- witness the Egypt-Israeli peace accords. But as long as the region remains as divided as it is, progress will come in small steps. And it doesn't take much to backslide into a past that nobody seems to want but few have the influence and willpower to avoid.

Lebanon, Hezbollah, Israel, politics, midtopia

Off again

I'm going to be away for the next several days, taking the kids to see the grandparents. I might get in occasional posts while I'm gone, but things won't pick up again until Thursday. See you then!

politics, midtopia