Kevin Drum - February 2013

Justice Scalia and the Voting Rights Act

| Thu Feb. 28, 2013 11:44 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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VAWA Passes, the Hastert Rule Takes a Tumble

| Thu Feb. 28, 2013 3:36 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.

Arkansas Accepts Medicaid Expansion, But Not Via Medicaid

| Thu Feb. 28, 2013 2:12 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.

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

| Thu Feb. 28, 2013 1:37 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 Chinese Bond Meme That Refuses to Die

| Thu Feb. 28, 2013 12:00 PM 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 11:22 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?

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Why Aren't Conservatives Interested in Healthcare?

| Wed Feb. 27, 2013 6:40 PM EST

Here's something new. CPAC, the right wing's big annual gabfest, has come in for a lot of criticism recently for being too hidebound and insular to give Chris Christie a speaking slot at their conference in March. Today, though, Philip Klein takes them on for the opposite sin: giving up on conservatism by not holding an Obamacare panel this year. However, he admits this is less a CPAC problem than simply a problem with conservatism itself:

Conservative activists often disregard health care as a liberal issue [...] and only become engaged when liberals attempt to advance big government solutions.

In 1993 and 1994, for instance, when the Clintons were pushing their national health care plan, the conservative movement rose up to successfully defeat it. But then, instead of taking advantage of the intervening 15 years to advance market-based solutions to health care, conservative activists largely ignored the issue.

....A few scholars such as Sally Pipes, John Goodman, Grace-Marie Turner, David Hogberg and Greg Scandlen were consistently writing about how to foster the creation of a consumer-based medical system. But health care just didn't generate any passion at the grassroots level until Obama began his health care push....In hindsight, the interest in health care policy on the Right is looking more like a fad built around opposition to Obamacare.

There's a pretty obvious conclusion to be drawn here: conservatives actually don't care much about healthcare. Just like they don't care much about income inequality or particulate poisoning. These just aren't hot button issues on the right, and the truth is that the grass roots isn't much interested in egghead ideas about consumer-directed healthcare.

In other words, the recent blooming of interest in healthcare policy really was just a fad built around opposition to Obamacare. Nobody in the conservative movement ever had the slightest intention of following through on the "replace" part of "repeal and replace."

So Klein is right about that. But he doesn't take the next step: asking why conservatives have no real interest in healthcare policy. If there really are some conservative scholars working in this area, why haven't their proposals sparked any interest among the rank-and-file? From my liberal perspective, the answer seems obvious, but I'd be curious to hear what Klein thinks. He's got the symptom right, but what about a diagnosis?

It Looks Like Pre-Clearance Is Doomed

| Wed Feb. 27, 2013 4:08 PM EST

The 1965 Voting Rights Act requires certain states with histories of racial discrimination to pre-clear any election changes with the Department of Justice. Conservatives have been arguing for years that this provision of the VRA is antiquated and should be struck down. The Supreme Court heard yet another argument on this subject today, and this time it looks like opponents are finally going to win. Here's election law expert Rick Hasen:

A few years ago, I would have had a smidgen of sympathy for the opponents of pre-clearance. Maybe half a century is long enough. But given the rash of racially charged voter suppression efforts of the past three years—photo ID laws, early voting shenanigans, voter purges, etc.—this sure seems like a wildly inopportune time to pretend that we've overcome the demons of our past. Personally, I think I'd vote to expand pre-clearance at this point. Republicans like to claim that the VRA is unfair because it's not just the South that does this stuff, and their point is well taken. The solution just happens to be the opposite of the one they've proposed.

More here from Adam Serwer on Chief Justice John Roberts and his long war against the VRA.

UPDATE: Hasen's site is back up, and his full post is here.

Skip the Rules, Let's Just Allow Smart People to Stay in the United States

| Wed Feb. 27, 2013 2:16 PM EST

Felix Salmon is enthusiastic about the latest version of the Startup Act, sponsored by a bipartisan group of senators. In particular, he likes the idea of creating an "immigrant-entrepreneur visa":

The immigrant-entrepreneur visa is pretty simple. You create a pool of 75,000 such things, available to anybody who’s here already on an H1-B or F-1 visa. When those people switch from their old visa to their new one, they have to start a new company; employ at least two full-time, non-family member employees “at a rate comparable to the median income of employees in the region”, and invest or raise at least $100,000. After that, they have to continue adding employees at a rate of one per year, so that after three years, there must be at least five employees. At the end of three years, you graduate to a green card, and with it the standard path to citizenship.

The new visa would create an employer exit strategy for H1-Bs, allowing workers to leave companies which pay too little or offer too few opportunities, and instead strike out on their own. And of course — by definition — it would create jobs.

Hold on a second. This is based on a Kauffman Foundation report, and as near as I can tell, the authors didn't even make a nod to dynamic effects. Would this create new jobs on net? Or would job creation simply shift from one group to another? They don't say.

In a way, of course, I don't care. This whole thing sounds like almost a parody of bureaucracy to me, practically designed to encourage cheating and game playing among these budding new entrepreneurs. It would be much better to simply let them do whatever they want without any special rules. If they want to employ their nephews and nieces, let them. If they only have four employees after three years, but still believe in their businesses and want to keep trying to make a go of it, that's fine with me. If they can only raise $50,000, who cares? If their company fails, let 'em start up a new one or take a different job.

Now, my guess is that Felix agrees. To the best of my knowledge, we don't really have a shortage of STEM workers, so that's a lousy excuse for a visa program. The reason we should let people like this into the country is because they're smart and educated, and we should let them switch jobs freely. Or start up a company. Or whatever they want to do. On average, I don't doubt for a second that this would be enormously beneficial without a bunch of dumb rules that try to shoehorn all these visa holders into specific careers.

Unfortunately, there are too many interest groups opposed to this. So instead we end up with rule-laden proposals like this. It's a shame.

Maybe It's Time to Cut Back on the C-List Outrages

| Wed Feb. 27, 2013 1:10 PM EST

Yesterday, Sen. Jeff Sessions waved around a new GAO report that proved Obamacare was all based on a big fat lie. "The report reveals the dramatic falsehoods that were used to push it to passage," Sessions said. "The big-government crowd in Washington manipulated the numbers to get the financial score they wanted."

I shrugged my shoulders when I heard it. It was pretty obviously some kind of fever swamp nonsense, and I didn't really look forward to diving into a GAO report to figure out what Sessions was up to. Luckily for me, Aaron Carroll took a look and described the actual conclusions of the report:

Let’s be clear about what this report says. It’s a worst-case-scenario. They looked at what would happen to the deficit if (1) we left in all the spending, (2) all of the cost control measures utterly failed, and (3) we removed all of the revenue streams/taxes. If you do that, then the bill raises the deficit $6.2 trillion over 75 years.

This is what Sessions asked the GAO to do. He wanted a report describing what would happen if all the costs of Obamacare stayed intact but all the revenues and savings measures didn't. To the surprise of no one, under those conditions the deficit would go up. You could pretty much plug any government program into a scenario like that and get the same result.

I don't get it. This is so obviously moronic that no one with a room-temperature IQ will pay attention to it. So what's in it for Sessions? He gets to wave around a report and hustle the rubes at CPAC, maybe, but what's the point of that? They already hate Obamacare anyway.

Are conservatives starting to notice that this kind of half-baked outrage-mongering is a waste of time? Matt Yglesias points today to a post from RedState's uberconservative leader Erick Erickson, who seems to have figured this out:

Conservatives are trying so hard to highlight controversies, no matter how trivial, we have forgotten the basics of reporting....The “Obamaphone” is a great example of this. Conservatives laughed out loud at the video of the lady saying Barack Obama had given her a phone. Conservatives used it as an example of all that was wrong with the expansion of the welfare state under Barack Obama. What many conservatives missed was that the program was a pre-existing program. In fact, the “Obamaphone” idea goes back to the Reagan Administration, but the present program was implemented in 2008 when George W. Bush was President. Government funds are not even used directly.

Focus on the Obamaphone by conservatives missed a number of key points and, in not covering the basic facts, sent conservative activists down rabbit holes. It would have been helpful if conservative reporters spent more time laying out the basic who, what, where, when, why, and how of the issue before exploring the necessity of the program and the fact that there are Americans who credit Barack Obama with giving them that phone.

....There are scandals to uncover and there are outrageous stories to be outraged over, but I would submit conservatives are spending a lot more time trying to find things to be outraged over than reporting the news and basic facts online from a conservative perspective....Conservatives must start telling stories, not just producing white papers and peddling daily outrage.

On a bigger scale, this also applies to Solyndra, Fast & Furious, and Benghazi!, but these kinds of things will always be part of the political world because they really do have the potential to produce genuine scandals if determined digging eventually uncovers something. Conservatives may have overplayed their hands on all of them, but in a way that's just an occupational hazard.

But even if the big-ticket items are here to stay, conservatives could still do themselves some good by spending less time on manufactured C-list outrages that are (a) transparently dumb and (b) do little except produce grist for scammers and hucksters. The GAO report that Sessions commissioned is a good example. After all, there are plenty of reasons already to dislike Obamacare if you're so inclined. It's self-destructive to waste time on things that just make you look dumb and don't really help your cause anyway. Smarter conservatives, please.