Kevin Drum - January 2013

Quote of the Day: American Law Allows the Government to Engage in Unconstitutional Behavior Without Explaining Why

| Wed Jan. 2, 2013 10:53 PM EST

From federal judge Colleen McMahon, after acknowledging that disclosure of the government's legal justification for targeting American citizens for assassination might help the public "understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty":

However, this Court is constrained by law, and under the law, I can only conclude that the Government [...] cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. But under the law as I understand it to have developed, the Government's motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied.

Needless to say, Congress could change this if it wanted to. Apparently it doesn't.
 

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Republican Governor Learns Downside of Being Part of Republican Party

| Wed Jan. 2, 2013 5:28 PM EST

New Jersey governor Chris Christie delivered one of his trademark rants today, this time aimed at House Republicans who declined to hold a vote on an aid bill that would give his state lots of money to deal with the aftermath of Hurricane Sandy. The obvious point to make about this is that maybe it serves Christie right. He certainly has no reluctance to mock other people who want money, after all, so all that's happening here is a Republican governor getting a faceful of his own Republican medicine.

But Dave Weigel points out another interesting tidbit. The House Republican leadership apparently tried to pass the bill by engaging in a bit of vote-counting strategery, splitting the aid bill into two parts that they hoped could pass with two different majorities:

But instead of explaining this, Republicans allowed a familiar narrative — oh, the bill's full of pork and waste! — to creep out. Christie mocks the narrative in the single boldest part of this rant. The "pork," he points out, was $600 million in a total $60 billion package — one percent of the total. The Republicans who got angry about that, he says, are dupes. "Those guys should spend a little more time reading the information we send and a little less time reading the talking points sent by their staff."

That's quite an ask. Making fun of waste in an omnibus bill is one of the GOP's most effective tactics. It was key to the strategy against the 2009 stimulus bill, making the "porkiest" parts of the bill famous, then forcing Democrats to denounce them, creating an impression of disarray and shame. And here Christie admits that it's a sort of cheap argument, not worth sinking legislation over.

Republicans rail endlessly about trivial expenditures, mostly as a way of avoiding putting their money where their mouths are. Over the past two weeks, reporters have routinely asked John Boehner for details about what cuts he wanted as part of a fiscal cliff deal, and he just as routinely refused to answer. Mitt Romney did the same thing over an entire campaign. The problem is that real cuts are politically unpopular, and they know it. So instead they ban earmarks, complain about foreign aid, give out silly awards for allegedly silly research projects, and kvetch about "waste, fraud, and abuse." That last item has been abused so often that it's little more than an inside-the-Beltway joke these days.

In any case, Christie is now being hoist by the same tea-party petard that's responsible for making him famous in the first place. Ditto for the House Republican leadership, which tried to figure out a clever way to pass the bill, but ended up a victim to the same kind of anti-pork nonsense that they usually save for Democrats. Live by the sword, die by the sword.

POSTSCRIPT: Speaking of all this, I decided to look up "hoist by his own petard" for the first time today. I had always vaguely assumed that a petard was something like a belt or a pair of suspenders. But no: it's an explosive device. If you are hoist by your own petard, it means your bomb went off in your face and blew you skyward. You learn something new every day.

Why Software Patents Should Be Banned: A Case Study

| Wed Jan. 2, 2013 2:40 PM EST

Joe Mullin provides us with the latest in the patent troll wars. Last year, a guy named Steven Vicinanza, the founder of BlueWave Computing, got a letter from Project Paperless LLC telling him that he needed to pay $1,000 per employee because he uses networked scanners in his business:

Vicinanza soon got in touch with the attorney representing Project Paperless: Steven Hill, a partner at Hill, Kertscher & Wharton, an Atlanta law firm.

"[Hill] was very cordial and very nice," he told Ars. "He said, if you hook up a scanner and e-mail a PDF document—we have a patent that covers that as a process."

It didn’t seem credible that Hill was demanding money for just using basic office equipment exactly the way it was intended to be used. So Vicinanza clarified:

"So you're claiming anyone on a network with a scanner owes you a license?" asked Vicinanza. "He said, 'Yes, that's correct.' And at that point, I just lost it."

This hits home for me in two ways. First, the alleged patents date from 1996, and I was personally involved in a project to put scanners on networks starting around 1994. It was cleverly called NetScan, and it eventually failed for a variety of reasons, but by 1996 we had an actual box on the market that allowed you to connect a scanner and program it to send documents to your internal email account. I have no doubt that the patent trolls in this case would argue that the technology we used was subtly different from theirs (we emailed TIFF files, for example, while their patent covers PDFs), but that's almost certainly legalistic nonsense. You connected a scanner to our box, entered a bunch of data identifying users, and then you could scan documents and have them automatically emailed to your desktop. We didn't even bother patenting it because the idea was pretty obvious.

On a related note, a couple of years ago I got a call from a lawyer working on a patent case. I'll skip the details, but his client was getting sued for allegedly infringing a patent that involved sending scanned documents from one workstation to another. He called me because I had worked on a product that used similar techniques, which he was hoping would demonstrate prior art. At first, I had a hard time taking him seriously: the stuff he was talking about was so simple, and so obvious, that it seemed flatly impossible to me that anyone could even be claiming a patent on it. But someone was. In the end, I don't think I was able to help much, but I offered my time anyway just because the whole thing was so outrageous.

This is a big reason that I'm such a stone foe of software patents. It's not that there's no such thing as a genuinely innovative software technique. Of course there is. The problem is that in real life, nearly all the actual cases seem to be over methods and processes that are obvious to anyone working in the industry once the underlying technology makes them possible. We started work on NetScan in 1994, for example, because that was about the time that internal email was getting popular, personal scanners were getting popular, and businesses were looking for ways to avoid having to buy a scanner for every employee. A networked scanner was an obvious solution, and using email as the delivery mechanism was also obvious. So that's what we did. A bunch of other people did the same thing at about the same time because it was obvious. Once network infrastructure is in place, lots of things suddenly become obvious.

You should read Mullin's whole story if you want to work up a good case of outrage. It's slimier than usual because the patent trolls in question are targeting end users, but really, in concept it's not that different from patent trolling between corporations. It's possible that there are other ways of addressing this other than banning software patents entirely, but the more I see of this stuff, the more I think that an outright ban is really the only way to fix this. It's doing too much damage to settle for half measures.

Someday, Paywalls Are Going to Kill Blogging

| Wed Jan. 2, 2013 12:29 PM EST

Andrew Sullivan is leaving the Daily Beast and striking out on his own. (Or re-striking out, I suppose, since he was on his own originally until he began blogging for magazine employers.) For now, his plan is to eschew advertising and simply charge a yearly fee for access to the blog:

Some people I bump into ask me how we produce 240 posts a week (13,000 separate posts last year alone) or how we read the 90,000 emails we get a year. I have a simple answer: we work our asses off. And my colleagues and I deserve to be paid for it....If this model works, we'll have proof of principle that a small group of writers and editors can be paid directly by readers, and that an independent site, if tended to diligently, can grow an audience large enough to sustain it indefinitely.

No argument there. From a purely selfish point of view, though, this is a trend that's a real problem for blogging. I currently subscribe to three newspapers: the LA Times, the New York Times, and the Wall Street Journal. This costs me over a thousand dollars a year, but I need to have access to all these sites to do my job decently. But as more and more media sites start erecting paywalls, I simply won't be able to afford to keep up all the subscriptions. Andrew's 20 bucks a year is obviously fairly small change compared to subscription fees from big media operations, but as more and more sites go down this path, my choices are going to get harder and harder.

This isn't the biggest deal in the world at the moment. It's just worth a mention. Blogging has always been critically dependent on having free access to a wide variety of media, since you need to trawl through huge amounts of material to find the occasional pieces you want to write about. But as free access gets rarer, blogging is going to get harder. I wonder what it's going to be like a decade from now?

New Study Says One of Your 2013 New Year's Resolutions is Already Done

| Wed Jan. 2, 2013 11:51 AM EST

I think I'm going to file this under "too good to check." Apparently, being just a little bit overweight may be good for you:

The scientists [] found that people classified as overweight, with a BMI of 25 to 29.9, died at slightly lower rates — not higher — than those of so-called normal weight....Study lead author Katherine M. Flegal, an epidemiologist with the Centers for Disease Control and Prevention, said she and her colleagues could not say what lay behind the apparent survival edge for overweight people.

....But there also could be real reasons why carrying extra pounds could confer a survival advantage. Fatter people are not as prone to osteoporosis and have more padding to protect the bones should a patient take a tumble, lowering the risk of a life-endangering hip fracture. And carrying extra fat provides energy reserves in cases of a severe illness. Doctors know, for example, that plumper patients with heart failure or kidney failure do better than their leaner peers, and there could be other situations in which the same thing is true.

Usually I like to take a look at the actual study, rather than just trusting a news account, before I blog about it. But I think I'll pass this time. After all, my BMI is currently at a pleasantly plumpish 28, and I rather like the idea that this may actually be ideal. If your New Year's resolution was to shed a few pounds, perhaps this study is reason enough to declare victory today and then forget about it until next year.

POSTSCRIPT: Please spare me any comments about how BMI is an imperfect measure because people with lots of muscle mass can end up with high scores even though they aren't packing on much fat. That's true of lots of NBA athletes, but it's not true of most of the rest of us. For the 99%—which includes me and probably includes you too—BMI works just fine.

Someday Soon, We're Going to Need a Lot More Tax Revenue

| Wed Jan. 2, 2013 11:04 AM EST

Ross Douthat says that the $600 billion Obama raised via the fiscal cliff deal is far too small to sustain the liberal welfare state in the face of an aging population and growing budget deficits:

Given these realities, fairness and progressivity are necessarily less important to liberalism over the long run than simple dollar figures, and the American left actually has a long-run incentive to make the federal tax code less progressive, because only a broader base can keep the liberal edifice solvent in the long run.

And here I think liberals have a real reason to be discouraged by the White House’s willingness — and, more importantly, many Senate Democrats’ apparent eagerness — to compromise on tax increases for the near-rich. Liberal pundits seem most worried about what this concession signals for the next round of negotiations, over the sequester and the debt ceiling. But if I were them I’d be more worried about the longer term, and what it signals about their party’s willingness and ability to raise tax rates for anyone who isn’t super-rich. As I’ve suggested before, these negotiations amounted to a test of liberalism’s ability to raise revenue, and it isn’t clear that this outcome constitutes a passing grade: If a newly re-elected Democratic president can’t muster the political will and capital required to do something as straightforward and relatively popular as raising taxes on the tiny fraction Americans making over $250,000 when those same taxes are scheduled to go up already, then how can Democrats ever expect to push taxes upward to levels that would make our existing public progams sustainable for the long run?

I think this is a point worth taking seriously, and it's why my real preference was for a deal that would have allowed the Bush tax cuts to expire completely. The expiration should have been phased in—perhaps at 25 percent a year over four years starting in 2014—which would have allowed the economy to recover in the short term, but raised the revenue we're going to need in the long term.

And there's not much question we're going to need more revenue. I'll have more on this in a couple of days, but unless we want to abandon any pretense of decent care for the elderly—and we don't, no matter what Paul Ryan believes—we're going to need to raise substantially more tax revenue in the future. But if Republicans remain dead set against tax increases, and even Democrats are unwilling to raise taxes on the middle class, how is that going to happen? As things stand now, not only are tax increases on the middle class unthinkable, but Obama was even forced to cave in on the estate tax thanks to Democratic nervousness about offending the ultra-rich.

In one sense, I guess it's not worth borrowing trouble. If we're going to need more tax revenue in the future, let's deal with it in the future. Maybe political pressure will force Republicans to capitulate. Maybe Democrats will take over Congress. Maybe a latter-day John Galt will come along and invent a free energy machine and none of this will matter.

Still, over the next 20 years we're probably going to have to increase taxes by something like five points of GDP. That's an increase of nearly a third in the federal government's tax haul, and we just fought a battle royal just to get something like half a point of GDP. Eventually, something will have to give.

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Part 1 of the Fiscal Cliff is Over. Now Gird Yourself for Part 2.

| Tue Jan. 1, 2013 12:41 PM EST

The fiscal cliff is dead. Long live the fiscal cliff.

It's over. Sort of. The Senate voted 89-8 to prevent middle-class taxes from rising while allowing rates to increase for taxpayers with incomes over $450,000. Democrats caved in on the estate tax, so the elderly super-wealthy can breathe easy on that front. Capital gains taxes go back up to 20 percent for high earners, and Democrats and Republicans split the difference on dividend taxation, raising it to 20 percent too, rather than the 39.6 percent Obama wanted. The working class got an extension of the stimulus tax cuts, but lost out on an extension of the payroll tax holiday. The deal also includes a bunch of other miscellaneous provisions (Suzy Khimm has the details here), and the end result is a revenue increase of about $600 billion over ten years.

In bonus news, the milk cliff was also averted. At the last minute, the Senate added a nine-month extension of the current farm bill to the legislation. This means we won't be reverting to the 1949 law, which would have doubled milk prices across the country. Lactophiles can now breathe as easily as millionaires in hospices.

But it's not over til it's over, and the fiscal cliff is far from over. First, the House still has to vote on the deal. They'll probably approve it, though. [Late night update: They did.] More importantly, negotiators punted over the debt ceiling and the sequestration cuts. That's the $1.2 trillion in automatic spending cuts that emerged from the 2011 debt deiling debacle, split evenly between domestic programs and defense programs. Congress now has two months to hammer out a deal on that front, and Obama held a press conference yesterday warning Republicans that he wouldn't accept a deal that was all spending cuts and no revenue increases. If this sounds like the exact same thing they've been fighting over for the past year, give yourself an A.

So as soon as Part 1 of the fiscal cliff deal is safely signed and in the history books, we're going to have the same, dreary argument all over again. Call it Fiscal Cliff 2: The Dogfight in the District Continues. Republicans will once again try to use the debt limit to hold the country hostage, hoping that Obama will—once again!—play the role of the responsible adult in the room and cave in to their demands because he understands that America can't default on its debts. Obama, for his part, says he's tired of being typecast, and he's demanding script changes. Check back on February 28 to see how it all turns out.

So let's tote up the winners and losers. On the deal itself, despite my misgivings yesterday, I guess I'd score it a short-term win for Obama. He had to give up a few things he wanted, notably the $250,000 income cutoff that he campaigned on, but he did wring a tax increase out of congressional Republicans. In the longer term, I'd score it a win for the GOP. Their backs were against a wall, since the Bush tax cuts were all going to expire anyway on January 1, and they managed to do two things. First, they kept the size of the deal limited. Second, they showed that Obama, as usual, isn't serious when he lays down a line in the sand. No matter how firmly he insists on something, he's always willing to deal. This is going to make Part 2 of the fiscal cliff negotiations very, very dangerous.

Beyond partisan politics, the American public has been ill served by all this. Common sense dictates the kind of deal we needed: lower taxes and more stimulus now, followed by a serious attempt at deficit reduction in the medium-term future. We got a bit of the former, but the truth is that extending the middle-class tax cuts was always the least important part of what we needed to insure that our economy continues to recover. What we really needed was an extension of the payroll tax holiday, a complete end to the sequestration cuts, and more infrastructure spending. Those are the things that would have given us the biggest bang for the buck in the near term, and we got none of that.

In the long term, we also got nothing. No long-term revenue increases and no long-term entitlement reform. David Brooks has it about right: "The country either doesn’t know or doesn’t care about the burdens we are placing on our children. No coalition of leaders has successfully confronted the voters, and made them heedful of the ruin they are bringing upon the nation." I'm not quite the deficit Chicken Little that Brooks is, since a lot of our current deficit problems will go away naturally when the economy recovers. Still, not all of them will. We do need some common-sense reforms, and we also need to accept that, like it or not, tax revenues are going to have to increase as our nation ages. There's simply no getting around that.

But Republicans are no closer to accepting reality on that front than they've ever been. Our current trench warfare will continue for the foreseeable future, and it's unlikely that anyone will really come out a winner.