Ecclesiastes's Blog

Racial Thought Crimes

2010-07-21T12:43:04Z

It's not necessary to hear the entire Shirley Sherrod speech "in context" to know that something horribly, horribly wrong has happened. It's only necessary to see and hear the excerpts that Andrew Breitbart chose to publish.

Contrary to the introductory titles to that excerpt, there is nothing in the excerpt to suggest that any federal funds were ever denied to anyone on account of race. All that Ms. Sherrod admits is that, at one time in the past (it's not clear when), facing a white farmer trying to save his farm, she realized that she "didn't give him the full force of what I could do." That suggests that she did what she was required to do, but didn't go the extra mile for him.

There is also nothing racially derogatory in the excerpt. There are no racial epithets, and no racial judgments. The worst that Sherrod admits to is a judgment that the white farmer talked for too long and that he was trying to show her that he was superior to her.

So why was Sherrod forced to resign? Her sin was that she publicly admitted to thinking about race and how it might affect her actions. She publicly admitted that, at a time in the past, she had thought about the race of another person and had "struggled" (her word) with her ideas about how to help him. She committed the political crime of being aware of her own racism, and publicly talking about it.

Even in the excerpt, it is clear that this is not the bragging of a racist, or even the inadvertent disclosures of an unconscious racist, but the confessions of a thoughtful person who has struggled with her own thoughts about race.

So hypocrites who are unaware of their racism are safe in their jobs, as are the consciously racist who are good liars and good actors. But those who are honest and self-aware have got to go.

It is not surprising that Breitbart and other members of the right-wing thought police would jump on any public mention of race and try to use it as a political weapon. What is frightening is that we are allowing people like Breitbart to punish those who talk candidly about race, and so allow the fanatics on the right to control our public discourse about race.

Refudiating Palin

2010-07-20T03:14:08Z

First off, I love the word "refudiate," which Sarah Palin used in some recent Tweets. It combines the words "refute" and "repudiate" in a succinct and beautiful way.

What is disappointing is that Palin was not willing to claim her power of invention, and that she didn't understand that her real muse was not William Shakespeare, but Lewis Carrol (aka Charles Dodgson).

I don't know of any example of Shakespeare coining new words (contrary to Palin's claim that "Shakespeare liked to coin new words too.") However, Lewis Carrol did it often, and many of the words he created by melding two separate words (words which he called "portmanteau" words) are part of the English language today.

For example, Carrol invented the word "chortle," which is a combination of "snort" and "chuckle."

"Refudiation" would be a wonderful addition to the English language, if only Palin would have the sense (and courage) to claim it.

Ninety Percent

2010-06-17T16:49:50Z

BP now claims that it will soon be able to capture and recover 90% of the oil gushing from the Deepwater Horizon well. That sounds good, until you remember that the current estimates are that the well is spilling 50,000 barrels of oil each day, and a plug that is 90% effective will still allow 5,000 barrels of oil to continue to spill each day.

Oddly enough, 5,000 barrels a day was BP's estimate of the oil spill rate back in April, when the spill was considered to be merely catastrophic. Which means that, if BP can stop 90% of the oil, it will actually have accomplished nothing other than to bring the actual disaster back into line with its original under-estimates.

Our Government

2010-05-20T02:57:11Z

Following his victory in the Kentucky Senate primary, Rand Paul was widely quoted as saying that "I have a message, a message from the Tea Party, a message loud and clear that does not mince words. We've come to take our government back."

But don't liberals and progressives also want to "take our government back"?

The difference between liberals/progressives and Tea Partiers is that liberals/progressives want government to work for the people again, while Tea Partiers don't want government to work at all.

Birthers and Article IV

2010-04-21T23:24:42Z

As the Arizona legislature continues to move towards enacting a law requiring Presidential candidates to provide a birth certificate before becoming eligible to be placed on the ballot in Arizona, it should be pointed out that the law won't really change anything, because Barack Obama already has a birth certificate, and has already produced it.

Now, it's obvious that the real aim of this legislation is not to require Obama to produce the birth certificate we've already seen, but to produce the "real" certificate of live birth, listing the name of the doctor, hospital, etc.

But then there's this pesky Constitution.

Article IV, Section 1, of the U.S. Constitution says that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." A birth certificate is a record, and Arizona is required to give "full faith and credit" to the records of Hawaii. If Hawaii issues a certificate that says that someone was born in Hawaii, then Arizona (and every other state) seems to be bound by that record (or at least unable to question the form of the certificate).

Meanwhile, the Hawaiian government is tired of responding to requests for Obama's birth certificate, and is moving towards approving a law that allows the government to ignore repeated (and silly) requests for the same records.

Good for them.

The Rhetoric of Violence

2010-03-28T18:51:20Z

Republican leaders have gone through the motions of renouncing the threats of violence that have been reported against Democratic leaders during and following the enactment of health care reform, and those Republication leaders seem to consider themselves entirely free of any responsibility for those threats. But those threats are entirely consistent with the rhetoric of the right, including the rhetoric of Republican leaders, and the rhetoric helped to justify violence in the minds of the far right.

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And international law recognizes that a nation may legitimately use force to defend itself against invasions or other foreign threats.

But in each case, the level of violence that can be exerted must be appropriate to the level of violence of the aggressor. You can't respond to verbal threats with physical force, and you can't respond to physical force with deadly violence. In other words, you can't shoot someone who slaps you or shoves you. Similarly, the use of force by nations must be "proportional" to the threat. A country can't bomb a city in response to a border obstruction.

If the health care reform enacted by the Democrats were nothing more than bad policy, bad philosophy, or bad judgment, threats of violence could obviously not be justified, even by the most fervent opponents. But that's not the way the issues were framed by Republicans and conservatives. The health care bill was described as "oppressive" and would deprive Americans of "freedoms." Earlier, there was talk of "death panels." And the procedures used to enact health care reform were attacked as undemocratic and illegitimate. The Republicans described health care reform not merely as bad policy, but as the product of an oppressive, illegitimate government that threatens our life, liberty, and property. They described health care reforms in terms that, if taken literally, would justify armed revolution.

The extremist rhetoric of Republican leaders might not have incited threats of violence by the right, but the rhetoric justified threats of violence. And their defense is that they should not have been taken seriously?

Overreaching by the Pennsylvania AG

2010-03-25T15:09:10Z

I was surprised to read that the Attorney General of Pennsylvania, Thomas Corbett, had joined in the lawsuit seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional, because the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill. I knew that the AG of Pennsylvania is an elected office, but had forgotten that the current AG is a Republican, not a Democrat. (I live in Pennsylvania and it is a fairly moderate state politically, and tends to alternate regularly between Republican and Democratic administrations.)

If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), I would be somewhat annoyed, but what really bothers me is that the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate").

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" my individual freedom and the right to represent my individual interests in court? And what if I don't want him representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

Why Turkeys Run the World

2010-03-03T12:25:35Z

The Senator Bunning/unemployment benefit extension fiasco is another illustration of a fundamental truth that was revealed to me some years ago in a book (more of pamphlet really) titled "Why Turkeys Run the World." The fundamental truth is that real decision-making power does not reside in the people with a goal or a mission or something to accomplish. The real power rests with people without any goal or agenda whatsoever.

Take Senator Bunning (please). The reason he was able to block Senate action was due in large part to the peculiar (to say the least) rules of that body, but the reason he was so successful was that he wasn't actually trying to accomplish anything, or even actually trying to block anything. If he had been trying to accomplish something, then the other Senators could have negotiated with him. But he didn't actually want anything, so there was nothing to offer him. It was his very purposelessness that gave him power.

A similar dynamic was seen in Senator Lieberman's self-indulgent opposition to health care reform. The real problem was not that Lieberman supported health care reform, or that he opposed it, but that he really didn't give a damn one way or another. Not really caring what happened, he had much greater freedom of action, and much greater power, than the Senators who stood for something.

Elections are usually decided by the independents in the middle, not with the stalwarts on either side of the political divide. Similarly, Congressional power resides in the indifferent and the unprincipled, not the dedicated.

The Theology of Health Care Reform

2010-02-28T12:59:12Z

I experience a certain amount of cognitive dissonance every time I hear a politician or pundit express opposition to universal health care when the same politician or pundit has previously advocated "Christian values." For example, the "C Street" members of Congress are all very public in their Christianity, very Republican, and very opposed to health care reform.

I describe my reaction as "cognitive dissonance" because it is difficult for me to understand how anyone who thinks of themselves as "Christian" could possibly oppose health care reform or government support of health care.

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Is there any doubt but that we are required to show mercy to those who are sick or wounded?

In another often-quoted passage, sometimes referred to as the "parable of the sheep and the goats" but more often as the "Judgment of the Nations," Matt. 25:31-45, the context is more complicated, because Jesus is describing future events, and quotes the "Son of Man" when he "comes in his glory" with "all the nations [...] gathered before him." Jesus says that the king will say to those at his right that they are blessed and will inherit the kingdom, because "I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me, I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me."

When asked by "the righteous" when it was that he was hungry, thirsty, naked, or sick, the king will reply that "just as you did it to the least of these who are members of my family, you did to to me."

Once again, is there any question but that the righteous will take care of those who are sick, even the least of us?

And yet the self-righteous "Christians" among us are blocking efforts to apply our collective resources to the care of the sick.

I have not seen any public discussion of why someone who calls himself or herself a Christian would oppose universal health care, but the only possible rationale I have been able to imagine is a concern that non-believers would be required to pay tax money for health care for others, and Christians do not want to force their beliefs on non-Christians.

Of course, that same kind of concern doesn't stop those same Christians from being ready and willing to force on others their views on abortion, same-sex marriage, and military spending.

And why don't we let the non-believers speak for themselves? Why don't we who believe in Christian values speak out in support of the principle of health care for all, and be willing (even glad) for our tax dollars to help pay for the health care of the sick and needy? Why is there support for universal health care among atheists and agnostics and so little support among fundamentalist Christians?

Can anyone say "lame rationalization"?

I'm afraid that self-proclaimed Christians oppose health care reform because they are trying to serve two masters, God and wealth, and are failing (as Jesus predicted in Matt. 6:24). If you are so concerned about your own money, and with your own tax liabilities, that you can't support the idea that we should all help each other with the costs of being sick, than you can't really love God and you can't really love your neighbor.

Yoo's Professional Misconduct

2010-02-21T23:01:22Z

Although Associate Deputy Attorney General David Margolis has decided that John Yoo's "poor judgment" did not rise to the level of professional misconduct, the issue is not yet settled, because what is essentially the same issue is being litigated in federal district court, and is now before the 9th Circuit Court of Appeals.

]]> In the recently-released final report of the Office of Professional Responsibility within the U.S. Department of Justice, the OPR concluded that many of the misstatements and omissions in the legal memoranda that John Yoo (then in the Office of Legal Counsel) approved on the use of "enhanced interrogation techniques" were intentional and constituted professional misconduct because he failed to provide legal advice that was thorough, objective, and candid. The OPR concluded that Yoo failed to provide the proper level of legal advice because he "put his desire to accommodate the client" (i.e., the policy makers in the Bush White House) above his professional obligations.

In rejecting the conclusion that the misstatements and omissions constituted professional misconduct, Assoc. Deputy Attorney General Margolis disagreed that Yoo wanted to tell the policy makers within the Bush administration what they wanted to hear, and concluded instead that Yoo was telling the Bush administration what Yoo wanted them to hear. "While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client."

But is the sincerity of Yoo's ideology a defense to charges of professional misconduct?

That issue may be addressed in a federal district court action brought by Jose Padilla against John Yoo in which Padilla alleges that John Yoo's memos resulted in Padilla's imprisonment (and mistreatment). Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal.) Yoo moved to dismiss the lawsuit on the grounds that, among other things, he was a federal officer entitled to immunity to suit. In a ruling last June, the court ruled that Yoo was not entitled to immunity because the opinions expressed in Yoo's memos violates "clearly established statutory or constitutional rights of which a reasonable person would have known."

The district court ruling is currently on appeal to the 9th Circuit (No. 09-16478), and one of the issues being argued is whether Padilla's complaint alleges facts that constitute unprofessional conduct by Yoo, and a brief filed by a group of professors of legal ethics say that it does. According to the "amicus" brief filed by "legal ethics scholars" last month, Padilla has alleged that Yoo "stepped beyond his role as a lawyer to participate directly in developing policy in the war on terrorism," and that allegation supports the conclusion that Yoo did not merely give "poor" or "incorrect" legal advice, but gave advice that violated ethical rules.

In other words, Margolis seems to believe that Yoo did not act unethically because he only allowed his own views to interfere with his obligation to give impartial legal advice, while the legal scholars filing the amicus brief with the 9th Circuit believe that Yoo acted unethically because he allowed his own views to interfere with his obligation to give impartial legal advice.

Now, the 9th Circuit is being asked to rule on allegations and not evidence, but the fact that the OPR has already concluded that Yoo's erroneous legal advice was not accidental but intentional suggests that Padilla will be able to prove the same thing. And Padilla may be able to avoid the mistake that the OPR may have made in assuming that Yoo gave bad legal advice to please the White House and failing to consider that Yoo might have given bad legal advice to please himself.

The Upcoming Tax Brawl

2010-02-05T11:25:01Z

There's been some media attention to the strange one-year repeal of the federal estate tax, and a few comments on the failure of Congress to pass an "extenders" bill to prevent a number of tax provisions from expiring at the end of 2009, but I have yet to see any public comment on what will be THE political story of 2010, which is that all of the Bush tax cuts will be expiring at the end of the year and, unless Congress acts, almost every tax-paying American will be paying more in federal income tax next year.

For the wealthiest Americans, allowing the Bush tax cuts to "sunset" will be quite a shock. A family of four with $500,000 of income filing a joint return with no itemized deductions would pay $136,208 in federal income tax in 2010, but will have to pay $158,801 in 2011, a $22,607 increase, unless Congress acts. If that $500,000 of income includes qualified dividend income, which is taxed at the capital gain rate of 15% instead of the maximum rate of 35% on ordinary income, the results are even more dramatic. In 2010, $500,000 of income with $250,000 of qualified dividends would result in $89,201 of federal tax, but in 2011 the tax jumps up to $158,801, an increase of $69,60, or almost 80%, in only one year.

Barack Obama campaigned on the pledge (which he has repeated several times since being elected), that he will not raise taxes for those earning less than $250,000. For a family of four with $250,000 of income, their tax bill is $51,701 under current law, but goes to $59,341 in 2011, a $7,640 increase.

Reducing the family's income reduces the impact, but the impact is still there. For a family earning $50,000, the tax bill would be $2,763 under current law, but jumps to $3,878, more than $1,000 more, in 2010.

Even a family earning as little as $30,000 would be affected. That family would owe $400 in federal income tax in 2010, but if the 10% tax bracket and marriage penalty relief both expire, that family's tax bill more than doubles, going from $400 to $878.

And here is where the Senate will jump into inaction. As we have seen very clearly in the attempt at health care reform, it takes only 41 Republican votes in the Senate (which the Republicans now have with newly-elected Scott Brown seated) to block any attempt to raise income tax rates for the wealthy. But these tax increases are already enacted and will happen if Congress does nothing, and it also takes only 41 Democratic votes in the Senate (or the Democratic majority in the more progressive House) to block any extension of the tax cuts for the wealthy.

So it's going to be like health care, only worse. At least with health care, Republicans paid lip service to the idea of reform and compromise, but when it comes to taxes Republicans are going to even pretend to be interested in negotiating with Democrats. With increasing pressure from "tea partiers" and the extreme right, and facing election battles at the end of 2010, Republicans have no reason to do anything but draw a hard line and insist on making the Bush tax cuts permanent.

And Republicans also have every reason to block anything the Democrats try to enact, because they would really like to go into the 2010 election being able to point to enormous tax increases on working Americans in 2011 and blaming it on the Democrats who control Congress.

So it's going to be bloody. It's going to be a bare-knuckled street brawl with knives and chains, and if the Democrats don't get their act together and enact real tax reform before November, they're going to find themselves down on the ground, bloody, and being kicked in the face.

Dred Scott v. Citizens United

2010-01-25T04:11:34Z

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court declared that, whether of not someone was a "person" within the meaning of the Constitution was to be determined solely by reference to the Constitution, and Congress and the States had no say in the matter. Specifically, a person descended from a person imported as a slave could never be a "citizen" or a "person" within the meaning of the Constitution.

The decision is widely regarded as one of the worst in the history of the United States. It perpetuated slavery, it lead to the Civil War, and it was directly refuted by the 14th Amendment, one of only four (at most) Supreme Court opinions to have been reversed by constitutional amendments.

The recent Supreme Court decision in Citizens United v. Federal Election Commission, 558 U.S. ___, No. 08-205 (1/21/2010), goes to the opposite extreme, because it holds that anything that a state declares to be a "person" is a "person" for all purposes of the Constitution, and Congress has no say in the matter.

The Dred Scott decision eviscerated the federal government by declaring that whether a slave was a "person" was determined solely by constitutional law and Congress was powerless.

The Citizens United decision eviscerates the federal government by declaring that whether a corporate is a "person" is determined solely by state law and Congress is powerless.

Let's hope that fewer Americans die this time.

Taxing Political Expenditures

2010-01-24T13:56:45Z

The Supreme Court's recent decision in Citizens United v. Federal Election Commission severely restricts the ability of Congress to regulate, much less prohibit, the use of corporate money to influence elections, but what about Congress's power to tax that money?

As it is now, corporations cannot claim expenses of attempting to influence elections or legislation as business expense (see Internal Revenue Code section 162(e)). So corporate profits that are spent on electioneering are effectively subject to income tax at the corporate level. The shareholders bear the burden of the tax, but very indirectly.

But what if the expenses of electioneering were considered a form of a dividend?

This is not unprecedented, because there are lots of places in the Internal Revenue Code in which something that looks like one thing is recharacterized as something else. To take just one example, IRC section 7872 says that if a corporation makes an interest-free loan to a shareholder, the loan is recharacterized as an interest-bearing loan at a market rate of interest, with imputed interest payments by the shareholder to the corporation and imputed dividend payments in the same amounts by the corporation to the shareholder. There are also many rulings and court decisions in which officers or shareholders who have used corporate money to pay personal expenses are held to have received either compensation or dividends from the corporation.

So it would not be unreasonable for Congress to say that, if a corporation uses its money to advance the personal political beliefs of the officers or shareholders, that money should be considered to be payments to those officers or shareholders. For most publicly-traded corporations, dividends are not tax-deductible by the corporation, so income paid out as dividends is taxed twice, once at the corporate level and again at the shareholder level.

But the really nasty part is that Congress could offer corporations a choice: If the political expenses are approved by the shareholders, then the expenses could be considered a dividend to those shareholders, but if the political expenses are approved only by the board of directors, then the income falls on the directors alone.

Neither alternative is going to be very appealing to corporations. Getting shareholder approval for political spending could turn shareholder meetings into political battles, and stock prices could suffer if investors decide that they don't want to own a stock that pays a dividend of $10 while the investor has $12 of taxable income. But directors are certainly not going to want to pay personal income tax on what might be millions of dollars of income they never actually received.

Taxing directors or shareholders on the money spent on corporate electioneering might not solve the problem of corporate influence, but it might make it more difficult and more painful.

Message to the DNC

2010-01-22T13:38:45Z

I went to the Democratic National Committee website just now and submitted the following message about the Senate health care bill:

I got a call last week asking me for a donation for the 2010 elections. First enact HR 3590, THEN I'll make a donation. Otherwise, forget it.

And I'm mailing a letter to my representative with a similar message, but longer.

The Lieberman Ultimatum

2009-12-17T03:59:11Z

My current speculation is about what would happen if the President of the United States, flanked by the Speaker of the House and the Senate Majority Leader, were to meet in private with the Senior Senator from Connecticut, and ask that he support the Democratic version of the health care reform bill, at least in terms of allowing a vote on the bill, and discuss the following possible consequences:

1. He will be stripped of all committee chairs and assignments controlled by Democrats;

2. Everything he supports for his state will be opposed by every member of the Democratic caucus, so there will be no more "earmarks" or anything else he supports that might benefit his state;

3. They will do everything in their power to make sure he is never elected to anything again in his life.

Now, it is entirely possible he won't care. But what have we got to lose? That he might vote in favor of a filibuster of a trade bill two years from now?

Isn't it time to find out where he stands, and where we stand?