Friday, June 29, 2012

SCOTUS Docketwatch–Breakdown of the Court’s Opinion Upholding the Constitutionality of the Individual Mandate Pt. 1

By the Numbers:

  • 4 Justices (Alito, Kennedy, Scalia, Thomas) dissented from the majority, and would have scrapped the entire Affordable Care Act as unconstitutional
  • 4 Justices (Breyer, Ginsburg, Sotomayor, Kagan) concurred with the Majority Opinion, finding the Affordable Care Act Constitutional.  Unlike the Majority Decision written by Chief Justice Roberts – they would say that the Commerce Clause does permit Congress to penalize persons for not purchasing health insurance.  This legal reasoning, however, IS NOT controlling Law!
  • 1 Chief Justice Roberts, acting as a tiebreaker in the 4-4 deadlock to find the ACA’s individual mandate Constitutional.  In his CONTROLLING MAJORITY OPINION, (joined by Breyer, Ginsburg, Sotomayor, and Kagan), the ACA’s individual mandate is constitutional under Congress’s taxing power.
  • 5-4 vote, to uphold the Constitutionality of the Individual Mandate

Now for the fun.  The High Court released a complicated decision that rejects the Obama Administration’s main argument sustaining the Individual Mandate while at the same time declaring the Mandate constitutional. 

First – The Court’s decision agreed with TrainofThought Reader Luke’s line of thinking (well done Luke!) that:

The Individual Mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the grounds that failure to do so affects interstate commerce. (p 20)

Roberts saw the Mandate as constitutional, but he also did not want to increase the scope of the Commerce Clause to allow the government even broader powers over citizens:

Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to rely on that power to compel individuals not engaged  in commerce to purchase an unwanted product. (emphasis added, p 18)

Robert’s line of reasoning boils down to the idea that Congress can regulate commerce, but they cannot actively create commerce by compelling someone to buy something.  Remember in the Briefs, the Government’s counter was that everyone was “Active in the Market for Healthcare” and that at some point everyone in the future will get sick and require services – creating a unique market in which everyone (regardless of whether they buy insurance now, or wait until later, or not buy at all) will be involved in the market.

The Court bluntly rejected this idea, stating that “That concept has no constitutional significance.” (p 25).  This characterization is significant because it kills the government’s argument to regulate the uninsured as a class, under the idea of regulating the uninsured, or not buying insurance as an economic class under the Commerce Clause.  (For details, refer back to the argument in Raich v. Gonzales, 545 U.S. 1 (2005))

Simply put, the act of having to buy health care in the future does not justify using the commerce clause to allow Congress to mandate the purchase of health insurance now. The Court states that “prophesized future activity finds no support in precedent” (p 26).  The rule, as construed by the Majority, is that proper exercise of the Commerce Clause requires the regulation of a “Pre-existing Economic Activity”; i.e not some theoretical (however likely or unlikely) need for health care 30 years from now.

So, bottom line:

(1) The Individual Mandate fails under the Commerce Clause, because Congress cannot create commerce, or compel commerce in order to regulate it.  Here the Court saw the mandate as Congress trying to compel commerce penalizing inactivity, the choice to NOT purchase insurance.

**NOTE: In tomorrow’s post about the Tax Power, inactivity is treated differently when it comes to taxes:

The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes (41-42)

(2) Court Majority (really only Roberts) is concerned with giving Congress too much power under the Commerce Clause, concern then that Government could make same argument to compel food purchases, exercise programs, etc..

Tomorrow – discussion on why the Mandate stands a valid exercise of Congress’s Tax Power, and the authority on why the Court would even consider the idea.  As usual, send questions to the comments.  And please don’t ask about Wickard, I can only do so much . . .

Thursday, June 28, 2012

SCOTUS Docketwatch: Stolen Valor Act Violates the First Amendment

Before I delve into the healthcare opinion, first comes this crafty little case from the 9th Circuit.  In California, Alvarez was running for local office, and claimed during a Commissioner’s meeting that he was a retired U.S. Marine and recipient of military medals.  HE LIED.  The FBI obtained a recording of his statements, and charged him under the Stolen Valor Act, 18 U.S.C. § 704 (b) (passed in 2005), which criminalizes the making of false statements of being awarded any military honor or medal by Congress.

The 9th Circuit ruled that the act is facially unconstitutional, as a violation of the First Amendment’s protection of speech. The Supreme Court granted cert on the main issue of Whether Knowingly False Statements of Fact (generally speaking and without the intent to defraud) are protected as free speech under the First Amendment?

For reference, here is the text of 18 U.S.C. § 704 (b):

False Claims About Receipt of Military Decorations or Medals.— Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.

In a 6-3 Decision, the majority held that the Act does infringe on free speech.  First Amendment cases have a particularly fascinating and confusing analysis, involving a number of exceptions and different classifications that allow the government to restrict speech in different scenarios.

Here, the Court agreed  with Alvarez that the speech is a Content Based restriction on speech.  Content Based Restrictions are subject to “Exacting Scrutiny” by the Court, which means that to survive, the restriction must first be shown to address a compelling government interest, and then it must be narrowly tailored to meet that interest. 

To give an idea, some exceptions (noting that these are a huge oversimplification of the rules and tests) that would allow the government to impose a Content based restriction include:

  • Speech inciting lawless action (see Brandenburg v. Ohio)
  • Obscenity (see Miller v. California)
  • Defamation (see NY Times Co. v. Sullivan)
  • Speech interpreted to incite criminal conduct (see Gibney)
  • Fighting words (see Chaplinsky v. NH),
  • Child pornography (see New York v. Ferber),
  • Speech sparking an imminent and grave threat to the government (see Minn ex rel Olsen)

The government argument named the interest as protecting the “integrity of the system of military honors”, but the Court ruled that the law was too broad for such a purpose. 

While the Stolen Valor Act may have an admirable goal, Congress drafted it too broadly.  It penalized protected forms of speech that were made without the apparent intent to defraud another.

The Court held that to punish fraud, the false statement “must be a knowing and reckless falsehood” (see Decision at 9-10, citing Sullivan, at 280). The Act seemingly applied to all false statements, made at any time, to any person, and it applied in such an overly broad way that “it does so without regard as to whether the law was made for the purpose of a material gain.” (see Decision at 11, emphasis added). To be valid, the law needs some similar limiting principal, i.e. criminalizing lying about military honors if the perpetrator does so for fraud, material gain, or some other type of benefit over another.

In its analysis, the court could not establish a causal link between the restriction (lying about military honors) and the purported injury of the public losing belief and having a diminished perception in military honors. Instead, the Court found that the government failed to prove that a singular situation or a person lying about receiving military honors would lead to the public’s general diluted interest/esteem in the military honors.


Usually, I would expect considerable backlash against a free speech declaration that goes against Military and Veterans Groups.  However, Congress has already prepared a rewrite of the Bill – the Stolen Valor Act of 2011, H.R.1775,112th Cong. (2011); Stolen Valor Act of 2011, S. 1728, 112th Cong. (2011) (Senate version of the bill, introduced by Sen. Scott Brown (MA) that amends the law to narrowly focus on lying about military honors for the purposes of fraud and misrepresentation. 

SCOTUS Docketwatch: Affordable Care Act Analysis, Individual Mandate Upheld

* * Full Text of Opinion Here:

Today the Supreme Court ruled to UPHOLD the individual mandate in a complicated, and long decision.  Chief Roberts wrote the controlling majority opinion, accepting the mandate as a valid exercise of the tax power of Congress, but also calling it a violation of the Commerce Clause (59 pgs!), Ginsburg’s concurring opinion (not controlling, 61 pgs) argues that the act is valid under the commerce clause.


I am still reading through the opinion, but some notable points:

  • Chief Justice Roberts provided the tie-breaking vote to uphold the mandate in some form – seemingly as a way to preserve the law despite ruling that it is not a compelled mandate under the Commerce Clause. 
  • Roberts’ Majority opinion describes it as a Tax, where the penalty is a relatively minor financial penalty for choosing to not have insurance, valid under Congress’s Powers
  • Ginsburg’s opinion really pushes the Solicitor General’s argument that the mandate is permitted by the Commerce Clause [see]
  • For some real head games, recall that a third party Washington Lawyer made the tax argument in full (as part of addressing the implications of the Anti-Injunction Act). While Solicitor Verilli did bring it up in his argument, his main argument focused on the Commerce Clause authority.
  • Also – the Court ruled on the Medicaid Expansion Provision: Essentially, States CAN choose to expand coverage to receive federal funds, but they can also REFUSE to participate WITHOUT losing all the funds, i.e. they will continue to operate Medicaid as they do now.  The Court struck down the threat to withhold all funds as Unconstitutional and illegally coercive.
  • Getting lost in all the media shuffle – the Commerce Clause Argument FAILED – this may have a bigger impact on federal power to implement social programs in the future.  Think about some questions!

Plenty more to come – including a wrap-up of the US v. Alvarez decision, which ruled the Stolen Valor Act, 18 U.S.C. § 704 (which criminalized lying about receiving military honors) as a violation of the First Amendment, in a 6-3 vote.

Friends of the Blog (I’m looking at you Luke and Jaypop!!), send your questions to the comments, and I will address them in the next post.

Obamacare Upheld

According to everyone but CNN and Fox News.

In some surprising news, John Roberts was the deciding vote. By all accounts Kennedy's dissension is pretty radical, and would have thrown the entire law out.

RB will provide some actual analysis later.

Meanwhile, thanks CNN and Fox News. Keep reaching for that rainbow!

The Final Countdown

Any last minute thoughts or predictions?

My guess is that at least the mandate is struck. As I said before not because I think it should be (based on my non-lawyerly interpretation of this stuff), but because our system is well and truly fucked.

Also, in this day of leaks, isn't it amazing the decision hasn't gotten out yet? It's not like they're cranking out these opinions overnight. Very impressive.

Wednesday, June 27, 2012

Colorado Wildfires– DC & East Coast Media Snapshot Coverage

First of all, some coverage and updates about the absolutely devastating Colorado Wildfires out West.

As the Denver Post reports on the High Park Fire, just one of the many major wildfires raging across the state:

On Tuesday, the fire was estimated at 87,284 acres with 55 percent containment — and has destroyed at least 257 homes, nine more than thought.

Officials said the increase was due to continued assessment, not the result of new fire or burns. The cost of fighting the fire now was estimated at $33.1 million and growing.

For more coverage, and to really get a sense of what’s going on and how MASSIVE the scale of destruction really is, check out these links for live updates, real-time maps and live coverage via to a Real-Time Social Media Response Map.


From Reuters – the Wildfires have forced out over 32,000 people from their homes.


From the United States Air Force – Mandatory Evacuation order for residents in housing at the Air Force Academy.


Second --this post shows a snapshot of the homepages of several major news outlets – just to show what is BIG NEWS in the country this morning.

On the whole--Absolutely Shameful Coverage on the Colorado Wildfires by the local press.

Some screen grabs as of morning, all taken at the same time:


(1) Washington Post, not even a front web page headline.    Hell, not even a throw away link:

Post Capture6.27.2012


(2) Fox Homepage, Top stories include Nora Ephron, Holder, and the usual fun:

Capture Fox6.27

(3) MSNBC – Actual coverage, Front and Center


(4) CBS , well . . .

Capture cbs

(5) ABC – News, but seems much more targeted than National Events.

capture abc


That’s all for now.  I may make regional screen grabs a weekly feature in the future.  Depends on what you think.

Be on the lookout for a SCOTUSDocketwatch MegaPost on Thursday – including coverage and a chat session regarding 1st Amendment Issues in U.S. v. Alvarez & The Stolen Valor Act, and coverage on the Healthcare Decision.

Tuesday, June 26, 2012

Train of Thought Lounge: Redman

Blogging may be spotty until Thursday when I return from New Jersey.

In the mean time...

Friday, June 22, 2012

Living in an Alternate Reality

Improving our media would help, but I'm not sure how much considering the power of the right wing echo chamber. When people willingly only listen to news sources that lie to them and make them less educated on the facts, not really sure what can be done:
The poll, constructed by Dartmouth government professor Benjamin Valentino and conducted by YouGov from April 26 to May 2, found that fully 63 percent of Republican respondents still believed that Iraq had weapons of mass destruction when the U.S. invaded in 2003. By contrast, 27 percent of independents and 15 percent of Democrats shared that view.

Jim Lobe, chief of the Inter Press Service's Washington bureau, reported the finding in his blog on Wednesday.

The Bush administration's insistence that the Iraqi government had weapons of mass destruction and might give them to terrorists was a key selling point in its campaign to take the country to war. It turned out to be untrue.

Debate continues over whether former President George W. Bush and Vice President Dick Cheney, and other top officials knew there were no WMD, but intentionally deceived the American people and Congress because they were intent on attacking Iraq for less palatable reasons -- or whether they managed to convince themselves that it was true using cherry-picked intelligence.

There is no reality-based argument that Iraq actually had WMD, after extensive searches found none, but this is hardly the first time many Americans have been certain of something that simply wasn't true.

A Washington Post poll in September 2003 found that nearly 70 percent of all Americans were convinced that Saddam Hussein was personally involved in the 9/11 terrorist attacks -- even though he was not.

Bush, Cheney and others consistently linked al Qaeda to Hussein in speeches they gave in the run-up to war, and the media rarely pushed back. But neither Bush nor Cheney continued to claim that there were actual WMDs in Iraq once the searches came up empty -- although they both continued to insist that Saddam had the "capability" to produce them.

Rather than a failure of the media, therefore, this latest poll result seems to indicate a refusal -- unique to the modern Republican Party -- to acknowledge facts.

According to this poll, an even larger proportion of Republican respondents who said Iraq had WMD -- 64 percent -- said they have either always believed (or have come to believe) that Barack Obama was born in another country, which he was not.

Tuesday, June 19, 2012

Bizarro World

What's worse that wasting time prosecuting Roger Clemens while ignoring war crimes from the Bush Administration and the bankers who destroyed our economy? When you can't even get wins going after the stupid stuff.

The Obama Department of Justice is an embarrassment. What world are they living in? On what planet is this shit a priority? No one has gone to jail for the well documented fraud that destroyed our economy. Dick Cheney is going out on interview tours to brag about the war crimes he committed.

Sometimes I seriously wonder how some of the people in this Administration sleep at night.

Monday, June 18, 2012


Sometimes you disagree with people's politics. Sometimes people are just assholes. Eric Hovde is an asshole:
During the Q&A portion of the event, Hovde expressed his support for lowering the corporate tax rate, tackling the country's spending problems and lowering the national debt.

Then, pointing to a reporter in the audience, Hovde said he would love to see the press stop covering sad stories about low-income individuals who can't get benefits and start covering issues like the deficit more frequently.

"I see a reporter here," he said. "I just pray that you start writing about these issues. I just pray. Stop always writing about, 'Oh, the person couldn't get, you know, their food stamps or this or that.' You know, I saw something the other day -- it's like, another sob story, and I'm like, 'But what about what's happening to the country and the country as a whole?' That's going to devastate everybody."
Yes, stop writing stories about real things happening to lots of real people. Instead write stories about problems that are 1000% made up like the deficit. That will help.

Friday, June 15, 2012

David Brooks has a Joke for You

So this isn't actually David Brooks who wrote this abomination of a column earlier this week, but Jon Schwars from Tiny Revolution wrote something pretty brilliant in response:
Lots of people like Atrios and Dean Baker are complaining about yesterday's column by David Brooks headlined "The Follower Problem." And it first glance it does seem pretty gross:
We live in a culture that finds it easier to assign moral status to victims of power than to those who wield power...our fervent devotion to equality, to the notion that all people are equal and deserve equal recognition and respect [makes it hard] to define and celebrate greatness, to hold up others who are immeasurably superior to ourselves…

I don’t know if America has a leadership problem; it certainly has a followership problem … people are cynical and like to pretend that they are better than everything else around them. Vanity has more to do with rising distrust than anything else...
But what's going on here is that David Brooks—as widely celebrated as Richard Cohen for being an extremely funny man—is telling his own version of the classic joke:
DAVID BROOKS: Okay, so our act starts with us inflating a giant internet bubble. Then that collapses, taking the country's economy with it, just as we massively cut taxes on millionaires because, we say, if we don't the government will have too much money. Right after that we blow off warnings about terrorism and let 3,000 Americans get slaughtered. We use that as a chance to lie the U.S. into invading a country that had nothing to do with the attack, killing hundreds of thousands of people and turning millions into refugees. In the middle of all that we borrow torture techniques from the Inquisition and use them on people in secret sites around the planet. Then we make billions off another financial bubble, the biggest in human history, and do nothing as it collapses, plunging the world into the greatest economic calamity since the Great Depression. To fix that we open up the national bank vault and shovel out money as fast as possible to all the criminals who made it happen in the first place. Then—as the amazing finale—we refuse to prosecute anyone for that, for the war, or for torture, and we start killing U.S. citizens with flying death robots.


AGENT: ...That's a hell of an act. What do you call it?

DAVID BROOKS: The Aristocrats!
Well played.

Obama Administration Issues Executive Order of "mini Dream Act"

This is a big fucking deal:
WASHINGTON -- The Obama administration will stop deporting and begin granting work permits to younger undocumented immigrants who came to the U.S. as children and have since led law-abiding lives. The election-year initiative addresses a top priority of an influential Latino electorate that has been vocal in its opposition to administration deportation policies.

The policy change, described to The Associated Press by two senior administration officials, will affect as many as 800,000 immigrants who have lived in fear of deportation. It also bypasses Congress and partially achieves the goals of the so-called DREAM Act, a long-sought but never enacted plan to establish a path toward citizenship for young people who came to the United States without documents but who have attended college or served in the military.

Homeland Security Secretary Janet Napolitano was to announce the new policy Friday, one week before President Barack Obama plans to address the National Association of Latino Elected and Appointed Officials' annual conference in Orlando, Fla. Republican presidential challenger Mitt Romney is scheduled to speak to the group on Thursday.

Under the administration plan, undocumented immigrants will be immune from deportation if they were brought to the United States before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school or earned a GED, or served in the military. They also can apply for a work permit that will be good for two years with no limits on how many times it can be renewed. The officials who described the plan spoke on the condition of anonymity to discuss it in advance of the official announcement.

The policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for extended periods.
Great job by the administration on this order. This will drastically improve the lives of many people currently marginalized by our screwed up immigration system.

Questions raised by the Admin's decision to address this by executive order:
-Why did Obama do this now, as opposed to after the DREAM Act failed?
-What caused him to examine what he could do by executive order for this area and not others?
-How can this success be replicated for other areas of policy?

Intial thoughts are these: Gay rights and Immigration have had these successes for two main reasons:
1. Both Gay rights and immigrant rights groups and  have been the most vocal in their opposition to the administration.
2. Neither this order or any of the movement on gay rights are economic issues, and are impacting rich people negatively in any way. The same can't be said for other areas where we would like to see the administration change course on policy.
3. The administration saw support from both groups as critical to his reelection. A large number of the really big money donors are gay rights advocates, and were withholding support until Obama took further action on marriage. Similarly, the Administration probably figured they couldn't win the election with this level of vitriol coming from the immigrant rights community, especially since Romney might make Rubio his VP.

This is a huge victory. It also shows when he wants to get something done, Obama is willing to look outside of the box and use executive orders and other unconventional means. The challenge will be to see ways this success can be replicated in other areas.

Thursday, June 14, 2012

Obama Pushing a New NAFTA Style Trade Deal

Better finishing wiping blood of murdered unionists off the negotiation table, because it's time for another insanely terrible free trade deal under a Democratic president! This one is huge, and from the looks of these recently leaked documents it's just as horrible as the others:
WASHINGTON -- A critical document from President Barack Obama's free trade negotiations with eight Pacific nations was leaked online early Wednesday morning, revealing that the administration intends to bestow radical new political powers upon multinational corporations, contradicting prior promises.

The leaked document has been posted on the website of Public Citizen, a long-time critic of the administration's trade objectives. The new leak follows substantial controversy surrounding the secrecy of the talks, in which some members of Congress have complained they are not being given the same access to trade documents that corporate officials receive.
. . .
The newly leaked document is one of the most controversial of the Trans-Pacific Partnership trade pact. It addresses a broad sweep of regulations governing international investment and reveals the Obama administration's advocacy for policies that environmental activists, financial reform advocates and labor unions have long rejected for eroding key protections currently in domestic laws.

Under the agreement currently being advocated by the Obama administration, American corporations would continue to be subject to domestic laws and regulations on the environment, banking and other issues. But foreign corporations operating within the U.S. would be permitted to appeal key American legal or regulatory rulings to an international tribunal. That international tribunal would be granted the power to overrule American law and impose trade sanctions on the United States for failing to abide by its rulings.

The terms run contrary to campaign promises issued by Obama and the Democratic Party during the 2008 campaign.

"We will not negotiate bilateral trade agreements that stop the government from protecting the environment, food safety, or the health of its citizens; give greater rights to foreign investors than to U.S. investors; require the privatization of our vital public services; or prevent developing country governments from adopting humanitarian licensing policies to improve access to life-saving medications," reads the campaign document.

Yet nearly all of those vows are violated by the leaked Trans-Pacific document. The one that is not contravened in the present document -- regarding access to life-saving medication -- is in conflict with a previously leaked document on intellectual property (IP) standards.

"Bush was better than Obama on this," said Judit Rius, U.S. manager of Doctors Without Borders Access to Medicines Campaign, referring to the medication rules. "It's pathetic, but it is what it is. The world's upside-down."
. . .
In early June, a tribunal at the World Bank agreed to hear a case involving similar foreign investment standards, in which El Salvador banned cyanide-based gold mining on the basis of objections from the Catholic Church and environmental activists. If the World Bank rules against El Salvador, it could overturn the nation's domestic laws at the behest of a foreign corporation.

Speaking to the environmental concerns raised by the leaked document, Margrete Strand Rangnes, Labor and Trade Director for the Sierra Club, an environmental group said, "Our worst fears about the investment chapter have been confirmed by this leaked text ... This investment chapter would severely undermine attempts to strengthen environmental law and policy."

Basic public health and land-use rules would be subject to challenge before an international tribunal, as would bank regulations at capital levels that might be used to stymie bank runs or financial crises. The IMF has advocated the use of such capital controls, which would be prohibited under the current version of the leaked trade pact. Although several countries have proposed exceptions that would allow them to regulate speculative financial bets, the U.S. has resisted those proposals, according to Public Citizen.

Trans-Pacific negotiations have been taking place throughout the Obama presidency. The deal is strongly supported by the U.S. Chamber of Commerce, the top lobbying group for American corporations. Obama's Republican opponent in the 2012 presidential elections, Mitt Romney, has urged the U.S. to finalize the deal as soon as possible.
Well if it has Mitt Romney's strong endorsement, I don't know what else we're waiting for.

This is also another case that deals with my earlier point of how meaningless campaign promises are. I haven't covered this point with trade as much as others because I didn't buy for a second that Obama wasn't anything but a Clinton on steroids free trader, but in passing the earlier deals and in actively pushing this one, Obama is doing the complete opposite of his stated campaign promises on this issue.

Another interesting aspect is that thanks to this leak, Obama will probably have to deal with this issue during an election, so his response will be interesting. It will probably be the standard "I support free trade agreements with protections for x, y and z" (100% lies, but with no consequence for lying, why would he do anything else?). Or he could just embrace it, and we could have an election where Mitt Romney and Barack Obama are arguing about who supports free trade more.

Frankly I'm not sure which is worse.

Wednesday, June 13, 2012

Voter Fraud Does Not Exist

File this under things you will hear Republicans bitching about endlessly that are completely, 100% made up.

In states across the country, republicans are attempting to stop people from voting and are doing so under the guise of stopping "voter fraud". There's one small issue: Voter fraud is not an actual problem.

Rolling Stone did a really good job looking into the various types of fraud these bills claim to combat, and showing how each one is made up.
As we've reported at Rolling Stone, over the past few years Republicans in more than a dozen states have been knocking themselves out passing laws that make it harder for people to vote. It hasn't escaped notice that the voters most affected by these measures – from voter ID laws to restrictions on early voting – are Democrats. But no matter: Republicans deny they're waging a partisan "war on voting" – they say the new laws are needed to combat rampant voter fraud. That's the line laid down most recently by Florida Gov. Rick Scott to justify purging his state's voter rolls of alleged noncitizens. "We need to have fair elections," he said last week. "When you go out to vote, you want to make sure that the other individuals that are voting have a right to vote."

But here's the thing: Not only is voter fraud not rampant – it's virtually nonexistent. The iron-clad word on the subject comes from the Brennan Center for Justice at NYU School of Law, whose 2007 report, 'The Truth About Voter Fraud,' sorts through thousands of allegations going back to the 1990s in the most in-depth voter fraud study ever undertaken. The bottom line, confirmed by all subsequent research: "Usually, only a tiny portion of the claimed illegality is substantiated — and most of the remainder is either nothing more than speculation or has been conclusively debunked." In fact, "one is more likely to be struck by lightning than to commit voter fraud."
Check out the full article, really interesting stuff. And bookmark it while you're at it, because you're going to hear a lot of lying about "voter fraud" over the next six months.

In Your Heart, You Know He's White

Mitt Romney's "Better America" ad has a pretty clear view of what a "better america" means. All white people: (from Jed at dailykos)

Well, it's at least better than the next one he had planned:

Monday, June 11, 2012

30 Bazillion New Militants Killed

On twitter, Glenn Greenwald links to a reader who points to the fundamental issue with the Obama Administration's decision to label all adult men killed by a strike "militants":
Isn’t the presumption that everyone in the so-called strike zone is a "militant" particularly egregious given past accusations that our enemies intentionally embed themselves in civilian populations? Haven’t we condemned our enemies in the past precisely because they’ve surrounded themselves with civilians? And now we’re justifying our crowd-killing strikes on the grounds that anyone close to a militant must himself be a militant?
Well said.

Friday, June 8, 2012

"We’re not sure if you should be known as Talib Kweli"

In an interview with Complex Magazine about his amazing song the Proud, Kweli drops this bombshell:
“Then 9/11 happened. When 9/11 went down, the same sort of ignorance I had about the Internet, I had about the country. Or the same sort of assumptions. I thought people would be able to see through a lot of the propaganda that was about to happen.

“The amount of blind patriotism I saw, it disheartened me because I felt like it came from a real ignorant and dishonest place. So as musicians, especially me being a musician with the name of Talib [which means 'seeker of truth'], we were asked to address this whole situation immediately. There was a musical response, everyone came together. I remember seeing a video with Nelly and everybody in the studio.

Jarret and Bryan from Rawkus asked me to change my professional name. They were like, ‘We’re not sure if you should be known as Talib Kweli.’ This is how crazy and backwards things were becoming.

“I was like, ‘I have to address 9/11 and what’s happening in America, but I’ve gotta be as honest as I can be about it.’ But how can I do that and be as revolutionary as a dead prez or a Michael Franti, but still have some understanding for why people would be scared or would want to be suddenly patriotic? So I tied all of those things together in that record.
WOW. That's some ignorant shit.

A Look Behind the Curtain At the PHARMA Deal

One of the more noteworthy aspects of the health care reform bill was a deal with PHARMA that promised to kill the prescription drug re-importation elements of the bill in exchange for their support. Now, we have a much more detailed look at how it went down:
Drugmakers led by Pfizer Inc. agreed to run a “very significant public campaign” bankrolling political support for the 2010 health-care law, including TV ads, while the Obama administration promised to block provisions opposed by drugmakers, documents released by Republicans show.

The internal memos and e-mails for the first time unveil the industry's plan to finance positive TV ads and supportive groups, along with providing $80 billion in discounts and taxes that were included in the law. The administration has previously denied the existence of a deal involving political support.

The documents were released today by Republicans on the House Energy and Commerce Committee. They identify price controls under Medicare and drug importation as the key industry concerns, and show that former Pfizer Chief Executive Officer Jeffrey Kindler and his top aides were involved in drawing it up and getting support from other company executives.

“As part of our agreement, PhRMA needs to undertake a very significant public campaign in order to support policies of mutual interest to the industry and the Administration,” according to a July 14, 2009, memo from the Pharmaceutical Research and Manufacturers of America. “We have included a significant amount for advertising to express appreciation for lawmakers’ positions on health care reform issues.”

The goal, the memo said, was to “create momentum for consensus health care reform, help it pass, and then acknowledge those senators and representatives who were instrumental in making it happen and who must remain vigilant during implementation.”
The hypothetical that usually follows this discussion "was this deal needed to pass Health care reform?" isn't known. But now we do know the details of this deal that was previously denied, and that's significant in it's own right.

Thursday, June 7, 2012

What the Hell Happened in Wisconsin?

The best recap I've seen so far goes to Josh Eidelson of Salon who does a good job at looking at the whole picture:
With legal collective bargaining rights set to stay hamstrung in Wisconsin, Wisconsin Education Association Council president Mary Bell told me yesterday, “Collective action, collective voice doesn’t change. In fact, without the protections of the collective bargaining, collective voice is sometimes the only voice you have in the workplace.”
Soon after Scott Walker declared victory, South Central Federation of Labor president Kevin Gundlach told me that the tasks now facing Wisconsin’s labor movement would have been necessary even if Walker lost: “We would have to rebuild our unions. We would have to do a lot of community outreach and coalition building … We have to embolden our workers” and take on “workplace actions that could lead to other forms of power.”
The U.S. labor movement is at a Wisconsin moment in the best and worst sense: It keeps showing strength and weakness in unexpected places. Wisconsin shows that labor can still be a militant, growing, mass social movement – and that it has to be one in order to survive in the face of existential threat.
Matt Stoller's article on Wisconsin is extremely provocative and raises some important points. Not sure I agree with all of it, but it is very much worth checking out.
And the deeper you look into the race, the worse it looks. By calling for a recall instead of a general strike after Walker stripped collective bargaining rights and cut benefits for workers, labor and Democratic leadership in the state diverted and then subverted populist energy, channeling it into an electoral process (at least one union, one very active in the occupation of the Capitol, stood apart from the electoral stupidity). Then, Barrett, an anti-labor centrist, won the Democratic primary by crushing his labor-backed opponent, Kathleen Falk. Finally, Barrett himself was destroyed by Scott Walker, who outspent Barrett 7-1 with corporate money. In other words, first, liberals lost a policy battle, then they failed to strike, then they lost a primary election, then they lost a general election to the most high-profile effective reactionary policy-maker in the country. The conservative beat the moderate who beat the liberal. And had Barrett won, he wouldn’t even have rolled back Walker’s agenda. Somehow, in a no-win electoral situation, Democrats and labor managed to lose as badly as they possibly could.

What happened?

I wish I could say I had a new insight, but it’s basically the same problem I’ve been writing about for years. Put simply, it’s that Obama’s policy framework is now the policy framework of the Democratic Party, liberals, and unionism. Up and down the ticket, Democrats are operating under the shadow of the President, associated with unpopular policies that make the lives of voters worse and show government to be an incompetent, corrupt handmaiden to big business. So they keep losing.

It should be obvious that if you foreclose on your voters, cut their pay, and legalize theft of their wealth by Wall Street oligarchs, they won’t be your voters anymore. Somehow, Democratic activists continue to operate as if policy doesn’t matter to voters, or that policy evaluation is a Chinese menu of different stuff, some of which you like and some of which you don’t, as in “Oh I’ll take a pro-choice moderate, with a bailout, and gay rights. And a Pepsi”. But that’s not how it works – voters’ lives get better, or they don’t. And under Obama, stuff has gotten worse. Obama’s economic policies have made economic inequality sharper than it was under Bush, due to his bailout of banks and concurrent elimination of the main source of wealth of most Americans, home equity. With these policy choices, Obama destroyed the Democratic Party and liberalism – under Obama’s first two years, the fastest growing demographic party label was “former Democrat.” Liberalism demands that people pay for a government, but why should anyone want to pay taxes for the terrible governance Obama has implemented?
Or you can just go with this recap:

Wednesday, June 6, 2012

Your Moment of Zen

Thanks to the geniuses behind XTCD:

Two Birds One Drone

Colbert at his finest, from last week:

For a more less comedic discussion of these issues, UP with Chris Hayes was incredible again this week, especially Jeremy Scahill. Kudos to Chris Hayes for having him on again, and major respect to Scahill for being willing to state uncomfortable truths on national television. Not easy watching, but important stuff:


Tuesday, June 5, 2012

Organized Labor Knows That Feel

Don't ask me what happened, I have no idea.

Maybe real analysis later, for now just this.

Recall Walker Day Liveblog!

Join us tonight for analysis of the election.

It will either be really fun, or so crushingly depressing. Either way, follow it here!

Monday, June 4, 2012

The Wisconsin Recall Needs Your Help

There are few elections more important than the recall of Scott Walker this Tuesday in Wisconsin. Elections like this are about more than simply who governs Wisconsin for the next several years, the results on Tuesday will move the overton window significantly in one way or the other.

You can help, the AFLCIO has a sweet tool where you can phone bank from your computer to get out the vote in Wisconsin. Help the effort, it is seriously worth your time. If you're signed up to various organizational emails that tell you that every election is the most important one, I understand the fatigue. But this one really is that important, and it looks like it will come down to every last vote. More coverage of the race on Tuesday night as well.

PS: I'll be at the AFL-CIO HQ Monday night doing some phone banking there. My hatred of phone banking is well known, but this is important. Stop by if you feel the urge.

Friday, June 1, 2012

Lies and the Lying Liars...

Who could have predicted?
A BP engineering executive warned senior BP management early on in the 2010 Gulf of Mexico oil spill that internal models did not support estimates of the size of the undersea leak being provided to government officials and the public, according to company emails.

On May 15, 2010, Mike Mason, a vice president in BP's exploration and production technology division, wrote to Andy Inglis, chief executive of global exploration and production, warning him that the company's "data and knowledge" did not support the 5,000 barrel per day figure touted by executives as their best estimate of the size of the leak.

"We should be very cautious standing behind a 5,000 [barrel per day] figure as our modeling shows that this well could be making anything up to 100,000 [barrels per day]," Mason wrote in one of the emails, obtained by The Huffington Post.

The next day, Jack Lynch, BP's general counsel in the U.S., forwarded Mason's message to two BP executives leading the company's oil spill response: Doug Suttles, chief operating officer for BP's global exploration and production business, and David Rainey, a former BP vice president in charge of exploration in the Gulf of Mexico.

The emails suggest an internal struggle at the highest levels of BP over the issue of the well's flow rate, which became intensely controversial during the course of the spill. At the outset of the disaster, BP estimated the flow at just 1,000 barrels per day. By the end of the three-month spill, a government-led scientific team estimated that the well released an average of more than 50,000 barrels per day.

"It sounds to me like someone who's conscious that the email might not be private, but writes it anyway because he know the risks of being silent," said Jamison Colburn, an environmental law professor at Penn State University and former enforcement litigator for the Environmental Protection Agency. "It implies the existence of a lot more internal communication on this subject."

Scott Dean, a BP spokesman, declined to comment on the emails, and Mason did not respond to several voice mail messages. An attempt to reach Rainey, who now works for BHP Billiton's petroleum exploration division in Houston, was unsuccessful. An attorney for Suttles did not respond to a request for comment.

BP's handling of the flow rate estimates has emerged as a major focus of the Justice Department's two-year criminal investigation into the spill, according to legal experts and attorneys involved with litigation over the disaster. The first and only criminal charges yet to be filed over the spill were brought this April against Kurt Mix, a BP engineer, for allegedly destroying text messages and emails discussing far higher flow estimates than BP revealed publicly at the time. Mix pleaded not guilty to the charges.
People should be in jail, and not engineers who were lying. Higher up the food chain, please.