Kevin Drum

The Fourth Amendment Takes Yet Another Body Blow

| Wed Apr. 23, 2014 1:21 PM EDT

This week the Supreme Court has handed down decisions on affirmative action and child porn that have gotten a lot of press. But the affirmative action decision was probably inevitable, and the child porn case is an oddball example of statutory interpretation that probably has no greater significance.

More important is Navarette vs. California, which has real potential to do some long-term damage. In this case, a 911 caller reported an erratic driver, who was then pulled over and eventually convicted of transporting four bags of marijuana. The police had no probable cause to stop the driver except for that one anonymous phone call, but the Court upheld the conviction anyway. Justice Scalia is typically apoplectic in his dissent, but nonetheless makes some good points:

It gets worse. Not only, it turns out, did the police have no good reason at first to believe that Lorenzo was driving drunk, they had very good reason at last to know that he was not. The Court concludes that the tip, plus confirmation of the truck’s location, produced reasonable suspicion that the truck not only had been but still was barreling dangerously and drunkenly down Highway 1. In fact, alas, it was not, and the officers knew it. They followed the truck for five minutes, presumably to see if it was being operated recklessly. And that was good police work. While the anonymous tip was not enough to support a stop for drunken driving under Terry v. Ohio, it was surely enough to counsel observation of the truck to see if it was driven by a drunken driver.

But the pesky little detail left out of the Court’s reasonable-suspicion equation is that, for the five minutes that the truck was being followed (five minutes is a long time), Lorenzo’s driving was irreproachable. Had the officers witnessed the petitioners violate a single traffic law, they would have had cause to stop the truck, and this case would not be before us. And not only was the driving irreproachable, but the State offers no evidence to suggest that the petitioners even did anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning somewhere to see whether they were being followed. Consequently, the tip’s suggestion of ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated; it was affirmatively undermined.

The problem here is obvious: the Court has basically said that an anonymous 911 call is sufficient all by itself to justify a police stop and subsequent search of a vehicle.

In this particular case, it's likely that the 911 caller was entirely sincere. But that's surely not always the case, and this decision gives police far greater discretion to stop pretty much anyone they like for any reason. You don't even need to roll your front bumper a foot over the limit line in an intersection to give them a pretext.

If we're lucky, this case will become a footnote, with the precise nature of its facts giving it little value as precedent. But if we're not so lucky, it's yet another step in the Supreme Court's decades-long project to chip away at the Fourth Amendment. When an unknown caller is all it takes to trigger a search, the entire notion of "probable cause" is pretty much consigned to the ash heap of history.

UPDATE: A regular reader points out that my summary isn't entirely accurate. Under Navarette, an anonymous tip is enough for police to stop a vehicle, but to search it they still need some suspicion of illegal activity. In this case they "smelled marijuana."

That's true, and I should have said so. The reason I didn't is that I figure this was basically pretextual. There's always a post hoc reason if the police decide they want to search your car. And even if you think the cops really did smell something, they never would have gotten there without the stop, and there was no reason for the stop in the first place. This strikes me as a pretty direct line from anonymous tip to search, with only the thinnest pretense of probable cause.

I admit that my cynicism here isn't legally relevant. But honestly, once you allow the stop, cops will find a reason the search the car. There's simply nothing in their way any longer.

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Rand Paul Apparently Thinks Republicans Controlled Congress in 1978

| Wed Apr. 23, 2014 12:14 PM EDT

Over at the mother ship, David Corn has assembled a bunch of clips of Rand Paul being less than reverential toward Ronald Reagan. Here's an example from 2009:

People want to like Reagan. He's very likable. And what he had to say most of the time was a great message. But the deficits exploded under Reagan....The reason the deficits exploded is they ignored spending. Domestic spending went up at a greater clip under Reagan than it did under Carter.

Ouch! That's not just a hit on Reagan, it's a direct suggestion that his fiscal policy was worse than Jimmy Carter's. Jimmy Carter's!

David has a bunch more along these lines. But here's my favorite part:

After this article was posted, Paul's office sent this statement from the senator: "I have always been and continue to be a great supporter of Ronald Reagan's tax cuts and the millions of jobs they created. Clearly spending during his tenure did not lessen, but he also had to contend with Democrat majorities in Congress."

Um, didn't Jimmy Carter also have to contend with Democratic majorities in Congress? Bigger ones, in both houses? Or am I thinking about a different Jimmy Carter?

Medicaid Expansion Now an Even Better Deal For States

| Wed Apr. 23, 2014 11:10 AM EDT

Need some more good news on Obamacare? How about some mixed news instead? Here it is:

Congressional Budget Office (CBO) estimates released last week show that health reform’s Medicaid expansion, which many opponents wrongly claim will cripple state budgets, is an even better deal for states than previously thought....CBO now estimates that the federal government will, on average, pick up more than 95 percent of the total cost of the Medicaid expansion and other health reform-related costs in Medicaid and the Children’s Health Insurance Program (CHIP) over the next ten years (2015-2024).

The good news is obvious: the Medicaid expansion is an even better deal for states than we thought. The federal government will pick up nearly the entire cost of expansion, and when you account for money that states will save from reduced amounts of indigent care and greater help with mental health costs, the net cost of expansion gets very close to zero.

The mixed nature of this seemingly good news comes from the reason for CBO's more optimistic budget projection: it's because they think the program will cover fewer people than they previously projected. There had always been a fear among states that lots of people who were already eligible for Medicaid—but had never bothered applying for it—would hear the Obamacare hoopla and "come out of the woodwork" to claim benefits. Since these folks weren't technically part of the expansion, states would be on the hook to cover the bulk of their costs.

CBO now believes this fear was overblown. Apparently most people who didn't bother with Medicaid before Obamacare took effect aren't going to bother with it now either. That's good for state budgets, but obviously not so good for all the people who could be getting medical care but aren't.

For what it's worth, this is a tradeoff we're going to see a lot of. Unless the actual cost of medical care comes down, the budget impact of Obamacare is always going to depend on how many people benefit from it. If lots of people sign up, that's good for public health but costly for taxpayers. If fewer people sign up, then government spending goes down but fewer people receive medical care. There aren't very many ways around this iron law.

Running Away From Obamacare Is a Fool's Errand

| Wed Apr. 23, 2014 10:24 AM EDT

Are red-state Democrat senators certain losers to Republican challengers in this year's midterm election? According to recent polling, no. The races are all pretty close. But Greg Sargent points out that these Democrats do indeed have an Obamacare problem:

In Arkansas, 52 percent would not vote for a candidate who disagrees on Obamacare, versus 35 percent who are open to doing that. In Louisiana: 58-28. In North Carolina: 53-35. It seems plausible the intensity remains on the side of those who oppose the law. This would again suggest that the real problem Dems face with Obamacare is that it revs up GOP partisans far more than Dem ones — exacerbating the Dems’ already existing “midterm dropoff” problem.

However, in Kentucky, the numbers are a bit different: 46 percent would not vote for a candidate who disagrees with them on the law, while 39 percent say the opposite — much closer than in other states. Meanwhile, Kentucky Governor Steve Beshear — the most outspoken defender of Obamacare in the south — has an approval rating of 56-29.

I'm keenly aware that I've never run for dogcatcher, let alone had any experience in a big-time Senate race. So my political advice is worth zero. And yet, polls like this make me more, not less, invested in the idea that running away from Obamacare is a losing proposition. Electorates in red states know that these Democrats voted for Obamacare. Their opponents are going to hammer away at it relentlessly. In practical terms, it's impossible for Dems to run away away from Obamacare, and doing so just makes them look craven and unprincipled.

The only way to turn this around is not to distance yourself from Obamacare, but to try and convince a piece of the electorate that Obamacare isn't such a bad deal after all. You won't convince everyone, but you don't need to. You just need to persuade the 5 or 10 percent who are mildly opposed to Obamacare that it's working better than they think. That might get the number of voters who would "never" vote for an Obamacare supporter down from the low 50s (Arkansas, Louisiana, North Carolina) to the mid 40s (Kentucky). And that might be enough to eke out a victory.

Needless to say, this works best if everyone is pitching in. And surely this is the time to start. The early website problems have been resolved and the initial signup period has been a success. Conservative kvetching has taken on something of a desperate truther tone, endlessly trying to "deskew" the facts and figures that increasingly make Obamacare look like a pretty effective program. There are lots of feel-good stories to tout, and there are going to be more as time goes by. What's more, the economy is improving a bit, which always makes people a little more sympathetic toward programs that help others.

Obamacare isn't likely to be a net positive in red states anytime soon. But it's not necessarily a deal breaker either. It just has to be sold—and the sellers need to show some real passion about it. After all, if they don't believe in it, why should anyone else?

Why Does Everyone Think Lolita Is a Teenager?

| Wed Apr. 23, 2014 9:20 AM EDT

This is way off my usual beaten path, but here is Hillary Kelly in the New Republic:

People have the wrong idea about Lolita, and Lolita. Today, the name is widely used as a synonym for a sexually precocious young girl. But the most important fact of the novel is that Lolita is a 12-year-old girl....This makes the oversexed, hyper-titillating cover art that has been repeatedly slapped on Lolita incredibly bizarre—not to mention disturbing. We aren't meant to find Lolita sexy. We shouldn't find Lolita sexy. Nabokov himself said that readers were "misled" by the book's repuation "into assuming this was going to be a lewd book." I'm not so naïve as to imagine book covers always faithfully replicate the literary intentions of their authors. But Lolita covers aren't simply exaggerated or oversimplified representations. They're downright creepy.

Huh. I didn't know that. But there's a good reason for this: I've never read the book. Like a lot of people, however, I have seen the movie. And in the movie, Sue Lyon plays a teenage Lolita. So I always figured Lolita was indeed a high-school age girl. I don't know if Stanley Kubrick made this decision for artistic reasons or—ah, wait. Sure enough, the ever-helpful Wikipedia informs me that "Lolita's age was raised from twelve to early teens in the film to meet the MPAA standards. As such, Sue Lyon was chosen for the title role partly due to her more mature appearance."

Anyway, I wonder if this is the wellspring of much of the common confusion? I'll bet a whole lot more people have seen the movie than ever read the book.

Most Independent Voters Aren't, Really

| Tue Apr. 22, 2014 7:31 PM EDT

I write from time to time about the myth of the independent voter, which goes something like this: there aren't any. Oh, lots of people say they're independent, but it turns out that most of them lean in one direction or another, and when Election Day rolls around the leaners vote just as reliably as stone partisans. True independents—the ones who switch between parties from election to election—make up only about 10 percent of the electorate.

Still, 10 percent is 10 percent. It's not quite nothing. But it turns out that it really is. Today, Lynne Vavreck breaks things down a bit further and explains just how these folks vote:

Only a small percentage of voters actually switched sides between 2008 and 2010. Moreover, there were almost as many John McCain voters who voted for a Democratic House candidate in 2010 as there were Obama voters who shifted the other way....On average, across districts, roughly 6 percent of Obama voters switched and just under 6 percent of McCain voters switched.

So, yes, there are some true switchers. But mostly they're going to cancel each other out. The net result from a huge push for swing voters is likely to be no more than 2 or 3 percentage points. In a few high-stakes states in a presidential election, that might make them worth going after. But in your average congressional election, it's a waste of time and money. So what does make the difference?

On turnout, the numbers were not evenly balanced for Democrats and Republicans. Only 65 percent of Obama’s 2008 supporters stuck with the party in 2010 and voted for a Democrat in the House. The remaining 28 percent of Mr. Obama’s voters took the midterm election off. By comparison, only 17 percent of McCain’s voters from 2008 sat out the midterms.

....It may seem hard to believe that the [2010] shellacking was more about who turned up than about who changed their minds between 2008 and 2010, but it lines up with a lot of other evidence about voters’ behavior. Most identify with the same political party their entire adult lives, even if they do not formally register with it. They almost always vote for the presidential candidate from that party, and they rarely vote for one party for president and the other one for Congress. And most voters are also much less likely to vote in midterm elections than in presidential contests.

The problem is that going after turnout is every bit as hard as picking up the crumbs of the swing voters. Traditional Democratic constituencies—minorities, low-income voters, and the young—simply don't turn out for midterm elections at high rates. They never have, despite Herculean party efforts and biannual promises that this time will be different. But it never is. They'll vote for president, but a big chunk of them just aren't interested in the broader party.

So what's the answer? Beats me.

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Male Doctors Bill Medicare for More Services Than Female Doctors

| Tue Apr. 22, 2014 1:45 PM EDT

Via German Lopez, today brings us an interesting study from Andrew Fitch of NerdWallet. Long story short, he finds that male doctors get paid a lot more by Medicare than female doctors.

Obviously there are several reasons for this. Chief among them: Higher paid specialties tend to be dominated by men, and men see more Medicare patients than women. But here's the most interesting bit:

  • Male doctors perform more services per patient treated.  To explore this, NerdWallet Health devised a metric to calculate a physician’s average “service volume” per patient. We found that male doctors billed Medicare, on average, for one more procedure per patient than female physicians (5.7 services performed per patient by male doctors vs. 4.7 services per patient by female doctors).
  • This gap in service volume is true across specialties. Male doctors performed more services per patient than female doctors across nearly all specialties. In a specialty like pathology — where doctors infrequently provide services directly to patients — we found no variation in average service volume.

On average, male doctors bill 5.7 services per patient vs. 4.7 for women! That's a huge gap. And it's not just that cardiologists tend to bill for more services than, say, pulmonologists. Even within specialties, men bill for more services than women.

But why? Are they just generally more aggressive? Are they gaming the system? Do sicker patients prefer male doctors for some reason? If this analysis turns out to be true, it would sure be fascinating for someone to follow up and try to figure out what's going on.

Chart of the Day: Wind Turbines Don't Kill Very Many Birds

| Tue Apr. 22, 2014 11:22 AM EDT

Tom Randall is fed up with hysteria over wind turbines being responsible for bird genocide. The numbers just don't support it:

The estimates above are used in promotional videos by Vestas Wind Systems, the world's biggest turbine maker. However, they originally came from a study by the U.S. Forest Service and are similar to numbers used by the U.S. Fish and Wildlife Service and the Wildlife Society — earnest defenders of birds and bats.

....It’s nice for wind-farm planners to take migration patterns and endangered habitats into account. But even if wind turbines were to double in size and provide 100 percent of our energy needs (both of which defy the laws of physics as we currently understand them), they still wouldn’t compare to the modern scourges of high-tension power lines or buildings with glass windows. Not even close.

Wind turbines can be noisy and they periodically kill some birds. We should be careful with them. But the damage they do sure strikes me as routinely overblown. It's bad enough that we have to fight conservatives on this stuff, all of whom seem to believe that America is doomed to decay unless every toaster in the country is powered with virile, manly fossil fuels. But when environmentalists join the cause with trumped-up wildlife fears, it just makes things worse. Enough.

America's Middle Class is Losing Out

| Tue Apr. 22, 2014 9:20 AM EDT

First, there was Wonkblog. Then came 538. Then Vox. And now we have The Upshot, a new venture from the New York Times that aims to present wonky subjects in more depth than you normally find them on the front page. Today, David Leonhardt and Kevin Quealy kick off the wonkiness with an interesting analysis of median income in several rich countries. Their aim is to estimate the gains of the middle class, and their conclusion is that America's middle class is losing out.

Their basic chart is below. As you can see, in many countries the US showed a sizeable gap in 1990. Our middle class was much richer than most. By 2010, however, that gap had closed completely compared to Canada, and become much smaller in most other countries. Their middle classes are becoming more prosperous, but lately ours hasn't been:

Germany and France show the same low-growth pattern for the middle class that we see in the United States, but countries like Norway, Ireland, the Netherlands, and Britain have shown much faster growth. What's going on?

[The data] suggest that most American families are paying a steep price for high and rising income inequality. Although economic growth in the United States continues to be as strong as in many other countries, or stronger, a small percentage of American households is fully benefiting from it.

....The struggles of the poor in the United States are even starker than those of the middle class. A family at the 20th percentile of the income distribution in this country makes significantly less money than a similar family in Canada, Sweden, Norway, Finland or the Netherlands. Thirty-five years ago, the reverse was true.

Note that these figures are for after-tax income. Since middle-income taxes have been flat or a bit down in the United States, this isn't likely to have had much effect on the numbers.

Quote of the Day: Here's How the GOP Shows Its Enviro Cred

| Tue Apr. 22, 2014 8:58 AM EDT

Jonah Goldberg says it's unfair that environmental groups are almost uniformly anti-Republican:

Contrary to what you may have heard, GOP politicians still care about the environment, but they take their cues from public opinion, not from the green lobby. This often means that when the green lobby denounces Republicans (or centrist Democrats) for supporting drilling or fracking, the greens are at odds with the majority of Americans.

So there you go. Conservatives care deeply about the environment, and they demonstrate this commitment by ignoring "global warming hysteria" and instead pandering to public opinion polls at every turn. I'm glad we got that straightened out.