Saturday, December 29, 2012

First, Do No Harm

Regardless of the outcome of the so-called fiscal cliff negotiations, tax policy in our country will be forever changed. Whether done first as a "patch" and then as part of a permanent deal, the most likely outcome (at best) is that the tax rates imposed by George W. Bush and a bare majority of legislators in 2001 will become permanent for all income up to $200,000 for single people and $250,000 for married couples. At worst, those thresholds will be raised to $400,000 or more - protecting at least 98%, and possibly closer to 99% of all income earned by Americans from going up. 

The implications of these changes have not been discussed much by the media, who, as is their wont, are far more interested in reporting this story like some breathless Jerry Bruckheimer movie where we edge ever closer to financial peril that is manufactured to scare the populace. Nevertheless, locking in these tax rates will deprive the Treasury of at least $3 trillion in revenue over the next 10 years, an enormous amount of money that will inevitably result in a smaller government where key investments will simply never be made because the money is not there to do it. For Republicans who claim to carry the flag of fiscal prudence, permanently extending the "Bush tax cuts" is incredibly hypocritical and for Democrats, it is the final capitulation in the tax cut war - a tacit acknowledgment that there is a correlation between tax rates and economic growth (never mind that economic theory does not support it). 

In exchange for permanently locking in these tax rates, the President will ultimately win some concessions - indeed, he may get some before the end of the year to extend benefits to the long-term unemployed, or another year's worth of the payroll tax cut; and soon, he may get some modest infrastructure investment spending (but far less than experts think our crumbling bridges, roads and rails need) or other stimulus from a party that purports to care deeply about employment but has done nothing to manifest that interest, and that will all be well and good except those things will be temporary and fought over whenever they expire if the President wants them extended. Meanwhile, those revenue depriving tax cuts will continue, in perpetuity, even as the cost of government goes up. Having created a floor below which no one will go, raising taxes at an income level under whatever is agreed to, $400,000, $500,000, or even $250,000, will simply never happen- slowly, inexorably, squeezing government's ability to do much besides funding our national defense and social safety net.  

Just as distressing is the fact that this form of economic hostage taking, which began in 2010 when the Bush tax cuts were initially supposed to expire and occurred again about six months later when Republicans put the full faith and credit of the U.S. government in peril by refusing to raise the debt ceiling, shows no sign of stopping. If anything, Republicans are already hinting they will pull the same stunt in less than 60 days when we again hit our borrowing limit. Not only is policy making at the point of a gun a bad idea, but this type of slipshod effort impacts everyone from government workers (no raises for 3 years) to government contractors (who cannot plan ahead) and the millions who rely on services for everything from health care to housing. It also stops our leaders from working on other issues of the day, be they appointments to the President's cabinet or gun control legislation. Make no mistake, this obstruction is intentional, with the simple goal of running out the clock on Obama and kindling the Republican hope of regaining the White House in 2016. 

So what should be done? Simple: Nothing. Let the tax cuts expire, let the sequestration cuts kick in and then, when the new Congress convenes, unveil a thoughtful, comprehensive plan to address these issues. Bullies only change their behavior when you fight back (a theme I touched on back in January: and Obama's almost pathological desire to find common ground has yielded little. This means calling the Repubicans' bluff on the debt ceiling and refusing to offer cuts to Social Security when other, more obvious options for extending its solvency (lifting or eliminating the cap on income subject to FICA, for example) exist or raising the Medicare eligibility age (which yields little in savings). 

While some short term pain will no doubt occur, it will be far better to negotiate with a clean slate, where everything is "on the table" and no artificial deadline exists to solve the problem. Moreover, Obama has two high profile opportunities to pitch his ideas to the American people - his Inaugural address and his State of the Union speech which he should then follow with a full court press of travel, public events and interviews to amplify his message, mobilize the enormous base of support that just re-elected him and leverage his new friends on Wall Street, who realize that Republican nihilism is bad for the bottom line. If the President is going to stake his second term on anything, this should be it, because the structure and framework of this deal will not only impact 2013, or the rest of his term in office, but the future of our country.

Follow me on Twitter: @scarylawyerguy

Monday, December 24, 2012

My 2012 Year In Books

Being a divorced, childless man in his 40s, I have a lot of time to read. This year, I really went to town:

Book of the Year

Just My Type (Simon Garfield):  A fascinating look at the history of typesetting and font creation. Bonus? I now know the difference between serif and sans serif fonts.


Confidence Men (Ron Susskind): A tale of a political neophyte led around by the nose during the most consequential economic calamity of the last 70 years. Favorite bons mot? Close call between Rahm Emanuel pre-determining the path of least resistance to a stimulus bill and the President telling bank CEOs he was the only one standing between them and the pitchforks (and then letting them off the hook).

Honorable Mention

Would It Kill You To Stop Doing That? A Modern Guide To Manners (Henry Alford): *LOVED* this book, mostly because to live in New Jersey is to know what it is to live among people with no manners. They should hand this out to every schoolchild in the state and hope it takes. Also, Mr. Alford now writes a monthly column in The New York Times Sunday Style section which is, as they say on Twitter, “so much win.”

An Emergency In Slow Motion, The Inner Life Of Diane Arbus (William Todd Schultz): Devastating portrait of this enormously talented, but deeply troubled photographer. Rich in its scope, Schultz ties together Arbus’s own inner demons to her almost pathological desire to capture images of people outside the mainstream of society.

The Story of Ain’t (David Skinner): A story about the creation of the 1961 Webster’s Third International Edition wrapped around a larger narrative about changes in lexicography in the 20th century? More please.

Everything Else

Back To Our Future (David Sirota):  Something something, 1980s.

Worm: The First Digital War (Mark Bowden):  I had high hopes for this book as Bowden’s Killing Pablo is one of my favorites, but this story about computer malware sucked me into the same black hole that lab geeks created to stop the infectious virus.

Unsolved Mysteries of American History: An Eye Opening Journey Through 500 Years Of Discoveries, Disappearances & Baffling Events (Paul Aron): Light and easily forgotten (seriously, I don’t remember a single discovery, disappearance or baffling event referenced in the book) tome that would handsomely adorn a vacation home or bathroom.

Pity The Billionaire (Thomas Frank): Another book I had high hopes for based on Frank’s seminal work What’s The Matter With Kansas?, but again, I was left wanting. Pedestrian recitation of the innumerable ways in which the wealthy game the system.

The Fourth Part Of The World (Toby Lester): If 15th century cartography floats your boat, you will love this book. Related, I love 15th century cartography. Actually, this book is broadly about exploration and how the view of our world evolved as we learned more about it through the travels of people like Marco Polo, Vasco de Gama, Magellan and others, but told through the evolution of map making as it progressed through the ages.

The Lifespan Of A Fact (John D’Agata with Jim Fingal): Ever wonder how a long form piece of reporting is written and edited? Ever wonder what would happen if the writer of that article and his editor published their increasingly bitter, snarky, petty and insulting email exchanges as liner notes to the article? Wonder no more, read this book.

Monopoly – The World’s Most Famous Game (Phillip Orbanes): Notable primarily for the first few chapters, which focus on the creation of the game in the 1920s and its nascent marketing in the Philadelphia/New Jersey area in the 1930s. Along the way, someone foolishly sold their stake for a song and lost out on tens of millions of dollars in future revenue.

Almost President (Scott Ferris): Men who ran for, but lost the Presidency. In other words, a bunch of historical footnotes (though interesting what ifs).

Are All Guys Assholes? (Amber Madison): Yes, with a but.

The FOX Effect (David Brock and Ari Rabin-Havt): In the bizarro world, Rupert Murdoch is God, Roger Ailes is Jesus and Bill O’Reilly is the Holy Spirit.

The Tea Party & The Remaking Of The Republican Party (Theda Skocpol & Vanessa Williamson): Essential reading for those who want to understand what happens when predominately white, older voters are forced to watch a black man be their President. Not pretty. Related, they DO know that government runs Medicare, but only they have “earned” the right to it – everyone else (anyone with dark skin, a weird surname or a gay) has not.

The Plots Against The President: FDR, A Nation in Crisis and the Rise Of The American Right (Sally Denton): Fun fact – some Army types tried to launch a coup in the 1930s. Who knew, right? More generally, the Depression spawned a particularly virulent strain of anti-government conspiracists, paranoid industrialists and anti-Semites. Good times.

Manhunt: The Ten-Year Search For Bin Laden (Peter Bergen): Spoiler alert: he dies at the end. Related, Obama kind of knew what the fuck he was doing. 

Drift – The Unmooring Of American Military Power (Rachel Maddow): Of course Rachel Maddow would use the word “unmooring” in the title of her book. I love her. I am totally in the fucking tank for Rachel Maddow and this is in part because instead of writing a predictable lefty screed about politics, she takes a serious (and well researched) look at the use of our military since Vietnam and how what was once something we used judiciously and with sobriety has disappeared behind closed doors (mostly of the White House) and hidden from public view.

Hubert’s Freaks: The Rare Book Dealer, The Times Square Talker And The Lost Photos Of Diane Arbus (Gregory Gibson):  This is Antiques Roadshow meets Plucky Underdog Story. Cantankerous book dealer stumbles onto treasure chest at storage unit auction, winds up with millions in rare photographs (but not before Arbus’s estate makes him twist in the wind).

The Escape Artists (Noam Scheiber): Experienced a day’s worth of attention when cited favorably by Mitt Romney to illustrate Obama’s clumsy handling of the Great Recession. This book felt … insufficient (?) after reading Suskind’s deeper sourced (and longer) book on the same topic.

Full review:

Do Not Ask What Good We Do (Robert Draper): Ditto.

Twilight Of The Elites (Chris Hayes):  I’m deeply envious of Hayes’s relative precociousness (he’s 33 for crying out loud, has an eponymous TV show and is now an author), but he’s damn smart. His first book examines the death of meritocracy as a means of social ascent.

The Power Of Habit (Charles Duhigg): If I substitute a healthy, but sweet fruit (say, grapes, or oranges) for chocolate, I rewire my cerebral cortex to gain satisfaction from something nutritious instead of something fattening. Or, as Hurley would say, “loop, dude.”

Little America (Rajiv Chandrasekaran): I enjoyed this book more than the author’s previously acclaimed work, Imperial Life In The Emerald City. Here, Chandrasekaran looks at the war effort in Afghanistan and comes to some grim conclusions.

The Violinist’s Thumb (Sam Kean): Conversely, I enjoyed this follow-up to The Disappearing Spoon less than the original. Here, Kean takes the same narrative device used in Spoon to discuss various strands along our genetic code. People without a firm scientific grounding (like yours truly), may find the book inaccessible and hard to follow.

The Eighteen Day Candidate (Joshua Glasser): Fast-paced, well researched and well-written account of Senator George McGovern’s ill-fated selection of Tom Eagleton as his running mate in 1972. The author lays most of the blame for this episode on an almost non-existent vetting process combined with McGovern’s vacillation in the face of conflicting advice about what to do once Eagleton’s prior treatment for depression was revealed.

It’s Even Worse Than It Looks (Norm Ornstein & Thomas Mann): One sentence review: It’s the Republicans’ fault.  

Superman (Larry Tye): Created by two nebishy Jewish kids from the Cleveland suburbs who got picked on by other kids during the Depression. Also, popular comic books help get girls. Who knew. Said kids make lopsided deal with publisher (not in their favor), lose out on hundreds of millions of dollars. (See also, Monopoly).

How To Sharpen Pencils (David Rees): Unlike any other book I read this year. Sheer brilliance.

Several Short Sentences About Writing (Verlyn Klinkenborg): I hated this book with every fiber in my being because I was so excited for it based on the title. Instead, the author used an odd narrative device (no chapters, stream of consciousness rants that read like Joyce’s Ulysses) that annoyed me to no end.

Spunk & Bite, A Writer’s Guide To Bold, Contemporary Style (Arthur Plotnik): There may have been some good tips in this book; honestly, I don’t remember anything from it.

The Gospel According To The Fix (Chris Cillizza): In the running with Several Short Sentences for my least favorite book of the year. Awful.

Ten And A Half Things No Commencement Speaker Has Ever Said (Charles Wheelan): Would have been helpful about 20 years ago. Just sayin’.

Confront And Conceal (David Sanger): An evaluation of the key foreign policy challenges faced by President Obama as he begins his second term. Less satisfying than The Inheritance, but worth reading.

Final Victory (Stanley Weintraub): FDR was practically on his deathbed when he ran for a fourth term, but thankfully, he did, and won.

Acquainted With The Night (Christopher Dewdney): In the spirit of Bill Bryson, this book looks at our world through the lens of the evening hours, from dusk till dawn, if you will, with detours around insomnia, why some sunsets are so vibrant and what creatures stir in the middle of the night.

All Facts Considered (Kee Malesky): A compendium of random (and sometimes useful) information. Reference only.

Red Ink (David Wessel): A Wall Street Journal reporter gives you a 101-level tutorial on how (and why) our budget and debt situation got to where it is. Spoiler alert: it’s the Republicans’ fault (see also, It’s Even Worse Than It Looks).

The New New Deal (Michael Grunwald): Essential reading for those who want a granular understanding of the myriad good government projects sprinkled throughout the American Recovery and Reinvestment Act (a/k/a the 2009 “stimulus” bill).









Friday, December 21, 2012

John Boehner Is Really Bad At His Job

President Obama was prepared to make a lot of really bad concessions to Republicans in order to get a budget deal. He was prepared to permanently extend tax cuts on the first $400,000 of income a family earned while changing the way Social Security benefits are calculated, resulting in a reduction in the checks of many seniors. He was also prepared to cut even more to domestic spending above and beyond what he agreed to in the 2011 debt ceiling deal, while leaving defense spending largely untouched, a modest $100 billion trim over 10 years, barely a drop in the bucket for a cabinet agency whose budget is nearly equal to all the other ones put together. He was also willing to let the payroll tax cut expire, resulting in a tax increase for middle class Americans. In exchange for permanent changes to our tax code and Social Security recipients, he was getting some temporary things in return - an extension of unemployment benefits, some (undefined) stimulus spending and a between 1-2 year extension to the debt ceiling. In other words, a guy who just won a sweeping re-election met his vanquished foes more than halfway and expected his own party members to vote in meaningful numbers to get a bill passed that favored the other party.  

While I was baffled by Obama's negotiating strategy (see "Et Tu, Obama?", his chestnuts just got pulled out of the fire by the only guy in Washington who is worse at negotiating than he is - Speaker John Boehner. Boehner, mid-negotiation, decided to try a ploy, bringing a bill to the floor of the House that would extend tax cuts for the first $1 million in income (this covers 99.8% of all income earned by Americans) along with some additional cuts his right wing colleagues wanted. Why he did this was never made clear, but what is clear is that when he tried to get "Plan B" passed, his own caucus rejected it. Now, he has sent everyone home for Christmas, hoping to regroup after the holiday. 

If this sounds eerily familiar, a similar thing happened during the aforementioned debt ceiling negotiation in the summer of 2011. At that time, a considerably weaker Obama was willing to cut an even worse deal than the current one - he was prepared to raise the Medicare eligibility age, cut billions from Medicaid and, as he is doing now, agreed to the "chained CPI" change to Social Security, on top of even bigger domestic spending cuts (you might want to read Matt Bai's tick-tock on that negotiation: In exchange, Obama initially was willing to accept $800 billion in tax increases, but, depending on who you believe, either made a late request to raise that amount to $1.2 trillion, or, realized Boehner could not deliver enough votes on the deal they agreed to. The end result was the same, what was a terrible deal for Democrats was scuttled (thankfully).

So Obama can now thank Boehner twice. Republicans could have had a huge win in the summer of 2011, but gambled that Obama would not get re-elected. After he was re-elected, Obama still made Boehner a very generous offer, but now,  House Republicans have shown that any deal is going to require most of the votes to come from the Democratic caucus. If Boehner could not get his caucus to approve tax hikes for two-tenths of one percent of Americans while larding a bill with enormous cuts in domestic spending, why would we think he'll be able to get 100-150 of his members to vote for tax increases at a lower threshold, an extension to the debt limit and stimulus spending? 

In other words, Democratic votes, and a lot of them, are going to be required to pass a budget deal, whether one occurs before or after we go over the "fiscal cliff." The balance of power, already in the hands of the President and Congressional Democrats, who, bizarrely, refused to leverage it, is even stronger, if they will only use it. If Boehner tries to salvage a deal before New Year's, instead of bringing the President's deal back to the table, Democrats should press their advantage, drop that tax increase threshold back down to $250,000, pull the chained CPI and either extend the payroll tax cut or make up the difference in lower rates for lower and middle class Americans while also pushing for more stimulus spending along the lines of the President's Jobs Act. If we go over the "cliff," only permit tax cuts at the same threshold, while ensuring that a significant amount of money is invested in infrastructure spending and other stimulus that our still-struggling job market needs. What the President should not do is let Boehner off the hook by making additional concessions in an effort to entice enough of his rogue caucus back to the bargaining table. To do that would simply reward bad behavior that has bordered on political malpractice. 

Wednesday, December 19, 2012

Et Tu, Obama?

As details emerge over the compromises the President appears ready to make to resolve the "fiscal cliff," cynics know what it is to be Charlie Brown having the football pulled away by Lucy at the last minute. As Obama roared to victory last month, some of that old "hope and change" magic came back with him. He was resolute in his stance that tax rates on income above $250,000 would go to their Clinton-era level, that he would not be held hostage to another debt ceiling increase and that he would not touch Social Security benefits. Even better, when it came to these bedrock principles, he had the support not just of those who voted for him, but people who did not.   

Obama's opening gambit in the fiscal cliff negotiation was muscular, calling for $1.6 trillion in new taxes over 10 years and unilateral power to raise the debt ceiling. Republicans seemed flummoxed, at first falling back on Mitt Romney's old "deductions and loopholes" idea before finally coming around to an offer to raise taxes on income above $1 million while calling for $600 billion in Medicare savings and a switch in the calculation of inflation for Social Security beneficiaries that would result in a cut in those benefits of roughly 5-10% (reports vary). Republicans also proposed raising the Medicare eligibility age and wanted more cuts in discretionary spending. 

From these two negotiating positions, the media narrative gelled around the idea that both sides had to give and that an agreement halfway between the two parties' positions was the appropriate outcome. While we might be naturally inclined to think that is the way a compromise works, we had an election last month where the President was easily re-elected, Democrats gained seats in the House and Senate and, but for the gerrymandering in many states, would have won back the House. In the balance, Democrats won more votes for President, Senate and the House and polling shows clear support for higher taxes and the protection of social safety net programs. In short, the parties' respective principles were put to a vote and the American people strongly supported one vision (Democratic) over the other (Republican).

So why are we now learning that Obama is willing to move the threshold for tax increases to $400,000, accept a debt ceiling increase of between 1-2 years, the adoption of a less generous formula for calculating Social Security benefits (the so-called "chained CPI"), additional cuts to Medicare (as yet undefined) and has shelved the payroll tax cut that will result in a tax increase for middle class workers. In short, why is Obama giving in to GOP demands? His concessions should not surprise anyone who has followed or read about his Administration. For whatever reason, as steel spined as Obama is when it comes to drone strikes and killing terrorists, he shrinks from the battle in Washington. This pattern started even before he was sworn in, as his economic advisers trimmed their sails when it came to estimating the amount of stimulus they should ask for in Congress, continued as he made concessions to Republicans in the weeks after his election to get their votes for the Recovery Act by larding it with tax cuts (it didn't work, only 3 GOP Senators voted for it, and 1 of those Senators, Arlen Specter, switched sides shortly thereafter) and allowed for the insufferably lengthy debate over health care to consume much of the rest of his first two years in office to no avail as the Affordable Care Act received exactly ONE Republican vote in Congress even though the bill was based on a Heritage Foundation idea. 

Once Republicans took over Congress, they boxed Obama into bad deals to extend tax cuts and perversely, were handed gifts they didn't even ask for, such as Obama's agreement to raise the threshold for estates subject to the estate tax and at a lower rate. In addition, they locked in concessions on tax cuts (2 years) while giving back shorter extensions on unemployment insurance and the payroll tax cut (13 and 12 months respectively). While Obama ultimately got both of those stretched for that 2d year, that he even had to go back to the well would have been unnecessary had he been a savvier negotiator. This "second stimulus," which was overwhelmingly tilted toward the rich and almost exclusively made up of tax cuts, was less stimulative than many other public policies that economists identify as being most pro-growth (take a look at this CBO analysis: Less than a year later, Obama agreed to a process that would result in $1 trillion in domestic spending cuts in exchange for authorization to raise the debt ceiling, a tactic that no Congress had ever used against a President before, never mind the fact that the debt being paid off was largely accrued while the very same Republican party was spending like drunken sailors on everything from foreign wars to prescription drug benefits. 

And while these bad deals were justified for various reasons (the 2010 tax cut deal based on a wobbly economy; the 2011 debt ceiling deal based on fear of default) the supposed big selling point, the three-dimensional chess we were spun, was that Obama was playing a "long game" by creating a deadline (December 31, 2012) not only for the Bush tax cuts, but also the Congressionally passed sequestration that would lop off massive sums of money from the Department of Defense. Taken together, the reasoning went, fear of huge tax increases simultaneous to painful cuts in defense spending would result in compromise by the GOP (presumably after an Obama re-election).

So why is it not working that way? Why has Obama's initial request for $1.6 trillion in tax revenue been trimmed to $1.2 trillion with the threshold for higher rates now at $400,000 and not $250,000 (which means the ill defined removal of loopholes and deductions will have to make up more of the total - something that will be left to Congress to work out). And why has Obama signed off on swapping the "CPI" for the less robust "Chained CPI" for Social Security when the program is on sturdy footing until past 2030? And why has the payroll tax cut been stripped away entirely? What is Obama getting for these concessions? Not much, as it turns out. He might get a 2 year extension on the debt ceiling (something that he should not even have to negotiate over as no Congress has ever allowed our bills to go unpaid), he has now defined "middle class" upward to $400,000 (there will be no second bite at the apple to raise rates on people below that threshold), he's agreed to a tangible (and immediate) cut to one of the foundational social programs of the Democratic party for no particular reason other than the Republicans wanted him to (even though it's bad policy and addresses a problem that does not exist) and will leave it to Congress to pass "tax reform" - something that begins being undone almost as soon as the ink is dry on the bill signing. And oh yeah, on top of the $716 billion in Medicare cuts to providers and private insurers under Medicare Advantage, Obama's signed on to an additional (at least) $350 billion in savings. 

Meanwhile, the defense budget, which has increased more than 100% since 9/11, is barely touched while ever bit of muscle, sinew and cartilage has been stripped away from many "discretionary" domestic spending programs, leaving raw bone even as people fulminate over the need for things like background checks for gun purchases and greater mental health treatment options. Even concessions Obama appears to have gained, like an extension of unemployment benefits and a still unknown amount of infrastructure spending, are temporary while the trade offs he has made are permanent (e.g., extension of the Bush tax cuts on the first $400,000 of income and linking Social Security benefits to chained CPI). In other words, a guy who just won a 332 electoral vote majority is bargaining away things that will never change for smaller things that will end (and quickly) to a party that just got its ass handed to it six weeks ago. 

That a Republican minority has succeeded in getting a Democratic president to first, extend all Bush tax cuts for 2 years and then extend them permanently for the first $400,000 in income a family makes is remarkable. In addition, massive cuts to domestic spending are taking place even as the budget for our military is largely unscathed, corporations continue to reap record profits and most of the impact of cuts are felt by the poor, elderly and infirm. If anything, Republicans have gotten more concessions toward "low taxes and small government" from President Obama than they did from George W. Bush.

What is most disheartening about this turn of events is its familiarity and speaks to the paradox that is Barack Obama. As a candidate, his rhetoric is soaring, his ability to inspire unmatched and data-driven approach to turning out the vote also places a finger firmly on the pulse of the American electorate. Yet, Obama, just re-elected, and convincingly, is turning away from the one point he drove home over and over - that he was going to raise taxes on income above $250,000. Now, it's a Roseanne Rosanna-Dana moment "never mind." Meanwhile, by scuttling the payroll tax cut, middle class earners will see their taxes raised and the chained CPI formula will result in the elderly seeing smaller Social Security checks - two outcomes that no Democrat who voted for the President could have envisioned six weeks ago. Not only are these policies unpopular, but the light hand applied to the wealthy and multi-national corporations that have looted our Treasury for most of the past 30 years stands in stark contrast to the comparatively heavy hand being applied to the middle class, elderly and poor. Tucked within that $1 trillion plus of cuts that Obama has agreed to is flat funding (or cuts) to critical programs that many Americans rely on at a time when wealth inequality is at its highest point since before the Great Depression. For a man who campaigned on "fairness" this is a cruel joke. 

Since the economy imploded in 2008, Republicans have done little governing and a lot of obstructing. Democrats provided the overwhelming majority of votes in the House for TARP and cast the "aye" votes on health care and financial services reform, stimulus to drag our economy out of the ditch and more, while Republicans have squeezed massive concessions on budgetary matters by simply saying "no." As I've written before, Obama is really a closet conservative ( and has governed far closer to George H.W. Bush than Franklin D. Roosevelt. His willingness to make concessions never wins him credit with Republicans and the media will always think he could have done more, but regrettably, he is happy to jettison his own supporters in the service of an agreement that many do not like. Some might call this leadership, I call it selling out. 

Friday, December 14, 2012

A Quick Primer on Gun Rights In America

A quick primer for all who want to better understand what “gun rights” in America mean:

What Does The Second Amendment Protect?

The “core” right recognized by the U.S. Supreme Court in District of Columbia v. Heller was more modest than most people believe. In that case, the Court struck down a District of Columbia law that banned all firearms and instead, help that an individual right to “bear arms” not only applied to the maintenance of a militia but to “self-defense and hunting[1].”

The Second Amendment Does Not Apply To Certain Weapons, Laws Or Regulations

In that same case, the Supreme Court held that the Second Amendment does not guarantee your right to possess short-barreled shotguns[2], machine guns[3] or “dangers and unusual weapons[4].”

Laws prohibiting the carrying of concealed weapons, possession of weapons by the mentally ill and felons and carrying otherwise legal firearms in “sensitive places” such as schools and government buildings, have also been found to be outside the scope of the Second Amendment and do not implicate the Second Amendment[5]. 

In other words, entire segments of the population can be prohibited from owning weapons (felons and the mentally ill), certain weapons can be banned (short barrel shotguns, machine guns, and “dangerous and unusual weapons”) and laws can be passed that ban the concealed carrying of otherwise legal weapons and their presence in “sensitive places” without even implicating the Second Amendment “right to bear arms.”

The Second Amendment Is Not Absolute

While the Supreme Court did find that there is an individual right to “bear arms,” not only does that not guarantee your right to tote an Uzi, but, like all other Constitutional rights, the Second Amendment is subject to permissible regulation.  In the wake of the Supreme Court’s decision in Heller, a two-part test has been crafted whereby courts determine whether a law or regulation violates the Second Amendment. First, the court must determine whether the Second Amendment is infringed. If it is not (as would be the case in areas discussed above), the examination ends. If the Second Amendment is implicated (as it would be, if a state banned the possession of all firearms), the level of scrutiny courts apply is a shifting target depending on the purported infringement of the right to bear arms.  

Where the law or regulation in question directly impacts the limited gun ownership right upheld in Heller – “the right to possess firearms for defense of hearth and home” – the so-called “core” right recognized in that case[6], “strict scrutiny,” the highest level of scrutiny applied by courts, is used[7]. For laws that do not impinge on that “core” right, courts apply “intermediate scrutiny[8]” in assessing whether “the nature of the conduct being regulated and the degree to which the challenged law burdens that right” violates the Second Amendment[9]. Put another way, “a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify[10].”(emphasis added).

Can You Provide Examples Of Laws Or Regulations That Have Been Upheld Under The Second Amendment?

Sure. After the Supreme Court struck down D.C.’s full firearms ban in Heller, the D.C. Council passed a new law that, among other things, banned AR-15 assault weapons. The same litigant, Mr. Heller, challenged this law and this time, he lost. The D.C. Circuit Court of Appeals held that the AR-15, which is essentially the civilian version of the military’s M-16, could be banned because assault weapons disproportionately account for mass murder and the murder of police officers. Based on that fact, the Court reasoned that banning their possession in the District of Columbia was an appropriate means to achieve the acknowledged important governmental interest in public safety[11].  Another aspect of the law that banned large capacity ammunition magazines was also upheld. Here, the Court deferred to studies showing that the use of large capacity weapons result in more crimes where people are injured by gunfire, more shots fired and more wounds per victim than weapons without such magazines and that even in self-defense situations, a large magazine encourages a person to fire the full magazine, increasing the chances of innocent bystanders being hit or put in danger.  The Court found these reasons compelling and appropriate to help D.C. achieve its stated objective of crime control and public safety[12]. 

Enough With The Legalese Smart Guy, What’s The Bottom Line?

Like any public policy matter, it is important to get/be educated. An assault weapons ban? One that covers machine guns[13] would not even implicate the Second Amendment. One that included semi-automatic “assault” weapons would probably pass constitutional muster[14]. At least one federal court of appeals has upheld a ban on large capacity magazines[15] and others have upheld regulations on gun possession by a person convicted of domestic violence[16] and an outright ban on .22 caliber short-barreled rifles[17]. While it is important to note that case law differs among the federal circuits, the idea that the Second Amendment is inviolate and that sensible gun control laws cannot be passed is simply untrue. What it takes, like anything else in Washington, D.C., is political courage – something that has been in short supply in this area for a long time.

*Note: This post is taken from a longer essay I wrote last year:

Follow me on Twitter - @scarylawyerguy

[1]   District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Self-defense was noted to be protection of “hearth and home.”
[2]   Id. at 625, citing U.S. v. Miller, 307 U.S. 174 (1939).
[3]   U.S. v. Fincher, 538 F. 3d 868, 873-74 (8th Cir. 2008), cert denied, 129 S. Ct. 1369 (2009).
[4]   D.C. v. Heller, supra.
[5]   Id. at 626-27. See also, U.S. v. Marzzarella, 614 F. 3d 85, 91 (3rd Cir. 2010).
[6]   Heller v. U.S., 2011 U.S. App. LEXIS 20130  at *88.  See also, Heller 554 U.S. at 628,
[7]  To pass muster under strict scrutiny, a law must be narrowly tailored to meet a compelling governmental interest.
[8]  Under intermediate scrutiny, a law will not be found unconstitutional provided there is an important governmental interest being advanced and the law in question is substantially related to the achievement of that interest
[9]    Id. at *30, citing U.S. v. Chester, 628 F. 3d 673, 682 (4th Cir. 2010).
[10]   Id. at *31 (internal citation omitted).
[11]   Id. at *49-50.
[12]   Id. at *51.
[13]   i.e., fully automatic weapons where one pull of the trigger releases multiple rounds of ammunition.  These were banned, along with semi-automatic weapons, in 1994, but that federal law lapsed in 2004.  See,
[14]   The D.C. Circuit Court of Appeals found that even if D.C.’s ban on AR-15s was subject to strict scrutiny, it would still be upheld. See, Heller v. U.S., 2011 U.S. App. LEXIS at *99.
[15]   Heller v. U.S., supra.
[16]   U.S. v. Smith, 742 F. Supp. 2d 853, 864-65 (S.D.W.V. 2011).
[17]   U.S. v. Gonzales, 2011 U.S. Dist. LEXIS 127121, *21-27 (D. Utah 2011).

Monday, December 10, 2012

The Worst Reporting of the 2012 Presidential Campaign

The 2012 Presidential election was littered with bad reporting and even worse predictions. The commentariat never admitted its fault[1] when much of what they expected to happen failed to materialize, largely because they were as clueless as the Romney campaign about the demographic shift in the electorate that helped propel the President to re-election. As Frank Rich noted in New York Magazine, after the months and months of reporting about the closeness of the election, it was called for Obama a whopping 12 minutes later than his first win in 2008[2]. I will leave it to others to dissect how so many got so much so wrong and instead bask in the wrongness of it all:

2012 Was 2004 Redux: One of journalism’s key touchstones is the lazy analogy. Like Linus’s security blanket, reporters cling to the past as prologue to the present with a force and willfulness familiar to any parent of a six-year old. In this case, the 2012 election was seen as a replay of 2004, where a purportedly unpopular President used a barrage of negative advertising to define his wealthy, Massachusetts-based challenger as an out of touch plutocrat and world class flip-flopper, allowing him to squeak by and win re-election.

Seems reasonable on its face, right? The only problem with this analogy is that it’s not true. Bush narrowly won re-election in 2004 by winning Ohio by roughly 119,000 votes, or a swing in the vote total roughly equivalent to the seating capacity of The Ohio State University football stadium. Had Bush lost Ohio, he would have lost the election. Obama, on the other hand, cleared the 270 electoral vote bar easily, and could have lost the three states where his win was the narrowest – Florida, Ohio and Virginia – and still won.

Paul Ryan, “Game Changer”: Romney’s campaign hit a supposed “reset” button on August 11th when he selected Wisconsin Congressman Paul Ryan as his running mate.  News reports referred to the pick as “bold” and talked about how Ryan’s selection would “energize” the conservative base. Many journalists thought the decision would shake up the race in the way a “safer” pick[3] would not. And of course, after a few days of fawning coverage, (and to the media’s credit), a dissection of Ryan’s record - his radical proposals for shrinking the social safety net and slavish devotion to every-man-for-himself Randian dogma, Mitt sent him to a Cheney-esque “undisclosed location” for the rest of the campaign, popping up briefly to have his lunch money stolen by Vice President Biden at their debate before disappearing permanently[4].

Ohio, Ohio, Ohio:  Journalists love nothing more than resurrecting the sainted spirit of Tim Russert, who famously said in 2000 that the election between Al Gore and George W. Bush came down to Florida, Florida, Florida.  Flash to twelve years later, and the election was supposed to come down to the Buckeye State. And while it is true that Ohio was hard fought and both campaigns spent an inordinate amount of time and money trying to win its 18 electoral votes, the outcome, an Obama win by 3 points, was immaterial.

Michigan, Minnesota & Pennsylvania: In the election’s waning days, a flurry of articles and reporting appeared stating that these three states, none of which had gone for a Republican in the last 20 years, were suddenly “in play[5].” The basis of these stories, like so much of what passed for “reporting” during the campaign, were dodgy polls and journalistic laziness. So severe was the irritation of Obama campaign manager David Axelrod at the implausibility of these claims, he offered to shave the mustache that had adorned his upper lip for the past 40 years if the President failed to win these three states. In the end, none of the three was close, with Obama winning Pennsylvania by 5 points, Minnesota by 7 and Michigan by 10[6].

The Electoral Vote/Popular Vote Schism: In this fairy tale scenario[7], journalists speculated that Mitt Romney would win the popular vote but the President would be re-elected because he would win the electoral vote. Indeed, no less an “expert” than ├╝ber-wonk Ezra Klein saw this as a probability just 11 days before the election[8]. But Klein was not alone, a CNN article the day before the election made a similar assertion[9].  In the end, Obama won a clear majority of both, an outcome that also buried, at least for four years, the media’s other “black swan,” a 269-269 electoral vote “tie” that would have theoretically led to a Romney-Biden Administration[10].

Gallup: This once esteemed organization was the Patient Zero for bad polling that led to even worse reporting. An after action analysis of more than 20 organizations that polled during the campaign had Gallup dead last[11], yet their outlier national poll, which had Romney up nationally by 7 points[12] on October 17th and 5 points[13] on October 29th, was frequently cited by the media as proof of everything from Romney’s post-Denver debate surge to the possibility of the aforementioned electoral vote/popular vote split decision. Gallup was wrong, really wrong, about this election, yet its “brand” afforded it a place above all others even as its polling results were wildly inconsistent with the rest of the pack.

The Denver Debate Mattered: At the first Presidential debate, Mitt Romney scored what all agreed was a clear win.  His polling ticked up in the days afterward and suddenly the hive detected a race that was tipping in his favor; except it was not. As Nate Silver pointed out at the time, Romney’s momentum from Denver (which was real) had eroded within a few days and polling slowly but surely swung back to the President’s favor up to and past the duo’s final debate[14].  Indeed, what was underreported was the fact that Obama’s clean wins in the second and third debates mattered as much as Romney’s ludicrous statements about “binders full of women” and his failed “gotcha” moment about the Benghazi attack.

The Unemployment Rate: Much was made over the fact that no President had been re-elected with an unemployment rate above 7.2% since FDR in 1936[15] as a way of reminding people that the election was REALLLLY CLOSE. Well, Obama won, and handily, how’s that working out for you?

Obama Won No Mandate: Admittedly, this trope was ginned up largely by people on the right, but even more mainstream journalists questioned whether the first Democrat since FDR to win more than 50% of the vote twice and who added seats in the House and Senate (where Democrats won the popular vote nationally as well) was given a mandate by the American people.  While it is true that the overall vote was down slightly from 2008, in the 12 “swing” states, it was up, albeit, nominally (.28%) and Obama won 11 out of 12[16]. Obama’s win also marked the fifth time in the last six Presidential elections that the Democrat won the popular vote and the fourth time the Democratic nominee won more than 330 electoral votes. This plays into a larger discussion of how Republicans try and convince people that the country is “center-right” in its leanings, when all evidence nationally is to the contrary, but that’s a story for another time.

Ultimately, the failing of the media (and Romney for that matter) in seeing how the election would turn out stemmed from an unwillingness to accept an evolving reality about our country, its demographics and the issues that matter to people. Reporters were too willing to accept information from supposedly reliable sources like Gallup, while doubting the statistical and data-driven work best exemplified by Nate Silver. And all of this would be excusable if the media wasn’t paid to get this shit right, but they are, and they should.  


[1]   This was particularly true among right-wing commentators such as George Will and Michael Barone, both of whom predicated a Romney win with more than 300 electoral votes; never mind Peggy Noonan, who bizarrely claimed the day before Election Day that the “vibrations” for a Romney win existed based on a few rallies and yard signs (see: Suffice to say, no mea culpas (or better yet, firings) resulted from these statements.
[3]   The usual suspects were former Minnesota Governor Tim Pawlenty and Ohio Senator Rob Portman.
[4]   Naturally, the same folks who lauded Romney’s selection of Ryan ended up criticizing him for not going with the “safe” option of Rob Portman. Irony machines around the country were heard breaking at that change in opinion.
[5]   See, e.g.,,
[6]   For the purposes of this article, percentages and margins of victory are based on the total state vote, including votes for third party candidates.    
[7]   Don’t get me started about 2000, or 1876 for that matter, where this actually happened. Both of those elections were “won” under sketchy circumstances that involved, at best, questionable legal precedent (2000) and at worse, the raw exercise of unchecked political power (2000 and 1876).
[15]   Aaron Blake, a writer for The Washington Post, called it the most overrated statistic of the 2012 campaign: