Democracy in America

COMMON CAUSE, a left-leaning advocacy non-profit, has filed a lawsuit against the Senate on the grounds that the filibuster defies the constitution. Ezra Klein of the Washington Post, a leading anti-filibuster opinion-maker, lays out the Common Cause case as it has been articulated by Emmett Bondurant, a celebrated litigator and Common Cause board member:

Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that’s changed. Today, Majority Leader Harry Reid says that “60 votes are required for just about everything.”

At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

The constitution sets out six cases in which a supermajority is required in the senate, and passing ordinary legislation isn't one of them. Mr Bondurant's basic claim is that the upshot of this omission is that the majority vote is the mandatory default for decision-making about legislation. That is to say, the use of anything other than majority voting is prohibited, except for those cases in which another voting rule is explicitly prescribed. If the constitution doesn't outright say this, that's only because the framers thought it was too obvious to mention.

Mr Klein thinks Mr Bondurant "makes a strong case". Gregory Koger, a political scientist at the University of Miami seems not to agree. "I am very excited that Common Cause has filed a lawsuit against the Senate filibuster", Mr Koger confesses at the Monkey Cage blog. "Excited in a John Stuart Mill, isn’t-it-great-when-bad-arguments-get-aired-and-demolished kind of way." In a 2009 post, Mr Koger systematically reviewed the arguments against the proposition that the filibuster is unconstitutional. In his more recent post he responds specifically to the Common Cause/Bondurant brief:

The central argument of the brief is that the use of supermajority procedures in the U.S. Congress is inherently unconstitutional. It states, “The principle of majority was so basic to the concept of a democratically elected legislative body that it did not need to be expressly stated in the Constitution.” Of course, too-important-to-be-written looks exactly like not-important-enough-to-include, so affirming this claim would invite a series of lawsuits claiming other “obvious but unwritten” principles.

Mr Koger goes on to observe that the principle that "every supermajority procedure used by Congress is prohibited" if not explicitly required would take down a number of longstanding and uncontested practices in both houses.

Continue reading "Is the filibuster illegal?" »

ACCORDING to the internet's hilarious headline writers, Eduardo Saverin, a Facebook co-founder, dis-"likes" America's tax rules and has "un-friended" the land of the free in order to dodge a potentially monumental tax bill after Facebook goes public. Mr Saverin is Brazilian by birth, but has been an American citizen since 1998. Last fall, he filed the papers to renounce his American citizenship. Considering how well Mr Saverin has done here, is this jake? Farhad Manjoo thinks that not only is Mr Saverin's extreme self-deportation unfair, "It’s ungrateful and it’s indecent. Saverin’s decision to decamp the U.S. suggests he’s got no idea how much America has helped him out." Ilyse Hogue of The Nation is incensed:

In making this decision, the Brazilian native did more than expose his blind disregard for all that his adopted country has done for him. He has made himself the poster child for the callous class of 1 percenters who are all too happy to use national resources to enrich themselves, and then skate, or cry foul, when asked to pay their fair share. The story evokes the image of the marauding aliens from the movie Independence Day, who come to Earth to take what they can get before moving on to another planet.

Wait a second! Did Eduardo Saverin plunder us? Are we now a desolate husk of a country, sucked dry by Eduardo Saverin's rapine? Well, no. Facebook created wealth. Mr Saverin is leaving having deployed his capital in a manner that made America better off than it was when he arrived. But will he escape without rendering unto Caesar what is Caesar's? Well, no. Both Mr Manjoo and Ms Hogue mumble in passing under their breath while coughing that Mr Saverin will have to pony up an "exit tax". So what's this woefully insufficient tribute come to, such that Mr Saverin may be so bitterly denounced for exploitation and despoilment? According to Danielle Kucera, Sanat Vallikappen and Christine Harper of Bloomberg:

Saverin won’t escape all U.S. taxes. Americans who give up their citizenship owe what is effectively an exit tax on the capital gains from their stock holdings, even if they don’t sell the shares, said Reuven S. Avi-Yonah, director of the international tax program at the University of Michigan’s law school. For tax purposes, the IRS treats the stock as if it has been sold.

Got that? Mr Saverin's on the hook for the amount his capital-gains tax would have come to had he sold all his American stock holdings. Tim Worstall sketches it out on his napkin:

[T]he net effect of his citizenship renunciation on his immediate tax bill is to increase it, hugely. For it will, at minimum, start with the idea that he’s just made a $3.5 billion or so profit (adjusted downwards for the difference between the private market value of Facebook last fall and the IPO price) on his Facebook stock which he got originally for minimal amounts of money. At the standard 15% long term capital gains rate that’s near $500 million right there.

Half a billion dollars! That is not scot-free. Did the marauding aliens in "Independence Day" leave behind a half billion American dollars after having successfully invested in Earth? They did not! One wonders how many pounds of flesh Mr Manjoo and Ms Hogue think Mr Saverin owes for the privilege of having Uncle Sam's hooks out once and for all.

Continue reading "Did Eduardo Saverin do anything wrong?" »

IT'S a testament to the power of internet remix culture that I saw at least three parodies of "The Life of Julia", an online slideshow from Barack Obama's campaign, before I glimpsed the original. In the official version, we are shown Julia advancing through the stations of life, from girlhood to retirement, and told at each stage just how well she fares under Mr Obama's policies compared to Mr Romney's.

Looking at the real deal for the first time just now, and attempting to put out of mind the spoofs and criticisms I've already absorbed, my first impression is that there is something either metaphysically or politically queer going on. Barack Obama is president Julia's entire life! My second impression, after slapping the shackles on my hair-splitting inner stickler, is that it was really quite generous of Mr Obama's people not to admit outright the truth that Julia probably won't survive past 30 in the terrifying alternative universe in which Mitt Romney is eternally president, for in that timeline her heart is torn out and eaten by a roving band of cannibal savages in the aftermath of the global nuclear devastation precipitated by Mr Romney, who doesn't even have a Nobel peace prize. That is to say, my first impression was that "The Life of Julia" is completely ridiculous, even as a piece of propaganda, and I was immediately moved to satirise it. I guess that's why there are so many send-ups. David Burge at Iowahawk, I think quite accurately captures the flavour of the original's description of Julia's political alternatives, whatever you think of his politics. 

Ross Douthat goes beyond the observation that "The Life of Julia" is a risible piece of propaganda. He argues that "the slide show represents a monument to certain trends in contemporary liberalism" due to the "fascinating ideological purity [of] its attitudes and arguments". "On the one hand", Mr Douthat writes, "its public policy agenda is essentially a defense of existing arrangements no matter their effectiveness or sustainability, apparently premised on the assumption that American women can’t make cost-benefit calculations or indeed do basic math". But here's Mr Douthat's deeper critique:

At the same time, the slide show’s vision of the individual’s relationship to the state seems designed to vindicate every conservative critique of the Obama-era Democratic Party. The liberalism of “the Life of Julia” doesn’t envision government spending the way an older liberalism did—as a backstop for otherwise self-sufficient working families, providing insurance against job loss, decrepitude and catastrophic illness. It offers a more sweeping vision of government’s place in society, in which the individual depends on the state at every stage of life, and no decision—personal, educational, entrepreneurial, sexual—can be contemplated without the promise that it will be somehow subsidized by Washington.

This seems a bit too heavy to lay upon a cartoon slide-show intended simply to illustrate the difference between a few of Mr Obama's and Mr Romney's policies. Is Mr Douthat disappointed that there are no slides depicting Julia sniffing the crisp fall breeze, attending a pot-luck at a family reunion, backpacking through the Andes, kneeling at her bedside in prayer, or engaged in other mostly government-free activities? But Messrs Romney and Obama are seeking a government office. Mr Douthat grumbles that Julia "seems to have no meaningful relationships apart from her bond with the Obama White House". Now that I think of it, I cannot recall ever seeing a soldier eat nachos in an Army recruitment advert. Does the Army mean to suggest soldiers don't eat nachos? Lies! 

Continue reading "Julia's world" »

THIS may get my blogger license yanked, but I haven't the faintest clue whether Barack Obama's endorsement of Dick Cheney's 2004 position on same-sex marriage hurts or helps his re-election prospects, or hurts or helps the fight for marriage equality. For all I know, Mr Obama has summoned the wrath of Jehovah and a horde of locusts is descending upon the South Lawn even as we speak. What I do know for certain is that Mr Obama's announcement made me a little cranky, and in much the same way it made Radley Balko cranky:

Obama’s statement doesn’t change a single policy. He has basically adopted a federalist approach to the issue. To my knowledge, gay marriage also happens to be the only issue in which Obama embraces federalism. Obama apparently believes the states should be able to discriminate when it comes to marriage benefits, but if they allow cancer and AIDS patients to smoke pot, he asserts the supremacy of federal law, and sends in the SWAT teams. What a twisted set of priorities. 

[...]

As leadership goes, it’s little more than acknowledging the direction the wind is blowing. It hardly merits a new chapter for Profiles in Courage.

Still, I think it was the right thing to do, and I'm glad he did it. One only wishes his views on other civil-liberties issues were evolving, or evolving in the direction of justice. 

Having declared my total ignorance of the net cash value of Mr Obama's flip-flop about legal gay nuptials, I will say that it seems quite sure to distract American voters somewhat from the economic recovery, such as it is. And one would expect this to force Mr Romney to spend rather more time than he'd like awkwardly imitating a conservative culture warrior. So Andrew Sullivan argues:

If this is a choice election, and social issues are salient, then Romney's in trouble. Every day he loses his economic message, his referendum on Obama gets shunted back a bit. So no surprise that Romney would rather not discuss immigration, gays, or marijuana. 

I'm rather less confident that the salience of social issues ultimately redounds to Mr Obama's benefit, but I do think Mr Sullivan is on to something, and that Mr Romney's reluctance to serve up a second helping of primary-season red meat does suggest that the long, justice-bending arc of the universe confers upon savvy conservative Democrats certain advantages.

Continue reading "The arc of the universe and its politics" »

UNLIKE colleagues such as Bob Bennett, a senator from Utah unceremoniously dumped by the Republican Party in 2010, Dick Lugar was not caught off guard. He had known for well over a year that he would face a strong, tea-party backed rival in the primary for the Senate seat he has held for the past 35 years. He planned accordingly, voting more conservatively, amassing a large war-chest and cranking up his get-out-the-vote operation. Nonetheless, yesterday Mr Lugar lost the primary by a whopping 20-point margin, to Richard Mourdock, Indiana’s state treasurer and a hero to many tea-partiers.

Politicians from both parties had described the race as a test of the tea party’s strength. As the candidate himself puts it, “Rumours of the death of the tea party have been exaggerated.” Jackie Bodnar, of Freedom Works, a campaign outfit that supports tea-party groups, says his victory will give impetus to tea-party candidates seeking the Republican nomination for Senate seats in Florida, Texas and Utah, among other races. Moreover, Mr Lugar’s defeat, says Theda Skocpol, of Harvard, “will send another shudder through the Republican ranks in Congress”.

Those who thought the tea-party movement was wilting after helping to propel Republicans to a thumping victory in the mid-term elections of 2010, Mr Mourdock argues, were simply mistaking evolution for disillusion. Randy Harrison, the founder of the Hancock County tea party, bears this narrative out. At first, he says, “we were just a bunch of people getting together and griping.” Over time, his group began to engage more formally in local politics. They have familiarised themselves with—and objected to—the county government’s scheme for local improvements. They have invited Republican and Democratic candidates to speak at their meetings (no Democrats have ever accepted), and endorsed some of them, including Mr Mourdock. Several members are now running for local office.

Of the 900-odd tea-party groups Ms Skocpol has been tracking around the country, some 600 remain active—a remarkable proportion, she argues, for a maturing protest movement. Tea-party activists, in her experience, display “unusual doggedness”. Mr Harrison agrees. His members are frustrated by Congress’s failure to enact the tea-party agenda, from fierce budget cuts to a repeal of health-care reform. But that failure has only caused them to become more meticulous in their approach to politics, he says. They realise it will take several election cycles to install conservative Republicans in enough offices to bring about the change they seek.

Continue reading "Another moderate shown the door " »

NORTH CAROLINA passed its constitutional amendment to bar gay marriage by a thumping 61-39 majority yesterday. Celebrating the vote, Tami Fitzgerald of Marriage NC, the group that backed the amendment, provided a slightly different variety of question-begging from the ones my colleague addressed yesterday.

"We are not anti-gay, we are pro-marriage," said Tami Fitzgerald, chairwoman of the group. "And the point—the whole point—is simply that you don't rewrite the nature of God's design for marriage based on the demands of a group of adults."

Ms Fitzgerald's argument here is of the form "because God says so, that's why". I think this may be the most common form of question-begging in human society, though it is more often used by parents, with the word "I" replacing the word "God". One can't really hope to convince people who are resorting to this justification through argument. One valid rebuttal might be: "But God doesn't exist, and the government should not discriminate against gay people on the basis of some lady's characterisation of the intentions of an imaginary being. You may disagree with me about the existence of God, but given that some people think there is a God, some don't, and some think there is one but she's fine with gay marriage, the government shouldn't be picking sides." Unfortunately, given the religious make-up of the American population, this argument may not be entirely politically effective.

But it is useful just to briefly inquire where Ms Fitzgerald gets her conviction that the God she believes in has a design for marriage, and that it doesn't include gay men or women marrying each other. The Bible, obviously, doesn't say anything about gay marriage; it wouldn't become a major political issue for a couple of thousand years. What it does talk about, in those famous passages in Leviticus (and the ones in Corinthians, for Ms Fitzgerald and other devotees of the sequel), is homosexuality. It's agin' it. Leviticus says the penalty for a man who lies with a man as one lies with a woman is death. The same, it says a few verses later, goes for someone who has sex with a sheep, or with a woman who's engaged to somebody else. (If she's not engaged, you just have to pay 50 shekels to her family and marry her.) In Corinthians, Paul makes it clear that homosexuals will have no place in the kingdom of heaven (nor will adulterers, people who have sex before they're married, slanderers or thieves). Some interpreters make the hopeful argument that these lines are based on ambiguous translations or that it's anachronistic to apply them to modern understandings of homosexuality, but that seems a bit too optimistic to me. Though Jesus, as far as the Gospels tell us, was silent on the subject, and Matthew has him noting that some people have no interest in the opposite sex because they're just born that way. 

The point is, if Ms Fitzgerald is rooting her objections to gay marriage in biblical theology, then her claim that she is "not anti-gay" but "pro-marriage" is clearly wrong. The Bible is "pro-marriage", sure, in the sense that it thinks people who have sex outside of marriage should be killed, or will go to Hell. But this would suggest that gays should be forced to marry each other, if not for the fact that the Bible also thinks people who have gay sex should be killed, or will go to Hell. If this is where Ms Fitzgerald gets her sense of what "God's design" is, then her motivation is entirely anti-gay. Fortunately it's impossible to call yourself "anti-gay" in polite society these days, which is why Ms Fitzgerald uses the "pro-marriage" nonsense. All that means is that gradually, gradually, equality and freedom are winning, and one of these days (and it won't be long) Ms Fitzgerald is going to lose.

One final question, though: why does the Bible think homosexuality is wrong? Leviticus is simple and clear: it's "an abomination". More question-begging! Paul elaborates a bit more, not on homosexuality itself, but on the more general category of sexual immorality.

Flee from sexual immorality. All other sins a person commits are outside the body, but whoever sins sexually, sins against their own body. Do you not know that your bodies are temples of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought at a price. Therefore honor God with your bodies.

Well okay. Your body is a temple of the Holy Spirit; don't sin against it. Fair enough. Except...why is having sex with someone of your own sex a sin against your body? Come to think of it, it seems to me I know a fair number of gay people who treat their bodies pretty reverently.

We're begging the question again. It's turtles, all the way down.

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