Kevin Drum - June 2012

Why Liberals Lose

| Mon Jun. 18, 2012 11:54 AM EDT

In primary contests, why are conservatives more successful at nominating conservatives than liberals are at nominating liberals? There are dozens and dozens of theories about this, most of them focused on something to do with organizational power, but in addition to all the theories, there's an actual answer to this question. Nick Baumann has it here. It should probably be tattooed on every liberal's forehead until we all finally face up to it and figure out how to address it.

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What It Will Mean If the Supreme Court Strikes Down Obamacare

| Mon Jun. 18, 2012 11:34 AM EDT

Two years ago, when President Obama signed the Affordable Care Act into law, the idea that its individual mandate provision was unconstitutional was laughable. There was no case law, no precedent, and frankly, no serious argument that the federal government's Commerce Clause power didn't give it the authority to mandate purchase of health insurance if it wanted to. That's why Democrats didn't bother looking for a clever alternative—many of which were available—in order to avoid including an explicit mandate in the law. They didn't think they needed to. Of course it was constitutional. Even Randy Barnett, the law professor who popularized the activity/inactivity distinction that opponents latched onto as their best bet against the mandate, initially didn't really think it was anything but a long shot.

So how did that conventional wisdom change so dramatically in only two years? Ezra Klein writes about this in the New Yorker this week, but hell, Ezra's a liberal. He's probably sort of flummoxed too. Instead, let's hear what a nonliberal has to say about it:

Orin Kerr says that, in the two years since he gave the individual mandate only a one-percent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. "That legitimized the argument in a way we haven't really seen before," Kerr said. "We haven't seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage." Finally, he says, "there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame."

This is, needless to say, a powerfully depressing analysis. For all practical purposes, Kerr is agreeing that conservative judges don't even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a conservative talking point then they're on board. And that goes all the way up to the Supreme Court.

Maybe. The Supremes haven't handed down their ruling yet, and they could still surprise us. Because the truth is still the same as it was two years ago: the distinction between activity and inactivity—i.e., whether the federal government can mandate specific activity in addition to prohibiting it—has no historical basis at all. It was invented out of whole cloth. There's no precedent, no language in the Constitution, and for the most part, not even any discussion about it in the legal literature prior to 2009. It's simply not something that anyone ever took seriously until it became the only plausible attack line against a piece of liberal legislation that conservatives wanted to overturn.

If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock—but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

Conservatives Decide Not to Take Obama's Mini-DREAM Bait

| Mon Jun. 18, 2012 10:42 AM EDT

WARNING: I didn't watch any Fox News this weekend so I might be wrong about this. But so far, it seems to me that the leading lights of conservatism have managed to keep their troops under control on the immigration front. President Obama announced his mini-DREAM DHS directive on Friday, and Time's Massimo Calabresi describes Mitt Romney's choices:

He could play it safe, accentuating whatever slight differences might exist between the nascent Rubio plan and the one Obama had just unveiled with full fanfare. That would be a tough sell, since Obama appeared to have crafted his measure explicitly to steal Rubio’s thunder. Alternatively, Romney could go bold, embrace the President’s plan, perhaps even go a step further, become a champion of immigration reform and shift his bets from the base to Latinos.

In an interview for Sunday’s Face the Nation on CBS, taped Saturday in Pennsylvania where Romney was campaigning, Romney showed he was opting for the cautious response.

Other conservatives seem to have mostly followed suit. I did read several items over the weekend complaining that Obama was abusing presidential power by declaring which laws he'd enforce and which ones he wouldn't, but frankly, even those seemed a little pro forma. For the most part, everyone seemed to be lying low, afraid that furious denunciations of the usual sort would torpedo their chance of winning any Latino votes this November.

So have conservatives really decided to back down on this? Have they kept their troops pretty much in line? Is the spittle-flecked stuff being restricted to private email lists? Any Fox News watchers out there care to weigh in?

Will Germany Ease Up Now That Greece Is Toeing the Line?

| Mon Jun. 18, 2012 12:00 AM EDT

Like a lot of people, I figure that victory in this weekend's Greek election is purely Pyrrhic. Greece is in for years of mind-numbing austerity no matter what happens next, and whichever party is in charge during this period is probably writing its own death warrant.

But maybe not! Here's a scenario that allows this weekend's winner to stave off certain disaster. 

Basically, Greece has two options. In Option #1, they commit to following the austerity measures imposed by Germany and the rest of the EU. This dooms them to years of pain and suffering. In Option #2, they repudiate their debt, leave the eurozone, revert to the drachma, and devaluate their currency. Since no one will then loan them money, they're forced to live within their means, which also dooms them to years of pain and suffering.

So which option should they choose? Well, Option #1 probably means a little less pain and suffering because they continue getting aid from the EU, but it most likely also means a longer period of pain and suffering since it will take a long time to rebalance their economy as long as they're yoked to the euro. Option #2 would be a sharper economic shock, but devaluation would solve Greece's underlying problems and probably lead to a genuine recovery within a few years.

Greek leaders know this. German leaders know this. Everyone in the EU knows this. And now that conservatives have won a tenuous victory in Greece and committed to following EU austerity guidelines, it's possible that Germany will agree to ease up a bit. Partly this would be to reward Greek voters. Partly it would be because Germany knows perfectly well that a tenuous victory won't last long if austerity bites so hard that there are riots in the Athenian streets on a weekly basis. With the election over, it might now be in Germany's best interest to take a softer line if they truly want to save the euro.

Of course, even if Germany does ease up it will still be tough sledding for the party in power. As we all know, "Things are bad, but they'd be even worse under the other guys" is not a stellar electoral message. We'll see.

Public vs. Private Universities: A Reply From the Trenches

| Sat Jun. 16, 2012 10:52 AM EDT

A professor friend of mine with experience at both private universities and the University of California emailed me a response to my post a couple of days ago about funding of higher education. My description of public vs. private universities, he says, might have been accurate 30 or 40 years ago, but not anymore:


Dear Kevin:

Whatever the merits of your plan to wean private universities off government support and concentrate our efforts on shoring up public universities — and there’s something to it — I have to take issue with something you wrote in it:

UCLA provides undergraduates with an education that's just as good as Harvard, and the country might be a better place if we all faced up to that and took Harvard and the rest of our super-elite universities off the pedestal we've placed them on.

Based on wide experience in both private and public universities, I’d have to say that this isn’t true. People who think it is true probably aren’t aware of just how much public universities have cut, or else aren’t aware just how intensive an education private universities provide. (What I’m going to say covers the humanities and social sciences; I’m less familiar with science and engineering.)

Public universities still have excellent faculties. Their scholarship is often first-rate, and their lecturing skill is probably no worse, on average, than it is in the Ivy League. The problem is that while lecturing is cheap and easily scalable, developing writing and critical thinking skills is expensive because it’s labor intensive. For students to really engage with the material they’re reading in books and hearing about in lectures, someone smart and knowledgeable has to lead a small-group discussion. For them to learn how to make an argument and defend it against objections, they have to write lots of papers, be able to work on them with someone who knows how to write and also knows the subject matter, and have them graded by someone in a position to make serious comments so they can do better next time.

Ivy League students sometimes complain that most of the discussion-leading and careful paper-grading — they call it “real teaching” and they’re right to do so — is done by grad student teaching assistants, since seminars with professors are scarce. But at the University of California these days — and I’m told it’s been like this at Michigan for decades — graduate and undergraduate funding cuts mean that most upper-level courses have no discussion sections and no teaching assistants. In other words, the real teaching doesn’t take place at all. Papers, if they're assigned at all — and increasingly they're not — are graded by "readers" paid so poorly that they can only spend a few minutes on each paper, are not available for writing assistance, and can't even be required, given their meager pay for long hours, to attend the lectures in the classes they're grading for. There's no way readers can grade papers carefully in such circumstances: they put check marks in the margin when something of substance is mentioned, and pass pretty much everyone through. As for professor-led seminars, never that plentiful, they’ve all but vanished: they simply cost too much.

Friday Cat Blogging - 15 June 2012

| Fri Jun. 15, 2012 1:48 PM EDT

According to the EXIF data on this photo, it was taken on Wednesday at 4:44 PM. What you're seeing is the Dinner Stare™, designed to make it clear that the cats will brook no tardiness in producing dinner promptly at 5:00. They are not amused that instead of making preparations, I'm sitting on my butt watching some stupid TV show.

Needless to say, dinner was produced on time. By 5:02 it was gone. The Late Night Snack Stare™ commenced at about 8:30.

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Opinion About Recess Appointments is "Eyes Only" -- And That Specifically Doesn't Include Your Eyes

| Fri Jun. 15, 2012 12:41 PM EDT

Marcy Wheeler alerts us to a document posted today by Charlie Savage of the New York Times about the authority of the president to make recess appointments even when the Senate is conducting brief pro forma sessions in order to pretend that it's not in recess. The Office of Legal Counsel weighed in on this several months ago, concluding that Obama could indeed ignore these sham sessions, but Savage submitted a FOIA request for other legal opinions on this issue. This is not an issue of national security, just a legal skirmish between branches of government, but when OLC finally produced a 2004 opinion written by Jack Goldsmith, here's what it looked like:

"Next up," says Marcy, "the Administration is going to start redacting Civics textbooks, because the workings of government are so terribly sensitive."

Message Discipline and the Decline of Political Journalism

| Fri Jun. 15, 2012 11:05 AM EDT

Ezra Klein is only 28 years old, but he says that Washington DC has changed in just the few years he's been there:

Perhaps my favorite thing to do on the blog is long Q&As, like the ones I’ve conducted with Tom Coburn, Kent Conrad, Paul Ryan, and Buddy Roemer, to name just a few. But those interviews are harder to get than they were even a few years ago. The communications directors see too little upside, and too much risk, to letting their charges speak freely in public. And I’m finding it increasingly difficult to explain why they’re wrong.

Ezra is riffing off an interview that TPM did with Ryan Lizza, in which Lizza talks about today's poisonous media environment:

I’ve been meaning to write a piece about this. We were talking earlier about the daily gaffes and Twitter and the news cycle, and I’m totally as much to blame for helping that atmosphere as anyone. We all engage in tweeting and commenting and hammering these guys when they say something off message. It’s created a crisis for political journalism. People genuinely do not think it is in their interest — both White House and campaign officials, both campaigns, it’s not a partisan thing at all, it’s Democrats and Republicans — they genuinely do not believe it’s in their interest to talk in an unguarded way. Because even if they trust you to get the context 100 percent right, it doesn’t matter, because they know that a liberal or conservative blog, or a campaign ad, will just grab something out of context and run with it and create some damaging meme.

I’ve been doing this for 15 years, and it’s worse now than it’s ever been. If you think about it from their perspective for a second, you can’t totally blame them. Lately I’ve realized it’s harder than it’s ever been, and these campaigns want to exercise complete and total message discipline. In the current media environment, that’s the whole game. There’s pretty serious tension between running a campaign and running a transparent and open White House. We often complain about this, and rightfully so, but we have to recognize some of the blame here.

I don't blame social media for this. It's something that's very obviously been on the increase for at least the past 20 years. National politicians have been exercising increasing message discipline for years, and the modern, totally locked down presidential campaign is just the obvious endpoint of this trend. Maybe social media has accelerated it a bit, but I don't think it's anything close to a root cause.

Question: is this worse in the United States than in, say, Great Britain? If so, why? They have blogs, they have Twitter, they have venomously partisan newspapers, and they have political parties that are, by design, as polarized as ours. But my sense is that their politicians aren't quite as scripted as ours. (Though there are obviously some spectacular exceptions.) Is this sense wrong? Or are they so used to polarized parliamentary politics that they're better able to shrug off the attacks?

Obama to Stop Deporting Young Immigrants With Clean Records

| Fri Jun. 15, 2012 9:58 AM EDT

I guess I'm surprised that President Obama has the power to do this via executive order, but apparently he's decided to partially implement the goals of the DREAM Act without asking for congressional approval:

Under the new plan, illegal immigrants will be immune from deportation if they were brought to the United States before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school or earned a GED, or served in the military. They also can apply for a work permit that will be good for two years with no limits on how many times it can be renewed. The officials who described the plan spoke on the condition of anonymity to discuss it in advance of the official announcement.

The policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for extended periods.

Good for him. Sure, this is election-year positioning, but sometimes good policy is good politics. And not only will this be good for Obama's electoral chances directly, but it presents Republicans with an excruciating dilemma: either lay low and piss off their base, or follow their usual anti-Obama playbook and unleash a blizzard of criticism that will torpedo their efforts to attract Latino voters for years to come. The smart move would be the former, and I imagine folks like Karl Rove will be pleading with leading conservatives to take a low-key approach to this. But my money is on the latter. The tea party folks will not be assuaged with a few ritual condemnations. They'll want blood. And they'll probably get it.

How Long Does a Laptop Hard Drive Last?

| Thu Jun. 14, 2012 5:03 PM EDT

Via Felix Salmon, Richard Gaywood writes that he's really unhappy with Apple's latest MacBook Pro because it's virtually non-upgradable:

My last MacBook Pro saw a little over 2.5 years as my primary computer, and I would expect no less of any computer I was paying in excess of $2200/£1800 for. In that time, I upgraded the memory once, the hard drive three times, and replaced the battery once.

Wait a second. He upgraded his hard drive once every nine months? Is this normal for people who are heavy laptop users? Just curious.