2011 - %3, February

Democrats Plan to Neuter EPA's Climate Regs

| Tue Feb. 1, 2011 5:48 PM EST

West Virginia Democrat Sen. Jay Rockefeller on Tuesday re-introduced his legislation that would block the Environmental Protection Agency from regulating greenhouse gases under the Clean Air Act for the next two years. Rockefeller offered the same bill last year, though it never went to a vote. This time he's joined by six other Democrats who are calling for a temporary time-out on the EPA regulations that began phasing in on Jan. 2.

Democrats Jim Webb (Va.), Claire McCaskill (Mo.), Tim Johnson (SD), Joe Manchin (W.Va.), Ben Nelson (Neb.) and Kent Conrad (ND) have signed on as co-sponsors to Rockefeller's bill. Their statement calls for granting Congress "enough time" to pass a climate bill, rather than regulating greenhouse gases under the Clean Air Act. (Not mentioning, of course, that it's now been four years since the Supreme Court ruled that the EPA could and should start this process, in the absence of a new climate-specific law.)

"We must give Congress enough time to consider a comprehensive energy bill to develop the clean coal technologies we need and reduce our dependence on foreign oil, protect West Virginia and improve our environment," said Rockefeller in a statement. "We can address emissions and secure a future for the U.S. coal industry, but we need the time to get it right and to move clean coal technology forward."

"I do not believe that Congress should cede its authority over an issue as important as climate change to unelected officials of the Executive Branch," said Webb, also in a statement. "It is critical to our environment and our national security that we move towards more responsible energy policy, but Congress—not the EPA—should enact any changes, and be accountable to the American people for them."

Manchin, who fired a rifle at a replica of the climate bill in a campaign ad last fall, accused the EPA of being an "adversary" on energy and "undermining our fragile economy."

When a similar effort to handcuff the EPA on climate was put to a vote last year, two other current Democratic senators also voted for it—Mary Landrieu (La.) and Mark Pryor (Ark.). That measure failed last June, but the conversation has shifted much farther to the right in the past seven months. Republicans in the Senate, led by John Barrasso of Wyoming, yesterday introduced their own bill that would permanently bar the EPA from acting on climate, under any and all environmental laws. Meanwhile, Sen. Jim Inhofe (R-Okla.) and Rep. Fred Upton (R-Mich.) are also reportedly collaborating on a bicameral bill that would be similarly aggressive. Meanwhile, the Republican takeover of the House has made it almost inevitable that they'll pass some sort of legislation blocking the EPA rules with ease. And then you've got Newt Gingrich, a would-be GOP presidential contender, out campaigning to abolish the agency entirely.

The real threat now is that the litany of bills from Republicans will serve to make Rockefeller's time-out look like the modest proposal, far less threatening than what the GOP wants to do.

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Huntsman for President! (In 2016)

| Tue Feb. 1, 2011 3:09 PM EST

Over at Democracy in America, Jon Fasman is trying to figure out why Jon Huntsman might be considering a run for the Republican presidential nomination this year:

Jon Huntsman was a successful governor, is a successful ambassador, is personable, handsome, accomplished, fluent in Mandarin and has all the makings of a major-party presidential candidate sometime in the future. Apparently, Mr Huntsman seems to have decided that the future is now: he will resign as ambassador to China in May and appears poised to run for president next year. This is a baffling decision....First, Republicans really don't like Barack Obama. Mr Huntsman has just spent two years as an Obama appointee....Second, why would he waste his candidacy this year? He brings moderation and an actual record of bipartisanship to a party and a primary electorate that seems interested in neither.

....The obvious answer, of course, is that he's leaping in because he thinks he can win.

Actually, I'd say the obvious answer is exactly the opposite. Huntsman's chances do indeed seem pretty slim in this election cycle — both in the primaries and in the general election. However, his name recognition is minuscule, and if he wants to run seriously in 2016 he needs to become better known. The best way to do that is to run in 2012. If he runs a decent, serious race, but loses to a more wingnutty candidate who then gets blown out by Obama, he'll have pretty good credentials for a 2016 run.

Now, I don't know if actual big-time politicians ever think this way. They seem to have an almost bottomless ability to believe against all evidence that they can win the presidency. (Fred Thompson? Seriously?) But Huntsman seems like a pretty smart, self-aware guy, and I wouldn't be surprised if he knows perfectly well that the odds are stacked against him. Most likely, what he's really doing is auditioning for 2016.

Chamber Calls Obama's Clean Energy Plan "Ridiculously Premature"

| Tue Feb. 1, 2011 2:24 PM EST

So much for everyone linking arms and walking together toward a clean energy future. A week after President Obama called for setting a goal of drawing 80 percent of electricity from "clean" energy sources by 2035, the US Chamber of Commerce sent a message back in his direction: fat chance.

The Chamber's Institute for 21st Century Energy held a press conference on Tuesday to roll out its energy plans for the year. Endorsement of a clean energy standard—even one that includes nuclear power, natural gas, and "clean coal" in the mix, as Obama's does—was not part of it. The Chamber has been a major opponent of efforts to cut greenhouse gas emissions, but the group signaled Tuesday that it is also going to fight Obama's much scaled-back version of an energy plan as well.

"It's ridiculously premature to even have a CES conversation," said Christopher Guith, vice president for policy at the Institute, referring to what specific figure the Chamber would endorse for a target. "We have very little idea where many of these new members of Congress are going. We know that the House majority has said that it's not very likely that they're even going to entertain a CES." He added, "The fact that the president put it out there—it's good to discuss the policy impacts, but again, the political reality is getting smaller by the day."

The Chamber says that the administration's approach to energy is "unrealistic"—arguing that it "picks winners and losers." The powerful business lobby group argued that an eight-fold increase in non-hydro renewables would be needed to meet that goal, which the group claims is "impossible" to achieve.

In particular, the Chamber pushed back on the call to cut subsidies and tax loopholes for the oil industry. "Raising taxes on the industry that fuels our lives shows a profound detachment from our energy and economic reality," said Karen Harbert, president of the Institute, in a statement last week. She elaborated further on the Chamber's preferred energy plan on Tuesday, calling for increased access to land for oil and gas drilling both onshore and offshore and eliminating "regulatory barriers" to energy projects.

The Chamber's plan calls for "streamlining" environmental reviews to speed energy projects faster, targeting in particular enforcement of the National Environmental Protection Act. The group insisted that it doesn't want enforcement weakened—but then went on to state that it wants to "ensure that the Clean Air Act and Clean Water Act are not used indiscriminately to threaten adequate supplies of energy."

The Chamber did support plans for a clean energy bank, a provision included in different iterations in both the House and Senate climate and energy bills last year under the name Clean Energy Deployment Administration, or CEDA.

One interesting element of the Chamber's energy presentation was the recognition that so-called "clean coal" isn't likely to play a significant role in the energy portfolio any time soon. "Clean coal technology most likely will not be available in that time frame," Harbert said in her opening remarks. Asked to elaborate after the event, Harbert said, "Given the state of readiness and from the industry's own acknowledgment, they don't see it having permeated the market in any significant manner."

This, of course, is far from what we were hearing a few years ago, when the coal industry and its allies were promising that emissions-free coal was just around the corner. Obama also touted it in the State of the Union address last week, though the Chamber's probably right on this one—it's looking less like a near-term option all the time.

Why Judge Vinson's Decision Matters

| Tue Feb. 1, 2011 2:06 PM EST

A couple of times yesterday I started up a post on the federal district court judge who ruled that the healthcare reform law was unconstitutional. And both times I killed it because I didn't really care. This case is going to the Supreme Court, and they don't give a rat's ass about the legal arguments of the various district court judges who have ruled for and against PPACA. So Judge Vinson's decision doesn't really matter.

But a lawyer friend of mine writes in to say it does matter:

Kevin, this is a classic example of what happens when judges become overtly political, so I have to disagree with one of your posts from a few days ago where you advocated for a more political judiciary.1  We're all political, and for judges that often serves to slant their opinions, but in our system of precedent there are generally a series of margins they can't push — such as willfully ignoring Appellate Court or Supreme Court precedent. Like Vinson does when he converts his opinion to a political policy statement. Orin Kerr takes him apart at Volokh Conspiracy. And what's frightening is that Orin is very clearly right but somehow none of that may matter if this just becomes another exercise in supporting Team Red no matter what the costs.

It's a heavy subject and I can't really write about it without sounding like a naif, but for me the struggle to maintain the independence of the judiciary is one of the most important for the country. And political and cavalier (and clearly intentionally unserious conduct) from Article III judges — or worse, appellate and S.Ct. judges — can have devastating effects. (o.k. so much for not sounding like a naif).

The Orin Kerr post he links to makes this point explicitly: district court judges aren't supposed to decide cases on first principles, as Judge Vinson appears to have done. They're required to obey precedent from higher courts. And unless the Supreme Court changes its mind, precedent is pretty clearly on the side of PPACA's individual mandate being constitutional, whether you like it or not:

The words of the relevant Supreme Court cases [Wickard v. Filburn and Gonzales v. Raich] point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.”....Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

In a narrowly operational sense, I still don't think these decisions mean anything. The Supreme Court will decide the fate of PPACA, and they are allowed to overturn precedent if they want to. Still, both Orin Kerr and my legal buddy have a point: both of the decisions ruling PPACA unconstitutional were embarrassing and dangerous. Judge Hudson relied on elementary logical mistakes of the kind that a first-year law student would get marked down for, and Judge Vinson simply decided to make up his own law and ignore precedent entirely. Conservatives really shouldn't be celebrating these decisions even if they happen to like the results. Rather, they should accept that lower courts need to reason properly based on existing precedent, but then argue that the Supreme Court needs to change the precedent. It's the only intellectually honest approach, and the only one that isn't likely to come back to bite them in the ass sometime down the road.

1In my defense, I was only arguing that Supreme Court justices should drop the pretense that they're purely apolitical creatures, since obviously they aren't. Plus I was drunk that day.

CREW Wants IRS Probe of GOP Outside Group

| Tue Feb. 1, 2011 2:03 PM EST

On Friday, I reported here that Democrats in Congress and campaign finance reform groups were plotting a strategy to legally challenge the tax-exempt status of powerful right-wing outside groups, including Crossroads GPS, American Action Network, and the American Future Fund. Earlier today, Citizens for Responsibility and Ethics in Washington did just that, formally requesting that the Internal Revenue Service investigate the American Future Fund to determine whether the Iowa-based group violated its tax-exempt status, which allows AFF to hide the identity of its donors.

As I explained, challenges to 501(c)4 outside groups' tax status hinge upon one particular clause in the tax law. According to the IRS, 501(c)4 groups, otherwise known as social welfare organizations, must be primarily issue-driven outfits. A group like American Future Fund can engage in political advocacy, running ads that attack or express support for a particular candidate, so long as that political advocacy "is not its primary activity." In a letter sent to the IRS on Tuesday, CREW alleges that AFF in fact made politicking its primary purpose.

AFF's initial filings with the IRS claim the group's dealings were "strictly issue based and non-partisan" and that AFF "does not support or oppose any candidate for public office." In the 2010 midterm elections, however, AFF spent upwards of $7.3 million expressly backing a particular candidate or calling for the defeat of another candidate. Another $2.2 million was spent on what are called "electioneering communications," or election-time ads name-dropping a particular candidate. This evidence, CREW says, is reason to believe that AFF might have violated its IRS status. And if the IRS agrees, AFF would be forced to register as a political action committee and open up its books to the public. "Given the amount of money the American Future Fund spent on ads in the 2010 congressional elections, it seems clear the primary—if not only—goal of the group is to elect Republicans to Congress," Melanie Sloan, CREW's executive director, said in a statement.

A request for comment with the American Future Fund wasn't immediately returned on Tuesday.

Here's more from CREW:

The list of AFF's officers reads like a who's who of Iowa Republican politics. Nicole Schlinger, AFF's sole board member when it was organized, is the former finance director for the Republican Party of Iowa. The current president, Sandra Greiner, served as a Republican in the Iowa House of Representatives from 1992-2008, was elected to the state Senate in 2010. AFF reportedly got its initial seed money from Bruce Rastetter, CEO of Hawkeye Energy Holdings, who has been described by Iowa newspapers as a "long-time power broker in Iowa politics." ...

"How can an organization that has a sitting Republican legislator as its chief executive claim to be non-partisan?" said Ms. Sloan. "It is clear the American Future Fund is a front for wealthy Republicans to anonymously spend millions electing Republicans to Congress."

And here's CREW's complete letter to the IRS:

2-1-2011 AFF IRS Letter

The $700 Million Neon Sign

| Tue Feb. 1, 2011 1:16 PM EST

In its never-ending quest for a pro football team, one of the groups with plans to build a new stadium in Los Angeles is teeing up an announcement:

Backers of a plan to build a football stadium in downtown Los Angeles are set to announce Tuesday that they have reached a naming-rights deal worth $700 million, which would be the most valuable such agreement ever and a significant step toward bringing an NFL team to Los Angeles.

....The deal [with Farmers Insurance] would provide AEG's proposed project a crucial chunk of contractually obligated income, starting at $20 million for the first year and escalating incrementally every year after, according to individuals familiar with the negotiations but not involved in them. The stadium would be named Farmers Field.

I'm wildly ignorant about this stuff, and obviously naming rights have been big business for sports venues for a long time now. But I'm still a little perplexed by it. Is this stuff really worth it? Does Farmers Insurance truly get $20 million per year of promotional value just for having its name on a stadium? Or is this largely a charity operation, with a local company demonstrating its support for the community? Or what? Can anyone point me to the definitive piece to read on naming deals?

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Subsidizing Food

| Tue Feb. 1, 2011 12:27 PM EST

The latest from the Middle East:

Jordan's King Abdullah II on Tuesday dismissed Prime Minister Samir Rifai and his cabinet after widespread protests by crowds of people inspired by demonstrations in Egypt, Tunisia and elsewhere.

The weekly demonstrations, which have drawn momentum from the unrest in the region and were joined Friday by thousands across Jordan, reflect growing discontent stoked by the most serious domestic economic crisis in years and accusations of rampant government. Demonstrators protested rising prices and demanded the dismissal of Rifai and his government.

One of the staples of op-ed page commentary is complaints about third-world governments that subsidize food and fuel to keep prices down. It's inefficient! The market should set prices! And so it should. But events of the past couple of weeks certainly make the decision to subsidize a lot more understandable, don't they? If it's a choice between market efficiency and keeping your head off a pike, market efficiency is going to lose every time.

Did Democrats Unwittingly Sabotage Health Reform?

| Tue Feb. 1, 2011 11:18 AM EST

A closer look at Florida Judge Vinson's ruling against federal health care reform shows that he relied on the Obama administration's own defense of the law to justify his decision. As Reason's Peter Suderman points out, the Florida judge cites the White House's own defense that the mandate is absolutely "essential" for the rest of the law to work:

The defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms "cannot be severed from the [individual mandate]." As explained in my order on the motion to dismiss: "the defendants concede that [the individual mandate] is absolutely necessary for the Act’s insurance market reforms to work as intended. In fact, they refer to it as an 'essential' part of the Act at least fourteen times in their motion to dismiss." [Emphasis added.]

In fact, in recent weeks, Democratic defenders of health reform have only become more vocal about the catastrophic consequences of removing the mandate as conservatives have zeroed in on the provision. Independent analysts have confirmed as much, explaining that premiums would skyrocket and the insurance market would descend into chaos if the mandate were removed while the other provisions were kept in place. "Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word," Suderman sums up.

Vinson seems to be taking the Obama administration's argument at face value—and refusing to go any further. In the wake of the first federal ruling against the law in December, reform's supporters argued that there were, in fact, ways to salvage the rest of the legislation without the individual mandate. As I reported at the time, "One would be an opt-out rule that would allow people to forgo insurance, but which would offer the benefits under health reform to those who chose to be covered—including government subsidies to buy insurance and regulations that would prevent them from being denied coverage." Such fixes wouldn't be easy, but they aren't out of the question. And while most Democrats haven't focused on such fixes in hopes of gaining support for the mandate itself, moderates like Sen. Claire McCaskill (D-Mo.) have been more vocal about such alternatives. Vinson, by contrast, has chosen the most fatalistic interpretation of the Democrats' remarks on the mandate to bolster his case for tearing the whole law down.

That being said, when it comes to Vinson's fundamental reason for knocking down the entire law, there's little question that the Democrats unwittingly handed him a key piece of ammunition. A year ago, when Sen. Scott Brown's election in Massachusetts imperiled the entire reform bill, with a key vote lost in the Senate, Democrats resorted to a rushed reconciliation process to salvage it. In doing so, they ended up forgoing some key steps in mistake-proofing the legislation—and forgot to put in a "severability" clause that would allow any single provision to be removed without imperiling the rest of the law. The omission has now given a potent legal weapon to tear down the entire law—one that Vinson readily employed. Read Slate's Dave Weigel for more details about the Democrats' potentially fatal flaw.

What Will the Senate Do with Obama's Energy Plan?

| Tue Feb. 1, 2011 10:00 AM EST

I am more than a little skeptical that energy is truly a "non-partisan" issue, as the administration has argued since President Obama's State of the Union address last week. But there are at least some indications that the White House is going to engage more directly with Congress on the energy issue, in hopes of securing passage of legislation that can put the US on track to draw 80 percent of its energy from "clean" sources by 2035.

Sen. Jeff Bingaman (D-N.M.) said Monday that he intends to work closely with the White House and with members of the Senate Energy and Natural Resources Committee, which he chairs, to craft legislation to create a clean energy standard. "The White House has asked us to work with them to see exactly how provisions for this clean energy standard would be developed," said Bingaman in a speech at the National Press Club. "Obviously there are a lot of details to be worked out."

He declined to make predictions on what that standard might look like, and whether it would include specific carve outs for renewables. His committee last year passed a bipartisan bill that included a renewable electricity standard that would have required utilities to draw 15 percent of their power from renewable sources by 2021. That version, which was never approved by the full Senate, did not include nuclear power, "clean coal," or natural gas, as the proposal the Obama administration outlined last week would.

"I am hoping we can come up with a consensus proposal that makes sense to a bipartisan group in the Senate as well as the White House," said Bingaman. "I think clearly the White House needs to be involved. They are involved at this point."

He also expressed hope that a number of energy measures his committee passed last year only to see them die on the Senate floor would be passed in short order this year, including appliance efficiency standards, the Homestar bill (which would provide incentives for homeowners to improve efficiency), improved efficiency standards for commercial buildings, and rebates for consumers who purchase fuel-efficient vehicles.

Bingaman was also asked about another tenet of Obama's energy plan—cutting subsides for oil. He noted that the administration has included the proposal in the previous two budgets it presented—but that it "didn't get any traction." "I would be surprised if we got a great deal of traction this year either," he said.

WATCH: Lazy Teenage Superheroes vs. Robot Bollywood [Videos]

| Tue Feb. 1, 2011 8:20 AM EST

Speaking of pot, the charming little stoner film embedded below brings $300 worth of special effects to a plot just a tad more absurd than Harold and Kumar Go to White Castle. Though sadly lacking in Neil Patrick Harris cameos, it's still worth a watch, if only to see what $300 will get you these days in the way of ninjas and giant robot effects. (Answer: A lot.) Boing Boing's Cory Doctorow sums it up thusly:

Lazy Teenage Superheroes is an extremely funny, extremely well-executed 13-minute rude little superhero movie, made by Michael Ashton for a mere $300. It's full of cussin', lewd speculative scenarios involving the private lives of slacker teen supes who are mostly interested in using their powers to get loaded and/or laid. And there's ninjas and herpes jokes.

Watch LTS below:

But wait: What could possibly be better than a $300 action film about superheroes who use their powers only to get high? You guessed it: Robot Bollywood. Alas, no Neil Patrick Harris in this clip either, but the lo-fi special effects are still pretty darn awesome. Watch it below:

Top image: Lazy Teenage Superheroes.