The Scary Lawyer Guy Blog

Showdown At The Tax Cut Corral

2012-02-20T17:22:00.002-05:00

Even as President Obama is savoring the temporary extension of the payroll tax cut through the end of the year, reporters already see blood in the water, warning us about the "perfect storm" that will occur at the end of this calendar year when that tax, along with the so-called "Bush tax cuts" that were originally enacted in 2001 (and extended at the end of 2010 for 2 years by the President and Congress) expire. A Washington Post headline on February 19, 2012 warns of a "Taxmageddon" that will hit working Americans on December 31, 2012, when things like the child tax credit, various income tax rates, the payroll tax and others revert to their "pre-cut" rates.

So how did we get here? Policy postmortems are as helpful as they are disfavored for shedding light on these types of questions. The media far prefer to focus on today's food fight instead of dissecting the problem, but in this case, it's particularly important not only to understand why this "Taxmageddon" looms, but also to see it as an opportunity for the President to frame, in terms far sharper than the simple, but ill-defined "Buffett Rule," why tax policy needs to be fundamentally changed.

Back in 2001, we were a nation awash in budget surpluses. The Fiscal Year 2001 budget surplus Bill Clinton left for George W. Bush was roughly $236 billion and projections indicated that our entire national debt would be paid off by 2014. Pretty sweet, right? In the name of the American people, Bush famously went to Congress "asking for a refund" - namely a massive tax cut that disproportionately favored the wealthy that had 2 quirks in it that were underreported at the time but would turn out to be highly relevant years later: (1) the legislation passed through a procedure called "reconciliation," which meant that in the Senate, it was immune from the filibuster (this same procedure would ultimately be used to pass the Affordable Care Act, with the same Republicans who advocated its use for the tax cuts bemoaning its use for health care. Go figure.); and (2) the bill included a "sunset" provision - that is, it automatically expired on December 31, 2010. The sunset provision allowed the bill to avoid two thorny problems: the "Byrd" rule, that allowed legislation to be blocked if it substantially increased the deficit after 10 years and it lowered the "sticker shock" of the tax cut to roughly $1.6 trillion, something that, at a time of massive surpluses, avoided making the cuts look reckless.

Two years later, an additional round of tax cuts were passed that accelerated certain parts of the 2001 bill and also utilized reconciliation without changing the sunset provision of the initial legislation. Of course, these acts of Republican political sleight of hand (or perhaps the more accurate term is "bait and switch") were ticking time bombs that landed in the laps of the President and Congress in late 2010, in the middle of a deep recession and hot on the heels of a Republican blowout in the mid-term elections. Republicans successfully leveraged Democratic weakness into a 2 year extension of all the Bush tax cuts, now set to expire at the end of this year and although the bill only provided a one year payroll tax cut, the President turned the tables on Republicans and, between some brinksmanship in December and earlier this month, got that cut extended until the end of this year as well.

Whether or not to extend none, some or all of the Bush tax cuts will be a big discussion both at the Presidential level and in other national races this year; however, the issue also highlights three basic contradictions in Republican rhetoric: First, Republicans claim that tax increases on the wealthy will stunt growth; Second, they claim job creation is stunted so long as "job creators" (a wonderfully slick, if misleading label) don't have certainty in the tax system; and finally, that fiscal responsibility is needed because of our rapidly increasing national debt.

Let's consider these arguments in turn. The one thing rich people always "do," regardless of the tax rates, is "well." Tax rates were level from 2001-present, yet growth was anemic for everyone but the very wealthy throughout the Bush Administration, which ended with, oh, the closest we have come to a Great Depression Part II. George H.W. Bush and Bill Clinton raised taxes on the very wealthy and Clinton presided over the largest peacetime expansion since World War II, an expansion that was broad and deep and reached the middle class. Which is all to say that conflating tax and economic policy is sketchy at best.

Ok, but what about those vaunted "job creators." Surely we cannot have this type of uncertainty in our tax policy and expect to grow, right? Well, not so much. Private sector job growth over the past two years has been robust, with more than 3.5 million jobs created, at precisely the time of greatest "uncertainty" about tax policy. The Bush years? Not so much. After the Great Recession hit, almost the entire net private sector growth that had taken place under President Bush (which was not that significant in the first place) was washed away. Of course, it goes without saying that during the Clinton Era, when taxes were raised on the very wealthy, more than 22 million new net jobs were created.

So if tax policy and economic growth are not correlated, and the uncertainty of tax policy has nothing to do with whether jobs are created, we do have that $15 trillion debt to pay down, some amorphous Social Security deficit way out in 2036 and a Medicare problem later this decade. We need austerity, right? On this point, both parties are being disingenuous. Most Republicans have come out for a complete, permanent extension of the Bush tax cuts at a 10 year cost of $4 trillion. President Obama wants an extension for everyone but those married couples earning more than $250,000 and single people earning more than $200,000 at a cost of about $3.3 trillion. Of course, because President Bush did away with "pay as you go" rules, no rational politician wants to pony up a dollar for dollar cut in government spending to pay for all of this.

And here is where the rubber meets the road and where the President (or some forward thinking Republican for that matter) has a golden opportunity to frame the way tax policy will look on January 1, 2013. For the President, it has not been for a lack of trying that taxes on the "rich" have not been raised; however, even in that debate, the knee jerk nervousness Democrats have to the idea of higher taxes has shown its head - first, when the President agreed to extend the Bush tax cuts and second, when prominent Democrats in Congress started moving the bar up on the income level at which income taxes should be raised (Senator Schumer ultimately landed on $1 million and up).

The majority of Americans favor taxing "the rich" (which at the $250,000 mark accounts for about 2 percent of wage earners in our country) and I include myself in that group. The wealthy have gorged on easy credit, corporate profits and the decades long run up in the stock market. Wealth inequality is at its highest point since 1928 and the wealthiest 1 percent of Americans own 40 percent of our nation's wealth. The President should rightly insist on higher rates for those in the $250,000 to $1 million range; however, I would suggest that he go further and look at several other ideas: (1) add tax brackets at the "super wealthy" levels, say of $1 million, $5 million and/or $10 million, $20 million, etc.; (2) take a page from Mitt Romney and exempt people earning less than $100,000 (Romney has a $200,000 floor) from capital gains taxes; (3) raise taxes on carried interest and on capital gains among those earning more than $500,000 from income, interest or dividends; and (4) raise the maximum taxable earnings ceiling on Social Security (currently at $110,100) paid by employees to $250,000 (allow employers to retain the ceiling as currently constructed).

I know, I must sound like some wild-eyed hippie who just defrosted with a McGovern '72 button on his bead jacket, but the reality is that we will not pay down our debt, or reduce our long-term deficit, without generating more revenue and yes, by revenue I mean "tax increases." If you are feeling bad for the 1%, don't, like I said, they do well regardless of what tax policy is, it may just be they are not dirty, filthy rich, just filthy rich. After all, in addition to 40 percent of the nation's wealth, that 1 percent receives 24 percent of our income, owns 50 percent of all stocks, bonds and mutual fund investments and hold only 5 percent of our nation's personal debt. In other words, they won't go broke by having to dig a little deeper into their wallets, especially when, as noted before, income inequality is at its highest point since just before the Great Depression.

The other thing rich people like being is rich. So the idea that somehow raising taxes will stop them from working, hiring others to work for them, or, laughably, moving out of the country, is pure political non-sense. At one point in our not too distant past, people at the top of the income ladder were taxes at 91% - trust me, there was no massive outflow of people to third world tax havens or Europe. Indeed, Republicans constantly beat the drum for American exceptionalism - the idea that our most successful people would pack up and leave for parts unknown runs counter to this thought. Moreover, our current tax system is regressive - it taxes things like capital gains (which the wealthy earn in spades) much lower than ordinary income (which the middle class and poor rely on). This is the genesis of Obama's so-called "Buffett Rule," and it makes sense. Taxes should be more progressive so that the more you earn, the more you pay.

Unfortunately for President Obama, he has his own credibility deficit when it comes to fiscal prudence because the extension of Bush tax cuts for the rest of us will cost more than $3 trillion over 10 years. Of course, suggesting that taxes be raised on the "bottom 98%" will not sit well, and would probably not be prudent in an election year, but the reality is that any compromise that asks the wealthy to pay significantly more in taxes will require some concessions on the other end of the spectrum. One possibility would be the insertion of a new tax bracket within what is currently the 28 percent bracket ($85,651-$178,650) at say, $150,000 and another within what is currently the 33 percent ($178,651-$388,350)(figures are for married couples filing jointly) at $250,000. These increases would hit very few households relative to the population but would spread the pain a little more broadly.

Another suggestion would be to examine the option of allowing people under the age of 65 to buy into Medicare for a premium that they would continue to pay after they reached 65 - basically, the opposite of how Social Security works by lowering your pay out if you retire early and apply for benefits. Medicare delivers quality coverage at far lower overhead or administrative costs and would also benefit private insurers who are less eager to carry older, but non-Medicare eligible Americans on their plans because of increased costs.

But what about that bloated federal budget? You know the one Republicans are railing against as littered with waste, pork barrel spending and foreign aid. Again, a brief primer is instructive. Only 35 percent (roughly $1.3 trillion) of our budget is "discretionary" - that roughly one-third of the budget pays for all of our defense spending and the other cabinet agencies, Congress, and the courts. The other 65 percent ($2.5 trillion)? About 59 percent of that is for "mandatory" spending (e.g., Social Security, Medicare, Medicaid, Food Stamps, Unemployment Insurance, etc.) and the other roughly 6 percent is payment on the national debt. In other words, if we eliminated the federal government (settle down, Ron Paul), we would run a small budget surplus, but would not have a military, environmental protection, national parks, federal law enforcement, a way to pay for transportation costs, or about 1000 other things that the federal government funds through our tax receipts.

So what is there to do? How can the President show that he's not just about raising taxes and pay some lip service to the need for budget cutting (even though the federal government is pretty lean as it is?). If the President wanted to offer some concessions, he could cap agency growth (including defense), or even call for across the board reductions. Some modest tweaks to things like backfilling of retired employees or modest increases to pension contributions will not make a big difference in the big scheme of things, but could show negotiating good faith. The President has also called for tax incentives for "insourcing" by companies willing to bring jobs back to our shores and even a modest reduction in the corporate tax rate should be considered since the 35% rate is one many corporations avoid as it is. Moreover, were the ceiling raised on wages subject to Social Security, depending on how high the ceiling was raised (or eliminated altogether), the actuarial deficit in Social Security would be eliminated for 75 years (although this would require the employer match to go up, something I do not advocate). Cool!

Ok, now that I've shown myself to be the right wing fantasy of a "tax and spend" liberal, let me ask what the alternative Republicans have offered is? If history is any guide, it's something far more fiscally reckless - "borrow and spend." We hear a lot about this $15 trillion debt, but we hear less about how it was accumulated. For example, President Bush cut taxes, passed into law a prescription drug benefit for seniors under Medicare and launched 2 wars on the government's credit card - those policies, which cost (literally) trillions of dollars were all implemented by borrowing money which has to be paid back. In fact, nearly 43 percent of our accumulated national debt is attributable to President Gentleman's "C" with another roughly 24 percent still being paid off from our first flirtation with supply side economics under Ronald Reagan and George H.W. Bush. President Obama's contribution? About 16 percent. Bill Clinton? A little less than 10 percent (with the balance being debt prior to 1981). So the next time a Republican goes off about our debt problem, remind them that roughly two-thirds of it was rung up by Reagan and the Bush family.

In terms of actual plans, Congressman PX-90, I mean Ryan, put forward a budget plan last year. What did Congressman Ryan propose? First, a permanent extension of the Bush tax cuts (we've seen how fiscally reckless that is). Second, repeal of "Obamacare" (at a cost of $1.4 trillion over 10 years and no plan for helping to cover the 32 million who will be covered under the Affordable Care Act). Third, a 4 percent unemployment rate in 2015. Evidence? None. Just magical budget mumbo jumbo to help him justify his numbers. Finally, and most controversially, eliminating Medicare as a guaranteed, government provided medical plan and replacing it in 2022 with vouchers that seniors would use to buy private insurance in the marketplace. The cost to seniors? Double what they pay under Medicare with no cap on the rate of inflation in health care, resulting in an even greater imbalance between the voucher provided and the coverage offered over time. All in all, Ryan would tack on $6 trillion to the national debt over 10 years while doing away with a hugely successful (and popular) health care program for the elderly while redistributing even more wealth to the already wealthy. Kind of speaks for itself, no?

The perfect tax policy storm that will occur at the end of this year offers the President a great opportunity to reframe the broader debate about fairness and equity as it relates to our tax policy. If Republicans attempt another "hostage taking" of the 98 percent to get tax extensions raised for the 2 percent, I would encourage him to call their bluff. One of two things will happen - either the Republicans will cave and taxes will actually go up on the wealthy or all the tax cuts will expire, which will allow the President to blame Republicans for raising taxes while also putting him in a strong position to advocate for a more progressive reform in 2013.

Additional Reading:

Fun facts about rich people: http://thinkprogress.org/economy/2011/10/03/334156/top-five-wealthiest-one-percent/

For more on the debt accumulated by under recent Presidents: http://www.ritholtz.com/blog/2011/10/us-debt-accumulation-by-president/

For more on tax rates: http://en.wikipedia.org/wiki Income_tax_in_the_United_States#Year_2012_income_brackets_and_tax_rates

For more on the annual budget: http://www.americanprogress.org/issues/2010/03/discretionary_spending_interactive.html and http://useconomy.about.com/od/fiscalpolicy/p/Mandatory.htm

For more on the Social Security Trust Fund & the effect of raising the ceiling on taxes subject to taxation: http://www.ssa.gov/policy/docs/policybriefs/pb2009-01.html

For more on Ryan's Budget: http://www.washingtonpost.com/blogs/fact-checker/post/fact-checking-the-ryan-budget-plan/2011/04/05/AFIaZpnC_blog.html, http://www.americanprogress.org/issues/2011/04/ryan_medicare.html and http://capitalgainsandgames.com/blog/stan-collender/2222/ryan-republican-plan-requires-debt-ceiling-be-raised-6-trillion

Twitter: @scarylawyerguy

The "Refs" Rig The Game - Political Journalism In 2012

2012-02-17T20:31:00.000-05:00

After Newt Gingrich won the South Carolina primary, New York magazine writer John Heileman observed that Gingrich's victory would result in several days of significant (and free) media coverage because "the media want this race to go on …" that the coverage Gingrich would get would be "more favorable … than he would ordinarily [get] from people who would normally give him tougher scrutiny." These observations led the colorfully named "Balloon Juice" blogger John Cole to note that Heileman's comment confirmed that the media views itself as not needing "to inform or deal with facts - it is to horse race and get page hits." To which Heileman, in his February 6, 2012 column for New York observed "I'm not endorsing this reality, I'm just describing it."

Really?

Shakespeare might think that Mr. Heileman doth protest too much. In fact, the ready excuse many in journalistic circles use to defend their reporting is precisely the same - do not blame us. We are just the flies on the wall observing the event and describing it. We hold no position pro or con about it. When the New York Times Public Editor asked (rhetorically, one hopes) whether Times reporters should be "truth vigilantes," the feedback was both immediate and intense among those who think the media has, in recent years, fallen down on the job of reporting facts (and fiction) instead of the "he said/she said" that passes as balance.

More than 40 years ago, Walter Cronkite crystallized the anti-war movement by calling the Vietnam War unwinnable. A declaration like that would have gotten Cronkite branded anti-American when George W. Bush was President. Indeed, Republicans happily ran two campaigns (2002 & 2004) explicitly challenging those who did not support the President's foreign policy adventures as just that. When Bush's Chief of Staff Andrew Cards famously said, in reference to the lead up to the Iraq War that "from a marketing point of view, you don't introduce new products in August," his comment barely made a ripple even as the Administration baldly did exactly what Card said they would - roll out their "product" (the war) that fall, with speeches, strategically leaked quotes to journalists and dark visions of smoking guns turned to mushroom clouds.

Lost in that marketing campaign was a small, but concerted effort by some reporters to actually *gasp* investigate the claims that were being trumpeted by Judy Miller on the front page of The New York Times and the largely unchallenged assertions of a cavalcade of Administration officials in places as diverse as Meet the Press and the halls of the United Nations. The fog of that long war has resulted in a fair amount of revisionist history and spin by the people who launched it to pretend like everyone was sucked into some weird group think and that no one questioned, at the time, how specious the arguments for going to war actually were, but the reality, as uncovered by journalists like Tom Ricks, was quite the opposite.

The years since President Bush directed the invasion of Iraq have seen the media hoard become more active performers in what now passes for political theater. Where opinion columns were once reserved for august "wise men" they are now turned over to snarky polemists like Dana Milbank and pendants like David Brooks. Reporters who were once memorialized in the seminal book "The Boys on the Bus," are now tweeting in real time about their very own "wheels up" from destinations on the campaign trail and dropping zingers about poor music choice and crowd size. Lastly, the inside the Beltway zeitgeist is captured in the dishy Playbook written by Politico ace Mike Allen, who serves as his own one man PR machine by promoting its headlines on morning talk shows and then amplifying his (and his colleagues) reporting throughout the day via yet more appearances and of course, his Twitter feed. Allen frames the "conventional wisdom" for each day, around which campaigns and elected officials prepare responses and rebut charges. Of course, the amplification of the very issues Allen highlights merely serves to reinforce their veracity, unless, of course, the facts change, in which case the media scrum moves as one to the new way of thinking, without ever recognizing its error in the first place.

To what end this all comes is unclear. As newspapers have closed down, those that have survived have consolidated their newsrooms and, in many cases, reduced staffing in critical areas, the type of investigative reporting that used to drive journalism and helped uncover graft, scandal and wrongdoing at all levels of government and throughout the private sector is going by the wayside and being replaced with an endless supply of cable TV talking heads who parse political tempests in tea pots while all too often missing more important stories that have a greater impact on people's lives. For example, while there is no question that the recent debate about federal health care policy regarding contraception deserved attention, the media was all too quick to be sucked into the swirl of the back and forth instead of doing the hard reporting that, after more than a week, sussed out important points, including the fact that Republicans from George W. Bush to Mitt Romney had supported such policies in the past, that the policy itself was broadly supported (including by Catholics) and that even so, relative to other issues of the day, it was barely a blip on the collective radar screen of the American people. But instead of calling out Republican hypocrisy, or, even better, not feeding the story the oxygen it needed to survive, media outlets gorged on the story by reporting on the conflict it created far more than they did on the policy itself.

In this way, the chattering class has largely absolved itself from doing any actual reporting, and instead has become a combination Greek chorus, high school clique and professional wrestling angle where everyone is in on the joke and knows that the outcome is predetermined - the spokesperson for candidate "x" you are questioning in the afternoon will be the same guy you are socializing with at that evening's book release party. Rare is the journalist equipped to ask, or express interest in, drilling below the canned talking points of politicians who are generally given free rein to hit their marks with little in the way of interruption or contradiction by their supposed interrogators. It's all very incestuous because those same journalists rely on those same politicians to appear on their programs. Cut too quick in your questioning and your booker is unlikely to receive a call back the next time a guest slot is open. On the other hand, push just hard enough to create acceptable tension, without making things too uncomfortable, and everyone goes home happy. Everyone has their role to play in the staged performance of political theater, but rarely are any blows struck, reputations harmed or straw men debunked. Instead, it is all just get fed into what Jon Stewart aptly called the "conflict-in-ator" with Americans serving as the lazy Roman audience collectively lifting or lowering their thumbs.

This might seem like small potatoes in a media environment that has become ever more consolidated, but the deleterious effect on our national polity is far greater when reporters and journalists are not skeptics and instead become too close to the stories (and people) they cover. For many years, the trope of a "liberal" slant in the media was either taken as an article of faith among conservatives or, if you are a bit more cynical, was one of the most effective means of, as then-RNC Chairman Rich Bond admitted in a moment of candor in 1992, "working the refs," a phrase that is familiar to any sports fan as a means of influencing future calls by coaches through pestering of the referees to show them how they screwed up prior calls. The signal achievement, in many ways, of the modern Republican Party is not that they have successfully worked the refs to get "fair" treatment (that term long ago lost its meaning and became quite elastic) but rather, that the refs stopped being impartial a long time ago and are now fixing the game for the benefit of the combatants.

The Right Wing Calculus For Abandoning Mitt Romney

2012-02-12T15:04:00.002-05:00

At this year's Conservative Political Action Committee (CPAC) conference, the one thing all attendees agreed on was a desire to beat President Obama. The conundrum for conservatives is who they think would be best able to carry the fight to the President. Conservatives were never warm to John McCain and his selection of Sarah Palin notwithstanding, the electoral defeat he suffered was massive. A similar discomfort now exists about Mitt Romney, who, for someone with such a thin political resume, has generated a terabyte's worth of sound bites that show him to be on both sides of many issues and making other statements that portray him as anything but "severely" conservative. The unease that the party has with Romney is mitigated by the fact that the political chattering class and the GOP establishment is not sold on either Rick Santorum or Newt Gingrich as a viable alternative. While there is some low level buzz around the idea of a brokered convention, the idea of the party exposing itself to that level of dysfunction and throwing an untested candidate into the crucible of a general election with a huge fundraising disadvantage and no policy portfolio is simply not going to happen, no matter how badly talking heads fantasize about it.

So what does all of this mean for Republicans. The collective hissy fit surrounding the Administration's decision about requiring employers to provide contraception was curiously timed, coming hot on the heels of the January jobs number, which showed 243,000 private sector jobs created (another 14,000 public sector jobs were lost, but Republicans don't really care about public workers) and upward revisions to the job numbers from November and December. In all, the United States is closing in on 2 straight years of positive job growth (even with nearly 1 million fewer public sector jobs) and an economy that appears to be turning the corner. Republicans' response? It would be even better if Obama's policies were not in place and it was worse than it had to be before it got better. Yeah, have fun with that.

Unfortunately for Romney, who has pegged his entire campaign on the economy, these numbers, and more importantly, the longer-term trends, do not auger well for his ability to litigate a case of economic failure in the general election (his "Let Detroit Go Bankrupt" op/ed is probably not helpful either). His inability to articulate a broader vision for the country or a legitimate rationale for his own candidacy can be seen in his ever changing stump speeches and messaging. Moreover, as Santorum appropriately mentioned, Romney's success in the primaries has been predicated in part on his huge financial advantage, something that won't exist in the general election.

While there is a chance that Romney could collapse and Santorum (or Gingrich) could beat him, Romney must still be considered the betting favorite if for no other reason than the reasons the conventional wisdom continue to cite - money and electability. The problem Republicans will find in putting their chips on the Romney bet is that it's unlikely to pay off and in fact, as the election draws closer, I would not at all be surprised if conservatives decide to sit on their hands and wait things out until 2016.

Why would conservatives backtrack on their stated goal of making Obama a one-term President? A few reasons quickly come to mind:

First, the fate of "Obamacare" will be determined before the election. The Supreme Court is hearing oral argument on the Affordable Care Act in late March and will, unless something extraordinary happens (e.g., death of a Justice), issue its ruling in June. If the Court upholds the individual mandate, the matter will be resolved and running to "repeal" Obamacare will lose a lot of its steam. Conversely, if the Court strikes down the individual mandate (or the Act in totality), that too, would take the issue off the table. If anything, the Court's striking down, whether its partial or full, of the ACA might hurt Republicans because parts of the law that are widely popular, like allowing kids to stay on their parents' health care plans until age 26 and prohibiting insurers from denying coverage based on pre-existing conditions, would potentially go away. In short, the heat that is generated by health care is going to be dramatically less come the end of June.

Second, if anything has been learned from Obama's first term in office is that Republicans can successfully stonewall the President's agenda from Congress. In 2012, even if the House falls back into Democratic hands, the Senate is likely to be even closer to 50-50, or, potentially switch to the Republicans, but one thing it will not be is anywhere close to a filibuster-proof 60-vote majority. If the top of the ticket is weak, conservative Republicans can comfort themselves knowing that Mitch McConnell will still pull every parliamentary trick in the book and that Harry Reid, if he is still the majority leader, will refuse to tweak the rules to stop him from doing it. While any President in his second term can start solidifying the policy gains made during the first term, a Republican Congress, or even a minority in the Senate, can slow that momentum. Moreover, the party out of power tends to gain seats during the off-year election (2014) in the other party's second term (think Democratic gains in 1986 and 2006), which would slow Obama's policy efforts even more.

Third, Republicans perceive that their political bench is deep in 2016 and may be uncomfortable committing to Romney until 2020 (if he wins and then runs for a second term). If conservative Republicans are not sold on Romney's bona fides, why would they want him to be their standard bearer for the next eight years when a litany of politicians, Chris Christie, Paul Ryan, Mitch Daniels, Marco Rubio, Jeb Bush and others are waiting in the wings to run in four years. As long as Congressional Republicans fight a rear guard action to slow Obama down, conservatives might be willing to hold off until 2016 when they can help nominate someone who truly shares their values and beliefs.

Finally, and this ties in closely to the third point, winning a general election against the other party is usually easier when there is no incumbent on the ballot. Conservatives may come to the simple conclusion that recent history indicates that the American people generally do not award either party a "third" term (GHWB in '88 notwithstanding), that the Democratic field in 2016 may not be that strong (Martin O'Malley? Mark Warner?) unless either Hilary Clinton or Governor Cuomo runs and thus, holding off until 2016 makes sense. For those who think this type of "long war" philosophy may not hold, keep in mind that the conservative ascendency that occurred with Reagan's win in 1980 was predicated on Barry Goldwater's annihilation in the 1964 general election. Conservatives felt snubbed by George H.W. Bush and then got a more than acceptable President (from their point of view) in his son, eight years later. Indeed, Bush's loss in 1992 may have been good for the right wing cause because it removed a politician they did not see as sufficiently conservative. The same may be true this year.

Of course, all of this speculation will be moot if Romney does not win the nomination, but an improving economy and foreign policy successes (killing of Bin Laden, Libya, Iraq withdrawal, etc.) will leave very little for Republicans to run on against Obama. In that case, I have no doubt the right wing "tea party" types will happily sacrifice Romney on the electoral altar to get a chance at nominating who they think is a "true" conservative four years from now.

Escape From Alcatraz

2012-02-10T19:46:00.001-05:00

The worst phrase for my television viewing sanity is "from J.J. Abrams, creator of LOST." I was consumed by LOST for years, exhaustively watching and re-watching episodes, hoping to find some easter egg clue in the DVD releases and then got a whopping nothing burger of a final season that sucked so bad, anytime the show's name comes up, I react like a Muggle hearing the name of "he who must not be named." Of course, like a bad relationship that ends, but does not really end, the next time a J.J. Abrams-blessed show starts, I get sucked right back in.

Wisely, I watched the premiere of Person of Interest and bailed immediately. A crime procedural wrapped around Ben Linus and the guy who played Jesus in The Passion of Christ was a total no-go for me. When the promos for Alcatraz started running, I was mildly intrigued, but wary of getting involved in another bad romance with J.J. and the crew from Bad Robot. The premise was LOST-ish in that it has a LOST star (Jorge Garcia a/k/a "Hurley"), a sassy, yet street-wise female heroine, a mystery (inmates disappeared from Alcatraz in 1963 and are re-appearing in 2012) and an ambiguously good/bad male lead (Sam Neill).

Unfortunately, the producers at Bad Robot took all the wrong lessons away from the fan backlash at the shitty ending to LOST. The conventional wisdom said that "mythology" shows like LOST could not succeed because the mystery itself was what made the show interesting (not the answer) and therefore, continuing to build mystery upon mystery only made the show more byzantine and unbelievable, until it collapsed under its own weight. To me, the take away was much simpler - don't produce shitty endings that piss off your fan base. But hey, that's me.

So what did the Bad Robot crew do? They followed the conventional wisdom and dialed down the "mythology" aspect of Alcatraz to an afterthought and gave us what is basically a cops and robbers show with little in the way of compelling story telling, substituted the iconic LOST flashback "WHOOSH" with the more predictable (and overt) "rattling of jail cell" sound (and visual) just in case you didn't realize WE ARE FLASHING BACK IN TIME. It's not even LOST 101, it's more like a remedial course in how to both submarine a good genre (mythology) and attach it, like a barnacle, to the lowest common denominator TV drama (the crime procedural).

The mythology portion of the show - what happened to the inmates and guards that were on Alcatraz in 1963 - is touched on so elliptically (and briefly) this viewer sometimes forgets why it is we even care that random people with Brylcreemed hair are aimlessly roaming the streets of San Francisco. Garcia's role as a "brilliant" (is there another kind in TV these days?) Ph.D and author is basically a warmed over version of his LOST character and Neill's FBI Agent Hauser is shifty and secretive but because so little time is invested in sprinkling clues about the mythology of why this is all occurring, he just comes off as dickish. Yes, there is a hidden prison and some supporting tech geeks that can seemingly track down information and locations at the push of a button, but unlike LOST, which so deftly wove in the Island as a part of the story, especially in the first season, Alcatraz cannot seem to decide what kind of show it wants to be - a drama that is accessible to regular viewers or a new age LOST that will but attract the "fan boy" crowd. Unfortunately, in trying to split the difference, the show is aimless and not particularly interesting.

Nobody Likes Mitt

2012-02-08T09:59:00.002-05:00

The ragged march to the 2012 GOP nomination took another turn on Tuesday when Republican primary and caucus voters in Minnesota, Colorado and Missouri handed wins to former Pennsylvania Senator Rick Santorum. Just a week ago, Mitt Romney was basking in the glow of a big Florida win and a few days later, a win in the Nevada caucus. The political chattering class was firing up the general election machine in preparation of a Romney vs. Obama contest while writing off Newt Gingrich and barely noting the presence of Santorum. The dirty little secret the mainstream media seems to want to ignore is that the Republican electorate, or at least that portion that is showing up during the primaries and caucuses, simply does not like (or support) Mitt Romney.

The right's ambivalence toward Romney was apparent even before the voting began. The run-up to the primary season was described by one wag as a "speed dating" experience for the GOP. In the span of 6 months or so, polls variously showed everyone from Donald Trump to Michelle Bachmann leading the GOP race. A boomlet for Rick Perry quickly faded, Gingrich rose and fell (under a barrage of Romney's negative ads), even Herman Cain had his moment in the sun. Through all of this, polls showed Romney's support as steady and flat - somewhere between 18 and 25 percent, never spiking above, or dropping below, that level.

The media's narrative seemed to bake into the primary cake the idea that Romney was "inevitable," for no other reasons other than what political hacks gauge things by - money, organization and whose "turn" it is. While those explanations can be helpful, they can also be self-reinforcing even in the face of evidence to the contrary. Even if Romney's 8 vote "win" in Iowa was not ultimately overturned, little was made of the fact that Romney received fewer votes in 2012 than he did in 2008 against a weaker, and more splintered field.

Reporters underplayed Romney's performance in Iowa for two reasons: first, they knew he was likely to do well in New Hampshire and second, they did not see a "way forward" for the eventual winner of that caucus, Rick Santorum who didn't have those things that matter to the cognoscenti - money, organization or the "turn" at bat. When Romney did win New Hampshire, the mainstream media simply fell back on its conventional wisdom of inevitability, ignoring the fact that in both contests, Republican turnout was lower than 2008 (a red flag if we are to believe Republicans are as eager to remove Obama as the media wants us to believe) and that Romney's "backyard" victory was expected.

When the race turned to South Carolina, Romney's weakness with the base of the Republican party became obvious. He was trounced all over the state by Gingrich, who he had crushed before Iowa under a multi-million dollar wave of negative ads. Indeed, Gingrich's defeat of Romney was so absolute that Romney's campaign "broke the glass" and pushed the emergency button between South Carolina and Florida - carpet bombing the Sunshine State in more than $15 million in negative attack ads and aggressively attacking Gingrich in the two debates that occurred in the week before Floridians voted. The tactic worked and Romney easily won the contest.

Reporters fell back on the "firewall" idea after Florida. That no competitor to Romney could gain traction because the Governor had these "firewalls" set up where even if he lost a contest or two, another one was in the offing that he would win. Moreover, Romney's clear financial advantage was still looked to as the ultimate difference maker. Romney's win 4 days later in Nevada seemed to take care of matters, but again, there was a story going on underneath the surface that the media were not covering. Turnout in both Florida and Nevada was down, and while Romney did much better in Florida than he did in 2008, he did so at the cost of spiking his unfavorability rating, had no positive message (other than his inevitability) and seemed to rely not on personal popularity but making the other candidates appear unelectable. Short-term, that might have helped, but even if he were to win the nomination, would put him in a bad spot in a general election.

And then came last night, where Romney did not leverage his money advantage or blitz the airwaves with negative campaign ads, he got crushed. His voting total in Colorado (which he won in 2008) was down more than 32 percent and in Minnesota, a whopping 68% (he finished third, behind Santorum and Ron Paul). In Missouri, he was swamped across the state, losing every county and showing again that the conservative base simply does not support him. Even more alarming for the GOP, turnout in Minnesota was down by more than 20 percent from 2008.

Ultimately, Romney's campaign is being propped up entirely by big donor money. A candidate who has not even won the most caucuses and primaries trying to paint himself as inevitable is slowly withering on the vine. Romney is disliked by the base of the Republican party, and his wins in 2012 have been confined to a "backyard" primary in New Hampshire, a state where he could destroy his opponent on the airwaves (Florida) and relied (in part) on a large Mormon population (Nevada). Further, turnout among Republicans is down in every state except places where Romney lost (South Carolina and Colorado) and there, Romney's support was modest at best. While the media may enjoy an extended primary season if for no other reason than it makes good copy, the longer the race goes on, the more it shows that the Republican electorate simply does not like Romney and the more the establishment of the party tries to reinforce his inevitability, the more the people who actually vote in these contests reject him.

Five People Who Will Help Decide The 2012 Presidential Election

2012-02-04T15:31:00.001-05:00

Regardless of who the Republicans pick to go up against President Obama, the 2012 general election will pit two very well funded politicians against each other with the aid and support of small armies of supporters, surrogates and volunteers (not to mention deep pocketed fundraisers). Here are 5 people to keep your eye on as we get closer to Election Day:

Karl Rove. You thought "Turd Blossom" went away when W slithered out of office? Not so. In fact, Rove's influence over the modern Republican Party is if anything, greater than it was when he was performing dark arts out of the West Wing. Rove now oversees American Crossroads and American Crossroads GPS. Two groups, that if you have not heard of them yet, you will soon. Rove now has former Mississippi Governor Haley Barbour helping him fundraise what his organization claims will be $240 million for the 2012 cycle. Whether they reach that goal or not, these two groups will be dropping huge sums of negative advertising on President Obama and vulnerable down-ballot Democrats. Rove is a master of the negative attack ad and slash and burn politics that turned a decorated war hero into an effete flip flopper and an environmentalist and forward thinking computer wonk into a soulless beta male.

Joe Biden. Sheriff Joe has been the do-everything guy in the Obama Administration. If Dick Cheney re-defined the role of Vice President in a way that was dangerously undemocratic, Biden has elevated his position into an all-around policy troubleshooter and trusted elder statesman role that history will likely look kindly on. He's taken on every tough task the President has asked of him, from keeping an eye on Recovery Act funding to drawing down troops in Iraq and negotiating last year's tax extension. People forget though that when Biden was picked to run with Obama, it was largely to shore up Obama's perceived weakness among so-called "Reagan Democrats" - blue collar folks who are socially conservative and went for Hillary in states like Pennsylvania and Ohio during the 2008 Democratic primary. In 2012, Biden will continue wearing two hats. On the "official" side, he will likely be leaned on in any negotiations with Congress over everything from the payroll tax cut extension to the FY13 budget, and on the "re-election" side, he will be deployed to the Rust Belt to trumpet the Administration's commitment to manufacturing, union rights and protecting public workers.

Scott Walker, John Kasich & Rick Scott. Speaking of the Rust Belt (and Florida), I am counting these three deeply unpopular Governors as one because they have, in their own ways, mobilized opposition to them in ways Democrats could not have foreseen when each was voted into office in 2010. In Wisconsin, Walker will be subject to a recall vote sometime next year, offering Democrats a great trial run to mobilize in advance of November. In Ohio, unions took the lead in overturning a union stripping law passed under Kasich's signature. In Florida, Scott is just plain unpopular, having lavished corporations with tax cuts as he cut social services. It goes without saying that winning these 3 states is critical to both parties and my guess is you won't see too many photo ops that include the GOP nominee and any of these elected officials. Whether Obama and the Democrats will be able to tie the national GOP to the deeply unpopular policies these three gentlemen have passed will go a long way to deciding who wins the election.

Angela Merkel & Bibi Netanyahu. Ok, I'm cheating again, but while there are many foreign policy hotspots, Germany's pre-eminent role in the European debt crisis and Israel's flirtation with attacking Iran stand out as "known knowns" (to paraphrase Rummy) 1A and 1B for the Obama team. If Germany is able to facilitate a soft landing for Greece (and possibly Spain, Portugal and Italy) that makes the European recession shallow, or perhaps even results in a modest rebound, that will accrue to our economy's benefit. If not, we could be in trouble, or at best, not experience the economic growth we otherwise would. Obviously, the former outcome would be quite helpful to the President; the latter, to his opponent.

How Israel responds to the continued Iranian push for nuclear weapons is a total wild card. If United Nations sanctions choke off Iran's exports and force them to the negotiating table, perhaps the threat dissipates. If scientists continue to mysteriously die by car bombing or computer systems mysteriously become infected with computer viruses, perhaps the threat dissipates. But those are big "ifs" and the drumbeat from Republicans to get tougher on Iran has been a hallmark of their primary season. It is also a way for them to try and mitigate one of Obama's strengths - a muscular foreign policy that is difficult to criticize.

Antonin Scalia. I wrote previously about the decision the Supreme Court will issue, probably around the third week in June, about the Affordable Care Act. (You can read it here: http://scarylawyerguy.blogspot.com/2011/12/my-what-expansive-commerce-clause-you.html). If Justice Scalia rules, as I think he will, to uphold the individual mandate, it will be both devastating for Republicans and an enormous vote of affirmation for President Obama. To have the role model for "strict constructionism" (even though he's only that way when it's convenient for him) uphold "Obamacare" will not take the issue off the table entirely but it will, if Romney is the nominee (and not inclined to push the issue since the national model was based on one he helped pass in Massachusetts), move it into the periphery.

Those are my five. Who are yours?

Follow me on Twitter: @scarylawyerguy

Why Mitt Romney & His Glass Jaw Are Limping To The GOP Nomination

2012-02-02T10:11:00.000-05:00

Men of a certain age recall the classic arcade video game Punch Out. As an up and coming fighter, you battled a string of contenders before making it to the champ. First up, Glass Joe, so called because his weak chin invariably resulted in a knockout, provided you landed one clean punch. When the story of the 2012 Republican primary season is written, the overarching themes will be the failure of a historically weak field to land that one clean punch that would have sent “Glass Joe” Mitt Romney to the canvas and the great “what if” of what the race would have looked like had a more formidable alternative to Romney decided to enter the race. Instead, the GOP will send a deeply flawed and weak candidate up against President Obama where he will almost certainly go down to defeat.

Mitt Romney is literally being carried across the finish line by a well organized group of “establishment” political and thought leaders and a small group of very wealthy financiers who have pumped more than $30 million dollars into the Governor’s “Super PAC” Restore Our Future. The candidate’s own fundraising lags the President’s, and he has benefited from a group of challengers who were strategically inept and unprepared for the rigors of a Presidential campaign. That his consultants view these modest achievements as cause for celebration tells you something about the shameless spinning those folks do.

So where did it all go wrong? What counterfactual can legitimately be spun to show why Mitt Romney could have been defeated?

The early debates. First, conservative challengers spent far too much time elbowing each other in an attempt to gain the mantle as the alternative to Romney instead of just going after him directly. In this way, Romney skated through many early debates, rarely having to do anything other than regurgitate his canned talking points without being challenged about the particulars of his policy, background or experience. While conservatives attempted to “out conservative” each other, Romney looked like the adult in the room – a man, as he oddly put it, of “constancy” who was not going to sully himself with ugly and personal attacks.

Instead of attempting to win the hearts of conservative voters, consider what would have happened had Rick Santorum launched his devastatingly effective debate attack on “Romneycare” and the fact that Romney voted for Paul Tsongas in the 1992 Democratic primary, 4 weeks before the Iowa caucus instead of a week before the Florida primary. Not only did Romney bristle and stumble through this explanation, but a well-funded, strategically oriented campaign would have been able to make great hay out of these points through paid advertising. There would have been no need to battle others to gain the conservative vote when so much more of the Republican electorate would have been more receptive to a message that reflected Romney’s weakness.

Of course, Romney put his foot in his mouth in other debates, the famous “$10,000 bet” gaffe against Rick Perry and his 184 word You Tube classic prevarication on whether he would or would not release his taxes are two that come to mind, but neither flub (or other odd statements Romney has made along the way) was ever taken advantage of by his opponents because none had either the financial backing or the broad-based campaign strategy to make these attacks stick. While both errors were played up in the media as a form of “free” advertising against Romney, story of the day chatter is just that – story of the day – unless a candidate is able to amplify that message over and over so that the narrative becomes a more general indictment of an opponent’s weakness.

Money Talks, Bullshit Walks. Speaking of money, to Romney’s credit, his campaign was well ahead of the curve when it came to understanding and leveraging the ability of Super PACs to do the dirty work of campaigning while allowing the candidate to remain above the fray. For months, Romney successfully portrayed himself as positive while declaiming any role in the work of his Super PAC because federal law prohibits coordination. That the Super PAC is run by his ex-aides and that Romney recited, almost verbatim, the allegations made in at least one of the ads it created, were two points that a better organized (and funded) opponent would have incessantly harped on to the point that the lack of coordination would have looked like a fancy bit of legalese and political fiction that was a distinction without a difference.

More generally, no other campaign created a sufficient infrastructure to mount a nationwide campaign. The failure of all the candidates except Romney and Paul to get on the Virginia ballot, missing delegate slates, poor advance work, lack of coordinated messaging and about 100 other things that a modern Presidential campaign needs simply did not exist. While Santorum was driving around all 99 Iowa counties to eke out a 20 vote victory, Romney was already carpet bombing New Hampshire with ads and making phone calls to Florida Republicans who were voting absentee or early. Newt won South Carolina, but from his victory speech through his crushing loss in Florida, his messaging was horrible, he was ill-prepared for the two crucial debates where more polished preparation from a well-funded candidate (Romney) was apparent, and he had events that were poorly attended. In short, there was no strategic thinking going on months ago (or even in real time) because Gingrich simply does not have the infrastructure and resources to do the type of deep planning that Romney, with his far deeper coffers and staff, could do. It matters.

The Weak Field. Ultimately, Mitt Romney is limping toward the GOP nomination against the weakest Republican field in modern history with lockstep (but unenthusiastic) support from the establishment GOP (politicians, media, talk radio) and his Super PAC, who, as the primaries have dragged on, focus less and less on Romney’s ideas and more and more on the idea that Romney is the only candidate who can beat the President. Much ink has been spilled discussing the flirtation GOP primary voters had with Michelle Bachmann, Herman Cain, Donald Trump, Rick Perry, Rick Santorum and Newt Gingrich (twice) but less about the fact that few (if any?) of these candidates was ever considered viable.

Consider Rick Santorum. He’s held on largely because the primary roulette wheel landed on him with impeccable timing – just a week before the Iowa caucus. While there is no question Santorum was doing the retail politics necessary to win Iowa, he was not running a meaningful campaign anywhere else. That he lost his last statewide race by nearly 18 points and is best known for having his last name perverted into a definition for a rather graphic aspect of anal sex meant little within the tiny window of momentum that helped push him to a win in Iowa. Now that Iowa is over, the gloss from that win (which itself was not even confirmed for more than a week afterward) is long gone. Santorum was unable to leverage that momentum in subsequent contests because his campaign was not prepared for his being in the race after Iowa. No fundraising, little infrastructure, no national advertising or any of the other hallmarks of a “real” Presidential campaign.

Another prime example is Governor Rick Perry. Had Perry started building a foundation for a run in the Summer of 2010 instead of 2011, he might have fared better. While he came into the race with a splash, his thin policy chops and inability to debate were quickly exposed. Indeed, Perry stands out as a candidate who will probably rue his campaign more than others. His fundraising apparatus would have afforded him the ability to run a national campaign had it been done thoughtfully and with diligence. If Governor Perry spent 6-12 months immersing himself in foreign and domestic policy, carefully planned a roll-out of his candidacy (including prominent endorsements and strong fundraising) and been drilled on a few basic message points, he would have been a serious contender. Instead, his campaign was done on the fly, with little in the way of substantive policy and almost no preparation before he entered the candidate debates. The initial impressions of Perry as a swaggering outsider quickly dissolved into a narrative of incompetence and buffoonery. Once done, Perry was stuck between the push and pull of needing to campaign and needing to be properly briefed on policy. Although he was able to get under Romney’s skin at several debates, his initial forays were so laughable that by the time he was able to find ballast, the rationale for his candidacy had disappeared.

Other contenders, like Bachmann, Cain and Paul were never serious threats to secure the nomination and if anything, sucked up an enormous amount of oxygen that could have been directed at scrutinizing Romney (tax returns, anyone?) or thinning the debate field in a way that would have allowed for lengthier exchanges among candidates deemed to have a legitimate chance of contending for the nomination. Finally, also rans like Pawlenty and Huntsman, although having credentials that might have made them reasonable alternatives to Romney, never articulated a clear rationale for their candidacies and failed to raise money sufficient to keep them afloat. The sound of wallets closing when “T-Paw” came calling says something about how lightly regarded he was in establishment circles. That he whiffed on making a simple attack on Governor Romney at an early debate just confirmed that he was not ready for prime time.

And the result of all of these flame outs was an everlasting desire to launch trial balloons in the direction of everyone from Mitch Daniels to Haley Barbour to come and act as the conservative savoir. As recently as the Florida primary, a robust 38% of those polled wanted other candidates to enter the race. Perhaps those politicians who did not enter the race were on to something – they were experienced and savvy enough to know that you simply cannot launch a Presidential campaign in the middle of a Presidential campaign. Daniels and Barbour both have long Washington experience and other potential candidates like Paul Ryan and Chris Christie no doubt understood that a campaign of this sort is not a turn key operation but rather, a complicated, expensive and highly sophisticated undertaking that takes years to plan, and even then, there is no guarantee of success.

While the clamor for other candidates speaks to the field’s weakness, the coordinated and unrelenting attacks on Newt Gingrich in the wake first of his rise in Iowa (which was cut short through a blizzard of negative ads) and after his win in South Carolina (same strategy, just augmented by the collective hate boner of every establishment Republican from John McCain to Bob Dole and conservative pundit from Charles Krauthammer to Ann Coulter) reflected a coordinated takedown Republicans typically save for attacking Democrats. Florida will no doubt receive its own chapter in every political junkie’s book about the 2012 campaign, but the 5:1 spending advantage Romney leveraged to bury Gingrich under an avalanche of negativity, combined with the coordinated amplification of “Gingrich is unelectable” messaging done in conservative media, is unlikely to be seen within the GOP anytime soon. Essentially, the GOP establishment made a decision that Newt looked far more like Barry Goldwater in 1964 than Ronald Reagan in 1980 and that if Romney is Bob Dole in 1996 or John McCain in 2008, they are willing to roll the dice on eking out a narrow victory (or losing graciously) than risking a blowout for the low percentage chance Gingrich leads another conservative revolution.

Even Romney’s purported comeback in Florida, which was based in part on what was spun as strong debate performances, is a trope that will come back to haunt Republicans. While Romney was well prepared to use Newt’s background as a “lobbyist” for Freddie Mac and Fannie Mae against him, his contortions on other issues from the housing market to health care, from entitlements programs to immigration, added more fodder to the already considerable video library of flip flops, prevarications and outright contradictions Romney has made about policy depending on what the subject was and where he was speaking. That Santorum so easily slipped the verbal knife into the soft underbelly of “Romneycare” and casually mentioned that Romney voted in the Democratic primary in 1992 without proper response from Governor Romney does not bode well for the barrage of negative campaign ads that will be unleashed against him by the Democrats. Gingrich may be full of bluster and an air of self-aggrandizement, but the President is a far more measured and skillful debater who will move with ease around Romney and flummox him (which is not that hard to do) into misstatements that will reflect his inability to respond extemporaneously to criticism.

Ultimately, all of this speaks to the unspoken – that Mitt Romney is being accepted in Republican circles with all of the enthusiasm of a trip to the proctologist’s office. The deafening silence that accompanied Romney’s “I don’t care about poor people” gaffe says more about the establishment’s view of him than anything else. Instead of hopping up and down and blaming the “liberal” media for misconstruing Romney’s words, instead we got disparaging articles about Romney from The Wall Street Journal and National Review Online. Although Romney’s tax returns, once released, received little coverage in the swirl of the primaries, rest assured that his Swiss, Cayman Island and other foreign investment vehicles will be brought up over and over again during the general election. While these investments may not, in a vacuum do him much harm, Romney’s other “made for TV” blunders, about corporations being people, about his enjoyment of firing people and other tone deaf statements are all feeding into a narrative of an out-of-touch elitist – the very embodiment of the 1 percent.

The lack of enthusiasm for Romney is also seen in the raw voting figures. Aside from South Carolina, where turnout was up from 2008, the other early caucus and primary states all showed self-identified Republican voters down 10% or more from the last election. Overall, 100,000 fewer people have voted in the Republican primaries and caucuses than in 2008 and Romney himself underperformed his vote total in Iowa from four years ago, was absolutely hammered in South Carolina, where he lost every Congressional district, and needed more than $15 million in negative advertising against Newt Gingrich to win Florida. In short, Romney is redefining the term “winning ugly” in 2012 and has stooped to do so against a field that is weak, underfunded and was, at least until recently, littered with “not ready for prime time” players who no one in the political chattering class took seriously.

Romney’s aides have done yeoman’s work to protect their candidate’s glass jaw, but the longer this campaign goes, the harder it will be to hide it. A weak field had Romney on the ropes on several occasions but could not finish the job. That Romney barely survived these attacks does not make him a stronger candidate because his inability to “punch his weight” against mediocre competition will not make him any more equipped to defeat the President than his flameout in 2008 against Mike Huckabee and John McCain. A political commentator once noted that over the course of a campaign, a candidate’s personality is inevitably exposed. So it will be with Mr. 1%, who struggled to beat a ragtag group of competitors only to be portrayed as the poster child for the plutocracy – an out-of-touch elitist whose complete lack of core make him an easily caricatured politician – John Kerry without the war medals, Al Gore without the policy chops, Michael Dukakis without the tank. In short, a loser.

The GOP Tries To Kill Frankenstein

2012-01-29T16:46:00.000-05:00

The collective Republican establishment take down of Newt Gingrich in the wake of Newt's win in South Carolina is without precedent in the modern GOP. The reality of the 2012 nominating process is curious though. The man for whom everyone from Matt Drudge to Charles Krauthammer are now carrying water underperformed his vote tally from Iowa in 2008, won an expected victory in New Hampshire (a neighboring state to his adopted home of Massachusetts and a place he invested enormous resources) and got creamed in South Carolina. All of this against a weaker stable of candidates than he ran against in 2008 who have a small percentage of the financial resources Romney has at his disposal. Inexplicably (and laughably), they now want to proclaim Florida as a make or break for the nomination even though no candidate has accumulated more than 5% of the delegates needed to win it.

So what gives? My own theory is that having created the Frankenstein monster of blind hatred and rage toward government generally and President Obama specifically, the political chickens are trying to come home to roost and the establishment, having stoked the flames of Tea Party hatred, are desperately trying to control the monster before it rages out of control and does something the "adults" in the party think they will do if left to their own devices - nominate Newton Leroy Gingrich for President. In the balance, instead of building Romney up and allowing him to move toward the center, the attack machine the establishment has unleashed is bringing Romney down by essentially saying that his political apostasies notwithstanding, Gingrich cannot win and therefore must be destroyed. Quite a thank you for a guy who swept Republicans back to power in the House in 1994.

Romney's faults would not be nearly as damning were he not stretching to prove his conservative bona fides. Indeed, should Romney eventually claim the nomination, the idea that Gingrich and others have made him a better candidate will be proven wrong. While commentators are lamenting the number of debates the Republicans have had, they also pass along the conventional wisdom that the debates have made Romney a better candidate. The reality is that in the first 10 or so debates that the Republicans held, Romney took little incoming fire, his opponents were more focused on each other than him. Once debate fire started wheeling toward him, Romney was uncertain and shaky, making odd gaffes like the "$10,000 bet" and his now famous 184 word answer about when (or if) he would release his tax forms. While it is true that Romney performed well in the 2 debates between South Carolina and Florida, much of that "performance" was pounding on Gingrich with canned talking points about immigration and financial investments. Even so, when challenged by Rick Santorum on "Romneycare," most agreed Romney looked weak and he also looked oily and fake when feigning ignorance about a Spanish-language ad he claimed he could not remember being made by his campaign. Against a polished and articulate opponent like President Obama, Romney will not have the luxury of his gaffes being downplayed or his misstatements failing to be slammed.

There is no question that if a more acceptable (to the establishment, anyway) conservative alternative existed, Romney's weaknesses would likely not be so easily ignored. In fact, the hand wringing that still exists about trying to find an authentic conservative alternative to Romney even at this late date speaks poorly of Romney's ability to marshal those forces if he does win the nomination. More damning, Romney will also be handicapped by the policy positions he has taken in an effort to pander to the right wing of the base that will never trust him. While the "Ryan Plan" may be an article of faith among the true believers in the Republican party, try spinning the privatization of Medicare to the 80% of Americans who like and support it. By toggling to a staunchly pro-life position (even coming out in support of Mississippi's "personhood" amendment) , Romney may have curried favor with the Santorum crowd, but try telling a socially moderate electorate in the suburbs that you think the protection of life begins at conception.

Romney's ability to tear down what was essentially a minor league level of political talent will do him no favors once a general election starts. While Gingrich is mercurial and not well-managed, rest assured that the Obama team knows how to exploit weakness in its opponents, will turn around ads and media that take advantage of Romney gaffes and will have a concerted, well funded and ruthless focus on taking the less savory parts of Romney's biography and turn them against him. Moreover, by leaning so far right on some positions, if Romney toggles back toward the center, he'll merely be reinforcing the belief among conservatives that he vacillates and is politically expedient, which may depress turnout. In the political calculus that die hard Republicans make, they may prefer to hold off to 2016 while working to keep a majority in Congress that will continue to box Obama in, instead of accepting that Romney would carry the Republican banner through 2020.

For Romney, the inconvenient truth of his work at Bain, where he trumpets the creation of companies like The Sports Authority, Staples and Dominos, may work well in Republican primaries, but these are companies that feed off of a less educated, non-unionized employment base where lower skills (and wages) are accepted. Whether coincidentally or not, states with the lowest educational levels tend to vote Republican (at the national level) and also are typically the most virulently anti-union. That's not to criticize companies like The Sports Authority, but it is to say that when President Obama hits hard on manufacturing and high technology as keys to our future, Romney defending service jobs with less financial stability, union protection or meaningful career advancement is a far cry from the "middle class" jobs of a generation ago that were manufacturing based, unionized and afforded people the types of opportunities for home ownership, a college education for their children and a stable retirement that we all think are part of the American Dream.

When grasping for analogies to this year's race, I took a look at the 1996 GOP race and saw a lot of similarities but without the compelling conservative alternative. Mitt Romney is Bob Dole, but unlike Romney, Dole had no compelling challenger who could be looked at as President. While Pat Buchanan and his pitchfork brigade won New Hampshire, Buchanan, who had never held elective office, was not viewed seriously by most of the electorate and therefore, did not get attacked like Newt is this year. Steve Forbes was a better funded and just as unpolished candidate as Herman Cain (complete with his own version of "9-9-9" the flat tax), Bob Dornan was Michelle Bachmann before Michelle Bachmann, Phil Gramm was a well funded Texan with no message a la Rick Perry and several 1996 candidates (Lugar, Specter, Wilson) could be Tim Pawlenty.

While both the 1996 and 2012 primaries occurred in the wake of "wave" elections that returned Republicans to Congressional power, a key difference exists between the former and the latter. In 1996, mobilizing disaffected, virulently anti-government Republicans did not happen largely because that segment of the party was fringe and small. Today, it is vibrant and mainstream, with a vessel (the amorphous "tea party") through which it speaks. The pitchfork brigade that rallied to Buchanan in 1996 was a small band of voters who were easily washed away by the Establishment. Today, the tea party has a far stronger presence in the Republican party. While some of that energy has been co-opted, true conservatives, when given a choice between a guy like Gingrich, who at least has the credential of leading the GOP from the wilderness and into power in 1996 and Romney, who voted for Paul Tsongas in the 1992 Massachusetts Democratic primary, campaigned in 1994 as a pro-choice, pro-gay rights social moderate and whose politics are as malleable as his hair is rigid, will pick Gingrich over Romney every time.

In many ways, today's tea party resembles nothing more than a modern version of the "southern strategy" created by Nixon that channeled the cultural resentment of blue collar whites by railing against the media, the counter-culture and peaceniks and was perfected by Ronald Reagan. Of course, Nixon called for universal health care in 1974 and Reagan passed some of the biggest tax increases in modern history, but those ideas are relegated to the dustbin of conservative history. Today, Gingrich's "dog whistle" of calling Obama the "food stamp President" and zeroing in on issues like White House "czars" and "Saul Alinsky" tactics speak to the blind hatred of hard core conservatives, all of which was ginned up and supported when it was trained against Democrats in 2009 and 2010. Of course, were he ever elected, it is unlikely Gingrich would implement many tea party concepts, but he embraces them nonetheless. Conversely, Romney understands that this type of vituperation is untenable in a general election where more than 50% of voters turn out, not the less than 40% for mid-term elections, and they include far more socially moderate voters who are turned off by mindless ideology.

That some so-called "Tea Party" politicians have endorsed Romney says much less about the "tea party" movement than the political expediency of politicians - which is to say that that particular trait is not unique to either party. What the grass roots of the "tea party" is quickly learning is that those they elected to office are not as doctrinaire as they hoped and not as committed to the change as they paid lip service to to get elected ($100 billion cut in the federal budget? Never mind. Repealing Obamacare. Not going to happen.). As the split between "country club" Republicans and "tea party" Republicans becomes more obvious, the cleaving between the Herman Cains and Sarah Palins of the Republican party and the John McCains and Bob Doles is becoming clearer. Ironically, the more establishment sentiment gels around Romney, the more resentment the tea party types will feel. Perhaps it is just desserts for a party that looked the other way at cries of "terrorist" in 2008, held rallies where the President was portrayed as Hitler and an African witch doctor, gave a wink and a nod to the "birther" movement and who called the President a liar during a nationally-televised speech to a joint session of Congress.

That establishment Republicans are essentially trying to dismantle the monster of their own creation is both humorous and ironic. When the channeling of tea party rage was directed at incumbent Democrats, the establishment of the Republican party, along with its media echo chamber (FOX News) was more than happy to hop aboard. When the monster turned on Republicans in South Carolina, all of the sudden everyone decided that it was time to protect the institutional wing of the party and go nuclear on Newt Gingrich. With all of the effort they are making to drag Romney across the finish line, do not be surprised when they experience buyer's remorse come November. Conversely, while it is equally possible Gingrich would lose, there is no question that the base of the party wants to support someone who will draw sharp contrasts with the President. Romney may lose gracefully like Dole or McCain, but Gingrich could be either Reagan or Goldwater. The risk/reward is much higher with Gingrich, but the dispassion felt towards Romney suggests he will have great difficulty inspiring large Republican turnout while suffering from losing moderates who will be turned off to the politics he has embraced to secure the nomination.

What I've Learned

2012-01-27T19:33:00.000-05:00

Esquire runs a feature called "What I've Learned," where they provide the first word or two of a sentence and then allow the subject to fill in the rest. My version of this feature:

What I’ve Learned: Scary Lawyer Guy. Early 40s, divorced, attorney and aspiring raconteur:

Masturbation is still enjoyable, but like all other bodily functions, becomes messier as you get older. In fact, everything about life gets shittier the older you get – not only do you creak and make weird noises, but you can’t stay up as late, eat certain foods or expect to sleep through the night without waking up at least once to take a piss. I’d rather have 60 relatively well functioning years and drop dead than tack on another 20 where I end up crapping in a diaper and gumming my food.

A warm robe is essential during the winter.

The thing about marriage is you cannot appreciate its depth and complexity when you get into it. You wake up 5 years later and it is like you and your spouse have merged into one super-being that consolidated your personalities, attitudes and thoughts into one organism.

People tell us who they are, but we ignore it, because we want them to be what we want them to be. This is one of my favorite lines from Mad Men because it captures an essential truth. The tension in our interpersonal relationships comes from our willingness to give people a second chance while knowing it may not work. We need to believe people are capable of changing even though experience tells us otherwise. The bromide that “second marriages reflect the triumph of hope over experience” is pithy, but false. The divorce rate for second marriages is higher than it is for first marriages, and third marriage divorce rates are higher than second marriage divorce rates. Not only do people not change, it does not seem like they learn either.

Social media is not something I immediately embraced. I missed MySpace entirely and made an affirmative decision not to use Facebook; however, I fucking love Twitter. It’s a combination real time news gathering website/millions of people collectively experiencing events living room/snark vortex that is both endlessly educational and amusing. I did not fully appreciate Twitter until the night the President announced Bin Laden had been killed. My Twitter feed was “blowing up” for about an hour before the President spoke, first, with very vague (and slightly frightening) tweets about a “major announcement” that morphed into the leaking of the story online (even before the news channels, all of whom had gone wall-to-wall with coverage but held off on disclosing the information). That’s when the light bulb went off for me. What began as a place to tell people you just ate a shitty hamburger morphed into a place where you found out we put a bullet in Bin Laden’s head.

In writing good ideas are just as important as good editing.

It’s only money was one of my dad’s favorite expressions. I never gave it much thought when I was younger, but now I think it is complete bullshit. Money does not guarantee you happiness, but your options and world are far more limited without it.

It's not a bad thing to admit you are wrong. In fact, the opposite is also true. If you cannot admit when you are wrong, you are not going to be successful in life.

When I meet someone, I can size up whether I am going to like them within 10 seconds. After that, it's either "thick as thieves" or "have a nice day." Always has been, always will.

Elvis is endlessly fascinating to me. He was an icon in a time before the Internet, before TMZ, before pop culture became ubiquitous. He was worshipped but was incredibly insecure. He was an addict but was obsessed with the youth counter-culture. You read about that meeting with Nixon and find out he was basically stoned out of his gourd and showed up at the White House unannounced and wonder what that would have looked like in 2012. His downfall was incredibly sad because even with all the adulation, he was a very lonely person and he died on the toilet. What could possibly be worse than that?

American Idol and the whole reality genre, has a reasonable half life of two seasons. After that, it's just the same shit over and over.

I really don't have many close friends. In life, I've found that a few meaningful friends were far more valuable than a roomful of acquaintances. Some people need people around them, I've never been one of those people. My own company has always been a-ok with me.

I am a lawyer and proud of it. I've never taken a job for the paycheck except when I absolutely needed to and thankfully, that's only happened twice in the last 15 years. Otherwise, I've been blessed to do work I love and to help make a difference in other people's lives. There's nothing more rewarding than that.

Having kids is an enormous investment of time, energy and commitment. If more people knew what "having kids" meant, I think fewer people would have them. I never had them because I was always worried I would fuck up raising them and they would end up being all screwed up. It depresses me to see how many bad parents there are in the world.

If you go to a suburban maxi-mall at about 10:30 on any weekday, you'll see a lot of those parents.

When they were giving out brains, dad only got half a serving. On the other hand, when they were giving out "never say die" stick-to-itiveness, he got a double helping.

I don't know much about women and the older I get, the less I know.

Andy Warhol should have lived to see reality TV just so he could say "I told you so."

I have no filter around people I trust and no desire to share around people I don't know or like.

When I hear the first licks to any song on Appetite For Destruction I am immediately transported to my freshman year of college. That album was the soundtrack to my first year away from home and I still love it. One of the five greatest rock albums of all-time.

You can't control what people think of you. You can only do (and act) in the way you think best. The older I get, the less I care about what people think about me. *That* is one of the nice things about getting old.

The State of the Union Obama Should Deliver

2012-01-20T19:59:00.002-05:00

Vice President Biden, Speaker Boehner, Members of Congress, My Fellow Americans:

I come before you tonight to report on the State of our Union and to tell you that our country is getting back on the right track after surviving the most devastating economic blow we have experienced in three generations. The state of our union is improving because of the resiliency of the American people, the ingenuity of our small businesses and entrepreneurs, the effectiveness and bravery of our soldiers and the unshakeable belief in American exceptionalism that is shown in ways both great and small each and every day throughout our country and in the many ways we support efforts around the globe.

When I first stood before you three years ago, our nation faced a dark time. Our economy was shrinking at an annual rate of 9%, nearly three quarters of a million jobs were being lost each month and a grave risk of a second Great Depression stared us in the face. Between late 2008 and early 2009, our country lost nearly 4 million jobs – a number that would be staggering had it occurred over six years, much less six months. Wars raged in Iraq and Afghanistan and Osama Bin Laden remained at large.

But even in a time that appeared so bleak, the power and strength of our ideas and our people were determined not to give up. We used that time to clear away the excesses of a past era and usher in the policies that are beginning to bear meaningful fruit. An auto industry that appeared on the brink of extinction has come back to life because of the willingness of labor unions and management to share in the sacrifice that was needed to put their financial house in order. Our car companies are leaner, more competitive and producing more fuel efficient vehicles than at any other time in our country’s history. In the meantime, we also worked with the entire auto industry to improve fuel efficiency standards that will reduce emissions and improve our environment in the years ahead.

But our job creation has been more broad-based than that. Over the past two years, as hiring first stabilized and then expanded, we have seen sustained manufacturing growth for the first time since the 1990s, a continued need for health care providers, nurses and other practitioners and even a modest rebound in construction. As part of the American Jobs Act, I have called on Congress to continue investing in critical infrastructure programs that will rebuild and refurbish bridges, roads, schools and other public works projects that will not only put more people back to work, but are desperately needed in communities across the country.

I am also proud to say that we have made significant new investments in alternative energy, which is now one of the fastest growing industries in our country, with dozens of new companies innovating and researching ways to leverage renewable sources have that has catapulted the United States into a competitive position globally. Under my Administration, we approved the largest wind farm in North America, quadrupled the amount of clean energy utilized on public land and are now a world leader in clean energy investment. These critical investments will not only pay off in the long run, as our dependence on foreign oil is reduced, but it will provide competitive wages for jobs that cannot be outsourced in the future.

As it has been throughout those times in our nation’s history when prosperity was most broadly shared, my focus has been on creating an environment where middle and working class families can succeed. This is why we have cut taxes for these families, expanded access to health coverage for young adults who are now able to stay on their parents plans until age 26, streamlined the student loan process and made college education more affordable, and launched a Consumer Financial Protection Bureau whose only job is to make sure that corporations play by the rules and do not try to take advantage of people when it comes to lending money to them. By putting a floor beneath wage earners who suffered so deeply between 2007 and 2009, we are beginning to see the makings of a true economic rebound in our country.

While these steps are a start, we must also acknowledge that too many Americans are still finding it difficult to secure a good job. We have taken steps to provide tax credits for hiring veterans, and I have called for tax incentives that encourage insourcing jobs and employment and no longer rewarding companies who take their profits and workforce outside our borders. Similarly, I am again calling on Congress to reject generous loopholes and tax exemptions for corporate jet owners, multinational oil corporations and other benefits that widen the gulf between rich and poor. I am heartened by forward thinking ideas like the State of Georgia’s plan that connects unemployment with apprenticeships and part-time to full-time employment and I am open to hearing ideas from both sides of the aisle about other ways government can partner with business to keep the engine of job creation moving forward, but I reject, categorically, the idea that we should not be investing in our infrastructure, in modern transportation upgrades like high speed rail or allowing other nations to leapfrog ahead of us in the technologies of tomorrow. We can continue strengthening job growth right here at home if Congress is willing to put country before party and make the investments in our nation that are so desperately needed. We cannot wait.

We must also do more to address the ongoing housing and foreclosure problem. Tonight, I am announcing several steps to address this issue: First, in order for the maximum number of home owners to take advantage of historically low interest rates, I am calling for a cap of $1,000 on all fees charged by governmental entities connected with the refinancing of mortgages by homeowners who are current on their payments and have been so for the past 6 months. Further, I am asking the head of our Commodities Futures Trading Commission, Gary Gensler, to take on a further role in working directly with our nation’s largest lenders to create a program that encourages those lenders and servicers of mortgage debt to work with homeowners who are delinquent to refinance those loans in ways that include writing down principal, allowing for foreclosure and simultaneous rental back to the homeowner or other means to maintain home ownership where appropriate. Third, I will propose so-called “cram down” legislation that will modify our bankruptcy laws and grant bankruptcy judges the authority to write down principal where such action is deemed in the best interest of the home owner.

Simply because we are in an election season does not mean we should shirk our responsibilities to the American people. I am again calling on Congress to immediately extend the payroll tax cut through the end of this year. Unlike far larger tax cuts that were passed in prior years, ours is fully paid for with offsets and will help 160 million Americans. In the meantime, I am again extending my hand to Congress to work with me on a long-term, balanced approach to our budget and debt issues that does not take important protections away from the elderly, the poor and children and asks of those who have been fortunate enough to have financial security to contribute their fair share. Ours should not be a country that believes those who reap dividends and capital gains or utilize off shore tax shelters should benefit when police officers, teachers and firemen are taxed at higher rates. Further, we cannot remove the very safeguards that have protected our senior citizens from the ravages of poverty and the vagaries of the health insurance system simply because we feel the strain of temporary fiscal pain. No generation, no President and no Congress should support eliminating Medicare, a program that ensures basic health protection and coverage when we are old and is overwhelmingly supported by the American people, or Social Security, which has done more to rid our nation of poverty among our senior citizens than any other law in our nation’s history.

This should not be a controversial decision. In the 1980s, President Reagan worked with a Democratic Congress to raise taxes and make changes to Social Security that were done to improve our fiscal situation and ensure Social Security’s stability for decades to come. In 1990, President George H.W. Bush also compromised with Democratic leaders to raise some taxes and also to put Congress on a “pay as you go” diet to rein in spending. When President Clinton modestly raised taxes on the wealthiest 2 percent of Americans while making sensible investments in research and development, education, law enforcement and small business, our economy created more than 22 million new jobs. Some may have forgotten, but when President Clinton left office, our national debt was on pace to be paid off – in full – by 2014. The Social Security Trust Fund’s surplus ran into the trillions and our budget surplus topped $234 billion. But when pay go rules were done away with, and tax cuts that primarily benefited the rich were passed, our economy suffered and more importantly, the people least able to bear the damage of recession were impacted. These policies, along with an unfunded prescription drug plan and a decade of war have left our finances in peril.

Make no mistake, everyone sitting in this chamber understands that we as a nation cannot continue to make the promises we all agree must be made – to our seniors, to our military and to the middle class that is the backbone of our country – without asking more of those who have the most. To those who say that compromise is a dirty word, I say that our nation’s history proves you wrong and our nation’s future depends on our ability to find common ground. We can no more continue to govern by crisis – debt ceiling, annual budget and tax cut extension - than we can govern under the reckless fiscal policies that got us into this mess in the first place. We need to work together to solve our problems and put partisanship aside. It was good enough for Reagan and Bush, surely it is good enough for Boehner and McConnell.

Even as we move to secure our nation’s long-term fiscal stability, we cannot short change the investments that must be made to ensure our nation’s long-term competitiveness. That is why, under the leadership of Secretary Arne Duncan we have incentivized states that are willing to think creatively about ways to improve education. Our Race to the Top program has attracted new ideas and proposals from dozens of states eager to experiment and think differently about public school education. We are also providing grants to non-profits and other organizations willing to model Promise Community programs that are based on the wildly successful Harlem Children’s Zone program led by Geoffrey Canada in New York City. Education does not need to be an either/or prospect of public schools on the one hand and private and charter schools on the other. What we are showing is that our educational system is broad enough, and competitive enough to house both. Charter schools are no more a panacea to what ails education than public schools are to blame. There is good in both and there are also places in both where improvement is needed.

This is also true of our own halls of government here in Washington, D.C. It is my firm belief that sensible, but not burdensome regulation is necessary and that is why I have advocated for powers like those now held by the Consumer Financial Protection Bureau and others that were passed as part of our financial reform work in the past Congress. While some quickly forget that lax regulation and oversight helped cause the financial mess we found ourselves in a few years ago, I would not be upholding the oath of my office were I to ignore this fact and turn a blind eye to the need for financial, environmental and other oversight that ensures our clean air, water, the safety of our food supply and protection against financial predation. While these protections are no doubt important, I do not advocate regulation for its own sake. To date, I have approved fewer regulations than my predecessor and my staff and the agencies and cabinet offices carefully vet proposed regulations before allowing them to move forward. Where we think regulation needs additional input, reconsideration or thought, we are not afraid to say so.

Similarly, I recently asked Congress to provide authority for me to follow through on a pledge I made last year – to look across the executive branch and determine where greater efficiency and streamlining of government can take place. A few weeks ago, I proposed the merging of several agencies and offices in an effort to reduce overlap and improve performance. As we have asked federal workers to accept wage freezes and trimmed overall employment, I would ask Congressional offices to do the same – to look at places where they can be more efficient, spend fewer tax payer dollars and lead by example when it comes to providing our citizens a government that lives within its means.

Our work is of course not limited to the borders of our nation. The brave men and women who are fighting for us abroad deserve our thanks and praise. Because of their hard work, we have accomplished enormous things. Our commitment in Iraq has been brought to an end and the future of that country placed securely in the hands of those who the Iraqi people have chosen to lead them. Our aggressive pursuit of Al-Qaeda resulted in the killing of Osama Bin Laden and our intelligence gathering has led to the capture and killing of many other senior level Al Qaeda leaders. As we secure and hold territory in Afghanistan, we are also training Afghani forces to take over when we begin our withdrawal in 2014. My Administration remains open to working with the Afghani government in negotiating an end to that war under terms well known to Taliban leaders – an acceptance of Afghanistan’s Constitution, a full renunciation of violence and terrorism and a willingness to work within the political process that has now been established. Ultimately, America cannot dictate Afghanistan’s future, only the Afghani people can, but what we will not do is leave that country as it was before we got there – a terrorist safe haven used to launch attacks on American citizens.

In other parts of the Middle East, my Administration will continue to work with those forces that are committed to peaceful democratic processes and encourage all governments to respect the rights of its citizens. At the same time, we will not turn a blind eye to the work being done in Iran, where we are working under the leadership of Secretary Clinton to ensure that sanctions imposed on the Iranian regime remain firm, constricting and compel their government to understand the world does not support its drive for nuclear weaponry. As we did in marshaling support and a broad based alliance to topple Khadafi’s dictatorship in Libya, we will continue working with allies in the Middle East and at the United Nations to smother Iran’s ability to produce a nuclear bomb.

Our work will not be done tomorrow, next week, next month, or even during any of our terms of office. But what we have done in the past three years, and more importantly, what we can do together in the next year, is solidify a foundation upon which the American Dream can be reborn, where our communities are again thriving, our employment base expanding and our faith and belief in the decency, goodness and fairness that is at the core of our country is renewed. In the last decade, our country suffered through deep trauma, a terrorist attack, war and near economic Depression, but America is coming back because that is what we do. I hope you will join me in working for all Americans so we can help ensure a better tomorrow.

Thank you and God Bless the United States of America.

2012 Will Be Just Like ....

2012-01-16T16:23:00.000-05:00

For the next 10 months, political pundits will twist themselves into knots trying to find an historical analogy for the 2012 election. Let me save them (and you) some time and go through the usual suspects:

2012 will be just like …. 2004

Why? A politically polarizing President faces a challenger not beloved by his party but selected because of an amorphous determination of "electability." In 2004, President Bush ran defending his decision to go into Iraq. In 2012, President Obama will run defending his decisions on the economy and health care. In both elections, the country held firm, but divergent views, on the success/failure of those policies. In both cases, the party out of power nominated (I'm assuming Romney will be the nominee) a person they thought would powerfully rebut the President's weakness (Kerry, a decorated war hero; Romney, a successful businessman), but had (and will have) that purported strength turned against them (Kerry - "swift boated"; Romney - "vulture" capitalist).

Why Not? Bush did not even win the popular vote in 2000 and thus, was campaigning on a limited field that was likely to result in another close election. Obama won 53% of the vote in 2008 and cleared 365 electoral votes. Even if he does not win some states (i.e., Indiana, North Carolina), he's likely to remain competitive in most of the states he won (or almost won, like Arizona and Missouri). The visceral experience of a nation at war was unique in modern American politics and was used to political advantage by Bush and the Republicans. Even had Bush made an important course correction on the war, it would not have changed overnight. Conversely, in 2012, the economy could dramatically improve or tank between now and November, essentially mooting Romney's entire reason for running for President and likely leading to another big Democratic victory (see, 1996) or drowning out any argument in the President's favor (see, 1980).

2012 will be just like …. 1992

Why? A weak economy sinks the Presidency of a man the country has a positive view of personally, but whose policies they do not agree with.

Why Not? Mitt Romney is not Bill Clinton. The only pain Mr. Romney feels is when the landscaping company he hired to tend his massive yard had the temerity to hire illegal aliens, something Mr. Romney told them not to be because, after all, he was running for President. 1992 also marked the end of three consecutive terms in the White House for the Republicans and their policies were ripe for attack by Clinton as having only benefitted the wealthy at the expense of the middle class. Lastly, absent the entrance of Mike Bloomberg into the race, no credible, "moderate" third-party candidate is likely to siphon off almost 20% of the vote (though most exit polling suggested Perot voters viewed Clinton as a second choice, indicating, if anything, that Clinton's win would have been larger had Perot not been in the race).

2012 will be just like …. 1980

Why? The American economy is weak and millions are out of work. A President elected to flush the system is instead overwhelmed by it, appearing weak and in over his head. Carter campaigned on honesty and decency in government but was hobbled by chilly relations with Congress, minor scandals, and a stubborn economy that idled while inflation and interest rates went through the roof. In 2012, a tepid recovery is doing little to stop the steady flow of reporting (and campaigning) about the economic suffering in our country. The President is portrayed as an amiable novice who is simply not up to the task of getting our economy on the right track.

Why Not? Mitt Romney is not Ronald Reagan. Even if Romney wins, the chances a conservative tide of Congressional candidates rides in on his coattails is quite small unless the economy craters this year, in which case, there's actually an ok chance that will happen. Also, unlike 1980 (black swan events notwithstanding), there is no Iran hostage crisis, no 20% interest rates and inflation is largely in check.

2012 will be just like …. 1948

Why? A politically wounded but charismatic President will base his re-election on campaigning against a "do nothing" Congress that has blocked his initiatives at every turn. In the meantime, the opposition nominates a patrician who is bland and acceptable, but does not inspire great enthusiasm among the base.

Why Not? First, there's unlikely to be a third-party candidate (or a fourth-party candidate, both of which happened in 1948) to draw votes away from one or the other candidates. Second, the lack of widespread polling in 1948 failed to detect Truman's late surge. That will not be the case in 2012. The primacy of the economy as an issue in 2012 is also in contrast to 1948, where the questions were related to the Cold War and China more so than the economy. Otherwise, it is actually quite likely that at least part of the President's strategy will be modeled on Truman's re-election campaign.

2012 will be just like …. 1936

Why? A President elected in the teeth of an economic catastrophe argues for four more years to see his policies through to their conclusion and warns against turning the government back over to the people who created the problem in the first place.

Why Not? As a basic matter of results, it is almost impossible to create a scenario that would result in Obama's winning 60% of the popular vote and more than 500 electoral votes. Also, the depth of the Great Depression was far more severe than the so-called Great Recession and the electorate, at least at the state level, swung strongly toward the Republicans in 2010. Unlike the mid-1930s, when the foundation of what we now regard as the social safety net was being created, now, there is a growing minority of politicians and Americans who think that safety net is too generous and should be trimmed back.

2012 will be just like …. 1916

Why? Major party candidates, both of whom are generally pragmatic and moderate, will battle it out in a politically polarized environment where each will attempt to turn subtle differences into major distinctions.

Why Not? Entering (or not entering) World War I is not the same as whether more tax cuts or infrastructure investment will grow our economy. The politics of today are such that even moderate pragmatists will drop millions of dollars into convincing the other guy is the incarnation of Satan.

2012 will be just like …. 1864

Why? Actually, this is just a shameless plug for a prior post where I suggested that a couple of major game changers (in 1864, it was Sherman's march to the sea and Grant's steady, anaconda-like choking of Lee) could turn what initially looked like a hopeless cause for the incumbent into a cake walk. Check it out:

http://scarylawyerguy.blogspot.com/2011/12/campaign-like-its-1864.html

Gun to my head, I'd predict that 2012 has the best chance of looking like either 2004 or 1996 because I think that the economy will show slow, but not dramatic improvement, allowing the President to argue (1) that his policies helped stave off economic ruin; (2) that the economy is improving (in 2011 alone, nearly 2 million new private sector jobs. Add another 2 million or so new jobs in 2012 and you've got a decent argument); and (3) that he inherited a mess brought on by the policies that Governor Romney is espousing (not to mention being advised by many Bush Administration officials who helped create the mess). If the economy picks up steam, there's little policy ground for Republicans to occupy, as was the case in 1996, when President Clinton waltzed to re-election.

On the other hand, if the economy does not pick up steam, stalls or goes back into recession, the obvious analogy will be 1980, not based on the personalities (at least not of Romney as a latter-day Reagan) but on the politics and the policy - that an inexperienced incumbent was unable to improve the economy. Writing in early 2012, and channeling Nate Silver, I would put the chances of Obama squeezing out a modest-healthy electoral victory of between 270-325 electoral votes at 50%, of Romney winning a similar victory at 25%, a major Obama electoral victory of more than 325 electoral votes at about 15% and a Romney win of that size at 10%. Ultimately, a slow but steadily improving economy combined with Obama's massive money advantage will, in my view, carry the day.

Black Swans & Known Unknowns - The Race for President, 2012

2012-01-13T20:36:00.002-05:00

The 2012 campaign is going to be a long one. While the year ahead will no doubt have some twists and turns along the way, these five issues will go a long way toward telling us who will occupy the White House on January 20, 2013.

The Economy. Simply put, an improving economy with positive monthly job numbers and an unemployment rate on the decline makes President Obama's re-election all but assured. Conversely, a slowing economy with choppy job numbers and continued uncertainty would make it far less likely he will get another four years. The wild card here is Congress. Congressional Republicans took it on the chin during the payroll tax cut debate and now, with 200,000 jobs added in December and the unemployment rate gradually declining, they will need to make a difficult calculation about whether it makes sense to compromise with the President or risk being portrayed as trying to suffocate the nascent recovery.

The President is not without other tools in his political tool box either. He can continue to push for the American Jobs Act, make another attempt at a "grand bargain" targeted at long-term deficit reduction and promote tax reform that is crafted in a way that ensures wealthy Americans pay more. Moreover, and as he has already done with the recess appointment of Richard Cordray, he can begin to push back against Wall Street excess. Romney's economic message will be largely reactive. Attacks on things like the stimulus bill and "Obamacare" are largely baked into the cake at this point - few minds are going to be changed about the efficacy or folly of these large pieces of legislation. The overriding power of the monthly unemployment figures and, to a lesser extent, the gyrations of the stock market, predicate whether Romney will be able to make a case about the President's management of the economy.

A Third Party Candidate. New York Mayor Mike Bloomberg is in his final term in office, has a net worth north of $1 billion and access to a part line ("Americans Elect") that is likely to be on the ballot in all 50 states. He has many of Mitt Romney's attributes - wealth, success in business, a non-Democrat leading a heavily Democratic electorate - along with more progressive views on social issues. How Bloomberg would hold up under the spotlight of a national campaign and whether the American people would be willing to vote into office a man without a party is of course unknowable, but Bloomberg's wealth, hybrid political posture (fiscally conservative, socially liberal), and willingness to go head-to-head across the country would make the election the most volatile since Teddy Roosevelt assumed leadership of the Bull Moose Party 100 years ago.

A more realistic scenario would be if Ron Paul decided to run as a Libertarian candidate. Paul has polled well in the first two Republican contests, particularly in New Hampshire, where he more than tripled his tally from 2008. He's nearing 80, has already decided to not run for re-election to the House and may think this is his last chance to impact public policy. If Paul polls at 15% as a third-party candidate he also gets a very valuable invitation to the Presidential debates, where an audience of nearly 100 million would be available to him. While some pundits have suggested that Paul will not run third-party to avoid any blowback against his son Rand, who may seek the Republican nomination in the future, I don't find this argument persuasive. If Romney wins in 2012, the next opportunity for Rand Paul to run for President will be 2020, several lifetimes in politics. Conversely, if Romney loses, the 2016 race is going to attract any and every politician in elected office and I doubt primary voters will hold it against Rand Paul that his dad decided to run as a Libertarian. Lastly, it is entirely possible that the strain of conservative thought that the Pauls represent may be a spent force in four (or eight) years. The iron is hot, I Dr. Paul will strike it if he thinks he can get into the debate with Romney and Obama.

The Supreme Court. The Supreme Court is set to inject itself directly into the 2012 election by issuing rulings in the next six months on three hot button issues: immigration, redistricting and, of course, health care reform. That these cases will be decided is a given, the question is how these cases will be decided and what the political fallout will be. Rulings that permit states to more aggressively engage in law enforcement activity to identify and arrest illegal immigrants will likely inflame Hispanic activists and could hurt Republicans (Romney has already come out against the DREAM Act). As for redistricting, whether the Court rejects a neutrally drafted map for the Texas delegation may impact control of the House of Representatives. Lastly, health care looms as the 800-pound gorilla and is likely to be the last opinion issued of the term. If the Court upholds the Affordable Care Act in its entirety, the national dialogue around health care will dramatically change. Not only will it eliminate the uncertainty of its implementation, but upholding the law, by definition, would require the acquiescence of at least one of the conservative justices on the court, diluting arguments about judicial activism. If the Court strikes down either the individual mandate specifically, or, in striking that down, strikes the entire law, one of the most powerful rallying points for Republican activists will be eliminated.

That these rulings will impact the Presidential race is without question, but a more tantalizing (if morbid) possibility exists that one (or more) vacancies may occur smack dab in the middle of the general election. I say this not because I am rooting for the death, incapacity or retirement of any of the justices, regardless of how vehemently I disagree with some of their legal views, but rather, am looking at the situation realistically - there are 4 Supreme Court justices in their 70s - Justice Ginsberg (78), Justice Scalia (75), Justice Kennedy (75) and Justice Breyer (73). Justice Ginsberg has had several serious illnesses and Justice Breyer, having been nominated to the bench by a Democrat, may want to give President Obama an opportunity to appoint his successor and not run the risk of stepping down during a Romney Administration (Justice O'Connor famously lamented at a 2000 Election Night party that, when it appeared Vice President Gore was going to win, she would have to stay on the bench for four more years). Perhaps Justice Kennedy, if he, casts the deciding vote upholding the Affordable Care Act, might decide to bow out at the end of the Court's term.

A retirement at the end of the current court session in June would obviously play differently than an unexpected vacancy in October. Nevertheless, and particularly if one of the justices from the conservative wing is no longer on the bench, a Supreme Court vacancy in 2012 would make any confirmation not just "must-see" TV but an opportunity to see whether Republicans do the unthinkable and filibuster a Supreme Court nominee to stop President Obama from filling a seat in hopes he loses in November. Consider that LBJ's attempted elevation of Abe Fortas to the Chief Justice's slot in 1968 ran aground on ethics concerns and ultimately, the chair was vacant until Richard Nixon was elected. Had LBJ gotten a Chief Justice through while he was still President, no Burger Court would have happened, and, depending on how long that man or woman served, perhaps no Rehnquist Court either. This is a black swan that could potentially dominate the news cycle like few others.

The Middle East. The "Middle East" is admittedly a broad term that encompasses everything from what will happen in Egypt to whether or not Iran goes nuclear and how we close out the Afghanistan war. Whether this area remains relatively stable or completely blows up could dramatically impact our politics. Just this week, a place that was probably unknown to most Americans (the Straits of Hormuz) suddenly made the front page because Iran threatened to close access to it and thereby, squeezing our oil supplies. A huge spike in gas prices could suffocate our economy and drive us toward another recession. On the other hand, implementing additional United Nations sanctions might get Iran to the table to negotiate an end to their nuclear ambitions (which would be a huge coup for Obama).

Other hot spots include Egypt, where the intangible of elections and whether the Army will legitimately give up power hang in the balance. How Syria is resolved could play a huge role not just with Iran but also have smaller repercussions in Lebanon, Israel and the Palestinian territories. Speaking of Israel, how (or if) it interacts with the Palestinians, the new leaders in Egypt and what it does about Iran's nuclear ambitions will all factor into the stability of the region. If our government's attempts to bring the Taliban to the peace table proceed and an agreement to end that war progresses, that would be a further feather in the President's cap. On the other hand, if the Taliban rejects peace talks and continues to inflict damage on our troops, the war will continue to be front and center in our foreign policy. Finally, Pakistan looms in the background, with an actual nuclear arsenal and a populace that is becoming ever more anti-American. If even one of these tinder boxes suddenly explodes, the ramifications on our presidential politics will be enormous.

Unknown Unknowns. In 1980, the Reagan campaign was worried about a so-called "October Surprise" - that the Carter Administration would negotiate the release of the hostages in Iran - and torpedo Reagan's chances for victory. It never happened and Reagan won. Since then, other election year events came out of nowhere and impacted the election. In 1992, members of the Bush State Department leaked information about Bill Clinton's passport and travel to the Soviet Union while Clinton was at Oxford. In 2000, Elian Gonzalez washed up on the shores of Florida and dominated the headlines for weeks on end (one can only speculate on whether the nighttime raid by FBI agents that resulted in little Elian being returned to Cuba impacted Gore in Florida), in 2004, Osama Bin Laden released audio tapes in the week leading up to the election and of course, in 2008, the financial industry melted down 8 weeks before Americans went to the ballot booth. None of those incidents was foreseen or could have been predicated, yet they happened anyway and each impacted the final outcome of the election.

In 2012, any number of "unknown unknowns" could affect the presidential race. What if Chief Justice Roberts, who has had health problems in the past, were to die in office (or become incapacitated?). What if North Korea opens itself up to the rest of the world? What if Obama flips Biden and Clinton in his cabinet? What if the economy spikes and grows at 5-6%? Or home prices suddenly rebound? What if a peace treaty is signed with the Taliban? What if we have another terrorist attack on the U.S.? The weird thing about our world today is that it feels like not just one, but several "unknown unknown" might happen. These unpredictable events may overshadow and overwhelm the ordinary political discourse and make other "predictable" events seem minor in comparison.

In 2008, McCain had overtaken Obama in the days leading up to the financial crisis but when it hit, Obama's sober, grounded response was in stark comparison to McCain's hysterics (suspending his campaign, threatening not to show up to a debate, calling for a meeting at the White House with President Bush and then saying little during it, etc.). For all intents and purposes, that week or so sealed McCain's fate and handed Obama the presidency. While we have no way of knowing what will happen, Obama's position as incumbent will, in most cases, work to his benefit if for no other reason than the natural inclination to depoliticize crises and rally around the President.

So buckle up, folks. It's going to be a bumpy (and long) ride.

Mr. Brady Fights Back

2012-01-05T13:50:00.003-05:00

President Obama’s recess appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau, as well as three members of the National Labor Relations Board got me thinking about a classic Brady Bunch episode. In A Fistful of Reasons (Season 2, Episode 8), Cindy is teased by a bully named Buddy Hinton because of her lisp[1]. When older brother Peter tries to mediate, Buddy gives him a black eye. When Mr. Brady counsels Peter to attempt “calm, cool reasoning” with Buddy, it does not work and Mr. Brady’s attempt to get Buddy’s dad to get Buddy to stop is similarly unsuccessful. So dismissive is the Hinton clan that Peter is finally told he needs to fight back, which he does, knocking one of Buddy’s teeth loose and subjecting him to the ridicule and scorn of his classmates[2].

I have often thought that President Obama has been leading with a mini Mike Brady on his shoulder, constantly whispering “calm, cool reasoning” into his ear on everything from health care to financial reform, from the debt ceiling debate to the federal budget. For all of Mr. Obama’s attempts at conciliation, he’s gotten beat up a little worse each time he attempts to avoid a fight. Part of it probably had something to do with the President’s 2008 campaign, and his desire to lower the partisan rancor once he was elected. Another part may simply be his natural inclination toward compromise (not necessarily a bad thing, mind you) and a desire to find a middle ground solution that respects disparate views and differing opinions. Whatever the reasons, it seems clear that the President is done turning the other cheek.

Bullies only respond when you punch back, and the President is punching back. For nearly three years, Republicans in Congress have done everything in their power to stop the President from implementing his policies. The record is replete with examples from meaningless procedural votes to stall legislation to holding up confirmations of senior executive branch officials for months on end only to have those holds removed and the nominees approved by overwhelming majorities. As I discussed in a prior post, President Obama and the Congress of Doom, important pieces of legislation that keep the government running and our ability to borrow to pay (past) bills, are now subject to “hostage taking” tactics that imperil the government’s ability to function and are only resolved when substantial concessions Republicans would not otherwise be able to achieve through the normal legislative process, are granted.

Perhaps the final straw for the President was the filibustering of the Public Printer (GAO) or the denial of an up or down vote on Caitlin Halligan’s appointment to the D.C. Circuit Court of Appeals, but the shenanigans and non-sense that Republicans have thrown out there is no longer being humored by the President. Firm pushback will be needed for the legislative battles to come, as 2012 will see the expiration of all the so-called “Bush Tax Cuts,” the 2013 federal budget and the potential sequestration cuts that target the Department of Defense and other agencies. On a more granular level, the President needs to force Senate Republicans to honor the “Gang of 14” compromise and no longer filibuster judicial nominees and, if necessary, Senator Reid needs to move for changes to the cloture process to stop these stalling tactics.

For the mainstream media, this sudden dust-up is just another narrative that they insert into the “conflictinator” framed as a Presidential “declaration of war” on Congress or a sign that the President is ready to “do battle.” Of course, this media narrative has both the advantage of sensationalism and the disadvantage of being factually incorrect[3]. Republican use of the threat of the filibuster has been invoked in more instances than at any other time in the modern history of the Senate. The blocking of Mr. Cordray, as some, to their credit have noted, had nothing to do with his qualifications, but rather, after-the-fact changes Senate Republicans wanted to the law creating the CFPB itself – a rationale never before used in the history of that august institution to block a nominee from serving. That this level of intransigence is somehow transformed into the common meme of “Washington dysfunction” does the body politic great harm because it suggests that both sides are at fault, when in fact, the President’s judicious use of the recess appointment (now 32 times, compared to more than 170 under George W. Bush and 243 under Ronald Reagan) speaks to the caution and deference he has attempted to employ in dealing with the Senate.

Of course, asking the mainstream media, which has largely morphed from a news gathering and reporting entity into a stenographic pool for political talking points, to accurately report this information is probably asking too much. When stories are written about a lagging job market, rarely do you hear that stimulative measures like infrastructure funding are being bottled up in Congress or that private sector growth is not what is dragging down the recovery, but rather, that the historic number of public sector job losses[4] are helping to keep our unemployment numbers high. Other stories having to do with the regulatory light hand the Obama Administration has used[5] are either limited to coverage in the liberal blogosphere or ignored entirely when politicians appear on cable news talk shows railing against the overly burdened private sector. To suggest that there are provable right or wrong answers to questions would crater the current political atmosphere that feeds entirely on conflict and a “he said/she said” discourse that refuses to acknowledge the accuracy or falsehood of one side’s claims.

As for the President, I encourage him to continue fighting back against the entrenched opposition on Capitol Hill. Polls consistently show not only the popularity of policies the President is advancing[6] but also an understanding that Congressional Republicans are largely at fault for Washington gridlock. Instead of timidly negotiating, the President needs to stay on the offensive. Politicians have a strong survival instinct, and Republicans on the ballot this year understand that lockstep opposition to politically popular ideas is a losing proposition. Small fissures are already being seen. For example, Senator Scott Brown chastised his own party for blocking Cordray’s nomination, and, with regard to the payroll tax cut, a number of House and Senate Republicans in difficult re-election races came out in support of the compromise before Speaker Boehner finally capitulated. Ultimately, if the President turns the heat up on job creation, infrastructure spending and tax policy that benefits the middle class, Republicans in tight races will do the political calculus and understand they do not want to be vulnerable to charges that they are impeding nascent economic growth or raising taxes on middle class families but protecting the wealthy.

So fire away, Mr. President. Calm, cool reasoning has not worked, no one will begrudge you taking a big old swing at the loyal opposition.

[1] Viewers may recall Buddy’s signature line “Baby talk … Baby Talk .. It’s a wonder you can walk.”

[2] Although Peter, to his credit, tells the students to knock it off.

[3] Sadly, the latter does not seem to matter much to journalists these days.

[4] Nearing 1 million in the last two years.

[5] Obama has approved fewer regulations than President George W. Bush had at the same point in his presidency and the cost of regulations is half of what they were at their peak, under President George H.W. Bush.http://news.yahoo.com/blogs/ticket/obama-approved-fewer-regulations-bush-greater-number-expensive-145552280.html

[6] To take just one example, a December 2010 CBS News poll indicated that 60% of all Americans, and 43% of Republican primary voters, supported raising taxes on millionaires. http://www.cbsnews.com/8301-503544_162-57345810-503544/poll-most-back-raising-taxes-on-millionaires/

12 Essential Mad Men Episodes (and 4 More For True Fans)

2012-01-04T21:59:00.003-05:00

With the fifth season premiere of Mad Men in sight, if you need to catch up on past seasons, or are new to the show (but don't have time to watch all 52 episodes), here are my suggestions for three "must see" episodes from each of the first four seasons you should watch and a few "honorable mentions" if you want to drill a little deeper:

Season One

Babylon (Episode Six)

Why it's important: Peggy's nascent copywriting skills emerge as she coins the iconic term "basket of kisses" after she and a group of secretaries complete a sampling of Belle Jolie lipstick colors. Roger and Joan's affair is revealed. We witness the first flashback to Dick Whitman's childhood and experience the birth of his younger brother Adam. Betty recalls her first kiss, with a Jewish boy she describes as "gloomy." The first cracks in Don's relationship with Midge emerge as he discovers she is also involved with a beatnik in the Village.

The Hobo Code (Episode Eight)

Why it's important: The distillation of Don's hardscrabble upbringing is explained - he's a "whore child" whose father is a "dishonest man." Meanwhile, his step-mother is a god-fearing Christian who barely acknowledges him. Pete and Peggy continue their affair and Peggy's copy for Belle Jolie is approved by the client, resulting in her being invited into Don's office for a celebratory drink. Sal acknowledges his homosexuality to one of the Belle Jolie directors, but declines his invitation to the man's hotel room. Don realizes that Midge loves another man but signs over a $2500 bonus check to her as he leaves. This episode also has a classic "Draperism" - "There is no big lie. There is no system. The universe is indifferent" and a famous line from his stepmother (in describing life): "it's fat in the middle, open on both ends and hard all the way through." No wonder the poor kid changed his identity.

Nixon v. Kennedy (Episode Twelve)

Why it's important: Pete attempts to blackmail Don into making him head of accounts by threatening to tell Bert Cooper about Don's desertion from the Korean War. Don displays what will become a pattern throughout the show and decides to flee, asking Rachel Mencken to leave with him to Los Angeles. She demurs, and Don refuses to give into Pete's request. Pete divulges Don's secret to Bert Cooper, who shows no interest in it and gives Don permission to fire Pete (which he does not do). A flashback shows us the incident that resulted in Dick Whitman switching dog tags with a deceased Don Draper and assuming his identity.

Honorable Mention - The Wheel (Episode Thirteen)

Why it's important: Contains perhaps the single most famous scene in the history of the show, the "Kodak Carousal" pitch. If you want to skip the rest of this episode, just go on YouTube and watch that three minute scene, it's classic. Otherwise, Peggy is both promoted to junior copywriter and gives birth to Pete's child (which also explained her noticeable weight gain during the season). Don finds out that Adam committed suicide after Don snubbed him and, in the season's final scenes, the writers juxtapose Don's imagined life where the family spends Thanksgiving together, with his actual life, where he blew off Betty and her family and returns to an empty home.

Season Two

The Gold Violin (Episode Seven)

Why it's important: Jimmy Barrett tells Betty that Don and Bobbi have been having an affair. A flashback introduces Anna Draper and we learn that Don was once a used car salesman. After purchasing a new Cadillac, Betty vomits in it on the way home from the party celebrating Jimmy's new TV show. Sal's wife feels unloved and unwanted by Sal when Ken Cosgrove visits for dinner. Roger intervenes in a personnel dispute when Joan fires Jane after discovering she snuck into Bert's office after hours. This episode is a pivot point in the Draper marriage - from here on out, Betty will never again fully trust him and the disintegration of their marriage picks up substantial speed. It also lays the foundation for Roger's eventual marriage to Jane.

The Mountain King (Episode Twelve)

Why it's important: Having escaped New York and left Pete at a convention in California, Don visits Anna and vents his frustration at ruining his marriage, expressing regret for the first time over his actions. Don's self-awareness is bracing, he describes his attempts to claw his way into his own life and fear that he is alone in the world. His visit to Anna is also interspersed with flashbacks to their relationship at the time Don met Betty. Meanwhile, Sterling Cooper agrees to be acquired by Putnam, Powell & Lowe, allowing Duck Phillips to angle himself into what he thinks will be operational control over Sterling Cooper. Most disturbingly, Joan is sexually assaulted by her fiancé Greg in Don's office after hours.

Meditations in an Emergency (Episode Thirteen)

Why it's important: Don comes back and although he doesn't admit his infidelity, apologizes to Betty for being "disrespectful" toward her. Betty learns she is pregnant (the result of a one off liaison with Don while they visited her ill father) and, after engaging in some revenge sex with a guy she picks up at a bar, allows Don to come home. At the meeting to discuss the new direction of Sterling Cooper as a part of PPL, Duck tries to assert his authority, but is cut off at the knees when Don threatens to quit. This episode also has what is probably the second most famous scene in show history - an intimate and powerful scene between Peggy and Pete that takes place against the backdrop of the Cuban Missile Crisis and risk of nuclear war where Peggy tells Pete that he got her pregnant and that she gave the baby up for adoption. A haunting image of Pete, alone in the office with a rifle in his hands, is followed by an equally difficult scene of Don and Betty at the Draper family table, awkwardly coming to grips with the fact that they are again going to be parents.

Honorable Mention - The New Girl (Episode Five)

Why it's important: Don and Bobbi get into a bad car accident and Peggy comes to their rescue. Peggy's willingness to house Bobbi while she recovers and keep Don's secret is a key building block in their deepening bond. Bobbi also imparts some words of wisdom to Peggy about how to succeed as a woman in the business world. The character of Jane Siegel is introduced as a replacement for Joan as Don's secretary.

Season Three

My Old Kentucky Home (Episode Three)

Why it's important: Betty meets Henry Francis at a "Derby Day" party thrown by Roger and Jane Sterling. Don meets Conrad Hilton at the same party and they bond over their similarly trying upbringings and distaste for "old money" types who throw lavish parties for themselves. This episode also underscores the deepening stratification in the office, where Pete, Ken and Harry are now closer to upper management, while Peggy, Kinsey and Smitty are working over the weekend to prepare copy. At the office, they get high with one of Kinsey's college buddies.

Seven Twenty-Three (Episode Seven)

Why it's important: It does what great Mad Men episodes do - it explores the inner conflict and turmoil characters experience. Here, the story is told almost entirely in flashback, beginning at the end result of what unfolds during the rest of the episode. Peggy is wooed by Duck Phillips to join him at Gray. She declines, but ends up sleeping with him and feels guilty about it afterward. Betty continues her flirtation with Henry, and purchases a "fainting couch" that she places in the middle of her family room, masturbating on it while thinking of Henry. Hilton won't sign with Sterling Cooper unless Don has a contract, which he initially refuses to sign. During a drunken late night drive, he picks up a couple who drug and rob him. He signs the contract after Bert, leveraging his knowledge of Don's secret past, reminds him that signing really means nothing because after all, "who's really signing" the contract?

Shut the Door. Have a Seat. (Episode Thirteen)

Why it's important: This episode is all about death and renewal. The death of Sterling Cooper as we had come to know it over the first three seasons of Mad Men, as Don, Roger, Bert and Lane conspire to flee and start their own agency ahead of the impending merger with McCann. The completion of Don's backstory, as we witness, along with young Dick Whitman, Archibald Whitman's death from a horse's kick to the head as he prepares to sell his wheat at market for next to nothing in an attempt to save his farm. We see renewal in the recruitment of Pete and Peggy to the new agency, Joan's return to handle logistics and office management, and in the episode's closing shot, where Don, having ok'd Betty's temporary move to Reno to secure a divorce (with Henry and Baby Gene in tow) looks out to the open hotel room at The Pierre, where the new Sterling Cooper Draper Pryce Advertising Agency is busy at work.

Honorable Mention - The Gypsy and the Hobo (Episode Eleven)

Why it's important: Simply put, it's the worst day of Don Draper's life. It's the day when he is confronted by his wife not about his infidelity, but about his manufactured past. The long scene between Betty and Don is as devastating and gut wrenching as you would expect, but once he's caught, Don does not try to hide his past and explains it with a poignancy that will be explained in Season Four, when he tells Anna that once Betty knew who he really was, she wanted nothing to do with him.

Season Four

I wrote a full season recap for Season Four:
(http://scarylawyerguy.blogspot.com/2011/10/tomorrowland.html), but suggest these episodes if you're interested:

The Rejected (Episode Four)

Why it's important: Pregnant with meaning and subtext, the writers reward long-time viewers with a great storyline around Trudy's pregnancy and the unspoken past affair between Pete and Peggy. More broadly, it explores the theme of youth in the 1960s and Peggy's place in it, being hit on by a gay woman and kissing a man she meets at a house party. Pete flexes his account management muscles by pressuring Trudy's father to agree to give SCDP more of Vick's Chemical Company's advertising business. Don's secretary Allison is brought to tears during a focus group convened by Dr. Miller when elliptically referring to Don and quits. The end of this episode contains an amazing tracking shot as Peggy and her crew of young friends are entering the elevator outside the office and she catches Pete's eye as he stands with the older executives from Vick's Chemical. Their glance is knowing and poignant, a mutual recognition that something that passed between them will never be again.

The Suitcase (Episode Seven)

Why it's important: One of the five best episodes of the entire series and one of the three most important, The Suitcase takes place on Peggy's 26th birthday, which, instead of celebrating at dinner with her boyfriend and family, she spends alternately fighting with, tending for and sharing personal information with Don, who won't let her leave work because he cannot stand to be alone to call California and hear what he already knows is true - his rock, his ballast, the "only person who ever understood" him has died - Anna Draper. The episode's denouement occurs in the wee hours of the morning, when Don sees the ghost of Anna Draper in his office, she nods approvingly at the passing of his oversight to Peggy Olsen and heads to the great beyond.

The Beautiful Girls (Episode Nine)

Why it's important: Strong social commentary on the plight of women in the mid-1960 and a harbinger of the struggles ahead. Sally runs away from home and lands in Don's office, Dr. Faye shows she cannot be a mother figure (but Megan does - to great effect later in the season), Peggy finds a socialist rabble rouser to be pushy and aggressive, but also naive and paternalistic, and Joan ends up getting impregnated by Roger after a heat of the moment liaison that follows their being mugged on the streets of New York City. Oh, and the silent shot of Joan, Peggy and Dr. Faye in the elevator at the end of the episode, each lost in their own disappointment, is priceless.

Honorable Mention - Tomorrowland (Episode Thirteen)

Why it's important: It tees up Season 5. Don uses Anna's engagement ring to ask Megan to marry him. Betty whines about wanting a new life and Henry basically tells her to "grow up." Peggy lands a new account just when SCDP is on the ropes and gets lost in the undertow of Don's engagement (Joan is not impressed).

Premature Coronation - Mitt Romney & The Iowa Caucus

2012-01-02T14:46:00.000-05:00

The following exchange took place on the MSNBC program Morning Joe on Monday, January 2d:

Joe Scarborough to Time Magazine's Mark Halperin: "Do you think it's over if Mitt Romney wins Iowa?"

Halperin: "I think it is, Joe. ... If he wins Iowa, I think he will roll out of New Hampshire and I think he'll be in a strong position in South Carolina. ... It's perfect for Mitt Romney to have a crowded field in South Carolina."

That's right, kids. If polls are to be believed, about 25 percent of 20 percent of the registered Republicans in Iowa are going to select the next Republican nominee for President. That is, about 25,000 people will attend the Iowa Caucus tomorrow night and "stand" for Mitt Romney out of roughly 120,000 (maybe 130,000-140,000 if turnout is really high).

I follow politics pretty closely, which is to say, I read a lot of newspapers, listen to the chattering class on cable TV and have about half-a-dozen of the most popular political websites and blogs bookmarked and for the life of me, I have still not gotten my head around why it is that the mainstream media seems so invested in the elevation of Willard Mitt Romney to the Republican nomination when a single vote has not been cast.

I usually chalk it up to lazy journalism and a pack mentality that dissuades reporters from splitting off from the inside-the-beltway conventional wisdom. Reporters have become less and less interested in actual *reporting* and more focused on "horse race" aspects of Presidential politics. The news cycle, which is essentially non-stop at this point, acts as a further disincentive to drill down into candidate records, opting instead to focus like a laser on the latest perceived slip up or impolitic comment on the campaign trail.

Conventional wisdom like "there are three tickets out of Iowa" exist for no other reason than it is just that - conventional. Nevermind that, as Gail Collins noted, the Iowa caucus turnout will be roughly the population of Pomona, California or that the Republican primary season apportions its delegates in the early contests, virtually ensuring that no one candidate will end January with a meaningful lead in delegates. The mainstream media has fed the narrative equivalent of "heads Mitt wins, tails his opponents lose." To wit, Halperin reflects the conventional wisdom that an Iowa win for Romney essentially ends the contest, while a narrow Romney loss is not damaging because of the default belief that he and he alone is able to run a nationwide campaign.

I think this view is both non-sensical and anti-democratic, and I'm a a Democrat! While the media has shown token interest in the fact that Romney has not grown his support in Iowa over 2008 (where he lost by 9 points (35-24) to Governor Mike Huckabee), that has not stopped them from feeding the narrative of a victory with the same (or lower) support as four years ago will be a resounding triumph. Moreover, the ebb and flow of primary opponents to Romney indicates a deep vein of hostility toward his candidacy and a searching, by the conservatives within the Republican party, for a viable alternative to him.

The other underreported story of the campaign thus far is the modest fundraising that these candidates have generated versus their predecessors in 2008, a year when Republican enthusiasm was far lower after eight years of George W. Bush. While some of that money may be flowing to the so-called "Super PACs" that are themselves becoming a story (and a political force) in 2012, the reality is also that there is a lot of money sitting on the sidelines looking to be directed at someone other than Mitt Romney. It's certainly plausible to think that significant dollars will flow to Santorum, Gingrich or Perry as the campaign continues and, as noted above, delegates are apportioned in these early races, so there is less incentive to get out based on mathematical inability to collect the delegates needed to win the nomination. Also, big states, particularly in the south and west, loom in the future - terrain that is far more hospitable to the more socially conservative candidates in the race.

Finally, the other reason I don't put a lot of credence on the inevitability of Mitt Romney (my prior post - http://scarylawyerguy.blogspot.com/2011/10/bush-2016.html - notwithstanding) is that he appears to be a candidate who suffers from being liked less the more people see of him. My favorite Mitt Romney statistic is that his name has been on a ballot (primary, caucus, general election) 22 times since 1994 and of those 22 elections, he's won 5 and lost 17. If you're scoring at home, that's a less than .250 winning percentage. Simply put, there is something about this guy that average voters in the Republican party simply do not like.

While it is true that Republicans tend to go for the establishment candidate, the 2012 Republican electorate is more conservative than the 2008 version that grudgingly went for McCain, in part because of the "winner take all" nature of the early primaries, and establishment momentum from New Hampshire (where Romney lost by 5 points and now has to contend with Governor Jon Huntsman, who is attempting to rekindle the McCain model and may hurt Romney), South Carolina (where Romney finished 4th, behind even the somnolent Senator Fred Thompson) and Florida (where Romney lost to McCain by 5 points). In short, the primary calendar poses the same obstacles to Romney that they did in 2008; however, here, he is banking on his ability to raise and spend money in greater amounts than his opponents. While that might be true, it is also true that Romney has been unscathed by negative campaigning thus far, something sure to change, regardless of how tomorrow's caucuses turn out.

Back-to-back debates next weekend and the inevitable scrutiny of Romney's weaknesses that have thus far been ignored by the media will also pose challenges to his campaign's preference to focus on the former Governor's inevitability. The fact that his support will remain flat in Iowa, that he may underperform in New Hampshire and lose South Carolina will, eventually, force the narrative to one that questions whether Romney is as inevitable as his campaign wants everyone to believe he is. At that point, the race will truly begin.

My, What An Expansive Commerce Clause You Have, Justice Scalia

2011-12-30T15:26:00.001-05:00

The Supreme Court’s decision to tackle the constitutionality of the Affordable Care Act in the thick of the 2012 Presidential contest will put the Court in as high a political profile as we have seen since Bush v. Gore. By allotting five and a half hours for oral argument, the justices have elevated the case into the rarefied air reserved for school desegregation (8.5 hours in 1952, 6.5 hours on re-argument in 1953), the 1965 Voting Rights Act (7 hours) and the now-famous Miranda v. Arizona case (6 hours), among a few others[1], and will trump, by 4 hours, the time allotted for Bush v. Gore.

Although most of the attention around the ACA is focused on the individual mandate, the justices have split oral argument into four parts: (1) whether the individual mandate is constitutional; (2) whether the mandate, if found unconstitutional, can be severed from the law, allowing those parts deemed constitutional to remain unmolested; (3) whether the case is “unripe” for adjudication based on the Anti-Injunction Act, a relic of the 19^th century that does not permit adjudication of claims brought by litigants related to the imposition of tax penalties until such a tax is levied[2]; and (4) whether the ACA’s Medicaid expansion infringes on the 10^th Amendment[3].

Although this may seem overly complex, in reality, the first three parts all wrap around the same whole; that is, if the justices pass on ruling based on the Anti-Injunction Act, the case will go away until someone is assessed a penalty for not purchasing insurance, which will not occur until 2015. If the Court finds that the Anti-Injunction Act is not triggered, that point goes away entirely. Similarly, if the Court upholds the individual mandate, it by definition eliminates the need to sever it from other parts of the law. If the Court strikes down the mandate, it is hard to imagine it permitting severability because the law itself contains anti-severability language and, even if the Court ignored that, the rationale underscoring the law is the need to broaden the pool of insured health care users to reduce the overall costs of health care for everyone. That simply cannot be done if the individual mandate is not upheld. Medicaid expansion is a separate question whose jurisprudential underpinnings are from a different part of the legal tree than the individual mandate (10^th Amendment for the former, Commerce Clause for the latter).

So how is all of this going to shake out? Three Courts of Appeal have issued rulings on the ACA, with two, the D.C. Circuit and the 6^th Circuit, upholding the ACA in its entirety, and the third, the 11^th Circuit (whose ruling is the case the Supreme Court granted certiorari to review) striking down the individual mandate but upholding other portions of the law[4]. In reviewing these three decisions, as well as recent Supreme Court jurisprudence related to the Commerce Clause, my own view is that this is a case that, but for the highly charged political atmosphere around it, would actually not be a particularly thorny legal question for the Court to resolve. Ironically, because the President and his allies in Congress made attempts to tailor the legislation to garner Republican votes (which never came), they ended up creating an avenue to challenge it that would have been foreclosed had they not attempted to be conciliatory while attempting to inoculate themselves politically from certain Republican charges[5].

Those facts notwithstanding, the primary question before the Court, assuming it does not opt for the Anti-Injunction Act dodge, is whether the individual mandate is a constitutionally permissible exercise of Congress’ power under the Commerce Clause[6]. Even so, the question is actually narrower than that because of the three ways in which the Court has found Congress can legislate pursuant to the Commerce Clause, only one is at issue[7]. Here, the Court will look at whether the individual mandate falls within Congress’ authority to regulate those activities that “substantially affect” interstate commerce either because purely intrastate activity is found to substantially affect interstate commerce or if the regulation of “non-economic activity … is essential to a larger scheme that regulates economic activity[8].”

The argument for the Affordable Care Act generally, and the individual mandate specifically, is that “health care” is a commodity that, taken in the aggregate, substantially affects interstate commerce. This is true whether individuals secure insurance as a protection against having to pay for health costs out-of-pocket, or “self-insure,” that is, either opt against having insurance or do not have it available to them[9]. Moreover, those who opt not to secure insurance, cannot afford insurance or are denied insurance consume health care regardless; however, those costs, which are not always recouped, are passed along in the form of higher insurance premiums for those who do have coverage[10]. Congress, supporters argue, in recognizing the impact health care spending has on our economy (it accounts for roughly 17 percent), rationally concluded that requiring all individuals to carry health insurance was a way to reduce cost shifting that currently exists and reduce the overall costs associated with health care spending.

On the other side are the law’s opponents, who argue that compelling individuals to purchase a product (health care insurance) or face a penalty is beyond the scope of Congressional authority under the Commerce Clause[11]. From a legal standpoint, opponents point to the fact that the ACA attempts to regulate inactivity in a commercial market – that is, by forcing people who do not have health insurance and who are not currently utilizing medical services to purchase insurance for some speculated future event, the government is forcing activity upon those who are not currently active[12].

Suffice it to say, reams of paper have been spent debating this critical point and on that score, the circuit courts supporting the mandate outnumber the circuit court that rejected it by two to one. Further, even the 11^th Circuit, which struck down the individual mandate, upheld the remaining provisions of the law, not a total defeat for the Obama Administration. As the clock ticks down to the March 26^th-28^th 2012 oral argument, so-called originalists who believe in the rock-ribbed legal textualism of Justice Antonin Scalia or the general conservatism of the Court may end up being disappointed by the Supreme Court’s consideration of the individual mandate. It is no coincidence that the D.C. Circuit Court cited Justice Scalia’s concurring opinion in the Court’s Gonzalez v. Raich[13] decision, or that the Raich decision is more generally relied on because its majority also included Justice Kennedy[14].

Predicting how the Justices will rule is an inexact science at best; however, the Court’s recent Commerce Clause jurisprudence is illuminating because a majority of the conservative Justices (Scalia, Kennedy and Thomas) were all apart of the three most recent Commerce Clause cases, each of which carries important clues as to how they will likely view the Affordable Care Act.

The first two cases, Lopez v. United States[15] and United States v. Morrison[16], were notable because each struck down legislative provisions as being outside Congress’ authority under the Commerce Clause. This was the first time since the mid-1930s that legislation had been overturned for that reason and in this way, represented a modest attempt at retrenching what had been viewed as unfettered Congressional authority. The third case, Gonzalez v. Raich, upheld a law under Commerce Clause challenge with the aforementioned concurrence of Justice Scalia and a majority that included Justice Kennedy.

Lopez and Morrison both addressed the constitutionality of laws targeted at criminal activity, gun possession (the former) and violence against women (the latter). In both cases, the Court found that Congress, in the way it drafted these laws, exceeded its authority under the Commerce Clause. Lopez involved a challenge to the Gun Free Schools Act that made it a federal crime “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone[17].” The Court rested its decision primarily on the fact that prior Commerce Clause jurisprudence focused on economic, as opposed to criminal, activity, that the law was poorly drafted by failing to tie the affect of possession of a firearm to interstate commerce, and the fact that the law, at least in part, affected an area historically within the ambit of state regulation (education)[18].

Of importance to those who do not support the individual mandate, the Court rejected the government’s arguments that violent crime, taken as a whole, affect all of us because crime raises insurance costs, acts as a disincentive for people to travel to crime-ridden areas and impacts the learning environment, all of which, taken in total, impacts interstate commerce[19]. The Court found that accepting the government’s argument would remove any bounds to federal intervention in a host of areas, including criminal justice and education policy[20].

In Morrison, the Court struck down provisions of the Violence Against Women Act (VAWA) and specifically, a section within VAWA that provided a private civil remedy in federal court to victims of “gender motivated” violence under the rationale that, as in Lopez, this law addressed primarily criminal activity that, were the Court to uphold it, would allow “Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption[21].” Even though Congress provided ample findings to support its contention that gender-motivated criminal activity impacted victims and their families, the Court gave those findings little credence and, regardless, found the same risk of Congressional overreach as it did in Lopez[22].

The Court’s most recent Commerce Clause case, Gonzalez v. Raich, dealt with the question of whether the federal Controlled Substances Act trumped a state law that permitted the private cultivation and possession of marijuana for personal use. The Court held that the CSA could reach even local cultivation of marijuana for personal use for reasons largely affirming its New-Deal era decision in Wickard v. Filburn – that where intrastate activity that is itself not commercial can nevertheless be regulated if the aggregate effect of that activity would impact interstate commerce. In Wickard, the question was whether someone’s wheat production, which was harvested and consumed by the individual, not sold off for money, could be regulated under the Commerce Clause. The Court held that it could because the “failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity[23].”

The

Raich Court

reiterated the importance of the economic nature of the impact of the CSA and state law as opposed to the criminal statutes at issue in Lopez and Morrison. Marijuana growth, the Court found, fell within the definition of “economics[24]”and thus, appropriately within Congress’ legislative authority. Interestingly, the Court also appeared to retrench in its aggressive posture toward questioning Congress’ Commerce Clause power, noting that its review was “modest” and that it need not determine whether marijuana growth, in the aggregate, affected interstate commerce, but merely whether Congress possessed “a rational basis … for so concluding[25].”

The Court also noted the distinction between the question presented in Raich and those posed by Lopez and Morrison. The present case, the Court held, did not involve a question of whether the law fell outside of Congress’ Commerce Clause power, but rather, whether “individual applications of a concededly valid statutory scheme” were impermissible[26]. The prior cases, the Court went on to say, “asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety[27].” Importantly, the Court also noted that the CSA was a “lengthy and detailed statute creating a comprehensive framework[28],” which made it quite different than either the Gun Free School Zone Act or VAWA, both of which, the Court held, were “at the opposite end of the regulatory spectrum[29].”

The 6-3 decision in Raich is notable not only for Justice Kennedy’s presence in the majority but also for Justice Scalia’s concurrence. In it, he argued for an even more expansive view of Congress’ Commerce Clause reach when the issue of intrastate commerce, and its relation to interstate commerce, is at issue. As he noted, “[T]he category of ‘activities that substantially affect interstate commerce is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce[30].” Justice Scalia’s interpretation of Congress’ authority to regulate economic activity under the Commerce Clause includes its power to “devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants[31].” As examples of that authority, Justice Scalia referenced Congress’ ability to, among other things, ban discrimination in restaurants[32] and hotels[33], to regulate the power of local grain exchanges[34], and prohibit intrastate price-fixing schemes[35].

Moreover, Justice Scalia affirmed that Congress’ Commerce Clause power is broad provided it is directed at economic, as opposed to, for example, criminal activity. As he said, “[t]hough the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as an ‘essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated[36].’” Put another way, according to Justice Scalia, had Lopez targeted economic, as opposed to non-economic activity, the legislation would have been upheld. Further, he noted that if Congress properly exercises its Commerce Clause power “it possesses every power needed to make that regulation effective[37].” Lastly, Justice Scalia takes the dissent in Raich to task for suggesting that the majority undercut the Court’s rulings in Lopez and Morrison, noting that the latter cases stood for the proposition that “Congress may not regulate certain ‘purely local’ activity within the States based solely on the attenuated effect that such activity may have in the interstate market[38].” He also distinguished those cases by noting that “[n]either case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation[39].”

In short, Justice Scalia’s Commerce Clause touchstones relate to questions of economic versus non-economic regulation and, to a lesser degree, whether what is being regulated is purely local and, at most, has some attenuated connection to interstate commerce. It is clear from his Raich concurrence that provided the exercise of Commerce Clause authority is appropriate, his scrutiny is not only minor, but his deference substantial by noting that Congress has “every power” within its authority to legislate under the Commerce Clause.

This modern day jurisprudence is problematic for individual mandate opponents. They like to cite to Lopez and Morrison with favor and suggest that they point to the Court’s sympathy toward their position that the individual mandate is so exhaustive in its reach and so breathtaking in its scope, that if it is accepted, little will be outside Congress’ purview. However, faced with the affirmation of core Commerce Clause principles in Raich, they are left to parsing distinctions that fall apart on quick review[40]. Further, even these recent cases that trimmed Congress’ authority are a bit overblown. First, while the Court in Lopez struck down one section within the Gun Free School Zones Act, it was subsequently reenacted with minor modification and convictions under it have been uniformly upheld[41]. Moreover, a wide swath of criminal laws covering everything from drug to child pornography possession have withheld scrutiny “no matter how passive the possession, and even if the owner never actively distributed the contraband, on the theory that possession makes active trade more likely in the future[42].” That is, so-called “inactivity” in the stream of interstate commerce (i.e., mere possession) is not a meaningful distinction under which laws are typically struck down.

While the 11^th Circuit’s opinion is surely exhaustive, ultimately, it fails because of its overly simplistic view of the health care market. While the judges concede that health care is amenable to regulation pursuant to the Commerce Clause, the majority found fault in the nature of the regulation (i.e., the individual mandate) as impermissibly requiring individuals to purchase a product even though they may not be currently using it. This theory makes no sense. For example, the Court noted that “when the uninsured actually enter the stream of commerce and consume health care, Congress may regulate their activity at the point of consumption[43].” In the real world, you cannot accurately predict when you will need to utilize health care and the idea that an otherwise uninsured person would be required to purchase insurance at the point of contact with the health care system is absurd. Consider this situation: a 26 year old man who does not carry insurance because he is young and healthy is in a serious car accident that requires hospitalization. Under the 11^th Circuit’s reasoning, either the seriously injured man (or perhaps a family member?) would be obligated to purchase insurance at the hospital in the middle of a medical emergency before care would be given. This is nonsense.

More generally, health care is something that every person, at some time, will use – whether it’s a simple physical, mammogram or check-up or because of a serious injury or illness. I myself “consumed” health care by getting a check-up this year. I may not get another check-up for 2 years. So am I no longer an active user of health care? The 11^th Circuit’s answer would appear to be “no.” And therefore, I should be able to slip in and out of the insurance market, only purchasing insurance when I am prepared to make another doctor’s appointment or, in the event of a serious medical emergency.

The Circuit Courts of Appeal that upheld the individual mandate did not suffer from attempts to twist and contort precedent to reach their conclusions. Tellingly, each opinion is modest in length and does not necessitate serious looking, but laughable sub- headings as the 11^th Circuit employed in an attempt to project the gravamen of its ruling[44]. For example, in Seven-Sky, Senior Circuit Judge Silberman, an appointee of President Reagan, applied precedent in a simple two-step fashion: “Appellants do not question that Congress can regulate the interstate health care and health insurance markets, or that Congress could conclude that decisions about whether to purchase health insurance substantially affect interstate commerce[45].” Once concessions of that nature are made, it is not a great leap to affirm that “broad regulation is an inherent feature of Congress’ constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence[46].” Put another way, Judge Silberman, even if he conceded that some people would never use health care (a dubious conclusion), held that those individuals could still be required to carry insurance because Congress’ ability to regulate “health care” as an interwoven, complicated economic area is complete.

Similarly, the 6^th Circuit, once it concluded (1) that Congress can regulate wholly intrastate activity that affects interstate commerce, (2) the individual mandate regulates activity that is economic, and (3) that the mandate was essential to Congress’ overall regulation of a broader, economic regulatory scheme (the provision of health care and health insurance), easily found the individual mandate passed constitutional muster[47]. As the Court noted, if you concede that health care can be regulated under the Commerce Clause, “Congress plainly has the power to regulat[e] the price of [products] distributed through the medium of interstate commerce … [and] it possesses every power needed to make that regulation effective.” As the Court noted, no one questions Congress’ ability to prohibit insurance carriers from denying coverage due to pre-existing conditions or to regulate prices because it is understood that “these reforms a[re] part of its power to regulate the interstate markets in health care delivery and health insurance[48].”

Similarly, the Court did away with the unworkable distinction between “activity” and “inactivity” in the health care market by noting that more than 80% of all adults “visited a doctor or health care professional one or more times in 2009[49],” and that “[t]he unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point[50].” In short, the Court avoided “unworkable labels” regarding activity and inactivity and recognized that whether one chooses (or has available to them) health insurance, affirmative choices about the manner in which one received health care are made. That, coupled with federal law that obligates medical facilities to provide treatment regardless of a person’s ability to pay[51], state laws and the mission of certain hospitals, creates “unique aspects of health care that make all individuals active in this market[52].”

If you concede that Congress can regulate health care and you admit that everyone, at some point will use it, the question then becomes whether requiring everyone to carry insurance is a rational means of addressing those facts and spreading the risk (and cost) among as many people as possible. This is why Justice Scalia’s Raich concurrence is so important. In it, he stated “[w]here necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce[53].” His interpretation of Commerce Clause jurisprudence is more expansive than mainstream thought. Remember that the touchstone is “those activities having a substantial relation to interstate commerce … i.e., those activities that substantially affect interstate commerce.” Justice Scalia’s test does not require that connection. Rather, he permits the regulation of intrastate commerce so long as doing so is necessary to make the regulation of interstate commerce effective.

As he put it, Congress has “every power” at its disposal to effectuate its regulatory scheme provided authority under the Commerce Clause exists. Here, the Affordable Care Act easily clears the bar because everyone, even the appellate court judges that struck down the individual mandate, agree that Congress can regulate health care[54] and has done so on a number of occasions in the past[55]. Moreover, the activity/inactivity argument is one that has not only been rejected by courts that have upheld the ACA, but does not hold up in practice, because the idea that people will be required to purchase insurance at the point of contact with the health care system is unworkable.

Also, because all courts have recognized that regulating health care is not something uniquely delegated to the states, the Affordable Care Act avoids Justice Kennedy’s admonition from his Lopez concurrence that “[i]f Congress attempts that extension, then at least we must inquire whether the exercise of national power sees to intrude upon an area of traditional state concern[56].” Health care is an area subject to active and long-standing federal regulation and further, no appellate court has ruled that other components of the ACA (e.g., prohibiting coverage denial based on pre-existing condition) are outside Congress’ reach. Taken together, there is a reasonable argument to be made that both Justices Scalia and Kennedy, based on their prior court opinions, will be amenable to the government’s contention that the individual mandate is an appropriate exercise of Congress’ Commerce Clause authority. If we assume that the four so-called “liberal” judges will also vote in favor of the mandate’s permissibility, a 6-3 ruling is entirely possible. Indeed, even if one of the two “conservative” judges decides to rule against the mandate, it can still pass muster 5-4.

[1] Christy, A., Obamacare Will Rank Among The Longest Supreme Court Arguments Ever. November 15, 2011. http://www.npr.org/blogs/itsallpolitics/2011/11/15/142363047/obamacare-will-rank-among-the-longest-supreme-court-arguments-ever.

[2] In this case, failure to purchase a policy results in the assessment of a penalty against the person in question. The issue of whether the penalty is a “tax” or a “penalty” is itself a matter of disagreement among litigants and judges alike.

[3] Lazarus, S., and Lithwick, D., The Medicaid Ambush, November 14, 2011. http://www.slate.com/articles/news_and_politics/jurisprudence/2011/11/the_unexpected_and_astounding_arguments_the_supreme_court_will_hear_on_obamacare_.html

[4] Susan Seven-Sky v. Holder, 661 F. 3d 1 (D.C. Cir. 2011), Thomas More Law Center v. Obama, 651 F. 3d 529 (6^th Cir. 2011) and Florida v. HHS, 648 F. 3d 1235 (11^th Cir. 2011).

[5] For example, had the law referred to the penalty for not buying insurance as a tax, a stronger argument for the individual mandate would have been found in Congress’ authority under the General Welfare Clause, Article I, Section VIII, Cl. I.

[6] The question of whether “health care” is something that can generally be regulated under the Commerce Clause does not appear to be in question. Even the 11^th Circuit, which ruled against the individual mandate, acknowledged that Congress can so legislate. See, Florida v. HHS, 648 F. 3d at 1302.

[7] Case law holds that Congress can utilize its authority under the Commerce Clause 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 at 541, citing U.S. v. Lopez, 514

U.S.

549, 558-59 (1995). The Government has conceded that the ACA does not trigger either of the first two rationales. See, Thomas More Law Center, supra.

[8] Thomas More, 651 F. 3d at 542. See also, Gonzales v. Raich, 545 U.S. 1, 25 (2005), Wickard v. Filburn, 317 U.S. 111, 127-29 (1943).

[9] See, e.g., Thomas More, 651 F. 3d at 529 (“Virtually everyone requires health care services at some point … [t]he uninsured cannot avoid the need for health care, and they consume over $100 billion in health care services annually.”)

[10] Florida v. HHS, 648 F. 3d at 1245-46. Congressional findings estimated that premium shifting increased the cost each insured family pays for coverage by $1,000 a year.

[11] “It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, ‘Congress has never required people to buy any good or service as a condition of lawful residence in the United States.’” Florida v. HHS, 648 F. 3d at 1311.

[12] See, e.g., Florida v. HHS, supra at 1298-1300, Susan Seven-Sky v. Holder, 661 F. 3d at 39-40.

[13] See, Susan Seven-Sky, 661 F. 3d at 55-56.

[14] See, e.g., Thomas More, 651 F. 3d at 544-547.

[15] 514 U.S. 549 (1995).

[16] 529 U.S. 598 (2000).

[17] Lopez, 514 U.S. at 551. See also, 18 U.S.C. §922(q)(1)(A)(1993).

[18] See generally, Lopez, supra at 560-61, 566. See also, Florida v. HHS, 648 F. 3d at 1273-75.

[19] Lopez, 514 U.S. at 564-65.

[20] Id. at 564-66.

[21] Morrison, 529 U.S. at 615-16.

[22] Ibid.

[23] Raich, 545 U.S. at 11.

[24] See, Raich, 545 U.S. at 25-26 where “economics” is defined as “the production, distribution, and consumption of commodities.”

[25] Id. at 22.

[26] Id. at 23. See also, Florida v. HHS, 648 F. 3d at 1278.

[27] Ibid.

[28] Id. at 24.

[29] Ibid.

[30] Id. at 30 (emphasis in original)(internal citations omitted).

[31] Ibid., citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)

[32] Katzenbach v. McClung, 379 U.S. 294, 300 (1964).

[33] Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 258 (1964).

[34] Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923).

[35] Mandeville Island Farms v. American Crystal Sugar Company, 334 U.S. 219, 237 (1948).

[36] Raich, 545 U.S. at 36, quoting Lopez, 514 U.S. at 561.

[37] Ibid., citing U.S. v. Wrightwood Dairy Company, 315 U.S. 110, 118-19 (1942)(emphasis added).

[38] Id. at 38.

[39] Id. at 39.

[40] See, e.g., Florida v. HHS, 648 F. 3d at 1295 attempting to distinguish Congress’ authority to regulate health care only at the “point of consumption” and my discussion infra.

[41] See e.g., 18 U.S.C. §922(q)(2)(A), U.S. v. Dorsey, 418 F. 3d 1038, 1046 (9^th Cir. 2005), U.S. v. Danks, 221 F. 3d 1037, 1039 (8^th Cir. 1999).

[42] Seven-Sky, 661 F. 3d at 47 (internal citations omitted).

[43] Florida v. HHS, 648 F. 3d at 1295.

[44] See, e.g., “Dichotomies and Nomenclatures,” 648 F. 3d at 1284, “Unprecedented Nature of the Individual Mandate,” Id. at 1288.

[45] Seven-Sky, 661 F. 3d at 41.

[46] Id. at 53.

[47] Thomas More, 651 F. 3d at 545-47.

[48] Id. at 547.

[49] Id. at 548.

[50] Ibid. (emphasis added). This runs directly contrary to the 11^th Circuit’s notion of only permitting regulation at the point of health care usage and also happens to take a far more realistic view of the way health care is actually delivered in the country.

[51] See, 42 U.S.C. §1395dd, the Emergency Medical Treatment and Active Labor Act, signed into law by noted liberal Ronald Wilson Reagan.

[52] Thomas More, 651 F. 3d at 549.

[53] Raich, 545 U.S. at 35 (Scalia, J., concurring).

[54] “[W]e fully recognize that Congress has the power under the Commerce Clause to regulated broadly in those arenas. In fact, Congress has legislated expansively and constitutionally in the fields of insurance and health care.” Florida v. HHS, 648 F. 3d at 1302. See also, Seven-Sky, 661 F. 3d at 41 (“Appellants do not question that Congress can regulate the interstate health care and health insurance markets, or that Congress reasonable could conclude that decisions about whether to purchase health insurance substantially affect interstate commerce.”)

[55] See, e.g., Employee Retirement Income Security Act, 29 U.S.C. §18, Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §1395dd.
[56] Lopez, 514 U.S. at 580.

Campaign Like It's 1864

2011-12-25T18:56:00.001-05:00

Political pundits looking for historical analogies to the 2012 Presidential election have offered up several ideas - for President Obama, many think he must channel the "give 'em hell" Harry Truman campaign of 1948, where the unpopular incumbent was able to make the Republican Congress his enemy and a bland, but otherwise unobjectionable opponent (New York Governor Tom Dewey) was rejected. Republicans like 1980, where a Democratic incumbent presiding over a weak economy was drummed out of office, heralding a decade plus run of conservative leadership. And while President Obama will never be mistaken with Truman's firebrand campaigning style and Mitt Romney is no one's idea of Ronald Reagan, precedent offers a certain facile comfort for the commentariat, which likes nothing more than linking the past to the present in an unbroken narrative chain of America's historical uniqueness.

But let me throw out another election that featured an unpopular incumbent presiding at a time of enormous strife in the country and where the people, who elected him with great hope and optimism, had soured on his leadership and become exhausted by the circumstances they found themselves in. Ladies and gentlemen - I bring you the Election of 1864. Yes, I realize, the single greatest cataclysm to our society (the Civil War) is not an "on all fours" comparison to our nagging economic downturn, but follow me.

President Lincoln was an enormously unpopular man in early 1864. The country had been at war for nearly four years and it did not look like there was an end in sight. A chance to seal off General Lee after Gettysburg had been squandered and the capture of Vicksburg and its importance to the overall prosecution of the war effort was not yet fully appreciated. Rumblings within his own party suggested that Lincoln should not stand for re-election and the opposition was led by General George McClellan, the former leader of Lincoln's own army and who was openly speaking of peace entreaties with the South to end the war.

So how was it that Lincoln, who doubted his own chances for re-election, wind up swamping McClellan, winning all but 2 of the states that voted that year and what can that tell us about ways in which 2012 might look like 1864? In contemporary terms, Lincoln's generals delivered several "game changers" that made the architecture of the Civil War look much different in November 1864 than it did at the beginning of the year. Grant, who had patiently laid siege to Vicksburg, finally taking it as, in a wonderful historical twist, Lee was retreating from Gettysburg, was given overall command of Union forces with a clear mandate to cut off Lee and destroy the Army of Northern Virginia. Grant doggedly (and at the cost of tens of thousands of lives) tracked Lee through Virginia, in a long, desperate war of attrition, that, by November, found Grant within sniffing distance of Richmond.

Meanwhile, General William Sherman was methodically rolling through the deep South, from Chattanooga to Atlanta and onward to the sea, leaving behind him nothing but razed cities and destroyed countryside. Lastly, General Phil Sheridan and his troops in the Shenandoah Valley were able to press the advantage to close the final pincers around the Confederate Army. In short, these three generals validated Lincoln's decision-making and helped ensure his re-election. By November, although the war was not over, the end was in sight. Moreover, Lincoln retained the good will of the troops he commanded and McClellan's ignoble departure from military service looked like a far greater liability as the year progressed than it did at its start.

So how can our current President draw inspiration from one of his political heroes? Again, I am not suggesting that our economic situation is identical to the Civil War; however, it is, by a wide margin, the biggest issue of the day, and, along with the steady drumbeat of deficit and debt that goes hand in hand with it, casts a pall over any discussion of domestic politics. Further, Congressional Republicans, who have made it sport to block every single piece of the President's agenda (not to mention political appointees - most recently, the "Public Printer," who had to be recess appointed) do not seem inclined toward compromise. A huge piece of the President's first term legislative agenda hangs in the balance as the Supreme Court considers the Affordable Care Act and any number of foreign policy challenges including Iran, North Korea, Russia and the Middle East, could bubble to the surface and completely dominate the media narrative at a moment's notice.

The President needs to take a page from Lincoln and go on the offensive, not just in rhetoric, but in deed and secure the game changers that Lincoln's generals produced for him in 1864. On the economic front, he must continue to push for investments in infrastructure and other parts of the American Jobs Act, working in concert with Congressional Democrats publicly, and Republicans privately, to get through parts (if not all) of that jobs package. For example, the President should take a page from the Republican playbook and demand votes on the Jobs Act as part of the payroll tax cut extension debate that will start just after New Year's. Congressional Republicans claim the need for a decision on the Keystone XL pipeline is required to spur job growth, why not up the ante and get needed infrastructure funding included as well?

More importantly, the President should continue pushing for a common sense long-term deficit agreement that locks in higher tax rates for wealthy individuals and eliminates corporate loopholes with as little sacrifice in entitlement programs as possible. While steady job growth or the complete elimination of the Bush tax cuts would do the same job of reducing our long-term deficit problem, the former is not guaranteed and the latter is not politically feasible (or advisable). The President has an opportunity to re-make tax policy in a way that is more progressive, collects more revenue and is framed in a way that can draw broad public support, boxing Republicans into a corner of either wholesale rejection or defending the wealthy at the expense of everyone else. While some might argue that Republicans will not deal, consider that the entire House of Representatives and one-third of the Senate is up for re-election. Republicans have just as much of a stake in showing progress and movement forward to get re-elected as the President does.

Ironically, one of the President's best friends this year may end up being the Supreme Court. Forgetting for a minute how it might rule on other contentious issues like immigration and Congressional redistricting, no matter how the Supreme Court rules on the Affordable Care Act, the President will be able to claim victory. If the Court upholds the law, that is the final word and implementation (which is already taking place and to great effect, another story the President will need to tell) will move forward. If he loses, people will be harmed because they will be unable to gain access to needed care, but if anything, it will strengthen the President's mandate to find solutions to get to universal coverage and will also take a key point of contention off the political battlefield. I'm not one to sacrifice good policy for good politics, but either way, "health care" will be resolved by June.

On the foreign front, the President will benefit if he is proactive. Having already wracked up the killing of Bin Laden, the complete withdrawal from Iraq and support for liberation movement across the Middle East, the President should look to make an aggressive push along foreign policy fronts that can bear fruit. Whether it is working more closely with China to address North Korea, pushing for a peace treaty in Afghanistan or squeezing the sanctions vice around Iran ever tighter, the President's free hand to conduct foreign policy is a natural place to "go big" in an effort to achieve a major breakthrough. It's not for nothing that Nixon's visit to China occurred during his re-election campaign in 1972.

While our country's economic footing looks uncertain as 2012 dawns, consider how the country will look like in November 2012 if the economy strengthens, unemployment continues to go down, a comprehensive, long-term deficit deal is signed that includes higher taxes for wealthy Americans, an end to corporate loopholes and ensures the solvency of entitlement programs for decades, health care is off the table politically, and some combination of the continued expansion of Arab democratic movements, addressing/dealing with Iran, drawing down in Afghanistan or (another moon shot) an actual peace agreement between Israel and Palestinians is within reach. A President campaigning on that kind of record would make 1864, (or 1984 for that matter) look like a much closer electoral antecedent than anything currently being discussed.

President Obama and the Congress of Doom

2011-12-22T21:05:00.002-05:00

It is said that Steven Spielberg's model for Raiders of the Lost Ark was the short "serial" films of the 1930s and 1940s that always ended with a cliffhanger, often with the hero in peril. Since President Obama's inauguration in 2009, and certainly since the House went back to Republican control in 2010, our federal government has run like those long ago serials, with this week's episode being the just completed payroll tax cut debate, which resulted in a two-month extension of that tax cut, along with an extension of unemployment insurance and relief for doctors who treat patients on Medicare.

While many pundits are lining up to laud the President for standing up to Republican intransigence and calling this a victory for him, consider what was won, at what cost and what the future holds. The President won a 60 day reprieve to try and negotiate a year-long extension to a tax cut that Republicans mandate be fully paid for (unlike the trillions in tax cuts that were signed into law in 2001 and 2003 by President Bush) and inserted specious requirements like the Keystone XL pipeline decision for no other reasons than that they can effectuate policy by other means. Keep in mind that the only reason the payroll tax cut was even up for renewal this year is because in one of the prior episodes of government by cliffhanger (Bush Tax Cut Episode - December 2010), the President signed off on a two-year extension for all the Bush tax cuts while accepting a one year time horizon for the payroll tax cut.

Of course, Republicans have learned that government by cliffhanger is a very effective strategy to amplify the narrative that Washington is "broken." After all, "ordinary" Americans see a big food fight going on, often without taking time to understand who is at fault or who started the argument. Further, each time one of these crises erupts, Republicans are able to extract enormous concessions from the President. The only difference this time was that Senate Republicans voted overwhelmingly for something they could not turn around and repudiate. Even so, the "pay for" to offset the cost of these extensions will (ironically) fall on home purchasers, who will pay additional fees to have Fannie Mae and Freddie Mac back the mortgages they take out to buy their homes.

Already forgotten in the tax cut debate is the fact that Congress just last week passed the budget for this fiscal year, which started on October 1st. Even with the total overall discretionary spending capped (thanks to yet another concession the President made in the government by cliffhanger episode "debt ceiling debate") it still took Congress almost 3 months into the fiscal year to get a budget passed. Not only do these cliffhangers dominate the news cycle and grind everything in Washington to a policy halt, but the side effects are to slow the gears of government and punish organizations that cannot plan, hire or fund programs because of fiscal uncertainty. Also unmentioned in these debates is that the concessions given by Democrats result in things like reducing funding to the new Consumer Financial Protection Bureau, lowering funding to the EPA and, in myriad other small ways, make it harder for things like regulation and oversight to take place. People tend not to notice these things until a listeria outbreak takes place or a levee fails in New Orleans.

As Charles Pierce noted on esquire.com, at best, this agreement deserves a "golf clap" for saving par. There's nothing stopping Republicans from pulling the same shenanigans in 60 days when the two-month extension expires, or when the budget for Fiscal Year 2013 is being debated. In the meantime, it is quickly forgotten that the suddenly reasonable looking Mitch McConnell filibustered the nomination of Richard Cordray to head the CFPB and, in what appears to be a violation of the vaunted Gang of 14 agreement on blocking federal judges, stopped the appointment of Caitlin Halligan to the D.C. Circuit Court of Appeals (20 other nominees, yes, 20, are being held up for reasons unclear). The knee jerk use of the filibuster, or more specifically, the threat of one (ironically, the only person who was actually forced to take the floor and not leave was Senator Bernie Sanders when Congress was debating the Bush tax cut extension) continues apace and in numbers unprecedented in the modern Senate.

Obama's "victory" was on a policy issue that is at the core of Republican philosophy and only made possible because of the enormous political cover the huge majority of Republicans in the Senate offered. No movement on the American Jobs Act has taken place, the centerpiece of financial reform, the CFPB, is still without an appointed leader and little if anything is being done to help ordinary Americans or encouraging stimulative growth. Make no mistake, when this tax cut is debated over the next 60 days, that combination of factors will not be in effect. Indeed, the holiday break will undoubtedly allow Republicans to regroup and return to Congress with a more unified position.

Further, the episodic nature of government will continue apace. In addition to next year's budget, the Bush tax cuts are set to expire (again) at the end of 2012 and the debt ceiling will again raise its head in 2013 and on and on. At some point, the President needs to draw a line in the sand. This was not that fight. The two-month payroll tax cut was a quirk and a one off, where everyone thought an agreement had been reached until a revolt of back bench House Republicans blew it up. The President should not be sanguine about this victory, but rather, thinking about where and when he is going to show legitimate spine - be it recess appointing Mr. Cordray, fighting for the "millionaire's tax" to fund the remaining 10 months of the payroll tax cut (or better yet, extending it even longer), coordinating with Senator Reid to do nothing but focus on the movement of nominees through the Senate process, refuse to sign further extensions of the Bush tax cuts (or put forth true progressive tax reform) and continue to pound away, daily, on the need for infrastructure investment, aid to states and other measures that will reinforce the modest job recovery that is being seen in the private sector. Today is not a time to celebrate, it is a time to, as Sarah Palin might say, reload.

2011 Year In Review - The Books I Read

2011-12-18T16:39:00.001-05:00

I read some great (and not so great) books in 2011. Here is my pocket review of each:

Book of the Year: At Home (Bill Bryson)

Bryson is one of my favorite authors. He combines a conversational style with a nerd's appreciation for historical context. In At Home, Bryson takes readers on a tour of his English country home while stretching back centuries to source the origin of each room's purpose within the modern day house. Along the way, Bryson takes us back to Dickensian England to discuss sanitation, the dark ages to discuss great rooms and many other stops along the way.

Runner-Up: The Disappearing Spoon (Sam Kean)

Kean's exploration of the periodic table of the elements is chock full of fascinating little tidbits about the scientists behind the discovery of these elements, how the table is constructed and anecdotes about each substance. You will learn about everything from how dynamite was invented to what happens if you accidentally ingest silver (spoiler alert: you turn kind of blue).

Honorable Mention: Maphead (Ken Jennings)

Ken Jennings, best known for winning about 345 games of Jeopardy!, is also a cartography freak with a winning writing style. In his book Maphead, Jennings's love of maps shines through, as he takes us to the Geography Bee, introduces us to geocaching, follows people who update road signs and visits the historical maps contained in the Library of Congress among many other stops along the way of explaining the importance of maps.

Honorable Mention: Sex On The Moon (Ben Mezrich)

The author of The Social Network weaves a tale of a NASA scientist and his girlfriend, who hatched a plot to steal (and sell) moon rocks brought back by the Apollo space missions. The amateurishness of the criminal scheme is matched by the wistfulness of the romance between the main characters. Highly readable.

Everything else:

Tears Of A Clown, Glenn Beck and the Tea Bagging of America (Dana Milbank)

This book seemed far more relevant when I read it in January than it does now that Beck has slithered off FOX and disappeared into oblivion, but basically, Milbank traces the complete and utter douchiness of this latter day Father Coughlin. A truly execrable human being.

There's A Word For It, The Explosion of the American Language Since 1900 (Sol Steinmetz)

Steinmetz splits the 20th century into 10 chapters and showing when certain words came into popular use. Marginally satisfying and not particularly challenging.

Quite Literally (Wynford Hicks)

A far better usage book that would look handsome on any reference desk or bookshelf. Very enjoyable.

Endgame (Frank Brady)

I usually don't like biographies because I get bored with the backstory, but Brady's one volume Bobby Fischer biography is actually stronger on the early part of Fischer's life than the post-Spassky downward spiral. This is the book equivalent of Full Metal Jacket - amazing first half, so-so second half. Fischer is a subject who begged either for a two-volume treatment that would have allowed the author to more deeply explore Fischer's adult life, or a shorter one volume work that was more balanced between youth and adulthood. The early chapters on Fischer's childhood and rearing are fascinating as is the (too short) meditation on Fischer's skid row years in the early 1980s. Unfortunately, the early part of Fischer's adulthood, when his genius truly blossomed and he was the unquestioned greatest chess player in the world is given somewhat short shrift. Fischer's unquestioned genius is noted but so too is his reprehensible anti-Semitism. If you are interested in the definitive book about the 1972 Fischer-Spassky Match, check out Bobby Fischer Goes To War.

The Lover's Dictionary (David Levithan)

This book is as slim as it is bad. I hated it.

All Facts Considered (Kee Malesky)

I remember absolutely nothing about this book. When I looked it up on Amazon, it appears to be a reference book of some sort.

Rawhide Down (Del Quentin Wilber)

This book tells the story of John Hinckley's 1981 assassination attempt against President Ronald Reagan. Wilber borrows from Dave Cullen's haunting book Columbine in flipping chapters between Hinckley and Reagan until we get to the climactic incident outside the Washington Hilton. The behind the scenes chaos at the White House and how close Reagan actually was to death are both notable, especially since the "official" story at the time was far different than what was actually happening.

Bryson's Dictionary of Troublesome Words (Bill Bryson)

I told you I was a big fan of Bill Bryson. This book is a nice companion to Bryson's Dictionary for Writers and Editors, offering commonly (and some not-so commonly) used words with definitions and proper spelling.

Mad As Hell, The Crisis of the 1970s and the Rise of the Populist Right (Dominic Sandbrook)

I'm fascinated by the 1970s. The decade is easily stereotyped as a sea of leisure suits, 8-Track stereos and shag carpets, but the political system almost came apart during Watergate, the country elected a complete unknown in 1976 and by the end of the decade, interest rates were flirting with 20 percent. Sandbrook touches on these issues and many more, tracing the decade from Nixon's secret bombing of Laos and Cambodia all the way through how Reagan and his advisors successfully leveraged economic distress, military emasculation and religious fervor to sweep into office in 1980.

The Eichmann Trial (Deborah Lipstadt)

I found this book much less enjoyable than Hunting Eichmann, though Lipstadt focuses more on the trial itself, whereas Bascomb's tale was focused almost exclusively on how Eichmann was tracked down by the Mossad. Admittedly, the latter is far more provocative than the former.

The Lost City of Z (David Grann)

Fascinating story of British explorers of the Amazon in the late 18th and early 19th century, and particularly Percy Fawcett, who comes across as a stentorian Indiana Jones as he searches for the eponymous city for which the book is named.

The Psychopath Test (Jon Ronson)

Those Ronsons are one talented group of people. I imagine their holiday dinners are latter day Algonquin roundtable, but to be honest, I remember very little of this book's contents. Probably not that good.

In The Garden of Beasts (Erik Larson)

Larson probably reached his creative apex with The Devil in the White City, but this highly enjoyable story of our Ambassador to Germany at the dawn of Hitler's rise to power is really good. Larson modifies his two disparate story signature by telling what are more like parallel stories of the Ambassador and his daughter, each of whom has unique and unconventional experiences in early 1930s Germany. The book felt about 20-30 pages too long, but overall, a solid read.

Fraud of the Century (Roy Morris)

The shenanigans of the 1876 Presidential election do, in their way, make what happened in 2000 look mild by comparison. Morris's telling, which is filled with the type of political minutiae that junkies like me live for, was great. That the election itself was not certified until a few days before the actual Inaugural presents the interesting question of why there was such a rush to "select" G.W. Bush, but in 1876, the politically distant Sam Tilden was outmaneuvered by the Republican machine supporting Rutherford Hayes. Hayes's own complicity in the actions is questionable, but the stain left by the result (Tilden outpolled Hayes nationwide) played a big part in Hayes's decision to not stand for re-election in 1880.

The President and the Assassin (Scott Miller)

Keeping with the post-Civil War theme, Scott Miller takes us to Buffalo, New York in September 1901 to tell the story of the assassination of President William McKinley. His murder is a major historical pivot point for the country, as he was succeeded by the mercurial Theodore Roosevelt, whose progressivism was completely contrary to McKinley's rigid protection of industry. His killer, Leon Czolgosz, was also a man of his time, but of the masses who were disillusioned by government and flirted with anarchism. A final thread is the still modest amount of medical knowledge and technology - sterilization, anesthesia, and x-ray machines that were not in wide use, but might have contributed to McKinley's recovery had there been greater understanding of those techniques.

Game Six (Mark Frost)

Baseball fans will enjoy Mark Frost's inning by inning (and in some cases, at-bat by at-bat) story of Game Six of the 1975 World Series between the Boston Red Sox and Cincinnati Reds. Widely believed to be one of, if not, the greatest World Series game of all-time, Frost not only breaks down the small strategic decisions that went into the game, but layers a rich tapestry of stories about the players involved. He's particularly fond of Luis Tiant, the Red Sox starting pitcher for Game Six and Reds manager Sparky Anderson. Even though you know the result, reading about the myriad times where the game could have gone in a different direction still makes for an entertaining yarn.

The Last Gunfight (Jeff Guinn)

Guinn's story of "The Gunfight at the OK Corral" takes the reader back to the sometimes lawless West that was still being developed and settled in the late 1800s. Guinn makes a persuasive case both for Wyatt Earp's self-promotion in the wake of the gun fight and its inevitability based on bruised egos and simmering feuds between the Earps and the Clantons. Like many things related to the "Wild West," the legend was printed before the truth had a chance to come out.

The Speech (Senator Bernie Sanders)

This is the verbatim text of Senator Sanders's December 2010 filibuster against the extension of the Bush tax cuts. I know, you are noting the irony that the only time someone has been forced to do an "old school" filibuster, that is, speaking without break on the Senate floor, is when we want to extend tax cuts that overwhelmingly benefit the rich, but such is life. The speech repeated itself in a number of places but the overall message of income inequality looks prescient in the wake of the Occupy Wall Street movement. There is no denying the Senator's passion and his desire to help the middle class and poor is laudable. That people in Vermont and elsewhere are struggling just to buy food and heat their homes is, sadly, just as common today as it was a year ago when Senator Sanders made his speech.

The President Is A Sick Man (Matthew Algeo)

Yet another Gilded Age era tale, this time of President Grover Cleveland's secret surgery to remove a tumor from his mouth, and how the procedure was kept from the general public (spoiler alert: overlong boat trip from DC to NY). The wrinkle in the story is that one reporter actually sniffed out the story but was mercilessly crushed by the President's men when he published it. Along with a piece of Abe Lincoln, Cleveland's tumor (which turned out to be benign) is still in the possession of the federal government.

A Billion Wicked Thoughts (Ogi Ogas and Sai Gaddam)

Two authors data mined porn searches conducted by thousands of men and women to tease out the differences between what we say we want sexually and what we crave when we watch it.

Destiny of the Republic (Candice Miller)

Rounding out the post-Civil War presidential jag I went on is this book, which discusses the 1881 assassination of President James Garfield by Charles Guiteau. Miller makes clear that poor medical techniques directly contributed to Garfield's painful and slow death, Alexander Graham Bell makes a cameo appearance with an early version of a metal detector (his failed b/c the bed Garfield was on when Bell scanned him had metal springs - you can't make some of this stuff up) and Guiteau is another aimless drifter and neer-do-well (like Czolgosz in 1901) who did little with his life. Miller's fondness for the President is clear and, to a lesser extent than McKinley, his death changed the course of our country's history by elevating career hack Chester Arthur to the Presidency. The Arthur Administration was unmemorable, but one wonders what Garfield could have achieved had he lived. I've also seen this book pop up on some "best of the year" lists.

Snoop, What Your Stuff Says About You (Sam Gosling)

I thought I would enjoy this book because I'm a bit of a snooper myself - primarily bookshelves, and I found out that the bookshelf is one of three places where people tend to express themselves (the bathroom (of all places) and bedroom being the other two). Otherwise, there was a lot of, "it could mean this, or it could mean nothing" observations that I find so frustrating in sociological books.

Should You Judge This Book By Its Cover (Julian Baggini)

Baggini takes a bunch of conventional wisdom tropes and attempts to determine whether they are true or not. Each aphorism (e.g., "no pain, no gain," "a bird in the hand is worth two in the bush") is given a whopping 2 pages of discussion, so it's hard to take anything in the book (or its conclusions) too seriously.

Red State, Blue State, Rich State, Poor State (Andrew Gelman)

This book is what I imagine Nate Silver's masturbatory fantasies look like. Dense with data points and impenetrable to those without a PhD in statistics, my one basic takeaway was the (partial) debunking of Thomas Frank's What's the Matter With Kansas as Gelman argues that rich people in "blue" and "red" state vote Republican and where Republicans win the middle class vote too (and get better turnout) in the Deep South and Midwest, they win. Kansas poor people vote for Democrats too, they just don't make up enough of the electorate to tilt it blue. Or something. It's a bit blurry.

That Used To Be Us (Thomas Friedman & Michael Mandelbaum)

See: http://scarylawyerguy.blogspot.com/2011/11/book-review-that-used-to-be-us.html

Boomerang (Michael Lewis)

This book feels like 5 overly long Vanity Fair articles embellished with enough fluff to turn it into a book-long treatment to take advantage of the superb (and 2010 Book of the Year "honorable mention") The Big Short. While no one can doubt Lewis's talent as a writer, this story of foreign countries hit by the financial crisis (he focuses on Iceland, Ireland, Greece and Germany) and whether California portends a fiscally calamitous future for the U.S. just does not have enough weight to carry itself as a coherent whole. Interspersed with trenchant observations that muse on what countries did "when the lights were out and no one was looking," were mindless and distracting ruminations on German shit fetishes, how odd Lewis felt arriving at a Greek abbey in a pink Brooks Brothers polo shirt (don't ask) and how a leader of the Irish parliament looked drunk (really?). On balance, the good outweighs the bad, but this feels like a bad sequel along the lines of Caddyshack II or Another 48 Hours.

Why Read Moby Dick (Nathaniel Philbrick)

This slim volume discusses the importance of Moby Dick in our literary canon and Philbrick's passion for the book is clear. Having not read the book myself (and frankly, Philbrick's description of the difficulty of getting through the book made me less inclined to read it), I enjoyed Philbrick's point of view and learning about the way in which Melville put the story together.

The Professor and The Madman (Simon Winchester)

An entertaining look at the creation of The Oxford English Dictionary and how one of the primary contributors to the OED was (literally) a mental patient housed in an insane asylum in England. Whereas Brady's Endgame should have either been much longer or much shorter, Winchester's book felt too short, that a lot was left out of the creation of the mammoth, original 20 volume OED. That notwithstanding, this was a good book.

Back To Work (President Bill Clinton)

See: http://scarylawyerguy.blogspot.com/2011/12/big-dog-tells-us-how-to-get-back-to.html

I am looking forward to more great reads in 2012!

The Big Dog Tells Us How To Get "Back To Work"

2011-12-16T13:40:00.002-05:00

The timing on the publication of the latest meme on liberal discontent, Jonathan Chait's November 28, 2011 New York magazine article, The Self-Loathing of Liberals, was fortuitous, because former President Bill Clinton's latest book, Back To Work, is an excellent rejoinder to the idea that liberals cannot be satisfied and also shows what smart, progressive government can do.

Back To Work should remind Mr. Chait, and Democrats in general, of not only what a progressive agenda can look like, but what can be accomplished when Democrats put forward, forcefully, and factually, good ideas to move the country forward. Indeed, while Chait cites President Clinton's failure to get a modest stimulus through Congress in 1993 to disprove the thought that he (or Hillary) would have had more success than Obama did in getting the American Recovery and Reinvestment Act passed, Chait ignores the signature piece of legislation that launched the Clinton presidency - the 1993 budget bill that raised taxes on the wealthiest and corporations, while putting in spending caps that, with the growth of the economy, led to unprecedented peacetime expansion. He even derides the crime bill, which not only put 100,000 more police officers on the street, but gave local departments access to matching funds for equipment like bulletproof vests and new technology to more effectively fight crime. In the balance, the idea that Democrats were "soft on crime," disappeared. Policy and political wins, what a concept.

I recommend that Chait and others who deride the professional (or amateur) left take a peek at President Clinton's 192-page book. In clear language that flows easily, the former President not only weaves an effective tale of how government can work with the private and non-profit sectors to encourage economic growth, but cites examples from his time both in and out of office of people and organizations who are engaged in this type of partnership. In doing so, the former President makes a compelling case for the thoughtful and judicious use of government resources to spur improvements throughout our economy.

The President first traces the economic trajectory of our nation from the time Ronald Reagan took the oath of office in 1981. The large budget deficits and exploding debt that ensued resulted in higher interest rates, lower rates of investment, fewer manufacturing jobs and stagnant wages. As the President notes, anti-government's true victory was not reducing the size of government, it was to stop paying for government by borrowing enormous sums of money. The credit binge that animated the twelve years of Republican leadership prior to his election was stanched through higher taxes on the rich, spending caps (some of which were put in place by the much derided 1990 “no new taxes” budget agreement) and improving job conditions. Indeed, the irony of Clinton's presidency is that he delivered the government Republicans fetishize but never actually deliver - a small government work force[1], more than 22 million new jobs[2], and nearly 8 million people lifted out of poverty (as compared to less than 800,000 during Ronald Reagan's presidency). I almost forgot, he also balanced the budget, expanded access to college for high school students, improved educational standards, broadened access to health care for children, passed an assault weapons ban and had us on a glide path to pay off *all* of our debt by 2015, the first time that would have happened since 1824.

Clinton's book is not just a victory lap for a successful presidency, it also serves to debunk some of the common tropes around anti-government talking points, particularly as they relate to budget deficits and the national debt. For example, the President uses a handy graph to show that of the $14.3 trillion in debt we accumulated as of early 2011, even with the ARRA and extension of the Bush tax cuts, Obama's debt contribution of $2.4 trillion paled next to George W. Bush's $6.1 trillion[3]. Further, he notes that by the time the Republicans took over Congress in 1995 and a balanced budget bill was enacted two years later, 90 percent of the deficit had already been eliminated due to the passage of the 1993 budget and improved job growth. He even digs deeply into the past to show that the common myth of Reagan's fiscal conservatism is undermined by the fact that Democratic Congresses approved less in spending than Reagan requested overall. He also discredits common Republican orthodoxy about the evils of government by pointing out that pointing out that his Republican predecessors launched enormous public works projects[4] and created now-loathed federal agencies[5].

In fast forwarding to the political battles President Obama is facing, Mr. Clinton discredits the Republican talking point that the Affordable Care Act cut $500 billion from Medicare. What the ACA did was lower the rate of increase in reimbursements to providers under Medicare, and particularly for those providers paid through Medicare Advantage, a private "add on" seniors are not compelled to purchase or use. He further points out that those advocating full privatization of Medicare by citing lower costs to Medicare D fail to note that the ubiquity of generic drugs has kept costs low and because there are now many more seniors with greater access to medications, manufacturer costs are lower because they are producing more pills. Neither of those two quirks in the prescription drug benefit are applicable to Medicare overall. Moreover, he notes that when anti-government types mention the explosion in health care costs for Medicare, they fail to note that private insurance costs have accelerated even more, a 400 percent increase since 1970 for the former, 700 percent, for the latter. While neither number is good, the idea that we should shift from the lower cost alternative to the more expensive (by almost a 2:1 margin!) choice is foolish[6].

The President also effectively illustrates and compares how our country has competed and grown in the past 30 years by looking at those years when the White House was under Republican versus Democratic control. As he shows, job growth was not only better under Democratic administrations, but wages improved across the board, not only benefiting the wealthy (who do well regardless of who is President) but lifting the real incomes of middle and lower class Americans. Further, when job growth is combined with a growing economy that balances its budget through fair taxation, we avoid the traps of deficit spending, high interest rates and the need for people to borrow just to keep pace, all hallmarks of the economic side effects of "supply side" economics. Moreover, and most damning, is the backward slide that took place under President George W. Bush on a host of metrics, from income inequality to life expectancy, from high school and college graduation rates to middle of the pack testing results for our high school students when compared to those from other countries. Of course, mediocre educational outcomes saddle kids with lower future earnings and, by extension, drag down our country's competitiveness in an ever more integrated world.

In other places too, we have fallen behind, as money that could have gone to upgrade our decaying roads and bridges or funded research and development went instead to Iraq and Afghanistan. In years past, those investments would have led to massive breakthroughs in science and technology but dried up as hundreds of billions were diverted to the rich and our war commitments. Even in basic areas like Internet connectivity, which is essential in our 21st Century economy, we lag well behind countries like South Korea, Japan and Denmark, among others. As the President succinctly notes, these things matter because they are precisely the places where we can create jobs, restore our competitiveness, innovate in ways that leverage our technology, and create efficiencies that make our businesses more profitable. Finally, as Mr. Clinton says, our weakening competitive position gives lie to the anti-government trope that low taxation and minimal regulation is necessary to foster growth because countries in Europe and South America that are growing faster and spending less per capita on things like health care all tax their citizens at higher levels than we do and impose stiffer regulations. As the President notes, if increased revenue is re-invested wisely, in places like funding education, offering incentives for businesses to re-locate and expanding research and development, they yield enormous societal dividends, not just financial gain for the very wealthy.

But the real strength of the President's book is the dizzying number of recommendations and ideas he puts forward to show not only where money can be saved in our system, but why (and how) government can encourage and spur growth. He notes that low hanging fruit like improved tax collection and making more government contracts competitively bid instead of no-bid, could save the government $100 billion a year. Other improvements, like streamlining paperwork, introducing uniform medical equipment sterilization in hospitals[7] and targeting the $150 billion a year we spend treating diabetes and obesity-related illness through better nutrition and dietary habits would make a further dent in our budget deficit woes.

On tax policy, I was pleased to see the President give attention to the budget proposal put forth by the House Progressive Caucus. That group, unlike both President Obama and the so-called "Ryan Plan," actually balances the budget, largely through dramatic reductions in defense and a variety of tax increases. And while the President throws some cold water on that proposal, he also lauds it for investing money back into the American economy through greater expenditures on infrastructure, a "smart" electrical grid, expanding broadband access, and providing greater funding for job training and education, all of which are precisely the types of investments that yield significant dividends down the road.

The last 80 or so pages of the book are littered with proposals both great and small for how to get the country moving again. The former President rightly identifies the need for resolving the continued mortgage overhang as a top priority, though I think his ideas, primarily tied to encouraging principal write downs, offering equity stakes to banks in distressed homes in exchange for reducing payments and accelerating rental of foreclosed upon homes are a good start, do not go far enough. What I would have like to have seen the President advocate is giving bankruptcy judges more authority to reduce principal amounts and to waive re-financing fees entirely for homeowners who are current but want to take advantage of low rates. Principal reduction should have been mandated as a requirement for receiving federal assistance through TARP or via the Federal Reserve, but that does not mean the government cannot revisit those types of obligations, as they should, particularly for those who are current on their payments and were not profligate. Having literally spent trillions to save the banking system, the amorality of what is happening to millions of homeowners in comparison is a stain on society.

Another enormous (and informative) block is spent discussing energy independence, not only for how it can benefit our national security but also in job creation. This is particularly important when a government investment like the one we made in Solyndra blows up. It's important to show that investing in green energy is a net positive for our economy but that not every investment is going to succeed. Whether it is the return we get on investing in solar, wind or retrofitting, all of which create more employment than coal-fired plants do, the fact that clean energy employment grew by 8 percent in the 2000s while many other industries stagnated (more than 50,000 new jobs tied to geothermal capacity have been created in just the last two years), and the jobs tend to pay better too, weigh in favor of continued investment in green technology. He also suggests coming up with creative partnerships to get utility companies to upgrade residential services while offsetting the cost by billing homeowners each month instead of asking the homeowner to pay a large up front fee for something like solar panels, encouraging pension fund investment in infrastructure banks and energy retrofitting and reinstating tax credits for green tech investment. The President notes that one part of government aggressively looking at renewable energy projects is the U.S. Army, who has no less than 126 projects underway and has invested more than $7 billion in these initiatives because the armed forces understand that improving energy efficiency, particularly when soldiers are in the field, is an essential way to protect them and reduce the risk for those transporting supplies across the war zone.

Finally, the former President encourages greater partnerships for expanding state exports, broadening the manufacturing base and putting greater resources into infrastructure spending, all of which will, in his view, help get people back to work, improve our global competitiveness (while opening new trading opportunities via free trade agreements), and invest in the needs of the country for decades to come. It’s hard to argue with any of these ideas, particularly since, at least until the last few years, many of them were embraced by politicians across the spectrum and through administrations starting before World War II and stretching through post-9/11 America.

My one quibble with the President’s tone is that he can, on the one hand, forcefully dissect the failure of Republican fiscal orthodoxy, but on the other, fall back on passive “we should try that” suggestions when it comes to implementing policy. Indeed, part of the failure of the current Administration was (and is) its failure to be more full-throated in its support/defense of precisely the types of investments that are needed to, as they put it, “win the future.” The difficult balancing act of shish kebobing the opposition while also lobbying for reasonable and sensible government investment is a difficult one to maintain, and both the former and current Presidents seem to fall into that trap. But this is nibbling at the edges, the overarching policy prescriptions that President Clinton advocates for are, in the main, both sensible and (I’m guessing) palatable to the broad swath of the electorate who supported him with sky high job approval ratings even as his less savory personal conduct was largely reproached.

After reading Back To Work, I hope people like Jonathan Chait understand the difference between the faux "hope and change" that Obama has peddled and the “points on the scoreboard” that Clinton can not only brag about, but place him in a unique position to offer solutions to our country’s woes. Obama’s continual backslides in the face of Republican opposition, almost reflexive unwillingness to truly “punish” Wall Street for its sins, the most recent example being the SEC's decision to appeal Judge Rakoff's denial of its pathetic settlement with Citigroup, and right-leaning tax policy, that has seen both an extension of all Bush tax cuts and an extension of the estate tax that was even more generous than Republicans asked for, are not progressive, and not the change people believed in when they voted for him. Contrast those decisions with tough choices made early in the Clinton years to raise taxes, set spending caps and clearly define areas that were off limits from cuts and/or received significant new investment, and one can see what progressive change starts to look like.

Perhaps Clinton ended up being, to some degree, a victim of his own success, that is, by raising, in a meaningful way, the incomes of all Americans, not just the wealthy, those still in need became an ever shrinking pool. Maybe they would have been aided in a Gore Administration, but we will never know. Was Clinton’s presidency perfect? Of course not. He didn't get health care passed, he got a blow job from an intern, and he walked away from a couple of nominees who weren't properly vetted. But a man who presided over a robust economy that lifted millions out of poverty, dramatically reduced crime, invested heavily in education, protected millions of acres of land, and took assault weapons off our streets has little to apologize for. That the inheritance he left his immediate successor was largely squandered is without question, but then again, neither is the fact that Bill Clinton still h

[1] Under Clinton, the federal work force, in real numbers, was the smallest it had been since the Eisenhower Administration and as a percentage of the total work force, the smallest since FDR.

[2] More than 22 million new jobs were created during Clinton’s two terms, 92 percent of which were in the private sector. By contrast, fewer than 1 million new jobs were created under George W. Bush and most of those were in the public sector.

[3] Amazingly, we are still paying off roughly $3.4 trillion in debt accumulated during the presidencies of Ronald Reagan and George H.W. Bush. Clinton’s contribution is less than $1.5 trillion.

[4] President Eisenhower launched the Interstate highway system in the mid 1950s, which resulted in the construction of more than 41,000 miles of roads – the largest peacetime public works project of its kind in our country’s history.

[5] President Nixon signed legislation creating, among other things, the Environmental Protection Agency and the Occupational Safety and Health Administration.

[6] This is something even Rep. Ryan appears to have acknowledged based on a recent compromise proposal he put forward with Senator Ron Wyden (D-OR), that would maintain the traditional Medicare option in a revised proposal that would also open the program up to private competition.

[7] The Department of Veterans Affairs has instituted these standards in its hospitals to great success and cost savings.