Another GOP Waterloo

Since September, Republicans have gone whole-6 hog on running their 2013, 2014, and 2016 campaigns against Obamacare. The first look at completed application statistics indicates that this may have been a fatal miscalculation.

The truth is that in October, more than 1 million Americans have already applied and are eligible for coverage. That was while the federally-run website was having its worst technical challenges. By all indications, the system is improving drastically week-by-week. Applying for health insurance will probably never feel like a flawless, well-designed online shopping experience. It doesn't have to, and spending taxpayer dollars on website design is a waste.

This month's rage-a-thon about the 3% of the insurance market who (a) were healthy enough to not be excluded on the basis of pre-existing conditions, (b) could afford to purchase a plan, and (c) are too wealthy to qualify for subsidies now may be spending more for health insurance in 2014. They're more likely to actually receive the benefits that they purchase. 

Republicans should be panicking that they've spent the last 3 months talking non-stop about a benefit that will be -- at-best for Republicans in 2014 -- a wash. Even Ken Cuccinelli, the best-positioned Obamacare foe in the 2013 cycle, couldn't win an election in a Confederate state on a stridently anti-Obamacare platform, following a month of relentlessly negative news about implementation.

Permanent Obama Wave in Virginia

Tuesday night's county-by-county results show a much tighter correlation with the 2012 presidential election results than they do the 2009 Governor's race. This was a fairly low turnout affair, and is an stunning rebuke to the notion that the Obama coalition was transient.

The Obama electorate is the new normal in Virginia.

Source:
http://elections.huffingtonpost.com/2013/results

Blowing up the American Economy

The Government shutdown is getting to a duration where it is assured to damage the American economy in major ways, so why is the Republican leadership of the House committed to avoiding an up-or-down vote on a government funding bill?

Atlas Shrugged has the answer, but I'm a little hazy on the details. Paul Ryan has declared that Ayn Rand is a personal hero and inspired him to seek public office. The pseudo-novelist and quasi-intellectual is the namesake of the junior Senator from Kentucky. The essence of the 2012 Presidential election hinged on themes from Atlas Shrugged. Mitt Romney's 47% world-view is an echo of Rand's laughable ideology that Big Men constitute an economy.

The government shutdown is a retreat from the American economy by those who can temporarily afford to protect their own interests: the Kochs, John Boehner, and the plutocrat class. Atlas Shrugged ends with broader destruction; the demolition of the American system. The threat to default on the nation's debt matches this catastrophic attack on the American people. If Ayn Rand's 'objectivist' narratives encompassed a broader view than her out-of-touch protagonists, maybe the Tea Partiers would sense that the destruction of the American state is a bad thing. Sadly, her followers are dragging us after her, into a selfish wilderness.

Harry Reid was exactly right to name the anarchist fringe that has captured the Republican House caucus. The members of the Tea Party caucus fervently endorse anti-state zealotry. Their membership in this anarchist syndicate is incompatible with their membership in the House of Representatives. The constitutional crisis and economic travesty the Tea Paty has inflicted on the United States proves that they are unfit to serve.

They should be expelled from the institution or renounce their allegiance to an anti-American fantasy.

GOP Civil War

James Fallows said it best a few days before the oncoming government shutdown. This was never a struggle between two parties or two branches of government. The shutdown battle has been waged between two wings of the Republican party.

Robert Costa takes us inside the chasm between House Republican factions. And Ezra Klein gets the numbers on either side in an interview with Costa.

On the moderate side, we have roughly 100 veteran lawmakers and committee leaders. These are the traditional centers of power within the caucus. The apparent leader of this faction is Peter King, who is unencumbered by the demands of leadership positions.

Costa estimates that the die-hard side consists of 30-40 members, but they have an additional 60-100 Republicans running chicken-shit scared.

Whatever happens in the coming days, it won't be due to a strong Speaker; any deal will have to be worked out in the trenches of the Republican party's internal struggle.

Fallows, Costa, and Klein appear to be the best reporters in Washington right now; I'd stay tuned to their channels for the rest of this drama.

WWII Veterans Visit Memorial

I'm glad that Veterans of the Second World War did not let the Republican shutdown of government get in their way of visiting the WWII Memorial on the National Mall. In fact, let's agree that the memorial should be open to all visitors, as it normally is, when the government is funded and open.

John Boehner is the only person who can unilaterally end the House's attack on the Federal Government and the veterans, families, business owners, researchers, and constituents it serves. Why do so few news stories focusing on this absurd confrontation state the obvious: veterans want the government they fought for to repay its debt, and House Republicans are standing in their way.

House Republicans are now offering the same obstructionist radicalism that once the domain of an exceptional, reactionary few. In a kind of anti-Mt. Rushmore, John Boehner is taking his place along with John Calhoun, Newt Gingrich, and George Wallace as the face of craven anti-Americanism. It's time to get out the schoolhouse door, Mr. Boehner, and give the people the government we've been paying for.

The Elephant and What Army?

The GOP wants to gouge the American economy (via shutdown) and junk our credit (via debt ceiling). Well, who's going to let them?

The Executive branch has a choice to make. It can either pretend that the House of Representatives is behaving as the Constitution requires it; to manage the nation's finances and protect its welfare, or it can refuse to play Calvin Ball with John Boehner. The House can issue censure after censure, but it doesn't have the manpower to actually shut down the government. The Executive merely acquiesces to the lack of explicit funding because that's the way the American political system is supposed to work.

The problem for the Executive (and the rule of law), is that the American political system has failed. A cadre of radicals who don't believe in the basic tenets of republican governance has commandeered Congress. The radicals'  leverage is that they have a constitutional responsibility to pass funding bills.

The House has abdicated that responsibility in pursuit of counter-majoritarian, ideological ends. This is an engineered constitutional crisis, and it is time for novel constitutional thinking.

There is a congressionally approved, lawful funding package for the government. The conventional wisdom is that this funding expired at midnight on September 30th. Congress set this deadline for itself in order to renegotiate the spending package. Simply because it has not replaced its agreed-upon spending contract should not prevent the Executive from fulfilling the existing demands from Congress. Contract negotiations extend past deadlines without drastic consequences because parties agree to continue working with the same contract after its term expires. The United States Federal Government should play by these common-sense rules.

And the debt ceiling? The idea of actually enforcing the debt ceiling against the Treasury's bedrock responsibility to pay the bills incurred by Congress is itself novel. The President should feel absolutely no compunction in ignoring the debt ceiling. The debt ceiling is a self-defeating law. Congress implicitly overwrites any enacted debt ceiling every time it appropriates money.

This effectively disarms the radical right. Once their nuclear options are taken away, they may even find it worthwhile to do the job to which their constituents elected them. Until then, who's going to stop the President from keeping the government running? The GOP and whose army?

American Appendectomy

Let's put this government shutdown in its political and historical context. The Republican Party is extracting its revenge on a nation that has rejected them.

The Republican party is finished in national politics. In 2012, Barack Obama became the first president to win two consecutive elections with more than 51% of the vote since Dwight Eisenhower. Democrats in the Senate picked up two seats while defending twice as much territory as Republicans, who had an extraordinarily target-rich environment. House Democratic candidates received 5 million more votes than House Republican candidates nation-wide. Republican officials openly acknowledge that gerrymandering and voter suppression allowed them to retain a bare majority in the House.

The Republican Party is a rump party on the national level. They are a vestigial organ in the body politic.

Organs being organs, they don't have much in the way of incentive structure. But parties require money, power, and attention. Their constituent parts are desperate for oxygen (Eric Cantor is thrilled to be eluded to at all, even parenthetically). Can we explain the GOP shutdown in any terms other than a plea for relevance? A significant portion of the House Republican Caucus has taken it upon themselves to dump the American Government in the Emergency Room, even though it has bills to pay, and really doesn't have time for this shit, right now.

What America needs is a good surgeon, not necessarily to remove the Republican House Caucus, but to sever it. There are assuredly 30-40 reasonable Republicans who would prefer to see a functioning government than the current mess, and recognizes that the prerogatives of party are subordinate to the demands of democracy. They must revolt against the Tea Party, and its hostage, John Boehner. They must be supported by the realist (and reality-based) business constituency that has been the traditional first leg of the Republican party stool.

But what about removal? The most convincing path is Article I expulsion. Two thirds of either house may expel one of its own members. The cause seems lost in the House, where more than a third of the chamber is devoutly unsuited for office, and our nation's troubles have taken hold. However, Republican senators up for reelection in 2014 may see some advantage in jettisoning the tea party albatross, Mike Lee and Ted Cruz.

There is also the constitutionally dubious recall election. No federal officeholder has ever faced a recall election under state recall law (18 states allow some form of recall election). A Michigan court enjoined such an effort in 2007, and a federal court prevented the recall of a U.S. Senator from Idaho in 1967. These arguments all seem to be sourced from the same "Recall of Legislators and the Removal of Members of Congress" report penned by Jack Maskell of the Congressional Research Service in 2012 (pdf).

Speaker Boehner has manufactured an acute constitutional crisis, and one that is already costing the nation dearly. States and their constituents rely on federal services to complete their daily tasks. Workers and businesses are facing layoffs and furloughs due to Republican intransigence. The economic costs of this shutdown are just beginning to mount. The House needs to end this national appendicitis now, and it can do so by bringing a simple funding bill to the floor of the house. It may not get a majority of Republican votes, but it will get enough moderates and Democrats to keep America's lights on. John Boehner must put country first. If he doesn't, moderate Republicans can be forgiven if they engineer an American first - an effective no-confidence vote and an intra-session realignment of Congressional power. Moderate Republicans can't afford to not sideline the far-right fringe and depose their captive Speaker.

Exercising 2nd Amendment rights

The Republican party of Bentonville County, Arkansas cuts through the obfuscation and explains their understanding of the 2nd Amendment to the Constitution:

So what do we do?  While I believe that we as a party are done in Arkansas after this, if there is ANY hope of our survival, it is going to take not being forgiving.  Not only for past actions, but to show those who will come in the future that the cost of failure to do the thing they were elected to do will be significant.  We need to be making a point of this failure from this moment on.  We need to make a public statement from our groups that we no longer support those who turned on us, that we will NOT be working to their re-election, that we will be actively seeking replacements, and perhaps even working towards recall.  We as the Party have to stand up and say ‘no more – you were given a job, you campaigned on the promise to do this job, you had the ability to do this job, you had the votes each time to do this job, and yet for no legitimate reason you betrayed the trust put in you by the electorate and you are now completely and permanently politically finished.’

We need to let those who will come in the future to represent us that we are serious.  The 2nd amendment means nothing unless those in power believe you would have no problem simply walking up and shooting them if they got too far out of line and stopped responding as representatives.  It seems that we are unable to muster that belief in any of our representatives on a state or federal level, but we have to have something, something costly, something that they will fear that we will use if they step out of line.  If we can’t shoot them, we have to at least be firm in our threat to take immediate action against them politically, socially, and civically if they screw up on something this big.  Personally, I think a gun is quicker and more merciful, but hey, we can’t.

Have unpopular beliefs? Lost the political debate? Still believe that you can impose your particular policy preferences on the rest of the population? Why not go on a killing spree?

The NRA has enabled this conspiratorial, anti-democratic delusion that a priveleged, unhinged few get to determine the course of our society. Gun-rights supporters are quickly crossing the line from being a well-funded fringe into being a loose association of terror apologists.

Marathon Bombing and Shooting Spree

The shocking bombing of the Boston marathon has now devolved into a predictable series of firefights between police and two heavily armed suspects. The two suspects shot and killed an MIT police officer, and engaged in a firefight consuming more than 200 rounds, one of which wounded an MTA police officer.

They have been described as armed and extremely dangerous. This turned out to be an understatement; they were heavily armed and reckless. Their access to ammunition and firearms has effectively shut down the city of Boston for a second day this week. If we are to prevent attacks like these in the future, we have to answer some questions.

• Did these men acquire their guns legally? 
• What kind of weapons did they possess?

Suspect #2, Dzhokhar Tsarnaev, is currently cornered, likely with a high powered gun and a cache of ammunition. Pray for the police officers that are charged with disarming and capturing this murderer.

"In"

Couldn't avoid pointing out the heinous writing and editing in this Forbes story on the employment law conflicts of federal and employer drug-free workplace policies and patchy state-level innovations in marijuana policy.

My favorite sentence from the article:

But in those states, employed medical marijuana card holders are not “impaired” simply because marijuana components or metabolites are “in” their systems. 

 Nice quoting, Tex.

Congressional Squeeze Play

I don't think I've ever seen a power grab praised so highly in the New York Times as this conservative plan to cut off pay for Congress.

WASHINGTON — In principle, it sounds self-sacrificing, even noble: Congress swears off collecting its paychecks until it passes a budget.

But behind the proposal, which the House passed last week when it voted to temporarily extend the debt limit, is also a basic reality: many of those who support the concept are so wealthy that their Congressional paychecks represent little more than a rounding error...

“One thing I’ve never called for is an outright reduction in salary, because I do appreciate that members come from different walks of life,” Mr. Rigell said. But as imperfect a solution as withholding pay might be, he said the concept was sound. “I am convinced that is a big enough lever to influence the institution,” he said, “and it needs it.”

Mr. Rigell can't be much more plainspoken on this one. He believes that "the institution" of Congress will be more likely to reach a deal on the budget if members are being pressed by "a big enough lever."

But this doesn't seem like a big lever for the people proposing the bill. It only seems like a big lever for people on the other end of the income spectrum in Congress. The rich will 

As moneyed as Congress is these days, some members would feel the pinch if they stopped receiving their paychecks. Senator Jeff Flake, Republican of Arizona, has a reported net worth of no higher than $300,000, making him one of the few nonmillionaires to support the bill. That also makes him the fifth-poorest member of the Senate, according to thefigures from the Center for Responsive Politics...

As many ordinary Americans have struggled to get by in recent years, members of Congress were largely insulated from the economic downturn, based on their net worth. The median net worth of American households is $66,740, while for the 535 members of Congress it is about $966,000, according to the Center for Responsive Politics. Congressional lawmakers earn at least $174,000 a year.

The poorest person who supports this bill has a net worth comparable to the assets of five average American families. This bill is seeking leverage over those who won't be as comfortable without their steady pay check.

In the House, more than a few members have an estimated net worth that is a negative figure, meaning their financial liabilities are greater than their assets.

If you have a mortgage payment coming up that's a might big lever. It may even be a big enough lever that the wealthy conservatives think they'll get a few members to vote against their consciences and their constituents' interests. Apparently the conservatives who proposed this plan believe that by virtue of their wealth, they should have leverage over the rest of Congress, and certainly the segment of Congress that has more in common with their districts.

By the way, how many is 'more than a few'? 69 members of the house have a net worth less than the average family. 34 have a $0 or negative net worth. Whether the bills are from a mortgage a care for an aging or sick relative, they are coming for these members.

I haven't looked at the individual districts, but it's an easy assumption that the poorest members of Congress represent the poorest constituents.

Republicans and their wealthy sympathizers believe they own the government. They're trying to lock the middle class out of negotiations. It's a dramatic end-run around the democratic process. We may be able to send middle class representatives to Congress, but they won't get paid for their work unless they work for the wealthy.

And [Jerold Nadler, Democrat of New York] said he was concerned about the precedent it would set. “If you want only millionaires to be in Congress,” he said, “this is a good idea.”

Preserve the Union

I didn't know that this bears saying in our nation's third century, but I'm a strong Unionist. I believe that the United States of America is greater than the some of its constituent states, and even greater than the sum of its constituent citizens.

My loyal friends, you need not suffer these secessionist scoundrels, traitors, and scallywags. If they want to leave our Union, they are free to go. However, they cannot drag any of our land, friends, or investments out of our country by fiat. The secessionists may go; that which is American will remain.

Running on Fumes: Romney Momentum

Have you noticed that the whole "Romney is going to win" argument suddenly disappeared? The GOP is back to latch ditch potshots against a popular and well trusted President who has presided over 32 months of straight job growth and a strengthening economic recovery.

Karl Rove is already making excuses for his SuperPAC's inability to buy the election. The Sunlight Foundation's preliminary study finds that "dark money," political spending from undisclosed donor, 81% has supported Republicans. A loss poses an existential threat to Karl Rove's votes-for-cash business. If Team GOP can't win this election on a red tide of capital, there is no earthly reason for plutocrats to hand him million dollar checks.

Rove has now announced that Superstorm Sandy is to blame; the news and a competent government response reminded Americans that the federal government should be muscular, agile, and smart in how it responds to disasters. That is the record of the Obama administration in crises from the automaker rescue, the Bin Laden Raid, and the destruction along the Eastern seaboard. You can compare that record to "Let Detroit Go Bankrupt," the idea that America should ask permission before a raid into Pakistan, or Romney's record of denying funds to emergency preparedness in Massachusetts.

This weekend, Team Red blogs are no longer championing their lost cause candidate. They stopped advocating for an alternative and are arguing for a critique of the President's verbiage.

Rove is filling an important role in the party, however. He's at least attempting to direct the inevitable firing-squad outward. It's in his self interest; after squandering millions of dollars, he's a pretty big target if it goes circular.

*Correction - 81% of 'dark money' has gone towards Republican candidates. This post originally cited 83%. We regret the error.

Empty Gesture

What's going to happen to all the Romney Victory Rally token donated goods? The Red Cross doesn't accept donations in goods; moving and storing food, used clothing, and shoes are complicated logistical challenges. The Red Cross wants to use emergency resources in the most efficient way possible, and receiving donations isn't efficient.

So what will happen with these donations that the Romney campaign solicited to camouflage today's campaign rally in Ohio as a disaster relief effort? The Red Cross doesn't want them. The Romney campaign doesn't have the field resources to distribute the goods themselves. To what charity are these being given?

Sandy

Jonathan Chait posts a persuasive argument explaining Why Democrats Are Right to Politicize Sandy. 

Funding for FEMA is something the parties wrangle over, with Republicans pushing to limit the agency’s budget, and Democrats pushing back. FEMA has to fight for its share of a constricted pot of money for domestic non-entitlement spending, a pot of money that the Republicans propose to radically constrict. How radically? Romney’s budget promises require shrinking domestic non-entitlement spending as a share of the economy by about two-thirds.

We should be a little careful with the language. I'm not seeing a lot of Democrats politicizing Sandy. I'm seeing a lot of Americans calling for common sense government that takes pragmatic steps to ensure the welfare of all of its citizens.

There is a choice in the 2012 election between a party that believes in this kind of cooperative effort and a party that wants to put a profit motive behind disaster response. Democrats generally believe that government is by and for the people of the United States to accomplish common goals. Republicans see government as something by other people and against their interests. Romney as a candidate said he would abolish federal emergency management and put it in the hands of security contractors. Romney as a governor vetoed funding for flood prevention.

The Republican party loudly complained that the government brought a halt to deep water oil exploration after the Deepwater Horizon blowout. Mitt Romney relied on oil company talking points during the second debate. When he claimed that oil production was down on 'federal lands,' the root talking point was that there was a drop in oil exploration in 2011 while the Administration finalized new rules to prevent repeating catastrophic failures. Romney has campaigned for the  last six years as the candidate who will put American corporate interests before the American people.

Romney said he doesn't support Federal emergency management, and implied it would be better handled if a profitable firm took over. The idea that Delaware or Louisiana even New Jersey should have to recover from a big storm without federal help is bad enough. The idea that they might contract out to Haliburton is terrifying.

It's no wonder that this sharp contrast between parties becomes evident when there is already a widespread mobilization of political forces before an unprecedented disaster. This is an historic storm. Republicans at large have been showing some awfully ambivalent attitudes toward FEMA and disaster aid this week, a sign of the tension between the tenets of the Republican Party and the need to avoid criticizing life saving operations.

GOP Intelligentsia Announce Fishing Expedition

The Republican hack train is in full panic mode. The media narrowly avoided buying the Romney momentum storyline (and accompanied remorse). The New York Times published an unequivocal endorsement of the President's reelection.

The Republican case for Romney has always been based on a mushy anxiety. In the debates, Romney failed to make the case for Republican policies, instead opting for personal advancement. In non-answer after non-answer, Romney evaded the plans he hawked in the Primaries and his own running mate's budget. Romney has attempted to run as a vague alternative to the status quo instead of offering any specific plans for a Romney administration--after Day 1 anyway.

The shallow draft of the Romney campaign is best illustrated by the campaign's concerted attempt last week to spread the false narrative of Romney momentum. Jeremy Bird (Obama for America National Field Director) linked the Republican field reported field numbers failure to add up to the Governor's failure to create realistic and arithmetically sound policy proposals. The Romney campaign's media strategy of focusing on horserace statistics while eliding substance reminded pol-watchers that the Romney campaign case has boiled down to:

1. The President is a loser
2. Don't vote for a loser

This has been the central point of most of Romney's talking points: 'apology tour,' Benghazi coverup allegations, birth certificate jokes, etc... It also explains why Boston invested a week of media contacts into touting a run of polls that showed Romney stalled just below 47 percent of the electorate and behind President Obama.

Back to the drawing board, Republican thought leaders: Billy Kristol announces his Ten Questions for the White House. Donald Trump announces his new haircut. David Brooks will just quit.

Windsor v. US

I'm glad that the Second Circuit trashed the Defense of Marriage Act today (pdf), but I'm a particular fan of how they did it. A little secret about the law is that outcomes in court cases matter a lot less than how the outcome is reached. Ok, I admit; that's less of a secret and more of a wildly controversial claim. After all, who really relies on stare decisis outside of confirmation hearings?

But I digress. Edith Windsor's long term partner and spouse under New York State law passed away, leaving an inheritance to her widow. The IRS taxed the estate, leaving Ms. Windsor a tax bill of roughly $383,000. Had Ms. Windsor's spouse been of the opposite sex but all other facts concerning their union been similar, the inheritance would have been exempt from the estate tax.

This sex-based divergence in outcomes forms the basis for Ms. Windsor's equal protection claim. The Southern District of New York decided in Ms. Windsor's favor, but did so on a 'rational basis' test. The rational basis test requires that a law be "rationally related" to a "legitimate government interest." Poll taxes could meet this level of scrutiny. Almost any law can meet a rational basis test, which is why it is considered the lowest standard of scrutiny for Equal Protection and Due Process claims. However, the Defense of Marriage Act was not able to meet this standard at the trial court level, and was dismissed.

The danger of allowing sex and gender discrimination to be decided at the rational basis level is that "rationally related" and "legitimate government interest" are innately squishy phrases. If there were a consensus view in a particular region among cultural  and judicial elites that solidifying a specific set of gender norms constituted a "legitimate government interest," it would follow that legalizing sex-based pay disparities would be a "rationally related" method of incentivizing behavior.

Romney's invocation

"Government does not create jobs. Government does not create jobs."

Not if you close your eyes and refuse to look at data.

Outsourcing - Part Obama

President Obama: We would make the tax code support American businesses instead of letting multinationals unfairly repatriate taxes.

"The way we're going to create jobs here is not just to change our tax code. We're going to double our exports. We're on pace to do that."

"In the private sector, Governor Romney's company invested in companies called 'pioneers of outsourcing.' That's not my phrase. That's reporters' phrase."

Outsourcinng - Part Romney

Mitt Romney: Let's pretend that outsourcing history began on January 1, 2009. Does Mitt Romney really think that "Trickle down government" doesn't just remind everyone of the Republican "trickle down" talking point? I'm sure it's focused tested, but come on.

Now he's explaining currency manipulation. He'll label China a Currency Manipulator and start a trade war.

He's about to get sucker punched on "Pioneer of outsourcing" and he knows it.

Romney admits that he would start a company in Canada if he weren't running for President.

Actually, the rate of new regulations issued is vastly lowered in the Obama adminsitration than any administration in the last 20 years, but that's ok.