Wednesday, June 27, 2012

Don't Blame Chris Cillizza, He Just Writes A Blog


I just finished reading Chris Hayes's book Twilight of the Elites, about which I will have much more to say in a future entry; however, part of Hayes's thesis is that our trust in "elite institutions" has dramatically fallen since the 1960s.  One of those institutions is the media - where once we had the "most trusted man in America" Walter Cronkite, we now have a bleacher commentariat that does little more than narrate the Washington food fight.  But hey, it's a job, I guess it pays, no matter that the lives of millions of Americans are affected by the decisions they choose to report (or not) report on. 

One of the nice things about Twitter is that it has lopped off the barrier between journalists and their readers. With the Supreme Court's decision on the Affordable Care Act being announced tomorrow, Chris Cillizza, a staff writer for The Washington Post who blogs as "The Fix" and is a frequent guest on the cable chat shows, tweeted the following:

Gaming out the politics of the 3 most likely rulings by SCOTUS on the health care law. http://ow.ly/bS0Ak

I was a little annoyed that tomorrow's decision was just fodder for a blog entry by Mr. Cillizza, who specializes in a "winners and losers" type of reporting that is usually devoid of any serious policy discussion.  So I responded thusly:


@TheFix Instead of looking at EVERY decision in DC from a political lens, how abt the millions affected by the decisions for once?

Too much to ask for? Maybe, but it's one thing to opine about a primary debate or whatever the latest tempest in a teapot that is roiling Washington, but the Affordable Care Act affects the ability of millions of Americans to get health insurance.  Surely, the weight of an anonymous "follower" would spur Mr. Cillizza to reconsider, right?  Not so much.  His four word response:

@scarylawyerguy I write a campaign blog.

And there you have it.  Don't blame Chris Cillizza, who has the platform of one of the five largest (and most important) newspapers in the country, 123,000+ followers on Twitter, appearances on TV and a blog on a highly trafficked website, for not caring about the 30 million people who may not be able to get health coverage after tomorrow, he just writes a campaign blog.  

Tuesday, June 26, 2012

Supreme Court to Arizona: SIT DOWN


A quick primer on what happened in yesterday's case, Arizona v. United States. There's been a lot of reporting (some of it inaccurate) about what the Court did and did not say.  I will try to keep it simple and basic, and commend folks to read the opinion for themselves: http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf.

Ok, so what happened.  Simply put, the Court reviewed a facial challenge to Arizona's anti-immigration law, SB 1070.  What's a facial challenge? This is where the Court is asked to rule on the permissibility of a law as it is written, not as it is applied.  Think of it this way - if Arizona had passed a law permitting indentured servitude, the state could be sued based on the legal theory that "on its face" the law violated the 13th Amendment to the U.S. Constitution - and the Court would dutifully rule as such.  There would be no need to see what protections the state put in place to regulate indentured servitude, it would simply be disallowed. 

In Arizona, three of the four provisions of SB 1070 were struck down on their face - that is, as a matter of law, without getting into questions of their implementation, they are unlawful.  The whys of this analysis are interesting to legal scholars, but my guess is that the average American is uninterested in concepts of federal preemption.  It is enough to say that the state cannot create a new state criminal violation for failing to carry an alien registration document (something already required under federal law and in a field where federal law is absolute (hence "preemption")); cannot create a state criminal violation for an "unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor”; and cannot allow police to “without a warrant, [] arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” This last finding was particularly damaging to those who think state and local law enforcement can expand their duties as immigration officers.  A six member majority reaffirmed the narrow circumstances that permit state officers to act in an immigration capacity.  The money quote from Justice Kennedy's majority opinion:

Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A princi­pal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circum­ stance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and super­ vision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U. S. ___, ___–___ (2010) (ALITO, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigra­ tion officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (ar- rest power contingent on training), 287.1(g) (defining the18 ARIZONA v. UNITED STATES Opinion of the Court training). By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 483–484 (1999); see also Brief for Former INS Commissioners 8–13.)
So the state cannot create a parallel regime for alien registration documents, cannot make it a state law criminal violation to seek employment if you are an "unauthorized" alien and cannot grant state and local law enforcement the right to detain, without a warrant any person they have probable cause to believe has committed any public offense that makes him "removable" from the United States. Period. Paragraph.

So what of the so-called "papers please" clause - the idea that anyone can be stopped and asked for their "papers" - documents that prove they are in the country legally?  Here, we must distinguish between a facial challenge and an as applied challenge. Think of the Affordable Care Act.  If the Court were to say that on its face, they thought the ACA was constitutional, but reserved its right to review its legality when a person who was otherwise required to purchase insurance under the individual mandate did not and was assessed a penalty, they would be reviewing the law as applied (this is basically the argument Judge Brett Cavanaugh of the D.C. Circuit Court of Appeals accepted (in dissent)) in arguing that the Anti-Injunction Act was triggered by the ACA and therefore, the Court should not pass on the law's constitutionality until someone was subject to its penalties).  

What does all this fancy legal mumbo jumbo mean?  It means that the final provision at issue, Section 2(B) was not thrown out on its face, but the Court reserved its right to hear litigation based on the application of this provision by a person who was subject to it.  So what does Section 2(B) say?  Again, we look at Justice Kennedy's opinion:

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de­termined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.
Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Ari­zona Constitution[s].” Ibid. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” §11–1051(L) (West 2012).
So, contrary to a blanket "papers please" construct, this section of SB 1070 is somewhat limited.  First, it requires that a person be stopped, detained, or arrested for some other legitimate basis. In other words, you can't just stop someone based on, say, their skin color. Second, the officer must have reasonable suspicion that the person stopped, detained or arrested is an alien unlawfully present in the United States. Generally, reasonable suspicion is based on "specific and articulable facts," "taken together with rational inferences from those facts." (See, Terry v. Ohio). Assuming the first two elements are present, all state and local law enforcement can do is confirm the individual's immigration status with ICE (Immigration and Customs Enforcement) before the person is released. It does not allow the state to unilaterally deport the individual or act as its own ICE. 

And even here, the actions of law enforcement are severely proscribed.  First, a valid state driver's license or "similar" identification is presumptive evidence of lawful presence; Second, and more importantly, law enforcement cannot consider race, color or national origin in enforcing this provision except as permitted by law (which is to say, very very narrowly, if at all) and that the act must be implemented in a manner consistent with existing federal laws protecting a person's civil rights.  

Again, Scary Lawyer Guy, with the legal mumbo jumbo.  Bottom line it for us.  Ok. Simply put, the first person who is asked for his papers during the course of an otherwise legal stop, detention, or arrest who thinks the request is made based on his race national origin or ethnicity can file a lawsuit challenging the law as applied to him. Further, good luck being the chief of police drafting policies and procedures to comply with the statute. Not only will you subject the state to litigation, but you and your department may be on the hook for civil rights violations.  In short, the Court's opinion is likely to neuter any effort by law enforcement to use the law in large part because it's almost impossible to come up with a race/ethnicity/national origin neutral policy to ask people for their 'papers' without it including everyone, and the citizens of Arizona simply won't stand for it. 

In other words, the Court sent a clear message that engaging in what is, for lack of a better term, "racial profiling" is unacceptable, but in doing so, cut out the heart of what SB 1070 supporters wanted - the ability to stop people simply for "being brown." Moreover, even if police do create policies and procedures that somehow pass muster, all they can do is confirm a person's immigration status prior to release. They can't deport people, but rather, pass enforcement to the place the Court unmistakably said primary authority rests - the federal government.  

Sunday, June 24, 2012

The Case For Audacity


Recently, President Obama announced that the Department of Homeland Security would no longer attempt to deport certain individuals who arrived in the country illegally.  His announcement was a watershed event, the most meaningful change in immigration policy since a bipartisan agreement in 1986 granted amnesty to millions of undocumented individuals residing in the United States (yes, you read that correctly - Ronald Wilson Reagan signed an amnesty law).  Days like this remind those of us who voted for Obama why his candidacy held such promise.  Indeed, the lesson he and his team seem to miss is that he leads most effectively when he is being audacious, when he is, pardon the expression, leaning "forward." 

Obama's decision to stand down on deportation is also instructive when looked at in context with other choices he has made that spoke to a larger vision for America.  Consider his decision to repeal "don't ask, don't tell." Not only did Obama get on the right side of an important civil rights issue, but he stared down the blind and mindless opposition that the right threw out about how eliminating DADT would lead to a parade of horribles.  In the span of a little more than a year, we've gone from a military where gay people could not serve openly to the Pentagon sponsoring gay pride month events. Similarly, his public support for gay marriage allowed him to articulate a vision for America that is inclusive, of righting an historical wrong and giving voice and acceptance to a long-maligned minority.  If that is not what the Presidency is for, I don't know what is.

But it is not just on social justice that Obama has been well served by leading.  As has been exhaustively chronicled, he took the harder, but more satisfying course in hunting down and killing Osama Bin Laden.  He could have gone the safe route of dropping bombs from fighter jets, but there was no guarantee of success and any evidence in Bin Laden's possession would have been destroyed.  No, he took the riskier path, but in doing so, got confirmation of Bin Laden's death and a trove of intelligence that has resulted in the killing of another dozen Al Qaeda leaders in the time since the operation. In addition, Obama withdrew all of our combat forces from Iraq, a campaign promise that easily could have been stymied by the military or an outcry of Republicans crying "cut and run." 

On the other hand, Obama tends to get himself in trouble when he "leads from behind."  He was largely absent from the finer points of policy making around the Affordable Care Act, where a passionate and consistent defense of the "public option" was there for his taking and in the bank bailout, which he continued with little in the way of punishment for the Wall Street barons who blew up the economy.  Instead of taking a hard line, he let bankers know he was what was between them and the "pitchforks." In the meantime, he refused entreaties to offer greater homeowner relief and much of that middle class angst was redirected into anger not against Wall Street, but Washington.  

Even on his signature issues, Obama settled for half a loaf. The Recovery Act, passed in the weeks following his inauguration, was weighted down with hundreds of billions in tax cuts in an effort to draw bipartisan support that never arrived.  The Dodd-Frank legislation began as a somewhat muscular piece of financial regulation only to be watered down as it made its way through committee.  In both instances, Obama settled for broad policy strokes instead of injecting himself directly into the fray, refusing to make the argument that esoteric issues like derivatives regulation matter or that a better use of public funds was not across the board tax cuts but greater investment in works projects, mortgage relief or long-term aid to states and localities.  What the Obama team failed to realize is that they would not get a true second bite at the stimulus apple and instead, relied on less effective means of promoting growth (tax cuts) because that was all Republicans would agree to. Even when kismet struck, that second "stimulus" was yet more tax cuts (along with a little slice of unemployment insurance extension) that served to line more deeply the pockets of the wealthy that did not need help.  

This is not to say that Obama has failed, but rather, that having taken difficult stands on meaningful social and military policy, his failure to do so in other arenas is all the more vexing. If he wishes to become the transformational President he claimed he wanted to be, it is not enough to call for the repeal of the Bush tax cuts for high wage earners, he needs to come forward with a meaningful and progressive tax reform proposal that does not just eliminate some loopholes that a future Congress and President will reinsert, but makes the argument that after 30 years of income redistribution upwards, the truly rich, the 1% of the 1% have to pay far more. He cannot take a principled stand in asking for people to delay entry to Medicare, he must propose ways for people to gain access earlier, in the same way accepting Social Security before your full retirement reduces your benefit, citizens should be entitled to enter Medicare beginning at age 55 if they are willing to contribute more toward their coverage. For struggling homeowners, he needs to stop with half hearted measures and direct Freddie and Fannie to write down loan amounts in exchange for shared appreciation agreements where the government would split proceeds when the property is sold. 

The education the President has received in the ways of Washington has come at an enormous cost to the poor and middle class. The lessons of repealing Don't Ask, Don't Tell, immigration enforcement, withdrawing from Iraq and setting a timetable for pulling out of Afghanistan should inform the President's thinking that the American people want to be led, they want to know their President has a clear view of where he wants to take the country and that he will do so with an eye toward fairness and the public good. At a time when confidence in our public institutions is at an all-time low, what we as a country seek, is the sense that the system is not rigged, that the entrenched interests don't always win and the right thing can still be done. 

The conceit that Obama cannot move public opinion or individual members of Congress has never truly been tested because the President has never utilized the muscular power of his bully pulpit.  When it came down to brass tacks on policies that his leadership was desperately needed in, he largely punted - what would have some visits to districts or states of vacillating Democrats (or stonewalling Republicans) have done when it came time to look at health care, financial regulation reform or stimulus spending. We don't know, and if he loses in November, we never will. 

Saturday, June 23, 2012

The Tax & Spend Switch That Would Have Saved Health Care


As we prepare for the Supreme Court's decision on the Affordable Care Act, I tweeted last night that had Congress enacted the individual mandate as a tax and not a penalty, the law would be on much firmer Constitutional ground.  I got a few responses asking why that was and since explaining esoteric tenets of our Constitution elides 140 characters, I'm posting this to briefly - (I am NOT a constitutional scholar) explain why the Tax and Spend Clause would have been a better legal option for the ACA.

Ok, so what's the issue?  Congress had two choices for its legal justification for the ACA (i.e., what authority the Constitution granted for the passage of the law) - they could have chosen the Tax and Spend Clause (Art. I, Section VIII, Clause 1), or they could have opted for the Commerce Clause (Art. I, Section VIII, Clause 3).  They chose the latter.  Under the Commerce Clause, Congress can pass legislation to regulate: (1) “the use of the channels of interstate commerce;” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce;” and (3) “those activities having a substantial relation to interstate commerce … i.e., those activities that substantially affect interstate commerce.” Thomas More, 651 F. 3d 529, 541 (6th Cir. 2011), citing U.S. v. Lopez, 514 U.S. 549, 558-59 (1995).  

With regard to the ACA, the Government conceded that the law did not trigger either of the first two rationales, and therefore, had to be evaluated as a law that affected, in the aggregate, interstate commerce. The basic argument is this: "health care" is a market, people without health care consume billions of dollars in services each year that result in those with insurance having their premiums increased, which substantially affects interstate commerce, therefore, if you require everyone (with few exceptions) to carry insurance, these issues will be mitigated because uninsured citizens will no longer burden the system and insurance risk will be allocated in a fairer way among the broadest cross-section of the country (this is also why so many other elements of the ACA, including requiring insurers to accept people with pre-existing conditions, is so critical for them - the insurers' risk needs to be spread among the healthy and more infirm if they are going to have to accept everyone). 

The complication arises because the law, opponents say, affirmatively requires a person to buy health insurance even if they are not currently sick and may (in theory at least) never need it. In doing so, these opponents say, the government cannot force a person into a consumer market involuntarily. Indeed, this argument goes, this is the first time Congress has ever required citizens to enter the "stream of commerce" against their will. Some courts bought the government's argument and said this was a proper exercise of Congress's authority under the Commerce Clause and one appellate court (the 11th Circuit) disagreed, saying that the government could not mandate that you enter commerce involuntarily. 

It's important to note, even the 11th Circuit, which struck down the ACA, and whose opinion is the one the Supreme Court granted certiorari to review, conceded that as a general matter, Congress, can, under the Commerce Clause, regulate the health insurance industry and cited, as two examples, ERISA and COBRA (the former having to do with the regulation of employer-based health plans and the latter, the portability of health coverage after employment separation). It was just that here, where people were required to purchase insurance, the Court held, Congress had overstepped its bounds.  

So why would the use of the "tax and spend" clause have been easier?  Simply put, the Supreme Court has established precedent dating to the New Deal that basically gives Congress plenary authority (yes, with some minor limitations) over taxing and spending. Consider the language from the touchstone case on the matter, U.S. v. Butler, 297 U.S. 1, which, while striking down taxes levied within the Agricultural Adjustment Act of 1933, offered a sweeping view of Congress's authority to tax and spend: "The [tax and spend] clause confers a power separate and distinct from those later enumerated [,] is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." (emphasis added). Pretty comprehensive, no? Mind you, this was an opinion that included the so-called "Four Horsemen" of the Supreme Court, deeply conservative Justices whose antagonism toward the New Deal was so extreme that FDR wanted to change the Constitution so he could appoint new Justices. In other words, these are not the words of wild eyed liberals, but rather, sober, and some said, reactionary, Scalias of their day. 

Tax and spend litigation subsequently upheld everything from requiring employers and employees alike to contribute to Social Security (Helvering v. Davis, 301 U.S. 619 (1937) and Unemployment Insurance (Steward Machine, Inc. v. Davis, 301 U.S. 548 (1937), and allows the federal government to place certain "strings" on federal funding to the states, such as requiring that they raise the legal drinking age to 21 in order to receive highway funding (South Dakota v. Dole, 482 U.S. 203 (1987)). Further, individual challenges to taxes for a variety of reasons, including infringement on religious freedom to those who question the constitutionality of the income tax or IRS are invariably shot down (for a discussion of why laws of general applicability as they relate to Constitutional challenges, see my blogpost: http://scarylawyerguy.blogspot.com/2012/03/laws-of-general-applicability-or-why.html).  The other benefit to tax and spend is not having to go through the tortured formalism of a three-part test as you do with the Commerce Clause.  Here, provided the tax is connected to some objective of the "general welfare," you're gold. 

In other words, had Congress articulated the same rationale for the individual mandate (i..e, the need to spread insurance risk among the entire population) and taxed that purchase instead of assessing a "penalty" for failure to buy it, opponents would have been on very shaky ground based on the Supreme Court's decision in Butler. Further, having already approved of levying a tax for "old age pensions" and health care for the elderly, the Court would have been hard pressed to not uphold the ACA on these grounds.  So why didn't Congress and the President do what Senator John Chafee did when he proposed his individual mandate model back in 1993?  That answer is simple and can be summed up in one word - "politics." Democrats took the politically easier, but legally more challenging route because they did not want the dreaded three letter word T-A-X attached to this bill. Just another example of bad politics making bad law. Oh well, at least every legal scholar with a JD next to his/her name will be busy next week. 

Follow me on Twitter: @scarylawyerguy

Sunday, June 17, 2012

Escape Artists & Tea Party Nihilists


A side benefit of political conflict is that it makes a great excuse for the churning of books detailing those squabbles.  Two recent ones that came across my night table are Noam Scheiber's The Escape Artists and Robert Draper's Do Not Ask What Good We Do. The former focuses on President Obama's struggles to heal our economy, while the latter focuses more on the first year of the 112th Congress led by Speaker John Boehner. 

While Scheiber tags the Obama team as "escape artists," it is not the first way I would describe them.  My choice would be "little c" conservative - not the stuff of a book title, but a more apt adjective for their policy making.  Indeed, what Scheiber argues is that the President's decision making regarding Wall Street, the economy and the federal budget is probably closer to George H.W. Bush than Franklin Delano Roosevelt.  For example, the main protagonist of Scheiber's story is Treasury Secretary Tim Geithner, who cut his teeth as an aide in the U.S. Embassy in Japan during the first Bush Administration before moving to the Treasury Department prior to Bill Clinton's arrival in Washington then swiftly working his way up the ladder by ingratiating himself to Clinton heavyweights Robert Rubin and Larry Summers before moving to the New York Federal Reserve under George W. Bush. Geithner comes across as nothing more than a bloodless technocrat who is reflexively cautious and protective of the Wall Street status quo. When given the choice between saving Wall Street and Main Street, Geithner reasoned that saving the former was essential, while the latter was not, because capitalism itself could not survive the collapse of Wall Street, while ordinary Americans could limp along until things got better. 

Scheiber describes how Geithner insinuated this world view into the upper echelon of the Obama team, even though had presided over a New York Fed that was accommodationist to the extreme during the heyday of the housing bubble. Geithner deftly commands the stage against powerful economic voices like Larry Summers (brilliant but lacking the ability to manage policy) and Christina Romer (out of her depth at first and marginalized by the time she gets her sea legs). For example, Romer had already been cowed before Obama's inauguration into trimming her estimate of the stimulus needed to right the economy (she estimated $1.8 trillion over two years) because of political considerations and Geithner outmaneuvered Summers by proposing the so-called "stress tests" for banks as a way to both stave off any attempts to break up or nationalize banks and to provide elusive "confidence" to the market while Summers never offered a viable alternative. 

Readers who want a more granular level of analysis of these crucial months in Obama's history are commended to read Ron Suskind's Confidence Men, because Scheiber's lens is broader than just those early months when the Recovery Act was passed or even the year long slog through the health care debate. After those battles, we see the Obama team lurching to satisfy what it thinks is popular opinion - first in embracing deficit and debt reduction in response to the Tea Party and then swinging to the opposite extreme in calling for more stimulus through infrastructure spending and aid to states after the Republicans bloody Obama's nose over and over in "hostage taking" policy showdowns over the federal budget and debt ceiling.  This is not to say that Obama was adrift, but Scheiber paints a picture of a pragmatist-in-chief without a clear North Star guiding his policy. In the absence of any core belief (the closest Scheiber comes is his observation that at heart Obama is a deficit hawk) what Obama and his team are left to do is make policy decisions on the fly.  Ironically, the economic result is not far from Romer's $1.8 trillion estimate, but because Obama was unwilling to fight for that larger amount in the first place, and could have shaped and directed it, the second stimulus ended up being predominately tax cuts, much of which was directed at the wealthy and whose stimulative effect on the economy was not nearly as powerful as the money would have been if put into rebuilding roads, bridges and dams, and sending aid to states so they would not lay off public workers. 

Ultimately, The Escape Artists begs the counter factual - the "what if" of Obama's policy making.  Not just with the miscalculation on the amount (and breakdown) of the Recovery Act, but missed opportunities to help the housing market, to go small on health care and take a harder line against the banks. Scheiber's thesis will no doubt infuriate liberals and progressives who believe Obama insufficiently committed to aiding (and protecting) the middle class and will surprise conservatives (if they are willing to take their blinders off) at Obama's caution and deference to "the market" when it came time to make the truly hard decisions.  While Obama may sound like a progressive, he acts like a moderate. What I was struck by was the good faith effort Obama and his team put forth - they wanted, desperately, to do what they thought was right, but their actions fell woefully short. They thought trying to bring Republicans into the policy conversation would bear fruit when all it did was solidify their opposition, they thought aiding Wall Street would curry favor with the titans of the banking industry, but all they got was a steady outflow flow of campaign contributions to Mitt Romney, and they thought handing the health insurance industry 30 million new customers would be a market-based reform, but instead they got a lawsuit that may strike the whole thing down. 

The other side of the legislative coin is explored in Robert Draper's Do Not Ask What Good We Do, which looks at the first year of the 112th Congress and the impact the more than eighty freshmen Republican legislators had on that institution. Draper's book will not uplift those who hold out hope that our nation's leaders will accomplish anything anytime soon.  If anything, Draper's book will reinforce the idea that their 9 percent approval rating notwithstanding, many of the so-called Tea Party Republicans, sheltered by favorable redistricting maps, are no more interested in negotiation or compromise than the day they were sworn in.  If anything, they are more opposed to it than ever. Indeed, what is glaringly obvious from Draper's narrative is that while the Republican Party in Congress marches in lockstep opposition to President Obama, there is a smaller faction within the House Republican Caucus that pulls the same stunt against its own leadership. 

The result of this intransigence is not pretty, but Draper appears more interested in shading in the scenery than narrating this blood duel.  Long stretches of the book provide biographical and background information about better known (at least to political junkies) elected officials like John Dingell and Kevin McCarthy and upstart freshmen like Allen West, Renee Ellmers and Jeff Duncan.  The result is not unpleasant, but not particularly illuminating either. Where Draper does a better job is providing insight into the horse trading that is inevitably part of the legislative process.  For example, he shares an anecdote about how money was secured to deepen the Port of Charleston to allow more ships to use it as a hub. Of course, the South Carolina delegation is among the most conservative in Congress, but when it comes to finding federal dollars to support something in their state, the orthodoxy has a funny way of being bent. They are more than happy to try and lobby their Committee chairmen for money, but get stiffed, in part because of personal pique at the agita these freshmen have created.  Ironically, it is left to the delegation's lone Democratic member, James Clyburn, to "make a call" to a friend in the executive branch who dutifully (and paperlessly) transfers the needed money.  

What should strike readers as offensive is not the subtle way "Washington" worked in this particular case, but the bald faced hypocrisy of these so-called fiscal conservatives, who publicly denounce the expansion of the federal government, disclaim any notion that public money creates jobs and banned so-called "earmarks," while privately seeking tax dollars to support a pet project, which, incidentally, would help maintain and create jobs in South Carolina. Perhaps that 9 percent approval rating would move a bit were members willing to acknowledge that federal money spent toward projects like deepening a port's traffic lanes is salutary, but to do so would require an admission that government can work, something the Tea Part crowd is simply unwilling to do. 

The set piece of Draper's book is the forty-three page chapter aptly tilted "The Hostage."  What Draper adds to the now thorough examination of the debt ceiling debate is the breath taking cynicism and shamelessness of Republican leaders who, unable to marshal the votes to pass the debt ceiling deal on their own (even with a 25 seat majority), with a straight face ask Democrats to produce 100 votes of their own.  As Draper notes, having gotten "ninety eight" percent of what they wanted out of the deal, Republicans now wanted Democrats to cut their own throats by providing nearly 50% of the votes for the bill.  And guess what? They did. For those who consider game theory in politics, it should be unsurprising - Democrats have provided crucial votes on everything from No Child Left Behind to the Iraq War resolution.  Democrats, as they usually do, did the "right thing" to ensure our bills were paid even though they received nothing in return.

Of course, the vote was distasteful. House Democrats had a right to be unhappy.  Having been ignored by Obama when she advised him to raise the debt ceiling in the 2010 lame duck session, Nancy Pelosi swallowed hard and voted for the bill.  Congressman Dennis Cardoza is quoted as calling Obama "the worst negotiator" in the history of the Presidency and Congressman Emanuel Cleaver laments how Obama ignored his entreaty to not slash block funding to cities that, when Cleaver was Mayor of Kansas City, had helped fund critical infrastructure projects. His plea fell on deaf ears. Here, the narratives between Draper's book and Scheiber's converge neatly. Both portray a timid White House eagerly looking to cut deals and get to resolutions while compromising away meaningful ground. As Congressman Jon Runyan, a former offensive lineman with the Philadelphia Eagles observes when speaking about the debt ceiling debate, the Republicans were winning the game of field position against the White House, accumulating small victories along the way. 

To add insult to injury, the spectacle of wounded member Gabrielle Giffords appearing on the floor to vote for the bill allowed members the cover of "bipartisan" fervor to push the bill across the finish line.  While conservative Republican freshmen legislators prayed for guidance, they seemed divorced from the reality of how the debt was accumulated (overwhelmingly by passing massive tax cuts under two Republican Presidents, a massive arms build up, failing to pay for Iraq & Afghanistan, Medicare D) and by who (predominately Republican Presidents dating to Reagan's "deficits don't matter" policies of the 1980s). But on this, there was no bending.  As Speaker Boehner lamented, unlike in prior Congresses, where earmarks and federal funding could be used to grease the wheels to get votes, left solely to his powers of persuasion, many freshmen simply tuned him out. 

Indeed, Boehner does not come off well in Draper's story.  His old school way of doing things, of shmoozing other members, chumming it up in smoke filled rooms behind closed doors and keeping a modest schedule (apparently, anything past 10 P.M. is off limits for him) made him particularly ill-suited to run a Congress stocked with flame throwing conservatives. Boehner is portrayed as passive, unwilling to instill discipline in his "troops," and, at best, managing the unruly host of freshmen sent to Washington in 2010, instead of leading them.  Denuded of the traditional carrots and sticks that prior Speakers had at their disposal to incentivize or punish members, Boehner comes across as impotent, eager only to placate his restless base of Congressmen to keep his position. 

Books like these are important to read as background for the months to come.  Regardless of who wins the Presidency in November, Congress and President Obama have two major policy battles ahead of them - the expiration of the Bush tax cuts and the automatic "sequestration" cuts delineated in last year's debt ceiling deal have to be addressed before the end of this calendar year. Longer term, and regrettably for Democrats, what both books suggest is that when push comes to shove, Democrats will go more than halfway to placate Republican demands, which is one thing when your guy is in the White House, but a dangerous thing if he is not.  

Saturday, June 16, 2012

The GOP Plot To Steal The 2012 Election


While the GOP may not be great shakes when it comes to governing, they sure know how to campaign.  In 2012, they are deploying a potentially devastating strategy that, if it results in a Republican President and Congress, will achieve its long-held objective of permanently changing (if not eradicating), the "big three" social programs of Social Security, Medicare and Medicaid, while locking in long-term tax cuts for the wealthy that will restrict future public policy by  substantially reducing tax federal revenue.  

Block the Vote. For a party that purports to revere the Constitution, Republicans sure have a funny way of showing it.  Since 2010, a concerted effort has occurred at the state level to reduce access to the ballot, with a disproportionate impact of these policies affecting the young, minorities, and the elderly, in other words, key constituencies of the Democratic party.  Coincidence? I doubt it. First, Republicans have passed Voter ID laws that require citizens to present a government approved (so much for "small" government) ID when voting. Seems trivial if you have had your driver's license since you were a teenager or can call your mom to fish out your birth certificate so you can get the necessary ID; however, many poor, elderly and minority voters do not. According to the Brennan Center, these restrictive policies have the potential to impact 5 million voters in 2012 (read more here: http://www.brennancenter.org/content/resource/voting_law_changes_in_2012/). 

Second, limit the ability of third party organizations to register voters. Here, Florida was leading the way until a federal district court smacked it down a few weeks ago. Although voter registration has been a long standing tradition (it's even codified in the Voting Rights Act of 1965), by limiting their ability to operate, Republicans in states like Florida hope to discourage or eliminate altogether, work done by these groups.  In this way, what is happening at the state level is simply an extension of the defunding of the bogeyman ACORN that Republicans successfully demonized based on a highly edited video that went viral (thanks in large part to right-wing media) back in 2009. 

Finally, purge eligible voters off your rolls and make them prove their eligibility.  Again, Florida is leading the way, but conservative "watch dog" groups are lobbying a number of other states (many of which are so called "swing states") to do the same thing (read more here: http://thinkprogress.org/justice/2012/06/12/498039/gop-front-group-suing-states-to-force-voter-purges/). Taken together, Republicans are aggressively working to limit access to the voting booth and doing it in ways that will impact Democratic (and democratic) voters.

Super PACs. After the Supreme Court's Citizens United decision, the impact of wealthy donors on the political process has been profound.  While we are expected to believe the lie that no "coordination" takes place between a candidate and his/her Super PAC, it is a distinction without a difference.  Mitt Romney's Super PAC eviscerated every GOP contender with millions funneled to it by a small number of donors while Romney was able to marshal his more modestly raised resources to positive ads about himself.  Nevermind that former Romney staffers work for Restore Our Future or that Romney, who claimed to have no knowledge of their advertising was able to rattle off, almost verbatim, one of their spots against Newt Gingrich, the ability of a candidate to divorce himself from the tactics of its Super PAC offer what the media like to call "plausible deniability." 

More importantly, Super PACs offer the ├╝ber rich an opportunity to avoid campaign finance laws and invest tens of millions of dollars into electing (or destroying) politicians. Sheldon Adelson can write a $10 million in an afternoon, something that requires thousands upon thousands of small dollar donations on the Democratic side. Moreover, because donors to Super PACs are overwhelmingly Republican, the GOP will have a quantitative advantage not just at the Presidential level, where Obama is likely to be the first President outspent by the opposition, but in key battleground states where a switch or two in the Senate may make the difference between another two years of obstruction or progress in public policy. 

Right Wing Media Outlets.  Back in 1988, Craig Fuller, who was then head of the Republican National Committee, was quoted in the Richard Ben Cramer's seminal work on Presidential campaigns What It Takes, that Republicans like to "work the refs" (media) to get more favorable coverage.  In 2012, the Republicans have no need to work the refs, they have their own - the right wing media led by FOX News, the Wall Street Journal, and an alphabet soup of faux think tanks, blogs, websites and of course, talk radio, serve as an alternate universe that has untethered the GOP from the "reality based" world.  No longer are facts objective, they are simply slanted talking points that dissemble and confuse.  By the time anyone gets around to fact checking the lies, they have already made it across the world (both the physical and electronic).  Even then, the fact checking becomes reductionist - it's "he said/she said" combined with beside the point - if you zealously believe in "death panels" or Obama's foreign birth, nothing will convince you otherwise. 

If you don't think elections have consequences, consider that two of the three "legs" of this stool are the direct result of Supreme Court decisions - a 2008 decision (Crawford v. Marion County Election Board, 553 U.S. 181) that upheld, by a 6-3 decision, Indiana's use of Voter ID laws.  All the justices in the majority were appointed by Republican Presidents; and a far better known 2010 decision (Citizens United v. FEC, 558 U.S. 50), which opened the floodgates for unlimited spending by Super PACs. Here again, the 5-4 majority was made up entirely of Republican appointees. 

What is more distressing for "little d" democracy though is that one of our two political parties is making an affirmative effort to limit democracy in ways that may not be as blunt as poll taxes and lynchings, but are likely to be equally effective. For every World War II veteran that is able to generate media coverage because Governor Rick Scott improperly took him off the rolls there are dozens of faceless citizens who simply give up or are denied their rights but don't fight back. When hundreds of millions of dollars are spent purposefully distorting opponents' records, unsophisticated Americans become more cynical about their government, even as they rely on it for everything from paved roads to clean drinking water. What began in 2000 with the "Brooks Brothers" revolt to stop Palm Beach county from counting its votes, continued with Diebold-contracted voting machines and now, after a crushing loss in 2008 to Barack Obama, a multi-faceted assault on the right of the people to exercise their Constitutional rights.  

The dark genius of these Republican tactics is that not all of them have to work to be effective - if Rick Scott's ability to limit voter registration is not permitted, there's still the Voter ID law. If the ID law does not dissuade you, a carpet bombing of television ads, robo calls and direct mail will convince you to stay home because your candidate is a no good, foreign born, socialist. And even if these tactics don't work at the Presidential level, the amount of money wealthy businessmen like the Koch Brothers have to spend at ever other level of electoral politics is frightening. One Sheldon Adelson check would fund most gubernatorial races, let alone the smaller races in state assemblies and senates. What can't be accomplished directly at the federal level can always be targeted at the state level.  If Obama wins, Republicans can opt for two more years of stonewalling and have their sugar daddies push their chips into the 2014 off year election or 2016.  Republicans take the long view and are willing to lose a few battles if it means winning the war. And make no mistake, this is war without weapons, but instead of bodies piling up on a battlefield, the stakes are just the future of our country.

Monday, June 11, 2012

Mad Men Season Five Finale - The Phantom


What happens if you have an artist's sensibility but can't act? If you work for the things you think you want and then find out everything you have is not right? Or if you end up with an updated version of the person you left behind and can't shed the demons that once defined you? 

The season finale of Mad Men did not so much tie up loose ends (though it did do some of that) as feel like the first episode of the next season, a preamble of sorts where Don Draper realizes that his second wife Megan is really just Betty 2.0 (he was as thrilled at getting Megan a shoe commercial as he was with Betty shooting for Coca-Cola), an Old-Fashioned is his trusty sidekick, and he's diverting himself into movie houses to make sure he is up on the cultural zeitgeist. A "hot tooth" (and some lingering guilt over Lane's untimely demise) has him feeling remorseful and flashbacky about the death of half-brother Adam, but the hallucination he experiences under nitrous oxide about having something other than that tooth extracted was surprising. The rot at Don's core had not completely destroyed him, in fact, Megan, Zou Bisou-Bisou singing Megan, had done the yeoman's work of rehabilitating Don's tortured soul through the first 12 episodes of the season, but, as with many things about this show, things change, and how.

While Don's reawakening has been a couple of weeks in the making, it appears as though the light bulb finally (and fully) went off in the season finale because of Megan's sudden interest in having him help her land a commercial for a shoe company SCDP represented. Don is dismissive, questioning why advertising, which she left, suddenly appealed to her, after all, it was not "art." "It's work," she replies, and Don is sympathetic, but ambivalent, telling Megan she should hope to be discovered, not foisted on someone as her husband's wife.  Don is also a realist, telling Megan the reason her friends want work is not for its own sake, but for the money it pays, something she does not need. But it is Megan's wretched mother who it is left to disabuse Megan of her dreams, that sometimes you do not get to do what you want, that the world is not big enough for every ballerina's (or little girl's) dream.  When Marie advises Don to "nurse her through this defeat and you shall have the life you desire," one wondered whether she was prescient or delusional.

That the commercial is a spin off Beauty and the Beast has to be read as a cheeky nod by the writers to the dynamic between these two characters, only Don's "beast" is not his ugliness outside, but rather, inside. During their marriage, Megan has been the kind handmaiden helping Don see there is something inside him other than darkness, but the hard work that Don bought into with Megan crumbled, and quickly, during this episode. A season's worth of satisfaction at being home for dinner, of having his wife by his side at work, of frisky sex, seemed to dissolve when she asked him to get her that commercial.  Don provides, and well, but it is not enough. Watching Megan's reel, his face was hard to read - partially pride, at being married to a beautiful woman, and maybe some sadness, knowing that he could snuff out her dream or make it happen, and that either choice would be fraught with significant peril. As Don walks away from the set of the shoe commercial and into the bar for that trusty Old-Fashioned, it is as if he had come to terms with everything he once believed, about the self-interest, venality and weakness we all have, and that no matter how hard people work to change, "they are who they tell us they are, but we ignore it, because we want them to be who we want them to be."

But the cruel irony of Megan's capitulation to the easy over the hard, of getting her husband to find her work instead of getting it herself, is that it shone a light on an aspect of her personality many may have missed.  While she has been aggressive in her demands to see and be with the "real" Don Draper, by poo pooing his Dick Whitman past, standing up to him when he tried to control her, of charting her own course as an actress and not a copywriter, ultimately, she was the fraud. It was too hard for her to succeed on her own, but life as a boozy housewife did not appeal to her (or Don) and so, perhaps to satisfy her need to work and his need to make her happy, Don helps her get that elusive first break. In doing so, she may have unwittingly started the daisy chain of events that will lead to the demise of their relationship, but she cannot know that.  All she knows is that she wants to work and cannot get it on her own. Once she asks Don to help her, their relationship becomes something different, he knows it, because he's lived it, she does not, because she has not. 

While Megan may be thrilled at the turn of events and the direction of her life, the same cannot be said for Pete Campbell. His infatuation with Beth Dawes leads him down a blind alley - she's crazy, or at least her husband thinks so, and a one off at a hotel notwithstanding, electroshock therapy will erase any memory she had of Pete and his looking-out-from-planet-earth blue eyes. But Pete does have a moment of rare introspection when he visits Beth in the hospital.  He voices, for the first time since the classic scene with Peggy at the end of Season 2, that he hates his life - that his hope that "all this aging was worth something" was not, that the escapism of infidelity he hoped for, of feeling handsome and desired, was no more the "tall drinks" he hoped for than the answer to the fact that "everything he had was not right either." 

When Pete describes his emptiness as a "permanent wound," it's unclear whether he is speaking of his marriage or his entire life, but his bleakness and sense of desperation is really just another side of the deep longing and depression, of feeling stymied and emasculated, that led Lane to end his own life. Trudy's idea to build a pool feels like a mausoleum to him - he makes another morose observation about the permanency of life in Cos Cob, but because Trudy is a caring person and not a soulless one, her reaction that "things have to change" is not divorce (as may have been on Pete's mind), but rather, giving in to Pete's desire for an apartment in New York City. 

Pete's unhappiness seems to increase the higher up the food chain he gets - "I'm going to have the same view as you" he says to Don when the partners are surveying the new office space they are renting in the Time-Warner building; but if panoramic views and fancy titles were enough to make Pete happy, he would not be picking fights on the train and casually lying to his wife about his black eye (or fucking other women, but that's another story). If anything, Pete is more isolated than ever - brooding deeply over the choices he has made, of roads not taken, and escaping the shackles of his life.  Of course, he is also learning a painful truth about life, the more you accumulate, the more responsibility you incur, the harder it is to disentangle yourself from it. He may dream of going off with Beth to Los Angeles, but his plans are unrealistic. Instead, Pete is deeply immersed in the stereophonic emptiness of whatever music was pulsating in his ears when the camera leaves him at the end of the episode, deeply removed from his life, even as his wife Trudy is moving heaven and earth to connect to him. 

As for those loose ends, we were given a satisfying denouement to Don and Peggy's separation, hopefully, temporary and not permanent.  Instead of recriminations and finger pointing, they reconnect at the movie theater, serving to remind us that these two are kindred spirits in their own way - that Don was able to express pride and happiness for her and she was able to accept it with grace. We learned Lane was buried "abroad" and that his widow did not permit a memorial to be held in the States. She may have been bitter at the partners for filling Lane's head up with dreams of being an important man, but Don's humanity in that moment was what caught my attention.  Perhaps he was just trying to make himself feel better, but in at least making the widow Pryce financially whole from Lane's contribution to the post-Lucky Strike funding of the firm, he attempted to do the right thing.

The other reason this episode felt far more like a Season 6 prologue than a Season 5 curtain call was the wonderful shot of the five partners in their new office space - it would have been an apt closing shot because it spoke to aspiration, of money that is pouring into the agency (according to Joan and her new glasses), of new clients like Jaguar and potentials like Dow Chemical. It said that the people who walked out of Sterling Cooper in the dead of night in December 1963 are that much closer to reaching that same level of success. That Peggy Olsen is still (sort of) in the picture (and even gets to take that elusive first airplane ride), that Roger may be looking up Paul Kinsey if he keeps ingesting LSD (or maybe he will just thumb it up to Woodstock a couple of summer's from now?), and that Dirty Don, the swinging dick who imploded his own life only to rebuild a new one, may be on the verge of laying the groundwork for his next demolition job. 

Sunday, June 10, 2012

Previewing The Mad Men Season 5 Finale


After a season as eventful as any in the show's storied history, Mad Men concludes its fifth season tonight when The Phantom airs at 10 P.M.  While some may wonder how Matthew Weiner and his talented band of writers can raise the bar and dangle viewers off the proverbial cliff, my own prediction is that after the carnage of recent weeks, we are likely to see a muted ending not unlike the Season 1 finale, which, while offering the most iconic of scenes (Don's Kodak Carousel pitch) and closure to Peggy's pregnancy, ended on an ambiguous note, with Don returning to an empty house, having sacrificed a Thanksgiving trip to visit Betty's family for work. There are two reasons I think we are unlikely to see a real "game changer" along the lines of the partners getting "fired" from Sterling Cooper at the end of Season 3 or Don proposing to Megan at the end of Season 4.  

First, there is only so much change the system can take.  What Weiner has done in the past two weeks is akin to when an anaconda consumes its prey.  A snake has to open its jaws REALLY wide to consume an animal whole, and what viewers have been asked to do is swallow the equivalent of a wildebeest in the last two weeks - Lane killed himself and Peggy quit.  To introduce additional disruption into the show in the finale would almost feel like piling on.  There was little mention of Peggy's absence in last week's episode and of course, we have no way of knowing how the firm will be affected by Lane's death. Having dropped these enormous bombshells, the "system" needs time to process them, for the characters to be given a chance to be faithful to the experience of these two major shocks to the agency. 

Further, there are no other major shoes to drop unless they come out of nowhere (a la someone falling down an empty elevator shaft).  Don and Megan are relatively happy in their marriage, Betty's shedding her fat suit, Roger is in the process of divorcing Jane and while Pete may not be "husband of the year" (or "human being of the year"), his brooding aside, as others have pointed out, he'll quickly calculate that Lane's demise will accrue to his benefit. Joan has been served her divorce papers and is (one would assume) about to take on a lot more responsibility within SCDP.

Second, because Mad Men never picks up where it left off, there is no incentive to create a "Who Shot J.R." type cliffhanger. At the end of Season 2, Betty and Don had reached an uneasy detente with the news of her pregnancy and her acceptance of his apology for not being "respectful" toward her (an apology made easier after Betty had sex with a stranger in a bar).  When Season 3 opened, she was almost 8 months along, life in Ossining was back to normal and away we went. Similarly, Sterling Cooper Draper Pryce was created out of whole cloth in a weekend at the end of Season 3, but when Season 4 started, it was no longer a room in the Pierre, but rather, a functioning office in the Time-Warner building.  

This is something I like about Mad Men, that you can fill in some of the backstory yourself, or realize that whatever was "missed" is not necessarily germane to what is happening now.  In this way, Peggy's departure is almost beside the point.  She may have, in fact, ridden off into the sunset (or CGC) and we will never hear from her again, or she may pop back up in Episode 1 of Season 6 as SCDP's Creative Director in Training because the Talented Mr. Ginsberg jumped at a chance with a bigger firm or Don realized he needed to be a true mentor to a woman who he had entrusted with his rotten soul in The Suitcase. We simply do not know because Season 6 may start a few months or a year after the conclusion of Season 5, which allows for the show to pick up in places that it could not if it just unfolded in "real time." 

If I were to guess at some possible, smaller storyline development, obviously, the potential to land Dow Chemical would be at the top of the list followed by a Megan pregnancy.  The teaser for the episode mentions that Pete meets an intriguing stranger on the train, and perhaps that is opportunity knocking for bigger and better things or maybe it's just the fair Beth Dawes, prepared to dump her philandering husband for a different venal man in a suit.  What is for certain is that regardless of how tonight turns out, this has been an intense, highly layered season where Roger took LSD, got blown by Megan's mother (with Sally catching an eyeful), dumped Jane and appeared to get his mojo back, Pete Campbell whored out Joan, slept with a prostitute and a housewife, and got emasculated by Lane and Don, and so much else.  It's hard to believe we have already reached the end of another amazing season.  While I will have much more to say about the season finale and, in a few weeks, a much deeper dive into Season 5, I hope you enjoy tonight's episode as much as I will. 

Saturday, June 9, 2012

2011-12 TV Year In Review


When you're a misanthropic divorced guy uninterested in remarriage or children, you watch a lot of television and read a lot of books. For those interested in learning more about the latter, I direct you to my 2011 'year in review' (http://scarylawyerguy.blogspot.com/2011/12/2011-year-in-review-books-i-read.html) and the random book reviews I have published during 2012 (or just wait until December, when the 2012 edition comes out).  For those who want to know what programs I blankly stare at in my downtime (aside from Mad Men), herewith is my 2011-12 TV year in review:

ABC

Once Upon A Time: I watched it for the LOST mythology …sweeeeear. Seriously, I did.  I had no fucking clue who half the "fairy tale" characters were, lost the thread of that world even as the "real" world of Storybrooke bored me to tears, and yet, I watched it, because the show runners were writers on LOST, Jennifer Morrison tended to wear tight clothing and I'm obviously a sucker for "central mystery/serial" dramas that go nowhere. And boy howdy did OUAT not disappoint  on that front (spoiler alert) - after a season of trying to bring the beings of Storybrooke into a state of "awareness" that they were in fact people who came from a fairy tale world where people wore weird clothes and a d├ęcolletage flashing Queen basically ran the show, said awareness occurred and all was good, for all of 2 minutes, until the guy with the bad teeth basically triggered a new spell so we could do the same thing all over again in Season 2.  Thanks. 

Don't Trust The Bitch In Apartment 23: Speaking of tight clothing  …. I'd watch Krysten Ritter read the phone book and have been a fan since she played Jesse's girlfriend on Breaking Bad. I want to like this show because I like assertive and sassy women, but I usually half watch* it (* = one eye on Twitter, one eye on TV) because the plot lines are not that interesting. James VanDerBeek is supposed to be subversive because he's playing himself and the roommate that gets tormented by the aforementioned "bitch" did nothing for me.  I know, it was a mid-season program and maybe with a full season (or even 13 episode?) run, the writers will have better character development, but it felt kind of one note to me.

AMC

Breaking Bad: Next to Mad Men, my favorite show on TV and due its own blogpost as Season 5 gets underway next month.  Stay tuned. 
The Killing: I wanted to like this show.  In fact, I liked most of the first season and even kind of dug the season finale swerve of Holder being in cahoots with the people who set up Councilman Richmond, but Season 2 has been disappointing to the point that I just want them to get the mystery solved so I can bail.  Seriously, solve the fucking case. I did think taking poor Darren's manhood away was … ahem .. a low blow. 

CBS

Person of Interest:  See, I told you I am a sucker for LOST knock offs (this one had the former "Benjamin Linus" as a character). Watched two episodes, hated it and turned it off. Kinda wished I'd done the same thing with OUAT.

FOX

Alcatraz: No, really, I TOLD YOU I am a sucker for LOST knock offs (this one had the former "Hugo Hurley" as a character). I did a long form blog on Alcatraz before it got canceled and can't say I'm sorry to see it go.  The show had an interesting premise, but the acting was horrible, the "big secret" was ridiculous and everyone but me hated the female lead (who was killed in the season finale). Farewell, Alcatraz.

House, M.D.: On the other hand, for 8 seasons, I loved loved loved House, in all his bitter-jaded- pill popping-suffering no fools-driving-a-car-through-Cuddy's-window glory.  While the show's creative peak was Season 4, any House episode was more entertaining than most anything else on television. Things I liked about the final season: the two new fellows, the story arc for Chase (SPOILER ALERT: he ends up taking over the Diagnostics Department), the episode where House pays a kid to pretend to be Wilson's kid. Things I did not like about the final season: any scene with Foreman in it - HATED that character all 8 seasons, Wilson's out of nowhere terminal cancer diagnosis, Taub's general weenie-ness.

New Girl: Yes, I know, it was the twee, emo-friendly hit of the season, but after a few fits and starts (where I debated jumping ship), I think the show found the right balance of quirky and clever, at least most of the time. It has a Community feel with an indie vibe and a little more potty humor. I'm not gushing over this one, but it is definitely an every week viewing for me.

NBC

Best Friends Forever: Loved this show but it got canceled after 4 episodes.  Probably too clever and subtle for the overlords at Comcast-NBC, but the writing was fresh and the characters were interesting.  Hate to see little shows like this not make it. 

Community: Speaking of little shows, this one DID make it through 3 sometimes challenging seasons of choppy scheduling, but I've been with it from day one, when it was a fairly straight forward Friends-esque show that was going to revolve around the sexual tension between Jeff and Britta to what it evolved into, a pop culture dropping trip-fest that had a unique vision thanks to its creator, Dan Harmon. Harmon's departure, 13 episode pick up and slot move to the Bermuda Triangle of broadcasting (a/k/a Friday night), does not bode well for Season 4, but the Season 3 finale provided satisfying closure even if next season ends up feeling like an afterthought.

Free Agents:  This one lasted 3 episodes (?) and apparently Hank Azaria's divorced guy gets laid a lot more than this divorced guy, so fuck him.  Also, the female lead had a drinking problem.  I could have just stayed married if I wanted to deal with a sloppy drunk.

Smash: <Bowing my head in shame>. Yes, I watched the train wreck, No, I could not turn away. Why, I do not know. Among the least believable plot lines were the 40something bartender who fucked Anjelica Huston (who appeared to be mummified), that Dev would turn down the sweet sweet love of his Hindi co-worker for weeks on end but hop in the sack with Ivy without a second thought, that a tall B cup would even be considered to play Marilyn Monroe, and that there could be a more sissified husband than Debra Messing's cuckolded pussy boy. I've read that the cast has been pruned for Season 2, including the execrable assistant Hollis, the aforementioned husband and the guy who Messing fucked around with. Good riddance, but I don't think I'll be getting back on the bus. Sorry, I have to retain some measure of my TV viewing dignity.
Whitney: As a Howard Stern fan, I was aware of the comic stylings of Whitney Cummings before she broke big with her eponymous show (and 2 Broke Girls).  So I was all ready to ignore the shove-it-down-your-throat promotion and like this show and I fucking hated it.  The early episodes I saw were just not funny and the relationship with the live-in boyfriend was totally unbelievable. The supporting cast was predictable and the plot lines felt recycled from comedies of yore.  I have no idea if the show got any better as the season wore on, but I won't be rejoining it, regardless.

USA

Burn Notice: Sorry, Michael, Fiona and Sam, I'm breaking up with you. Five seasons was enough. I'm out.

Fairly Legal: What started as cheeky, escapist TV with a plucky heroine who was likable (Season 1) morphed into a self-serious borefest  (Season 2).  The addition of the "smarmy" male love interest for Kate was subtraction by addition and less Leo and more of the bitchy step mom were also negatives.  But more importantly, the show turned Kate into a self-righteous do gooder trying to save/help every little guy she encountered.  You're a mediator, Kate, not Mother Fucking Theresa.  Stopped watching midway through Season 2.  

Thursday, June 7, 2012

Book Review: Rachel Maddow - Drift


Rachel Maddow has established herself as a strong voice in progressive politics through her eponymous show on MSNBC and, in recent months, through appearances on mainstream political programs like Meet the Press.  While some commentators extend their brand through books that serve as an extension of their television programs or newspaper columns, Maddow took a slightly different tack with the release of her first book, Drift - The Unmooring of American Military Power. While much of Drift is written with a certain sense of outrage, Maddow’s is less Howard Beale “I’m mad as hell and I’m not going to take it anymore,” and more Jon Stewart’s “You believe this shit?” Viewers of her show will recognize in Ms. Maddow’s writing a familiar editorial voice interspersed with little known facts and information she marshals in support of her positions.
Maddow's thesis is that Vietnam, which stood as a cautionary tale in the unchecked power of  the President, was quickly turned on its head through a combination of Congressional weakness, Executive assertions of unilateral authority in foreign affairs, a constantly expanding military budget and the growth of military contractors to excise what used to be sober debate and a meaningful weighing of consequences about whether to commit armed forces, to a choice largely removed from the checks and balances placed within our Constitution.  Drift is not a reflexive lefty screed, but rather, asks difficult questions about the trade-offs we as a country have made in defense of our nation, and often without our input or consent.
Maddow's narrative begins with the errors of Vietnam, where the slippery slope that started with the Gulf of Tonkin resolution ended with more than 500,000 troops in country by 1968. As the war wound down, after the invasions of Laos and Cambodia, the endless bombing campaigns and the tortured peace negotiations in Paris, Congress finally re-asserted its Constitutional prerogatives in 1975, tersely advising President Ford that the spigot of money that flowed to Southeast Asia was being cut off once and for all.  That decision was coupled with a shift in policy related to the National Guard and Reserves introduced by General Creighton Abrams, the U.S. Commander in Vietnam from 1968 to 1972 and Army Chief of Staff from 1972 to 1974.  Abrams launched the "Total Force Policy," which inextricably tied the National Guard to the active duty military, mandating that the Guard and Reserves take responsibility for certain actions that would necessitate their deployment in any future conflicts.  The Total Force Policy was, as Maddow notes, "elegant in its simplicity," because it would affect communities throughout the country as reserve members who held regular jobs were suddenly uprooted and sent to far away lands. Its intended effect was to make going to war more difficult, but as we will see, it did little to achieve its mission.
While leaders in Congress may have been feeling their oats, Maddow introduces us to the ominously named "Committee on the Present Danger," a band of hard-line Cold Warriors from the mid-1970s who presaged intelligence failures of the pre-Iraq War era with inflated reporting about the Communist threat.  Back then, people like General Daniel Graham and Paul Nitze got together to bemoan our purported weakness in the face of a Soviet arms build-up, and were invited into the CIA by some guy named George H.W. Bush to offer their own analysis of Soviet armed forces.  As Maddow discusses, this "Team B" generated a highly speculative report based on little hard evidence that the Soviets were not only replicating much of our defense effort, but moving forward with next generation technology that could imperil our well being.  Naturally, most of what they wrote was bogus, but as some of these men shifted from the bomb throwing bleachers to the halls of government when Ronald Reagan became President, their unfounded fears and challenging of conventional orthodoxy became policy, leading to a massive arms build up and huge profits for the defense contractors who made those weapons. 
As Maddow discusses, the Reagan years were replete with jingoistic nonsense, nowhere more than our laughable invasion of the tiny Caribbean nation of Grenada to "save" several hundred American students who were there during some overblown political instability.  Maddow’s deep dive into this farcical chapter in Reagan's Presidency could have been plucked from one of her TV show’s segments, as it is replete with her signature mix of granular level facts and editorial outrage.  Maddow goes into painstaking detail about a mission that was riddled with errors, not the least of which was a SEAL team helicopter jump that resulted in four deaths and the fact that the military was unaware that some students resided at two other campuses besides the one they successfully "liberated."  A mental hospital was accidentally bombed, killing 18 innocent civilians and none other than Fidel Castro is reported to have, through a diplomatic emissary, advised the State Department ahead of time that the few soldiers Cuba had on the island would stand down.  Of course, none of that, or the estimated $135 million price tag mattered, as Secretary of State George Schultz observed when a "rescued" student kissed the tarmac upon his arrival in South Carolina. "Mr. President," Schultz is quoted as saying, "the fat lady just sang."
The deeper into Reagan's tenure we go, the more mendacious his foreign policy becomes.  Maddow resurrects many of the facts around Iran-Contra, and, like the cherry picking of information by Team B in the 1970s presaged the WMD fiasco in Iraq, Iran-Contra had its own "Curveball," a source claiming inside information about the Iranian regime, who turned out to be a charlatan. In this case, the source had a name (and an occupation: arms dealer) - Manucher Ghorbanifar, who sold Reagan's men on the idea of the existence of a nascent group of Iranian moderates eager to overthrow the Ayatollah if only the Americans would offer them weapons.  In exchange, these purported Westernized elements would use their leverage with Hezbollah to get Americans who had been taken hostage in Lebanon released.
Like questions that would be raised about "Curveball" after the Iraq invasion began, Ghorbanifar had a CIA dossier that labeled him an "intelligence fabricator and a nuisance." No less an authority than Reagan's National Security Adviser Bud McFarlane called him a "moron." No matter. Reagan was not going to get tagged with a hostage drama like his predecessor and sent not one, not two, but three shipments (with the Israelis acting as middlemen) of anti-aircraft missiles to Iran, with a small sum of money for transport landing in an off shore bank account.  Some entrepreneurial NSC staffer named Oliver North had the brilliant idea of taking that money and using it to fund the Nicaraguan "Contras," a group of allegedly pro-democratic elements fighting the big bad Commies running that country - thus turning what began as a potentially impeachable offense for selling arms to Iran in violation of Arms Export Control Act into a potentially impeachable offense for violation of the Boland Amendment, which prohibited the funding the Contras. Maddow quotes from declassified minutes of a 1984 meeting of high ranking Reagan Administration officials that has eerie echoes of Iraq and Afghanistan, as Ed Meese, Bill Casey and others confirm the need for written sign off for their attempts to fund the Contras from lawyers in the Department of Justice even as they speculate about whether the President would face the threat of impeachment for their actions.
Naturally, the scheme unravels, followed by Congressional hearings and the appointment of an  independent counsel, who ultimately indicts the Secretary of Defense, two National Security Advisers, an Assistant Secretary of State and the Chief of Covert Operations at the CIA. Reagan skips away unscathed (his memory is a bit shaky even before he is diagnosed with Alzheimers) and his successor issues blanket pardons on his way out the door in late 1992 to clean up any remaining loose ends.  That justice was not served in this scandal goes without saying, but what Maddow argues is that a more damaging idea took root - that the President and his men could act with impunity because the executive's purview over foreign policy could not be challenged.  This idea that "if the President does it, it is not a crime" was first articulated by Richard Nixon, but the concept was formalized into a policy construct called the "unitary executive" theory created by lawyers in Reagan's Justice Department (some of whom would land in George W. Bush's White House and Justice Department). Additional support for this theory of executive power was expounded on in a 140 page "minority" dissent to the Iran-Contra report.  The author? A back bencher from Wyoming named Dick Cheney.
Under George H.W. Bush, a potential inflection point for a "peace dividend" was quickly lost when Saddam Hussein invaded Kuwait. As with so many through the looking glass moments after the fall of the Soviet Union, Hussein's actions (and our reaction) result in a lot of unintended consequences that would shape foreign policy for the next 20 years.  Maddow's discussion of Bush's torment over the decision to go to war is telling.  She quotes from Bush's private diary - "I have never felt a day like this in my life. I am very tired … My lower gut hurts .. My mind is a thousand miles away. I simply can't sleep." Bush's introspection is heartening, especially when compared to the seemingly blithe manner in which his son made the same decision.  Also of interest is the deep skepticism of the then-Chairman of the Joint Chiefs of Staff, Colin Powell, whose contrarian views and desire for a clear mission and exit strategy contrast sharply with Powell's complicity in amplifying bogus reports of Iraq's WMD program using manipulated, and in some cases, outright false, information when he served as Secretary of State under George W. Bush.
While Bush may have been slightly more conciliatory toward Congress, the resolution it passed was not a formal declaration of war, but rather, an expression of support for a United Nations resolution permitting international forces to forcibly remove Hussein from Kuwait if he did not voluntarily quit the country. Bush also held back on announcing the call up of National Guard and Reserve troops (remember the Abrams Doctrine?) until after the November 1990 election even though he made the decision about a week beforehand.  And when a group of Congressmen attempted to enjoin Bush from committing troops unless Congress declared war (as Article I and the War Powers Act require), a federal judge essentially punted - confirming that yes, in the abstract, Congress, and only Congress can declare war, but that unless and until Congress declined to declare war and the President acted anyway, the Court could not rule on the matter.  In other words, the judiciary was not going to stop a President from using our armed forces, leaving it to Congress to "tie the hands" of the President.  To be sure, 1990 looked much different than 1975.
The Reagan-Bush years, Maddow argues, are a key turning point in how the use of military force is considered.  Reagan set precedent that Congress could be bypassed (leaders were not even told about the Grenada operation until after it had been launched) while also creating a parallel foreign policy making arm that was extra-constitutional - literally. Government employees solicited private citizens to help fund the Contras entirely outside any federal strictures or Congressional oversight.  Meanwhile, George H.W. Bush deployed an armed force of more than 400,000 troops to the Arabian desert with little input from Congress. Bush’s Secretary of Defense (that Cheney guy again!), also launched the beginning of what would explode into a massive military contractor industrial complex when he signed off on a contract with a company called Brown & Root (a subsidiary of something called Halliburton. Heard of it?) to provide support services for the military.
The discussion of LOGCAP, as the contract was called, shows Maddow's contrarian side - her argument is that outsourcing was largely driven by costs the military was incurring for things like child care services for its men and women in uniform.  By reducing the military rolls of primarily "support" staff, the Pentagon was freed to divert more of that money to costly weapons systems while its contractors didn't have to worry about pesky things like base housing or pension benefits.  Whatever the reason, outsourcing became an equal opportunity policy, as Maddow quotes none other than Vice President Al Gore praising the work of Halliburton for its support service in the Balkans.  Of course, outsourcing also reduced the need for National Guard and Reserve troops, weakening one of the ties that bound our decision makers from casually going to war.  Now, instead of neighbors being shipped to places like Kosovo that few Americans could even find on a map, companies like Halliburton, DynCorp and others took over those jobs.
While privatization is lauded by supporters arguing that the private sector can do work more efficiently and at a lower cost, Maddow shows that cost overruns, sometimes into the hundreds of million of dollars, occur, and seamier actions, including trafficking in sex slavery, are not isolated incidents. Curiously, Maddow chooses not to rattle off the litany of indiscretions tied to Iraq, from faulty shower heads that electrocuted servicemen to overbilling detailed in reports by the Office of the Special Inspector General for Iraq. Regardless, what we do know is that actions by private contractors in other countries create murky legal issues, as has been seen when the infamous company Blackwater had employees involved in several high profile incidents where innocent people were killed in Iraq and that many of the services they provide are not done at less cost to the taxpayer. 
But Maddow's lens is wider than just contractor malfeasance.  Her argument is far more sweeping in discussing how our military, and its use as a fighting force, has become unmoored from public (or political) debate.  After 9/11, the expanded use of special forces created, as Maddow quotes the journalist Jeremy Scahill, "a virtual stand alone operation that acted outside the military chain of command and in direct coordination with the White House." And because politicians are reluctant to question military spending (which has more than doubled in the decade since 9/11), "the Pentagon can now spend those dollars in a way that insulates the decision makers from the political consequences of making life uncomfortable from the voting public."  What our leaders have created is the idea of "frictionless war," an experience, as Maddow describes it, not unlike Muzak, buzzing in the background but easily ignored if you are not among the 1% of the population in, or related to, someone serving in the military.
What the “military" or "war" now means is something entirely divorced from the reality that the 99% of us experience.  The military is all volunteer, leaders in Congress not only do not challenge the Pentagon's budget, they give the Pentagon things the Pentagon doesn't even ask for or want. Defense contractors who build weapons systems are woven into the fabric of hundreds of Congressional districts that provide steady streams of income and jobs for our citizens, making the termination of any weapons system, vehicle or munition nearly impossible.  In 2012, to speak out against the idea of shrinking our military is practically verboten.  Finally, the Total Force Policy proved a nullity - deployments, stop loss orders and multiple tours of duty are now accepted fact that few rise to challenge and when they do, as Representative Charles Rangel attempted to do a few years back by calling for the re-introduction of a military draft, no one takes seriously. 
Taken together, what Maddow persuasively shows is that literal decisions of life and death have been taken out of political discourse because the de facto view of politicians and citizens alike is that the military is off limits from debate.  Not only that, but the line between what is purely military and what is civilian has been blurred, not just through the appointment of former military leaders like Michael Hayden and David Petraeus to head the CIA, but the coordinated efforts of the CIA, NSA and others with the military in theaters of war. The natural result of this is that the Pentagon, and the rise of the “super secret” intelligence community that has been formed after 9/11, are their own “third rail” of politics, woe to anyone who questions or challenges anything from libraries being asked to provide information under the PATRIOT Act to whether drone strikes in Yemen are legal. 
Maddow lays out her case for how and why this has happened but is far more concerned about the question of whether this is a good outcome for a democracy and here, I think her argument becomes blurry. Part of this is practical. The “enemy” is no longer primarily a defined force representing a country, and Americans have, for the most part, accepted the fact that an Al-Qaeda terrorist in Yemen is indistinguishable from one in Pakistan and our response to locating one should be a Hellfire missile, not a search warrant.   Part of this is political.  While Maddow rightly points out that leaders in Congress have been cowed by the use of executive power, I think there is something to be said for the idea that foreign policy cannot be dictated by 535 disparate voices.  While there is no question that the wild growth in military contractors is not a good (or cost effective) way to run a military or that there has been an overreliance on classifying documents and decisions to shield them from public view, when actions like destroying interrogation tapes of Al-Qaeda suspects who were tortured are not prosecuted because “lawyers said it was ok” or laws are passed to provide retroactive (!) immunity to telecommunications companies for complying with governmental actions that likely ran afoul of FISA, we must accept that elected officials have made a knowing decision that this type of extra-legal activity is going to be countenanced.
I have two minor criticisms of Ms. Maddow’s otherwise thoughtful (and thought provoking) book.  The first is the book's penultimate chapter, a digression into our aging nuclear weapons stockpile.  While the narrative itself is interesting, chronicling near misses where nukes were mishandled, fell from the sky but miraculously did not fully detonate and the lack of training our current crop of nuclear engineers has to fully maintain (think Jiffy Lube for nukes!) these true WMD, it is not until deep into this discussion that Maddow ties the discussion together with the remainder of the book.  At $8 trillion and counting, Maddow notes that we spent more on our nuclear arsenal in the second half of the 20th century than we did on "Medicare, education, social service, disaster relief, non-nuclear scientific research, environmental protection, food safety inspectors, highway maintenance, cops, prosecutors, judges and prisons, combined." What Maddow argues is that we are moving in the same direction when it comes to our military/intelligence budget.  As she notes, "the more money and work and time it takes to build something, the more power it accrues, and the more effort it takes to make it go away."  
This axiom is being tested as a law that was passed last year requiring across the board cuts in the Department of Defense (a/k/a “sequestration”) slowly approaches. There is already substantial wringing of hands that this poison pill, which was inserted into the law to focus the attention of deal makers seeking to reach agreement on long-term budget reduction, will ever happen because no one wants to be viewed as “weak on defense.” And here is where much of the book reads as past as prologue – saber rattling over foes, both actual and perceived, has largely defined the post-World War II era. First it was Communism, be it in the rice paddies of Vietnam or the fevered imaginations of Team B. Now it is terrorism, an idiom that must be “defeated” through a combination of hyper vigilance and substantial expenditures, but will never have “peace treaty on the desk of the USS Missouri” closure, which just perpetuates the cycle until the next existential threat is identified.
My other complaint has to do with her use of sources, a place I would not have expected to raise an alarm.  Like most books, Maddow provides source notes, but she does not provide footnotes or endnotes, and for this, I have to say I am a little surprised.  Offering the reader a general map for further reading and what was used to support your work is one thing, but not providing direct references to information is another thing altogether.  That a Stanford graduate and Rhodes Scholar, and someone who is so diligent in her desire to “get it right,” would opt for a cursory overview of her research material does not make sense.
My criticism notwithstanding, Maddow has produced an important book about a complicated subject.  Readers interested in learning more about the growth of the “military-industrial” complex and why it matters that it has largely been removed from the political debate will find Rachel Maddow’s book an enlightening look into those troubling questions.