2011 - %3, January

Obama Picks Copyright Lawyer Don Verrilli for Top Legal Post

| Tue Jan. 25, 2011 3:45 AM PST

President Barack Obama is poised to nominate Don Verrilli, a deputy White House counsel and former top copyright lawyer, to replace now-Supreme Court Justice Elena Kagan as Solicitor General, the government's top lawyer. The Atlantic's Marc Ambinder first reported that Verrilli was the likely pick way back in May 2010, but on Monday, the New York Times' Charlie Savage confirmed the long-expected move is imminent. As Savage notes, Verrilli has a great reputation, significant bipartisan support (conservative legal legend Ted Olsen and former George W. Bush appeals court nominee Miguel Estrada both like him), and sterling legal credentials. Even in today's closely divided Senate, Verrilli is very likely to be confirmed. But as I reported last year, Verrilli's history may draw some criticism from copyright reform activists, whom he repeatedly whooped in court for more than a decade:

Verrilli, who's now serving as an associate White House counsel, is best known for convincing the Supreme Court that file-sharing networks could be sued for copyright infringement—a win that earned him the ire of copyright reform supporters and a reputation as the "guy who killed Grokster," a file-sharing service. 

Verrilli represented a group of 28 entertainment companies that sued Grokster and another file-sharing company, Streamcast, in 2003. The plaintiffs argued that the companies should be penalized for the large amounts of copyrighted music and movies that were downloaded by their users. Critics of the Grokster decision argue the company itself wasn't [violating copyright law], although some of its users were. Grokster's defenders added that not all of the sharing was illegal. The Supreme Court sided with Verrilli's clients—the eventual settlement cost Grokster $50 million and effectively shuttered the site.

More recently, Verrilli has worked on a case with even higher stakes. Until he joined the Obama administration, Verrilli led a team of lawyers that had sued Google for $1 billion on behalf of Viacom, the entertainment company that owns CBS, MTV, and Comedy Central. The suit alleges "massive intentional copyright infringement" by YouTube, Google's internet video site.

Copyright reform activists and file sharers don't have much pull on Capitol Hill, and even Verrilli's opponents seem to like him, so it's unlikely that his past will derail his nomination. But the very fact that Verrilli's promotion already seems like a done deal is a powerful illustration of what matters in Washington, and what doesn't.

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We're Still at War: Photo of the Day for January 25, 2011

Tue Jan. 25, 2011 3:30 AM PST

Afghan National Army soldiers assist 1st Lt. Michael Viti, platoon leader, Company A, 1st Battalion, 22nd Infantry Regiment out of a riverbed, Jan. 9, while conducting patrols near the village of Lowy Manarah in the Arghanda district, Kandahar province, Afghanistan. U.S. Army Photo by Pfc. Nathan Thome

The Virtue of Self-Control

| Mon Jan. 24, 2011 11:18 PM PST

This isn't too surprising, but a new study that tracked over a thousand children from the age of 3 to the age of 32 has found that the long-term effects of poor self-control are at least as important as intelligence and social class origin:

Childhood self-control predicted adult health problems....elevated risk for substance dependence....less financially planful....less likely to save and had acquired fewer financial building blocks for the future....struggling financially in adulthood....more money-management difficulties....more credit problems....more likely to be convicted of a criminal offense.

The authors suggest two different paths by which poor self-control creates problems later in life:

Adolescents with low self-control made mistakes, such as starting smoking, leaving high school, and having an unplanned baby, that could ensnare them in lifestyles with lasting ill effects....Thus, interventions in adolescence that prevent or ameliorate the consequences of teenagers’ mistakes might go far to improve the health, wealth, and public safety of the population. On the other hand, that childhood self-control predicts adolescents’ mistakes implies that early childhood intervention could prevent them....Early childhood intervention that enhances self-control is likely to bring a greater return on investment than harm reduction programs targeting adolescents alone.

The policy implications here remain to be worked out, but it's yet another indication that the benefits of intensive early childhood interventions go far beyond academic achievement. Even if early childhood programs have no lasting effect on school test scores at all, they might still be immensely valuable if they improve levels of self-control. The question is, what's the best way to do that?

The Mystery of Fact Checking

| Mon Jan. 24, 2011 4:39 PM PST

Megan McArdle comments on a book review that bemoans its target's many basic factual errors:

This is what fact checkers are for, and I don't understand why book publishers don't have them. They cost money, to be sure--but not that much money....A quarter of a million dollars a year would get you the world's finest staff of crack fact checkers.

....Presumably the answer is that it isn't economic: readers don't care, and indeed rarely learn; there's no money in preventing the occasional catastrophe []. But then one must turn the question around: why do magazines like The Economist, the New Yorker, and yes, The Atlantic, employ fact checkers? Our readers are the potential consumers of books like the one that the Economist is reviewing; do they care less about accuracy in their books than in their magazine articles?

Not that anyone at The Atlantic thinks about it that way; we employ fact checkers because it seems like the right thing to do. But why does this ethic prevail at so many magazines, and at no publishing house?

I have my doubts about this. When I think about the amount of work that MoJo's fact checkers put into the 4,000-word articles I write, and then multiply that by 20 for the entire magazine, that's a lot of fact checking. And it's probably less than you'd need for the average 300-page nonfiction book. At a guess (since no fact checkers are checking this blog), I'd say that fact checking a book would cost upwards of $5-10,000, and considering that most nonfiction books don't even make back their advances, that's a lot of money.

But there's another thing going on here as well: if a book has errors, people blame the author. They don't generally blame Random House or Simon & Schuster. But if there are errors in a magazine, people blame the magazine. So magazines simply have a stronger incentive to protect their brand than book publishers do.

Beyond that, I suppose it's just inertia: magazines have had fact checkers for a long time and book publishers haven't. Any other ideas?

The Myth of Slow Growth

| Mon Jan. 24, 2011 4:00 PM PST

Earlier this morning I suggested that policies aimed at economic growth, though obviously a good thing, aren't enough to raise middle class fortunes. You also need economic policies that focus on the middle class. Matt Yglesias counters:

I’m not really sure how separate they are. I think the specific fate of the very poor can become pretty unmoored from overall economic conditions, but certainly as a historical matter middle class incomes have risen the most at the same times America’s has had the most rapid economic growth—the 30 years after World War II and the late 1990s. You can construct some models in which this isn’t the case, but in practice the basic mechanisms for faster economic growth lead to rising middle class incomes, though not necessarily rising incomes for each individual middle class household.

This is a surprisingly hardy myth, and I'd like to help it die the grisly death it deserves. Here's a chart showing real per capita GDP growth in the United States over the past century. I've helpfully added a straight red line for the period from 1950 to the present day:

The past 30 years simply haven't been a low-growth period. In fact, economic growth has been about the same as it was in the 30 years before that. Our problem isn't growth, our problem is that the returns to growth have increasingly been skewed in favor of the very rich.

It's certainly true that middle class wages tend to rise in extremely tight labor markets, like the one we had in the late 90s. Mickey Kaus is fond of making that point. But this is pretty meaningless unless you have a plan to keep labor markets perpetually tight. If you do, then believe me, I'll be the first to sign up. But no one has such a plan. In the real world, we have to deal with the fact that real per capita growth is likely to be a pretty steady 2% per year over the long term and labor markets are going to fluctuate around a level that's (hopefully) snug but not perpetually at 90s-era tightness.

The prosperity of the middle class obviously depends on a growing economy. But just as obviously, it depends on more than that. For liberalism to mean anything at all, we need to support policies that are aimed both at overall economic growth and at ensuring that prosperity is widely shared. We haven't done a very good job of that over the past 30 years.

Compton's "Parent Trigger" Education Fight Heats Up

| Mon Jan. 24, 2011 1:27 PM PST

Looks like the "parent-trigger law" debate is heating up between Compton' pro-charter parents and the Compton Unified School District.

If you haven't been following the news out of Compton, last month I blogged about how parents of kids attending LA's public McKinley Elementary School are trying something new: Shutting down the chronically struggling institution and demanding that it be replaced by a charter school. And yes, they can do that—thanks to a new parental option called the "parent-trigger" law, which allows parents to force big changes at the state's lowest-performing schools, if they can gather signatures from 51 percent of the parents whose kids attend a failing school. McKinley parents and advocates gathered the signatures they needed, but now Compton Unified wants them verified. Last month, there were some reports of alleged intimidation tactics while these signatures where gathered.

A press release I received says that McKinley parents are meeting right now to decide their next steps:

"Every parent who wants change at McKinley must now show up at the school on either Wednesday or Thursday of next week, endure a mysterious five-minute interview with district employees, and declare their support in this interview for change. In addition, they must present photo identification at this interview, a requirement that even supersedes the requirements to participate in state and federal elections in California and would undoubtedly have a chilling effect on a community of people of color and immigrants. ... Any parent who is unable or unwilling to complete this process for any reason—such as being sick or unable to get out of work on such short notice—will no longer be able to count towards the 61% of parents who have demanded change under the Parent Trigger law, regardless of whether they have already met the legal requirements to do so under the Parent Trigger and the State Board."

LA Weekly reporter Patrick Range McDonald has been following this case, and will post an update when he returns from the meeting. Here's what he blogged before he ran off to the press conference:

"President Barack Obama's Education Secretary Arne Duncan backed the Parent Trigger effort in Compton, but as things have gotten more and more tense, the feds have been publicly missing in action .... despite the fact that Compton parents have filed complaints with the feds.

Governor Jerry Brown has also been nowhere to be found, although Compton Unified officials are undertaking questionable tactics that could undermine a state law. California Attorney General Kamala Harris has been absent, too.

Since state and federal politicians seem unwilling to ensure that Compton Unified authorities abide by the law, maybe former President Jimmy Carter, who's been known to observe democratic elections in various parts of the world, needs to come into town and play sheriff."

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The GOP's Healthcare Non-Plan

| Mon Jan. 24, 2011 11:34 AM PST

The Republican mantra on healthcare reform is "Repeal and Replace." But replace it with what? Ross Douthat has some ideas, one of which is this:

Republicans should work to deregulate the new health care exchanges, so that high-deductible, catastrophic coverage can be purchased as easily as comprehensive plans.

But as Jon Cohn points out, PPACA already supports high-deductible plans:

Look closely at the standards for coverage in the insurance exchanges: The minimal, or bronze, insurance option allows out-of-pocket spending of up to $12,500 for a family of four. The actuarial value is 60 percent, which means, very roughly, that the plan only covers about 60 percent of the average person's medical bills. Those are some pretty high deductibles!

Ross's second idea is to limit subsidies for low-income workers, which, needless to say, guts the entire point of the bill. His third is to tweak the individual mandate in ways that, as Jon Chait says, are probably sensible. Unfortunately:

There's little reason to believe either that these objections represent the right's real problem with the Affordable Care Act or that they're willing to consider any tweak to improve the law.

The conservative base has simply been whipped into such a frenzy on this issue that it's impossible to imagine Republicans making any change that isn't designed to lead to full repeal. There's a reason why conservative magazines and writers keep repeating the slogan "Repeal" endlessly. It's more a point of honor than policy. The Affordable Care Act has become, in the right wing mind, a monstrosity, a completely illegitimate assault on American freedom, and an emotional wound that conservative elites work very hard to ensure never heals.

Of course, it's very helpful for conservative elites like Matthews and Douthat treat the right's objections to the individual mandate (a policy tool Republicans either supported or had little objection to up until 2009) at face value. Eventually conservatives will make their peace with health scare reform, and either put their policy imprint on it or not. But in the meantime the overwhelming conservative impetus is to sabotage the law by any available means. A reform to the law that satisfies objections to the individual mandate, but that does not satisfy the urge to repeal the bill, will be seen by most Republicans as untouchable.

Is there any serious argument that Jon is wrong about this? Republicans have never taken universal healthcare seriously, after all. In fact, as near as I can tell, they're philosophically opposed to the whole idea, regardless of how it's implemented. Wonky healthcare proposals from various corners of conservativedom should mostly be thought of not as serious plans, but as useful window dressing that allows conservatives to claim on Sunday chat shows that they do too have constructive ideas about healthcare. But the plain fact is that none of these comprehensive proposals could get the support of even a quarter of the Republican congressional caucus. Maybe not even that much. Republicans have had plenty of time to think about this, and if they seriously thought that a Douthat-esque plan was a good idea they would have proposed it long ago. They didn't, and they're not going to this time around either.

Filibuster Reform is Dead

| Mon Jan. 24, 2011 10:45 AM PST

Over the weekend a reader asked me whatever happened to Democratic plans to reform the filibuster at the beginning of this year's Senate session. It's still in progress, I said, but I hadn't heard anything specific. However, that was because I didn't read the paper on Saturday. Paul Kane reports:

To the dismay of a younger crop of Democrats and some outside liberal activists, there is no chance that rules surrounding the filibuster will be challenged, senior aides on both sides of the aisle say, because party leaders want to protect the right of the Senate's minority party to sometimes force a supermajority of 60 votes to approve legislation.

Instead, rank-and-file lawmakers will receive pitches from Sens. Charles E. Schumer (D-N.Y.) and Lamar Alexander (R-Tenn.), who have been negotiating more limited changes, such as with "secret holds" that allow an anonymous senator to slow legislation. In addition, some modifications could be made to the way confirmations are handled for agency nominees who do not have direct roles in policymaking.

Unsurprisingly, no one wants to seriously muck around with the filibuster. Republicans are opposed because they're the minority party and Democrats are unenthusiastic because someday they might be the minority party:

While liberal groups such as MoveOn.org and some unions such as the Communications Workers of America are supporting the Udall effort, the liberal coalition is far from united on the issue. Some large members of the AFL-CIO have been noticeably silent, while some abortion rights groups have publicly declared their opposition to changing filibuster rules. That, some Democratic aides said, is because in the 1990s and in the early days of the George W. Bush White House - when Republicans controlled both ends of the Capitol - these groups relied on their Senate Democratic allies and the 60-vote threshold to protect key rights such as Davis-Bacon wages for federal works projects and the Roe v. Wade abortion decision.

So there you have it. We'll get some minor changes at best, but nothing serious.

In the Social Security Debate, Today's Democrats Are Worse Than Yesterday's Republicans

| Mon Jan. 24, 2011 10:29 AM PST

Having “retooled’’ his Presidency for a more open accommodation of the center right, Obama will soon be overseeing the battle to launch a dismantling of the Social Security system.

His government has, from the start, been reminiscent of the Clinton years, so it’s safe to say that we can expect more triangulation. Clinton’s adoption of Republican tropes led him to fulfill some of the conservatives’ fondest dreams: His administration countenanced the demise of the banking regulations originally established by the Depression-era Glass Steagall Act, and the destruction of the welfare system established in the 1930s and expanded in the 1960s. Obama will provide much the same function on Social Security. Without entirely destroying the popular program, he will support cuts that go beyond anything that should rightly happen during a Democratic administration.

Of course, the Democrats will say that it isn’t their fault: It all happened because of that horrid Tea Party, dragging conservative Republicans even further to the right. This suggests that Democrats had no choice but to head them off at the rightward pass, as if standing and fighting simply wasn’t an option—and as if they didn’t still hold the Senate and the White House.  

What makes this especially disconcerting, for anyone who has lived long enough to remember earlier political eras, is how favorably the Republicans of the past compare to the Democrats of the present on many points.

Pawlenty Ready to Back Gov't Shutdown Over Debt Ceiling

| Mon Jan. 24, 2011 10:27 AM PST

Tim Pawlenty—who has all but announced his 2012 bid for the GOP presidential nomination—has come out against raising the federal debt ceiling, and he's even willing to shut down the federal government over the issue.

In a Washington Post op-ed on Friday, the former Minnesota governor argues that Congress should refuse to act when US borrowing approaches the statutory cap later this year. Conservative Republicans have already threatened a standoff with the Obama administration over the debt ceiling, vowing to force America to default on its debts if Democrats don't deliver the spending cuts the GOP wants. But even if the federal government were to shut down in the wake of a debt limit fight, the conflict could help the country in the long run, Pawlenty claims. A 2002 shutdown in Minnesota when Pawlenty was governor "changed the state's spending pattern dramatically," he writes.

Pawlenty also defended the utility of a federal government shutdown during a January 12 radio spot with the American Family Association's Bryan Fischer. Though Pawlenty was criticized for defending Don't Ask Don't Tell in the interview with Fischer, he also emphasized that he was a fiscal right-winger as much as a social conservative:

FISCHER: You had a government shutdown over a budget battle back in 2002. What lessons would you want to pass on to fiscal conservatives today if that were to happen today in DC?

PAWLENTY: Well, two things. One is that you can't be reckless about it. But we had a partial government shutdown in Minnesota and the world didn't come to an end. And so you don’t want to have that be your goal. But sometimes, Bryan, when it's appropriate and you're standing on the right principles, there needs to be strong conviction and sometimes a showdown.

Though Pawlenty has stopped short of calling for a full-scale revolt, his hard line could encourage Congressional Republicans intent on drawing Democrats into a game of chicken as the debt ceiling fight draws nearer.