2013 - %3, February

Justice Scalia and the Voting Rights Act

| Thu Feb. 28, 2013 10:44 PM EST

I've been mulling over Antonin Scalia's extraordinary outburst against the Voting Rights Act yesterday, but the more I think about it the more peculiar it seems.

Background first. The provision of the VRA at issue is preclearance, which requires certain states and counties with prior records of racial discrimination to get clearance from the Justice Department before they make changes to their election laws. My understanding is that there are two opposing constitutional interests here. First, under the principle of federalism, states have an interest in making and administering their own laws without getting prior permission from the federal government. Second, under the Fifteenth Amendment, the federal government has an interest in making sure that states don't abridge the right to vote based on race or skin color. When the Supreme Court upheld the VRA in South Carolina v. Katzenbach, it explicitly noted that preclearance tested the boundaries of federal authority:

This may have been an uncommon exercise of congressional power, as South Carolina contends, but the Court has recognized that exceptional conditions can justify legislative measures not otherwise appropriate....Congress knew that some of the States covered by [] the Act had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees. Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself. Under the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.

In other words, Congress doesn't have the inherent power to approve or veto state election laws. In fact, normally it wouldn't have this power at all. But in this particular case, the court ruled, it had this authority because there were "unique circumstances" that caused the Fifteenth Amendment to trump the rights of the states. The misbehavior of the states in question had been so egregious, so longstanding, and so impervious to previous attempts to stop it, that Congress's extraordinary remedy in the VRA was justified.

In other words, there really is a legitimate constitutional question here. Congress has the power to abrogate state authority only if suitably exceptional conditions apply, and it's a proper question for the Court to decide whether those exceptional conditions still exist. Given this, why would Scalia let loose with this Limbaugh-esque analysis of why Congress reauthorized the VRA in 2006?

I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes....And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution... [T]his is not the kind of a question you can leave to Congress.

Scalia here is making it sound as if Congress just flatly can't be trusted with this kind of decision. But why say something so outlandish when he has a perfectly conventional argument to make instead? Why not simply stick to the question of whether present-day circumstances remain exceptional enough to warrant such a significant intrusion into the customary right of states to make and enforce their own laws?

So I'm sort of stumped. Was there an actual reason Scalia went so far beyond what was necessary? Or was it just a cranky outburst that he made because, after all, who's going to stop him? Even for Scalia, it seems pretty damn peculiar.

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Watch: Piers Morgan Schools John Lott Jr. on Mass Shootings

Thu Feb. 28, 2013 7:51 PM EST

Before CNN's Piers Morgan and his statistically-challenged guest got into a full-blown battle about guns Wednesday night, Morgan laid out some numbers and charts from our in-depth investigation into mass shootings. Watch:

VAWA Passes, the Hastert Rule Takes a Tumble

| Thu Feb. 28, 2013 2:36 PM EST

The House finally reauthorized the Violence Against Women Act today despite the opposition of more than half the Republican caucus. Steve Benen thinks this means the wind is shifting on the venerable Hastert Rule:

We're learning something important about House Speaker John Boehner (R-Ohio) and the so-called "Hastert Rule." For those who need a refresher, under modern Republican norms, the Speaker only considers legislation that enjoys "majority of the majority" support — if most GOP House members oppose a measure, it won't even be considered, whether it can pass the chamber or not.

The non-binding rule is great for party discipline, but lousy for democracy and governing.

For Boehner's part, the Speaker has long believed in enforcing the "Hastert Rule," but he's finding far more flexibility on the issue than we're accustomed to seeing. When it was time to approve the "fiscal cliff" deal, Boehner ignored the rule to pass a bipartisan Senate plan. When he needed to pass relief aid to Hurricane Sandy victims, he bypassed the rule again.

At the time, the Speaker said these were isolated incidents that wouldn't be repeated, but he we are again — most of Boehner's caucus opposed the Violence Against Women Act, but he brought it to the floor and passed it anyway.

I guess my takeaway is a little different: This is mostly a sign that Boehner understands what his party is up against. In the last election, Republican problems with the Hispanic vote got most of the attention, but that's not the only demographic group the GOP is losing badly. There's also women. And young voters. And especially young women voters: in the last two elections, they've voted for Obama by whopping margins of 69 and 66 percent.

So in the same way that pragmatic Republicans are in favor of passing some kind of comprehensive immigration bill to stop the bleeding among Hispanics, Boehner wanted to pass VAWA in order to stop the bleeding among young women, for whom this is very much a hot button issue. This same dynamic might play out on a few other issues too, but I'm not sure if it heralds the demise of the Hastert Rule more generally. We'll have to wait and see.

More (Stronger) Evidence Linking Sugar to Diabetes

| Thu Feb. 28, 2013 1:36 PM EST

A new study published in the open-access science journal PLoS One offers some of the strongest evidence yet associating sugar, independent of other diet and lifestyle factors, with type 2 diabetes—a link that the sugar industry has sought for decades to debunk.

The study's four authors, including Robert Lustig of the University of California-San Francisco, examined data on sugar intake and diabetes prevalence in 175 countries "controlling for other food types (including fibers, meats, fruits, oils, cereals), total calories, overweight and obesity, period-effects, and several socioeconomic variables such as aging, urbanization and income."

For each bump in sugar "availability" (consumption plus waste) equivalent to about a can of soda per day, they observed a 1 percent rise in diabetes prevalence. This is a correlation, of course, and correlation does not necessarily equal causation. On the other hand, as the authors note in a lay summary, this "is far stronger than a typical point-in-time medical correlation study."

"No other food types yielded significant individual associations with diabetes prevalence after controlling for obesity and other confounders," the PLoS article states. "Differences in sugar availability statistically explain variations in diabetes prevalence rates at a population level that are not explained by physical activity, overweight or obesity."

The correlation, the authors also reported, was "independent of other changes in economic and social change such as urbanization, aging, changes to household income, sedentary lifestyles, and tobacco or alcohol use. We found that obesity appeared to exacerbate, but not confound, the impact of sugar availability on diabetes prevalence, strengthening the argument for targeted public health approaches to excessive sugar consumption."

GOP Caves, Stops Blocking Violence Against Women Act

| Thu Feb. 28, 2013 1:21 PM EST
Congress passes the Violence Against Women Act.

On Thursday, following a heated debate on the House floor, lawmakers passed the reauthorization of the Violence Against Women Act. Republicans had held up the law for more than a year over provisions designed to protect undocumented immigrants, Native Americans, and members of the LGBT community. In a separate, earlier vote, the House rejected an alternative, stripped-down VAWA pushed by House Majority Leader Rep. Eric Cantor, instead embracing the bipartisan version of the bill the Senate passed last week.

The Senate version of the bill, however, was itself a modified version of Democrats' original bill, passed after Democrats acquiesced to Republican objections and removed a section that would have made more visas available to undocumented victims of domestic violence who help law enforcement prosecute their abusers. But the Senate's compromise bill wasn't good enough for the House Republican leadership, who introduced an alternate version that removed protections for members of the LGBT community and made it harder for tribal courts to prosecute non-Indian abusers.

Rights groups panned the House GOP leadership's version of the bill and pushed the House to approve the Senate version. For reasons that are still unclear, the House Republican leadership went ahead and allowed lawmakers to vote on both the Republican alternative and the bipartisan Senate version of the bill. The Associated Press reported that a letter from several Republican lawmakers to the House GOP leadership may have convinced the leadership they didn't have the votes to block the VAWA reauthorization again. The letter urged the Republican leadership to pass an inclusive version of VAWA that would "reach all victims and perpetrators of domestic violence, dating violence, sexual assault, and stalking in every community in the country." 

Terry O'Neill, president of the National Organization for Women, argues that Republicans came back from the November elections knowing they would have to move on VAWA. "Elections matter," O'Neill says. "What happened between the 112th and the 113th Congress is that everybody in the country became sharply aware that the Republican Party has a problem with the issue of rape."

Thursday's vote was much closer than 2005, the last time the Violence Against Women Act was reauthorized. This year, the bill passed 286-138, with just 87 Republicans joining all 199 Democrats (one Democrat did not vote). In 2005, there were only four "no" votes

Arkansas Accepts Medicaid Expansion, But Not Via Medicaid

| Thu Feb. 28, 2013 1:12 PM EST

Ed Kilgore, once again directing his gimlet eye at goings-on in his native South, points us today to a report that Arkansas plans to accept the full expansion of Medicaid that's part of Obamacare. The gotcha is that Arkansas' Republican legislature is insisting that instead of receiving traditional Medicaid, all the new beneficiaries will get benefits via private insurance purchased on Obamacare's exchanges. This will almost certainly be more expensive, but apparently Republicans are so enamored of a private solution that they're willing to accept this.

Ed is pretty gobsmacked by that, but I'm a little more willing to wait and see how it works out. In particular, I happen to think this may solve a legitimate problem. Here's the tail end of an article in the Arkansas Times:

Department of Human Services Director John Selig speculated that things would actually run more smoothly. "The most difficult part of the exchange was going to be people going from Medicaid to private insurance, back and forth as they went up and down [the] income line," he said. "Now, you just keep [the private insurance company] as you go up or down. In a lot of ways this simplifies what happens on the exchange."

This really is an issue with the Medicaid expansion, and it's a well known one. If you're at 130 percent of the poverty level this year, you qualify for Medicaid. If you get a raise and go up to 140 percent next year, you no longer qualify and instead have to navigate the exchanges. If your hours are cut back and you fall to 130 percent again the year after that, it's back to Medicaid.

How big a deal is this? That's hard to say. But it's not a made-up issue, and it's possible that the Arkansas approach could legitimately be better. What's more, I'm OK with allowing states to experiment within limits. It's the only way to find out whether or not the exchanges really are more expensive, and whether or not the Medicaid ping-pong really is a serious problem. The ideology behind this decision might be misguided, but there's a good chance we'll get some useful data out of it regardless.

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Shale Gas Fracking Will Be Around For a Long, Long Time

| Thu Feb. 28, 2013 12:37 PM EST

The Wall Street Journal reports that the shale gas boom is going to last for decades:

The most exhaustive study to date of a key natural-gas field in Texas, combined with related research under way elsewhere, shows that U.S. shale-rock formations will provide a growing source of moderately priced natural gas through 2040, and decline only slowly after that. A report on the Texas field, to be released Thursday, was reviewed by The Wall Street Journal.

....Looking at data from actual wells rather than relying on estimates and extrapolations, the study broadly confirms conclusions by the energy industry and the U.S. government, which in December forecast rising gas production. "We are looking at multi, multi decades of growth," said Scott Tinker, director of the Bureau of Economic Geology at the university and a leader of the study.

I don't have access to the study of the Texas field, let alone the "related research" on other shale gas fields, but the press release from the University of Texas does include the chart on the right, which suggests that the Barnett field peaked last year and is now in decline. In 15 years it will be producing at half its peak rate.

But that's still a lot of shale gas between now and 2050, when the field will be exhausted. And it's going to require drilling a lot more wells along the way, since individual wells tend to produce for only a short time. Given this, it sure would be nice to work out the possible environmental damage of shale fracking on air and groundwater now, instead of waiting until 2030 or so, when it will be too late.

The Budding Rand Paul–Bob McDonnell Flame War

| Thu Feb. 28, 2013 11:46 AM EST
Gov. Bob McDonnell (R-Va.).

On Saturday, Virginia Gov. Bob McDonnell (R) signed into law a sweeping transportation funding bill that lowers the state gas tax, raises the sales tax, and ultimately aims to bring in $1 billion a year in new funding. It was, as Politico's Alex Burns wrote, just the kind of signature accomplishment McDonnell had been looking for as he prepares to leave office next January.

But for allies of Kentucky Sen. Rand Paul, McDonnell's possible 2016 presidential rival, the transportation bill is something else entirely: disqualifying. Here's a fundraising email blasted out on Monday by the Campaign for Liberty, the organization chaired by former Rep. Ron Paul (Rand's father) and actively supported by the senator:

As the Chairman of the Republican Governors Association, Bob "Tax Hike" McDonnell's sellout has ramifications for EVERY man, woman and child in America.

It's no secret Bob McDonnell has ambitions to run for President.

Needless to say, after this massive tax hike on Virginia citizens - and cave in on ObamaCare - a dog catcher with a record like this is the last thing we need, let alone a President.

And here's a piece Campaign for Liberty president John Tate published at Business Insider on Wednesday:

Business Insider

The good news for McDonnell, anyway, is that he's finally being associated with something other than transvaginal ultrasounds.

The Chinese Bond Meme That Refuses to Die

| Thu Feb. 28, 2013 11:00 AM EST

Robert Solow had an op-ed in the New York Times yesterday "emphasizing six facts about the debt that many Americans may not be aware of." For example, half our debt is owned by foreigners; it's owed in dollars, which is our own currency; and while this debt could spark inflation and soak up private savings that would otherwise go into useful investment, that's not going to happen in a weak economy like the one we have now. CFR president Richard Haass tweets that Solow isn't pessimistic enough about rising interest rates and the "ability of a hostile foreign govt to pressure US," but Dan Drezner thinks that, if anything, Solow is painting too grim a picture:

As for Haass, I'm not exactly sure what "rising rates" he's talking about, as just about any chart you can throw up shows historically low borrowing rates for the United States government. Indeed, the U.S. Treasury is exploiting this fact by locking in U.S. long-term debt at these rates. As for foreign governments pressuring the United States, the fear of foreign financial statecraft has been overly hyped by the foreign policy community. And by "overly hyped," I mean "wildly, massively overblown."

The bias in foreign policy circles and DC punditry is to bemoan staggering levels of U.S. debt. This bias does percolate down into the perceptions of ordinary Americans, which leads to wild misperceptions about the actual state of the U.S. economy and U.S. economic power. I'd like to see a lot more op-eds by Solow et al that puncture these myths more effectively.

This claim that China will be able to blackmail or extort America because of all the U.S. debt it owns is a zombie idea that just won't die. The truth is that China's holdings of U.S. treasuries give it no leverage to speak of; pose no danger to America; and China's recent actions demonstrate pretty conclusively that they know this perfectly well. Hell, China's share of U.S. debt has gone down for the past two years. This whole meme really needs to die.

Seriously, WTF Is Up With Bob Woodward?

| Thu Feb. 28, 2013 10:22 AM EST

I was busy with something else and somehow missed the big Bob Woodward spat last night. Toward the end of the evening I reconnected with Twitter and caught up with a few exhausted tweets from people who were tired of the Woodward thing, or disgusted with the Woodward thing, or whatever, but I didn't quite realize that something genuinely new had happened.

But yes. It's splashed all over Drudge: "White House Threatens Woodward"! WTF? Well, one of the nice things about missing this in real time is that the whole story has now played out and I can catch up with it in a few minutes. Basically, Woodward told CNN that a "very senior person" at the White House had threatened that he would "regret doing this" if he published a story saying that the sequester originated with Obama. After fast forwarding through an entire day of confused stories, it turns out the official is Gene Sperling, and here's the email he sent Woodward last Friday:

I apologize for raising my voice in our conversation today. My bad. I do understand your problems with a couple of our statements in the fall — but feel on the other hand that you focus on a few specific trees that gives a very wrong perception of the forest. But perhaps we will just not see eye to eye here.

But I do truly believe you should rethink your comment about saying saying that Potus asking for revenues is moving the goal post. I know you may not believe this, but as a friend, I think you will regret staking out that claim. The idea that the sequester was to force both sides to go back to try at a big or grand barain with a mix of entitlements and revenues (even if there were serious disagreements on composition) was part of the DNA of the thing from the start. It was an accepted part of the understanding — from the start. Really. It was assumed by the Rs on the Supercommittee that came right after.

Woodward responded the next day that Sperling had no need to apologize. "I for one welcome a little heat; there should more given the importance."

Some threat, huh? As a friend put it via email, "It's odd that a reporter who you would have to assume has had many run-ins, shouting matches, accusations, etc. would go public with his perceived slights. I can't imagine a junior reporter taking this tack now and not being chastised for mishandling it."

Something very odd is going on with Woodward. The point of Sperling's email is clear: he's not taking issue with the idea that the White House proposed the sequester, but he does think Woodward is wrong when he says both sides agreed that the sequester substitute would be purely spending cuts with no tax increases. Virtually everyone in Washington agrees that Woodward is wrong about that, yet he's been repeating that line for the past week in the face of mountains of evidence to the contrary.

What's more, Sperling quite clearly didn't threaten Woodward, and Woodward didn't take it as a threat at the time. Again: WTF?