Political MoJo

Mark Kleiman is thinking about what the Democrats should do on Harriet Miers. I'm certainly not much good at giving political advice, and there's no reason why anyone should listen to what I suggest, but here are a few odds and ends:

Obviously, the key consideration is this: "If Miers is defeated, would her replacement be better or worse?" With that in mind...

Whatever else one can say about her, say this: Miers is an administration hack of the first order, utterly subservient to the Bush family. She will almost certainly rule Bush's way in a number of upcoming Supreme Court cases—Hamdan v. Rumsfeld, Padilla v. Rumsfeld, challenging the authority of the president to detain and torture whoever he wants without Congressional oversight. This, to me, is the most important issue on the Court's docket in the near future, along with abortion.

The Senate recently passed a bill regulating treatment of detainees in U.S. custody. How long will that bill last? The White House OLC, under Alberto Gonzales, has argued that "any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority to the President." As a legal matter, I think this is flat wrong. As policy, it's disastrous. But would Miers endorse this view, or something like it? Another, more "principled" conservative might put limits on Bush, although that's a gamble: Antonin Scalia has argued, in Hamdi v. Rumsfeld, that American citizens have a right to challenge their imprisonment, but "enemy combatants" abroad do not; Clarence Thomas, meanwhile, basically believes the executive branch can do whatever it wants. Miers will almost surely take Thomas' view; if she was defeated or her nomination withdrawn, her replacement might take Scalia's slightly-less-bad view, which would be better than nothing. But maybe not.

On matters concerning things other than the executive branch, Miers is likely to vote no more conservatively than anyone else Bush might nominate. From what we've seen, she might cast a few surprise liberal votes on social issues, especially when it comes to criminal justice, while taking a more consistently pro-business line than a "principled" originalist might do. (Of course, there are very few principled originalists anywhere—see "14th Amendment, affirmative action and"—so this doesn't really matter.)

The danger with replacing Miers with a more qualified and "knowledgeable" Justice, one who has a firmer grasp of constitutional issues, like Michael McConnnell, is that a persuasive replacement could potentially convince the centrists on the Court—Breyer, Souter, Kennedy—to swing further to the right. Dahlia Lithwick has suggested that Scalia's antagonistic temperament has alienated many of his colleagues, and Marisa Katz has noted that Rehnquist was unable to convince the liberal justices on his court to sign onto his opinions until he became more likable and less harsh. I already worry that John G. Roberts will be more effective than Rehnquist at this, and we don't need another like him.

Politically, if Miers' nomination was sunk, that might harm the Bush administration, but based on history, Bush's ability to ram stuff through Congress seems unrelated to the fact of individual victories or defeats. The Bernie Kerik fiasco didn't hurt the White house, and neither would this. The administration's frequent bumbling of late seems mostly due to the fact that Karl Rove is focusing on staying out of jail. One good thing that could come out of a Miers confirmation would be that evangelical turnout in the 2006 midterms might be depressed; but on the other hand, William Galston and Elaine Karmack have recently observed that evangelical turnout has been mostly constant since 1988, so this seems pretty unlikely.

Prediction: The current conservative infighting over Miers will have precisely zero effect on anything substantive, nor will it harm the Republican Party in any way. Read Stanley Coser. Six months from now, they'll have forgotten all about their little grumbling.

At an emotional level, I agree with Jack Hitt: Democrats shouldn't even show up for the vote to confirm Miers. This country is fast becoming a banana republic and the best thing the party can do is to let voters know who holds the reins in Congress. More "seriously," though, I don't really know.

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Recall that Bush, in the wake of Katrina, was able to suspend federal labor laws that require federal contractors to pay a prevailing wage.

That was bad enough.

But now it seems that not only are workers at companies with federal contracts being paid below the prevailing wage, but they are being radically underpaid. Body and Soul links to an LATimes story today which notes that some workers are only being paid $4 an hour!

Jeanne then writes:

If all you care about is putting up structures, cheap is good. If you're trying to rebuild a community, the most important thing is giving people something to come back to. Four dollars isn't it. If anybody cared about the community, they'd be paying way more than prevailing wages, and giving evacuees priority on getting the jobs.

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I see that Andrew Sullivan has made the flat tax his new pet issue, noting, among other things, that the Eastern European countries that have implemented the flat tax have all seen stunning rates of growth in recent years. Well, good for them. Since this issue is likely to come up sooner or later, though, here are a few initial, mostly scattered points:

It's unclear what's boosting those Eastern European economies, exactly. These are all countries that have emerged from communism, privatized industry, and seen an influx of western investment over the past decade. You'd expect them to grow quickly, no? I'd like to see more before ascribing magical powers to the flat tax. Slovakia, for instance, had 4.2 percent growth in 2003, "the strongest growth in Central Europe," right before it moved to the flat tax. Huh. And President Ivan Gasparovic has recently said that the wave of new foreign investors are attracted by the country's cheap labor costs rather than its flat tax rates.

Similarly, this IMF paper wonders whether Russia's boost in tax revenues following its flat-tax reform in 2001 were due to voodoo economics or merely to better enforcement. See also "Demythologizing the Russian Flat Tax" by Clifford Gaddy and William Gale.

Flat-taxers love to hype the simplicity of the "postcard size tax return," but as analysts have pointed since the days of Cain and Abel, the simplicity of a tax system has nothing to do with the tax rates. Progressive tax rates don't make our system complicated. Once you know your income, you can just as easily multiply it by 23 percent as by 17 percent with a calculator. Try it! The real difficulty comes in actually defining one's income and calculating all those deductions and exemptions. That will never be easy for some people, say, Dick Cheney, no matter what kind of tax system we have. We can still have a simplified tax code that happens to have different rates for different income levels. There are good and fair ways of doing this.

It's worth noting that when you add up all federal, state, and local taxes, this country already has fairly "flat" tax rates. According to CTJ, the top 20 percent of earners pay about 32 percent of their income in taxes, the next quintile 29.8 percent, the next quintile 27 percent, and the next quintile 23 percent.

Popular resistance to a flat tax, at least in the United States, will come from people who don't want to give up the concrete deductions and exemptions they currently have in exchange for theoretical future gains down the road (from supposedly higher economic growth). I have a feeling that this is a psychological phenomenon that's very difficult to get around.

Home values would very likely decline in the short term if we switched to a flat tax and eliminated all deductions, on the theory that right now, the home-mortgage deduction enables buyers to bid up the prices of real estate. The price decline wouldn't change anything on net, but people who currently own homes would obviously be screwed.

So, for that matter, would many large businesses. Some corporations get deductions for interest on loans that they've taken out to purchase new equipment, as well as deductions for the depreciation of current equipment. Businesses that have been borrowing and investing in new equipment aggressively would get a kick in the teeth if the United States eliminated all deductions and moved to a flat tax. I daresay that manufacturing would suffer the worst; just don't tell Clyde Prestowitz.

If Congress can't, for political reasons, eliminate all those deductions and exemptions, then the effective flat tax rate is going to be very, very high. Certainly higher than the 15 percent effective federal rate that about 60 percent of all taxpayers currently pay. Of course, those are the bottom 60 percent of income-earners, and they have precisely zero sway over the current Republican Party, so that's obviously not a political concern for anyone in power.

In theory it's possible to design a progressive flat tax, or simplify the tax code in all sorts of progressive and sensible ways, as Dick Gephardt has suggested. But that's not the flat tax that Andrew Sullivan, John Breaux, or George W. Bush have in mind. Any tax reform that lowers the rate on the wealthy will have to raise taxes elsewhere, obviously. There's no getting around this, except with deficits. If I had to bet, I'd bet that the GOP shies away from real flat-tax reform (for reasons #5, 6, and 7 above) this fall and instead just enacts further tax cuts for its allies. Democrats are in danger of coming to power soon; best to leave them a nice big deficit mess and let them reap the political whirlwind.

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Thanks to Louisiana Senator David Vitter, the No Child Left Behind Act contains a clause which requires schools to give military recruiters the names, addresses, and telephone numbers of high school students. As most people have heard by now, parents may opt their adolescents out of this process. However, No Child Left Behind also provides that schools that do not hand over the information are subject to losing federal funding.

In Florida's Duval County, school officials have made a bargain with parents: It's okay to opt your kids out of the military recruiter list, but if you do so, your teenager's photo will not appear in the yearbook, and she will not be listed in sports activities or on the honor roll. Where I come from, this practice is known as extortion, but I'm sure the Pentagon sees it as negotiation. Duval County officials, though they believe they are operating within the confines of the law, have agreed to make some changes next year, which would give parents more options. However, these changes do not appear to effect the "negotiation" aspect of the process.

Though all credit goes to Senator Vitter for this particular aspect of the mess that is known as No Child Left Behind, it would be unfair of me to not ask alll of Congress to take a bow for its passage.

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