2013 - %3, February

Today You Lost Yet Another Shred of Privacy

| Tue Feb. 26, 2013 5:33 PM EST

The Supreme Court refused today to rule on the merits in a case that questioned whether the government can intercept international calls by American citizens:

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

In other words, it doesn't matter if the law is actually constitutional or not. So as long as the government does a good job of keeping its wiretaps secret, no one will ever have standing to sue and the law will remain on the books. Nice work. Scott Lemieux has more here.

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We're 60 Percent of the Way to Simpson-Bowles!

| Tue Feb. 26, 2013 2:35 PM EST

UPDATE: Sorry, I screwed up here. I didn't account properly for the total ten-year effect of Simpson-Bowles, and I didn't adjust for different baselines. When you do this, SB produces $6.3 trillion in deficit reduction. We're about 60 percent of the way there, not 90 percent. More here.


This is just a quick arithmetic reminder. If the sequester goes into effect, here's how we've done on deficit reduction over the past few years:

  • 2010 continuing resolutions: $450 billion
  • FY2011 budget: $200 billion
  • Budget Control Act: $960 billion
  • Fiscal cliff deal: $840 billion
  • Sequester: $1.2 trillion
  • Total: $3.6 trillion

The original Simpson-Bowles plan, which is Washington's holy grail, called for $4.1 trillion in deficit reduction. All calculations include debt service savings, so this is an apples-to-apples comparison.

If you want to move the goalposts, feel free. But facts are facts: by this time next week we will have achieved very nearly the total amount of deficit reduction that everyone was gaga about a mere two years ago—more than 80 percent of it from spending cuts. It's truly unfortunate that we've been so fixated on this, since we would have been much better off investing for the future and leaving deficit reduction for later, but that's water under the bridge. Love it or hate it, over the past 27 months we've accomplished nearly 90 percent of the deficit reduction everyone wanted.

So we're all happy about this, right? Right?

It's Time to Call a Filibuster a Filibuster

| Tue Feb. 26, 2013 1:54 PM EST

It looks like Chuck Hagel is finally going to be confirmed as Secretary of Defense. Jonathan Bernstein addresses the journalistic conundrum involved in this:

The trick for reporters is how to write about and talk about what's happened.

Was there a filibuster?

Yes. Of course.

One more time: requiring 60 is a filibuster. Every Republican supports that standard. There are no Republicans who believe that 60 should never or only rarely be invoked; the only question is whether, in this particular case, any particular case, they will support the filibuster. That there is a filibuster, on everything, is both assumed and institutionalized.

I would really like to see this become a standard part of usage guides on copy desks everywhere. We can tie ourselves in knots forever explaining the technical aspects of "what really happened" and passing it all off as some kind of arcane procedural issue. It's time to stop it. If the minority party demands a 60-vote margin to pass something, they're conducting a filibuster. In the modern Senate, that's the most sensible way of describing it, and it's the one most comprehensible to the average reader. It's long past time to adopt this as the standard way of describing these things.

4 Meetings With Obama? That'll Cost You Half a Million

| Tue Feb. 26, 2013 1:36 PM EST

Common Cause, the good-government group founded in 1970, has a loud-and-clear message for President Obama: He should tell his former campaign aides to shut down Organizing for Action, the nonprofit group created to promote Obama's second-term legislative agenda.

As the New York Times reported on Sunday, Organizing for Action hopes to raise $50 million, and its leaders—including former Obama campaign manager Jim Messina—are courting wealthy givers to fill the group's war chest. An elite group of donors giving or raising $500,000 or more is expected to cough up at least half of OFA's budget. Those top-tier donors, whose names OFA says it will voluntarily disclose quarterly (which goes beyond what most nonprofits disclose), will earn a spot on OFA's "national advisory board" and, more importantly, get to meet with Obama four times a year, according to the Times.

Bob Edgar, the president of Common Cause, said in a statement blasted out to reporters on Tuesday that Obama should push to have OFA shut down and should "disavow any plan" to meet with OFA's bankrollers. "With its reported promise of quarterly presidential meetings for donors and 'bundlers' who raise $500,000, Organizing for Action apparently intends to extend and deepen the pay-to-play Washington culture that Barack Obama came to prominence pledging to end," Edgar said. "Access to the president should never be for sale."

Organizing for Action is a reincarnation of Obama's reelection campaign, the most technologically sophisticated in history. OFA will have access to the databases and massive supporter network—2 million volunteers, 17 million email subscribers, and 22 million Twitter followers—built up by Team Obama in the run-up to last year's presidential election. Although it is now running ads hitting lawmakers on the issue of gun control, OFA says it will not get involved in elections, focusing solely on building support for Obama's legislative priorities, which include immigration reform, gun control, and revamping the tax code. OFA is allowed to coordinate its efforts with the Obama White House, which it wouldn't have been able to do as a super-PAC.

But by organizing as a nonprofit, and agreeing to accept unlimited funds from corporations, unions, and individuals, OFA has been pilloried by Republicans and Democrats. They see OFA as a direct contradiction to Obama's opposition to big-money politics and his pledge to clean up Washington's cash-driven political culture. "It's the right vehicle from a legal perspective, but it is breathtakingly hypocritical," Charles Spies, a Republican lawyer who ran the pro-Romney super-PAC Restore Our Future, told me last month.

Common Cause's Edgar doesn't begrudge the president for wanting outside help in his second term, but he says it should not come from an access-peddling outfit like OFA. "President Obama's backers should go back to the drawing board. The president may feel that he needs help from an advocacy organization outside the White House and the Democratic Party, but any group he creates should be fundamentally different from what we now see in Organizing for Action."

Robotic Surgery and the Low End of the Learning Curve

| Tue Feb. 26, 2013 12:58 PM EST

Austin Frakt points us today to a new study that compares the effectiveness of robotically assisted hysterectomies vs. laparoscopic surgery. "Both approaches provide benefits compared with open surgery," says an editorial in JAMA, "including smaller incisions, shorter hospital stays, less postoperative pain, and possibly quicker return to function." But the robotically-assisted surgery costs more without providing any improvement in outcomes. "On these results alone," says Austin, "the call is a simple one. At current prices and on the basis of health outcomes, robotic hysterectomies are not worth the cost."

Normally, I'd be jumping up and down to agree. But this time, I think there's reason to pause. Why? Because of this from the JAMA editorial:

Robotic surgery may have a shorter learning curve than laparoscopic surgery, making it an enabling technology that allows surgeons otherwise unable to perform minimally invasive surgery to offer this benefit to their patients.

This is the future of surgery, and I suspect there may be a real benefit to rolling it out widely, getting lots of surgeons trained to use it, and producing commercial pressure to constantly improve the technology. I'm not trying to make excuses for rosy advertising promises or hospitals that hype their results to push patients into a more expensive procedure, but at the same time, this strikes me as qualitatively different from, say, billion-dollar proton beam facilities to treat cancer. In the long run, robotic surgery is likely to make medicine cheaper, safer, and more widely available worldwide, and the sooner we get to this future, the better off we are. A bit of a gold-rush mentality while we're still at the low end of the learning curve might be the price we pay for this.

I have a feeling my point is going to be misunderstood here. I also have a feeling it's hopeless to add a whole string of caveats. Just try to take this in the spirit in which it's offered, OK?

We're Still at War: Photo of the Day for February 26, 2013

Tue Feb. 26, 2013 11:59 AM EST

U.S. Army Staff Sgt. Chester Thomson, 1st Squadron, 33rd Cavalry Regiment, 3rd Brigade Combat Team, 101st Airborne Division, runs up an embankment during a security patrol in a remote village of Khowst Province, Afghanistan, Jan. 31, 2013. U.S. Army Photo by Staff Sgt. Zach Holden, 115th Mobile Public Affairs Detachment.

 

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Jack Lew's Deal Explained

| Tue Feb. 26, 2013 11:44 AM EST

Yesterday I asked for an innocent explanation of Jack Lew's deal with Citi, which guaranteed him a bonus if he left the company for a senior position with the federal government. Mark Kleiman, who says Lew is an old friend, suggests that it all has to do with the fact that bonuses are normally deferred (paid at the end of the year or even further out), which puts firms in a quandary if someone like Lew leaves for public service. Do they risk looking miserly by refusing to pay out a bonus that's already been earned, or do they make a decision to pay it, which would look a bit like a bribe?

So if a firm hires someone with a public-service background and ambitions to go back into government, it makes sense to negotiate a severance bonus up front, specifically in case the person leaves to take a senior Federal job. That way the person is protected against a big financial hit if such a job comes through....while the firm avoids the problem of voluntarily either paying or not paying a big bonus to someone who will exercise power over it in the future.

That’s the deal Jack Lew negotiated with CitiGroup, and that Rupert Mudoch’s character assassins at the Wall Street Journal want to make a scandal out of. And yet Kevin Drum wonders what the innocent explanation for such a deal might be.

In fact, what would be hard would be inventing a guilty explanation. If Citi wanted to grease the palm of someone departing throug [sic] the revolving door, there would have been no need to make the deal in advance, or in writing. The only purpose of doing so would have been to avoid what otherwise would have been a confict of interest.

That makes sense. And I'd add something to this: if this is the explanation, then it's obviously standard practice on Wall Street, something that the, ahem, Wall Street Journal would know perfectly well. But that didn't stop them.

Ashley Judd Is Not the Next Todd Akin

| Tue Feb. 26, 2013 11:26 AM EST
Possible Kentucky Senate candidate Ashley Judd with Nobel laureate Desmond Tutu

Actress and public health activist Ashley Judd is seriously considering running for Senate as a Democrat next year against Sen. Mitch McConnell (R-Ky.), the Senate minority leader. On Tuesday, the Daily Caller's Alex Pappas waded through Judd's essays and speeches to make the case that she just might be the Democratic Todd Akin—someone whose "comments are so outrageous and extreme that people can't bring themselves to vote for her."

This is a sentiment that is shared by, among others, Ashley Judd. "I am asked a lot if I will someday run for office, often enough, in fact, that if I had a nickel for each time I've been asked, I could fund a campaign," she said in a 2006 speech at the University of Kentucky. "But a speech like this, such an unguarded chunk of my truth is very likely to completely disqualify me."

The subject of that particular speech, and one she's returned to quite often since, was feminism—what she considered to be the animating ideal behind her political life. "I'd like to propose that the society in which we live is, in fact, extremist and radical," she said. "It is so skewed, massively out of balance; the result of one sex ruling and objectifying another for at least the last millennia." The world's religions were filled with "stunning misogyny," Christianity included.

Among other incriminating quotes Pappas flags, Judd compared mountaintop-removal coal mining to the Rwandan genocide. (She added, "Naturally, I accept that I set myself up for ridicule for using such strong terms, or perhaps outrage from human victims of slaughter, but I do believe in the profound interconnectedness of all life, and, I agree with Einstein's assertion that 'you cannot pick a flower that you do not disturb a star.'")

I've spent only a few days in Kentucky, so I'll accept the premise that most of the state's eligible voters don't spend much time quoting Gloria Steinem and railing against the patriarchy. I'll also accept Pappas'—and Judd's—premise that she is substantially more liberal than the median Kentucky voter, given that the median Kentucky voter recently voted for Rand Paul. It's not clear whether she's running; it's certainly not clear that she'd be a favorite to win.

But the Akin comparison seems to miss the whole point of Todd Akin—and Ashley Judd, too. The Missouri Senate candidate's demise hinged almost entirely on his flip suggestion that some kinds of rape (i.e. non-"legitimate" rape) really weren't so bad, as well as a basic ignorance of science; Judd's most incriminating statements stem in no small part from the fact that, yes, actually, women have been held down for a while and still face serious obstacles today. (Case in point: Todd Akin.) In Kentucky, that might be a losing proposition, but there's nothing "bizarre" about feminism.

"It is my pleasure to make you slightly uncomfortable," Judd told her audience at UK, halfway through her feminist manifesto. For Judd, that's a feature, not a bug.

C. Everett Koop, the Only US Surgeon General Frank Zappa Sang About, Dead at 96

| Tue Feb. 26, 2013 10:52 AM EST
1916-2013.

C. Everett Koop, the most famous Surgeon General the United States ever had, passed away Monday at his New Hampshire residence. He was 96.

Koop, who was appointed by President Ronald Reagan in 1981 and served until 1989, was famous for the aggressive anti-smoking campaign he launched in 1984. A former smoker, Koop challenged the country to become "smoke-free" by the year 2000, and railed against cigarettes as "the most important individual health risk in this country." His unprecedented action on AIDS awareness drove Reagan administration policy and kick-started a national conversation on sex education and safe sex. His initial report on the disease drew heated controversy for its frank discussion of sodomy, condoms, and his advocacy of teaching sex ed to kids as early as the third grade. (The government printed 20 million copies.) And although he staunchly opposed abortion on religious grounds, he declined to use his position to campaign against legal and safe abortion in America.

For these and other high-profile efforts, Koop became a household name (a level of fame unusual for a public health administrator), with some admirers referring to him as a "scientific Bruce Springsteen" and a "rock-star." He is also the only US Surgeon General to, a) have had his own reality TV show, and b) have a Frank Zappa song written about him.

In 1991, Koop hosted a five-part documentary series on NBC called C. Everett Koop, M.D. The show, over which Koop exercised a good deal of creative control, focused on the future of health and medicine, as well as the shortcomings of the United States health care system. C. Everett Koop, M.D. also made Koop the first and only Surgeon General to win an Emmy Award. Critic Walter Goodman of the New York Times dubbed it a "painfully timely series," and Ken Tucker of Entertainment Weekly wrote that "Koop has the presence of a natural TV star."

Obviously not everyone was a gentle admirer of Koop's: During a 1988 world tour, experimental rock artist Frank Zappa performed a hip-hop-tinged funk song titled "Promiscuous" that was harshly critical of Koop's and other Republicans' approach to the AIDS crisis. (You can hear part of the song here.) The lyrics are not quite safe for work; but here's a verse:

Is Doctor Koop a man to trust?

It seems at least that Reagan must

(And Ron's a trusting sort of guy -

He trusts Ed Meese

I wonder why?)

I WONDER WHY

WONDER WHY

Zappa's opinion was evidently not the prevailing one: In 1990, Koop was presented with the Public Welfare Medal from the National Academy of Sciences. And in 1995, he was awarded the Presidential Medal of Freedom by President Bill Clinton.

This Supreme Court Case Could Give Corporations Even More Power to Screw Consumers

| Tue Feb. 26, 2013 7:56 AM EST

On Wednesday, the US Supreme Court will hear a case that has the potential to give big corporations free rein to write contracts that prevent consumers from ever holding them accountable for fraud, antitrust violations, or any other abuses of consumer and worker protection laws now on the books. It's a case that hasn't gotten much attention, but should.

The case, Italian Color v. American Express, was brought by a California Italian restaurant and a group of other small businesses that tried to sue the credit card behemoth for antitrust violations. They allege Amex used its monopoly power to force them to accept its bank-issued knock-off credit cards as a condition of taking regular, more elite American Express cards—and then charging them 30 percent higher fees for the privilege.

The small businesses claims were pretty small individually, not more than around $5,000 per shop. So, to make their case worth enough for a lawyer to take it, they banded together to file a class action on behalf of all small businesses affected by the practice. In response, Amex invoked the small print in its contract with them: a clause that not only banned the companies from suing individually but also prevented them from bringing a class action. Instead, Amex insisted the contract required each little businesses to submit to the decision of a private arbitrator paid by Amex, and individually press their claims. (Arbitration is heavily stacked in favor of the big companies, as you can read more about here and here.)

The restaurants estimated, with good evidence, that because of the market research required to press an antitrust case, arbitration would cost each of them almost $1 million to collect a possible maximum of $38,000, making it impossible to bring their claims at all. After a lot of litigation, the little guys prevailed in the 2nd Circuit Court of Appeals, which found that the arbitration clause was unconscionable because it prevented the plaintiffs from having their claims heard in any forum. The court said the arbitration contract should be invalidated and that the class action should go forward in a regular courtroom. (Sonia Sotomayor sat on one of the appeals before heading to the high court and is recusing herself from the case as a result.) Now Amex is appealing and arguing that some of the high court's recent decisions in favor of big companies mean it has every right to use contracts to deprive the little guys of access to the legal system.

Consumer advocates are worried about how the court's going to decide this case. Under the leadership of Chief Justice John Roberts, the court has been especially amenable to the sorts of arguments Amex is making, and the results have been pretty damaging to consumers. The Alliance for Justice has a list here of some of the types of cases that were thrown out after the court's last pro-business decision about mandatory arbitration, which allowed companies to use arbitration clauses to trump state consumer and worker protection laws. It's not pretty.

If the court rules in favor of Amex, big companies will essentially be able to immunize themselves from any legal accountability, simply by forcing customers and employees to sign a contract to get a job or a cellphone or a bank account. Civil and consumer rights laws will stay on the books, but big companies will be able to ignore them.