Sunday, April 28, 2013

GE Decides To Take The Heat

GE Decides To Take The Heat

General Electric did something interesting last week.  It decided to stop lending to gun shop owners to finance consumer gun purchases. 

As you might have imagined, the decision did not meet with universal acclaim.  Gun owners were outraged; lawsuits were considered, and editorials thundered.  There are countless websites for gun owners, and suffice to say GE was not showered with love.

But, beyond the noise, GE’s move goes to the very heart of something that businesses, large and small, have to deal with in this intensely polarizing time: just how do their economic interests intersect with social and political issues?

From one perspective, which is maximizing profit by trying to gain every advantage in the political marketplace, it is quite easy; you lobby, you spread around campaign contributions, you join trade organizations, etc.  Let’s not be naïve: that Texas plant that exploded hadn’t had an inspection in decades, and that didn’t happen by accident.  Regulators in many industries are chronically underfunded and there is often a revolving door between the two.  The same is true with coalmines with inadequate safety measures, meat processing plants with repetitive motion (and more gruesome) injuries, drug “compounders” with contaminated facilities, and overseas sweatshops.  The point is that safety cuts profits, and business is in the business of making profits.  It’s a heck of a lot cheaper to buy political influence than it is to be state of the art. 

Should we accept this?  Well, in all honesty, we don’t have much of a choice.  Teddy Roosevelt is long gone and so is Progressivism.  Now Conservatives use the word as an insult.  Google “progressive” and the conservative columnist George Will you get 48 Million hits, and they aren’t 48 Million moments of praise. And it’s not just the pundits and professional talkers; the politicians are firmly on board.  There isn’t a single health or safety regulation that you won’t have a cadre from Congress fearlessly flinging themselves in front of, claiming the virtue of protecting us from being protected.  Picture Clint Eastwood and “In The Line of Fire” except the menace is a proposal to reduce E. coli in ground beef. 

In the end, businesses exist to make profits and businessmen allocate capital to the areas that bring them the highest leverage.  That is why GE’s decision to exit the gun shop lending business is so fascinating.  Because what GE did was make a statement for absolutely everyone to see.

You could be cynical and say GE’s gesture doesn’t really impact their bottom line; the action affects only about 75 shops across the country, not larger companies like Wal-Mart or Dicks, which also sell guns as part of a broader array of merchandise.   In fact, the opposite is true.  In exiting this tiny little segment of their business, which they could have ignored, and taking what is perceived to be a political stand, they put a big bulls-eye on their back.  They knowingly accepted the fact that there will be collateral damage, perhaps significant damage.

GE isn’t the only business that is taking a step back from the gun business; the private equity firm Cerberus Capital Management LP is shopping its subsidiary Freedom Group, which makes brands like Remington and Bushmaster.  But Cerberus operates quietly, while GE is one of the mostly widely known brand names in the world.

I like it.  Not because I care so much about whether GE lends to gun shops (it’s none of my business) but because GE has come out of the weeds and exposed itself on an issue that it knows is controversial.  It has walked away from the anonymity that many businesses crave. 

That anonymity has been given new force with the Supreme Court’s decision in Citizen’s United, which allows businesses to spend unlimited sums on “issue-oriented” advertisements; ads that don’t directly urge a vote for or against a particular candidate.  In the parallel world that is political speech, J&J, or McDonalds, or the Koch Brothers, or Chick-Fil-A can’t say “don’t vote for Congressman Y, he is in favor of amnesty for people like the Boston Marathon Bombers.”  But they can say “did you know Congressman Y favors open borders and amnesty for terrorists?”  

As Tom Donlan, in this week’s Barron’s, points out, businesses don’t necessarily see this as an unadulterated blessing. “It seems that CEOs don't want to get down in the arena if they will be seen throwing political dirt. They are well aware that their investors and customers include people of both parties holding widely different views on many issues, which means that some hold views that the executives believe to be antithetical to their corporation's interests.”  

Donlan frames the argument in terms of investors or customers who might support policies that would cut into businesses profits (such as labor laws, or use of natural resources) but the same logic applies to issues that are more political or social.  Smart businesses don’t want to anger their market.  Voter A might be very annoyed to hear that his local department store chain sponsored that nasty ad about Congressman Y, and might be inclined to shop elsewhere.  

Fortunately, at least for those businesses that want to weigh in politically, but don’t want to pay the price at the cash register, there is also something called a 501(c)(4) status “social welfare” group.  They can take contributions anonymously, as can trade and “educational” organizations, and those groups can trash Congressman Y to their heart’s content.  It should not be a surprise that Karl Rove has a “social welfare” group (Crossroads GPS), as do the Koch Brothers (Americans for Prosperity) as do some more liberal groups, like the Obama-affiliated Priorities USA.

But anonymity may breed corruption, and certainly can defile the political landscape.  Donlan nails the point home.  “Money that funds public speech should be subject to the same constraint as any speech was in the agora of Athens or the forum of Rome: The speaker should be identifiable. He may lie his head off, but he must be responsible for what he says.
It should not matter whether the giver of the money directly funded campaign ads or gave to a political action committee, a social welfare group, or a trade association. It should not matter whether the giver of the money be a single person or a collective such as a corporation, a church, or a labor union. When such a collective makes an expenditure that ends up as expression, it should identify itself so its shareholders, suppliers, and customers, its parishioners and neighbors, its employees, members and employers can know about its speech and judge it.”

That is exactly what GE did this past week, when they decided to end lending to gun shops.  They engaged in a form of public speech.  Now, they can take the economic consequences of that speech.  Capital, seeing a good rate of return, may flow in.  Customers may pull orders.  Gun-friendly state legislatures may review their contracts with GE, and perhaps decide to not to renew them. 

In my ideal world, I would prefer that businesses be completely apolitical and get out of the lobbying business.  That is, of course, wildly and foolishly utopian.  But, in the absence of that, capitalism, and advocacy, practiced out in the open, is the next best thing.  Free markets, free expression of ideas, openly made and for attribution.   Under those conditions, as Donlan notes, “If shareholders and customers want corporations to stay out of politics, that's information executives ought to have and information they ought not to ignore.”

Kudos, GE, for deciding to take the heat of the spotlight, commercially and politically.  The market will judge the choice, and it can adapt accordingly. 

Now, if we can only convince Congress that “for attribution” is a very good thing…


Questions or comments?  Contact the Moderator

Sunday, April 21, 2013

A Tough Week

A Tough Week

“All in all, it’s been a tough week.”  Those words from Barack Obama as he mentally toted up the damage from the Boston Marathon bombing and its afterwards, the horrific explosion in Texas, and the latest scalp collected by the National Rifle Association.

Mr. Obama showed a gift for understatement.  It was a very tough week.  The loss of life and home, and the sense of vulnerability it brought was a shock to the system.  And, as the painful collapse of the Manchin-Toomey compromise made clear, even something supported by 90% of the electorate can’t get past the piranhas.

It was a week where chaos seemed to rule, where ugliness bubbled out of every crevasse.  The giant sigh of relief we all let out after Friday’s capture of Dzhokar Tsarnaev was a little like the end of a particularly potent horror movie. You were glad that it was over, but that didn’t mean you weren’t shaken.

I took Boston a little personally.  I love to run, although I must admit I use the word “run” generously.  It’s the simplest thing to do.  A pair of shoes, shorts, and a top and you are off.  You don’t need to be fast or graceful.  Running alone takes you away from cellphones and emails, opens up your mind, gives you a sense well-being.  Running with others is like a mutual admiration society; you go faster, you fall into rhythm, you pull each other along.  I plan to run in a four-mile race next weekend; do that and you can understand the simple beauty of the experience, the feeling of oneness with your fellow racers, the sense of community. The New York Road Runner races group people into corrals, based on past times, so standing together before the starting gun goes off, you are surrounded by people who are a bit like you in ability.  You compete, but in a good-natured way.  It’s politics at the micro level; you feign tightness or fatigue, make jokes about your age or weight, and do everything possible to reduce expectations.  Once you are off, you make your way around the course and find people cheering, small children waving to their racing parents, volunteers handing out water and encouragement.  The last mile is half dread and half expectation; have you paced yourself well enough, do you have anything left for a final sprint?  As you approach the finish more people are clapping, you push to beat the clock, the other runners are straining around you.  Then, it’s over, and in between the gasps and gulps you see big sloppy grins and sloppier hugs.

But, last Monday, two murderous lunatics came to that incredibly simple event, and, in the cruelest possible way, they tore into people lives and legs and innocence.  I found that hard to take.

That the people of Boston acted so magnificently, with such acts of courage and even more extraordinary presence of mind, is a tribute to them, their police force, and their leadership.  Not a false note, just one community working together, everyone contributing in their own way. 

Unfortunately, their selflessness was not matched by others.  The media was filled with self-serving articles and criticism dressed up as analysis.  The on-line forums outdid themselves in repugnant comments.  Most of the spittle came from the Right, with a healthy dollop of Obama-hating, wild accusations of secret favors being given to the Saudis (Obama being a secret Muslim) crass jokes about banning pressure-cookers as assault weapons, and an avalanche of anti-immigrant commentary. 

And, not surprisingly, some of the leadership followed.  Senator Grassley of Iowa, his taste for blood whetted by his victory on the gun bill,  leapt for the opportunity to deep-six the immigration bill.  In Grassley’s construct, since these two murderers were legal immigrants, all immigration must be stopped.  Others, like Senators Graham, McCain, and Ayotte, with the ever vocal Congressman Peter King, demanded Mr. Obama declare Tsarnaev, who was a naturalized citizen, an Enemy Combatant (and, what, send him to Gitmo or Putin for questioning?)

Usually, I’m a junkie for this.  I love the politics, I love reading even the columnists that I disagree with, I love the give and take.  But the contrast of the public-spirited citizens of Massachusetts and the mean-spirited posters and devotedly amoral politicians just turned me off and I found, by the end of the week, that I needed to take a break.

So, on Saturday, I went up to the Metropolitan Museum of Art and spent a few hours in the American Wing. I thought that walking around the paintings of the Founders would purge my mind of the pettiness.  And there were plenty in attendance, including Leuze’s heroic “Washington Crossing the Delaware.”   But I found myself looking for the smaller pictures, the everyday genre works, the portraits that weren’t just stiff headshots.  There is a wonderful charm about American painting which differs from a lot of the European.  It is generally not heroic and not over-ornamented.  To the extent it is epic, such as the works of Thomas Cole, Asher B. Durand, Frederic Church and Albert Bierstadt, it comes more from the land itself (the Hudson Valley, the Rocky Mountains) and not from aristocrats placed in classical poses.  America was a world of doing things, and living life, and amongst the stern-looking bankers and shipping magnates and lawyers, there was the movement and energy of ordinary people.   So, here was Bingham’s “Fur Traders Descending the Missouri” with the mysterious black cat on the bow.  Winslow Homer’s eight boys outside a school house in “Snap the Whip”, and John Weir’s “Forging the Staff” and William Sidney Mount’s “Cider Making.” 

My mood improved and, as I turned to leave, I came across a favorite, Thomas Eakins’s terrific “The Writing Master.”  The subject was his father, Benjamin Eakins, in old age.  His hair is grey and thin, the lines in his face and hands are deep, but he pours over the document with great devotion to his craft.

There is a bloodline that runs in Americans, regardless of their age and where they come from, and you could see it in those paintings.  All these people are alive and vibrant.  They aren’t stuffed talking heads looking for talking points, and they aren’t narrow-minded posters getting their daily ration of venom. They are all just people, doing things, I would think, as the Founders intended, because that is how you build a nation.   

The most remarkable image of Boston was that when the bombs went off, countless people ran towards the danger.  They applied tourniquets, and tore off shirts, and comforted, and kept pressure on wounds.  They didn’t ask the victim’s party identification or political philosophy or place of origin.  They just helped.

To me, that is the essential challenge of contemporary politics.  Do you want to go with the skeptics and the doubters, the peddlers of discord and hate, or do you want to take chances and solve problems and move forward?

I think I’ll go with the people of Boston, who ran towards the danger.  Mr. Obama was right; the bombers “picked the wrong city to do it.”


Comments or questions?  Contact the Moderator

Monday, April 15, 2013

After Thatcher And Obama

After Thatcher And Obama

Here is a fun fact: following this past week’s death of Baroness Margaret Thatcher, the second most popular song in England was apparently “Ding Dong! The Witch Is Dead.”

And, a second one: there is going to be a Presidential election in November of 2016, and Barack Obama is not going to be on the ballot.  We will have to wait to see what runs up the pop charts.

The first fact is a testament to the enduring, and controversial legacy the Iron Lady left.  She is both revered and reviled, despite the more than twenty years that have passed since her own party showed her the door.

The second fact, the end of Mr. Obama’s Presidency, is one that has to be a sobering thought for the brain trusts of both parties.  Because, for four years and a few months, the Obama Presidency has been solely about Barack Obama. It hasn’t been about the wars in Iraq and Afghanistan, it hasn’t been about guns, or immigrants, or abortion, or prayer in schools, or taxing and spending.  Nor about who built it, who was a taker or a maker, the 47%, the 1%, class warfare, education, climate change, socialism, drones, Gitmo, gays, or entitlements.  It hasn’t even been about Obamacare.  It has been about Barack Obama.  We have, collectively, poured all of our hopes, our apprehensions, our ambitions and our paranoia into one man.  He has been the lens through which every policy issue is seen and he is the boogieman under the bed.  Barack Obama is the physical embodiment of the atomization of our political culture.

Why Obama?  A friend, economically conservative but socially moderate, may have said it best.  Obama was a man he felt he had nothing in common with.  Not just racially, but where he came from, his friends and associates, the time he spent abroad, the exposure to Islamic cultures, the influence of socialist and even communist-leaning people in his formative years.

My friend is not an irrational kook or some partisan zealot, but he can’t help but feeling that if Obama does it, there is a secret hidden agenda, something subversive and totalitarian and freedom-destroying.  There is nothing in Obama he recognizes; Obama is an alien who cannot be trusted. 

In 2017, Obama will be gone.  He will give speeches, travel, write books, and build a library.   The media will do retrospectives, and historians will write appraisals, but he will still be gone.  One thing we know about Barack Obama is that he is no Bill Clinton, for good or bad. He may feel white-hot on the inside, but he’s a politician for a media age; on the outside, he burns cool.

When he is gone, the pall that his person casts over every policy debate will fade, and all the rest of us will be stuck with each other, and a host of unresolved issues, without the luxury of his personal lightening rod.   And, chances are, none of us are going to recognize the landscape.

The fact is that the country is changing, and it is changing rapidly.  It is not necessarily becoming more conservative or more liberal, because those labels have become little more than slogans or pejoratives. It is becoming different, as the population changes and moves.  Much has been made of the growth of immigrant (particularly Latino and Asian) populations, but that is only part of the story. What is also going on is generational, a passage from Depression-Era/WWII types to Boomers, to Gen X, and so on.  These are not merely age groups, they are attitude groups, and becoming a certain age does not necessarily transform one into a New Deal Democrat of Reagan Republican. 

So, too, has population movement, land development and suburbanization changed attitudes of the voting electorate. We all know the conventional story; how the South is a conservative Republican redoubt and how Northeastern Republicans are becoming an endangered species. But that is only a piece of it.  There is a fascinating story in the Washington Post by Philip Rucker and Paul Kane.  How did two conservative Senators (Manchin and Toomey) with A ratings from the NRA come to be the possible dealmakers on gun legislation?  The rapid growth of suburbs in historically gun-friendly states is forcing politicians to cater to the more centrist and pragmatic views of voters in subdivisions and cul-de-sacs as well as to constituents in shrinking rural hamlets where gun ownership is more of a way of life.”  Rucker and Kane looked outside Pennsylvania and West Virginia, and found similar trends in Georgia, Arizona, Colorado, and Virginia. 

What about those suburbanites?  They may best reflect where the center of the country is actually going: neither fish nor fowl when it comes to party identification.  They don’t like taxes, but they want their kids to go to good schools and have the garbage picked up.  They think government is too large and intrusive in the economic sector, but don’t care for the noisy scolding that emanates from the Right on social issues.  While the two parties hunker down in their ideological (and geographic) bunkers, a large segment of the population wonders why if you are for lower taxes, you must also be for burning books, and gays, at the stake.  Why can’t Washington just fix the things that don’t work, and leave us all alone for the rest of it?

Where does Obama fit in all this?  He is an accelerant, just like Thatcher was, but in an emotional rather than policy way.  Thatcher, in Barron’s Tom Donlan’s words in Barron’s Before Margaret Thatcher pushed her way into 10 Downing Street, the United Kingdom had two major political parties, both engaged in the country's longstanding class war. The Labour Party courted and served the lower class, the people who worked with their muscles. The Conservative Party represented the interests of the upper class, the people whose inheritances allowed them not to work. After Margaret Thatcher finished reorganizing the politics of her country, both major parties more closely represented and courted the middle class, the people who work with their brains to make money.”

Donlan is an economic conservative and an admirer of Thatcher; he skips over the collateral damage of Thatcher’s radical reforms.

Obama, by contrast, is a moderate draped in the radical costume others put on him. Witness what just happened when he introduced his budget.  For many months, he has been urged to put on the table, in writing, a credible compromise position.  Something that includes revenues and entitlement cuts.  Go big, he’s been told.  Show leadership!  Take risks! This he did.  Liberals all over the country let out a collective groan.  Labor was unhappy.  Seniors were unhappy.  Criticism flew in from all directions, much of it from the very same people who told him to go big in the first place. Naturally, the Republicans, displeased with a proposal that didn’t give them everything they would have received with a Mitt Romney Presidency, denounced it.  But, in the most appalling (typical, but appalling) moment, National Republican Congressional Committee Chairman Greg Walden (R-Ore.) went on CNN to slam it “I thought it’s very intriguing in that his budget really lays out kind of a shocking attack on seniors, if you will.”

Think about that for a second.  The head of the NRCC plans to win Congressional seats in 2014 by criticizing Mr. Obama for doing the one thing Republicans (and even many non-partisan) commentators, have urged him to do; put entitlement reform in the discussion. 

What are these folks going to do when Obama’s not in office any more?  They can’t always think with their glands, can they?

Maybe they can.  Steve Stockman, Republican Congressman from Texas (you remember him, he’s the chap who invited Ted Nugent to be his guest at the State of the Union) tweeted the following:The best way to honor Baroness Thatcher is to crush liberalism and sweep it into the dustbin of history. What are you doing this morning?”

There’s a fun guy to invite to breakfast.


Monday, April 8, 2013

Codgers, Cooties, and Legacies

Codgers, Cooties, and Legacies

As every good baseball fan will tell you, time doesn’t start until Opening Day.

Politics, on the other hand, is a different sport.  It never stops.  Whether it was the ancient Romans scheming away in their Senate, or Mitch McConnell and Harry Reid scheming in ours, it is a game best played by people who don’t faint at the sight of blood.

Opening Day came and went for my beloved Yankees.  It is a 162 games season, but things don’t look all that good.  Time and injuries have taken a brutal toll, and they now field a roster that has so many retreads, has-beens, and never-weres that it’s hard to look.  A parade of the old and infirm marches to the plate and flails haplessly.  

They are back in Washington as well. The Nationals look great, but with everyone else, it is pretty much the same roster; old and infirm politicians with old and infirm ideas.  To the extent they are able to flail, they flail at each other.  There have been a flurry of articles about all this flailing: in the Washington Post, Chris Cillizza’s “The Senate Has Lost Its Luster” and Dan Balz’s “Can Washington Govern?” and Jackie Calmes in The New York Times,  “Obama Walks Fine Line As Congress Takes Up his Agenda.”

All three are well worth reading, albeit pretty grim.  But nothing caught my eye more than a little post in The Hill this morning; “Obama running short of time to burnish legacy.”

Gee, I thought the season had just begun?  I know the Yankees are done, but Obama is barely ten weeks into his second term.  Legacy?  Whatever happened to 162 games and four years? I read the Cillizza, Balz and Calmes articles a second time.

Balz and Cillizza get into the governance weeds: Washington doesn’t work because it’s too partisan, because too many people lack institutional respect and memory, because short-term political gain is more important than doing good for the country.  All true, and unlikely to change in the foreseeable future.

Calmes, however, goes to a place that should make us all a little uncomfortable.  Republicans don’t like the President, and it is not merely policy, it is deeply personal.  From the codgers to the rookies, the contempt runs deep.  Barack Obama has cooties, and they don’t want to play with him.

So, how do you build a “legacy” when your opponents would rather have you fail, regardless of the cost to the country?  Well, we can start with the two big issues that have enormous symbolism: gun control and immigration reform.

The gun control debate is all but over, and the NRA has won.  The best that can be done is a compromise being brokered by West Virginia’s Democratic Senator Joe Manchin with the possible cooperation of Pat Toomey, Republican Senator from Pennsylvania. It is a watered-down and toothless version of universal background checks. Nothing substantive beyond that.  The fruits of Newtown will be yet another notch in the NRA’s belt, as they have already managed to insert pro-gun riders into funding bills that carry far more weight with far less symbolism.  What this whole incident shows, in excruciating detail, is that gun control is a loser for both Mr. Obama in particular, and the Democrats in general.  I would be willing to bet that there are any number of Democrats who secretly hope that the Manchin compromise either gets 75 votes or is filibustered by the hard Right. 75 votes gives them bipartisan cover while not enraging gun owners, and the filibuster is even better, since nothing happens and they can go back to their more moderate and liberal supporters and say, in effect, “we tried, we just couldn’t get there.”  The fact is, and we all know it, that the NRA runs Congress with an iron hand. The Democrats aren’t just sending up the white flag, they are handing out chocolates and candy corn to the scary monsters at their doors.  

Immigration is worth watching, because a bipartisan Gang of Eight  (Republicans McCain, Graham, Jeff Flake, and Marco Rubio, and Democrats Schumer, Menendez, Dick Durban and Michael Bennett) is working to come up with compromise legislation that can pass both the Senate and House.  It’s an interesting and eclectic group.  Menendez (New Jersey) and Rubio (Florida) are both children of Cuban immigrants, McCain and Flake both from Jan Brewer and Sherriff Joe’s Arizona.  Bennett is from key swing state of Colorado, Schumer from New York, and Durban (Illinois) is an author of the Dream Act.  Those cover the states that have 3rd, 4th, 6th, 7th, 8th, 9th and 10th largest percentage of Hispanic voters.  Notably, but understandably, missing is Texas (the radical Ted Cruz and the deeply conservative-but-worried-about-his-right-flank John Coryn.)

It is easy to cast stones here, but this is a very tough issue. As the grandchild of immigrants, I am extremely sympathetic to a system that is welcoming to those who want to come here.  But if guns are a landmine for the Democrats, immigration is an electoral math nightmare for Republicans.  Latinos (and Asians) were hugely importantly in Mr. Obama’s electoral success in 2012, and, even if you put an electrified fence on every inch of the border, stocked a moat with crocodiles, and lined it wall to wall with armed militia, the Latino population already legally here in the United States would continue to grow in size and influence, most notably, and alarmingly for the Republicans, could soon turn Texas Blue. The GOP and the Tea Party ran hard anti-Latino in the 2012 campaign (there isn’t a similar analogy to such an overtly personal and negative campaign since George Wallace’s 1968 third party candidacy) and they simply cannot do it again. Is there a racial component to this?  Of course there is, but it’s also unfair to characterize everyone who opposes the Dream Act, or anything that approximates amnesty for illegals, as racially motivated.  This is a very complicated issue that has generational overtones, a serious business/labor component, and economic aspects (such as when immigrants would qualify for social programs) and in different times would be the subject of careful lawmaking.  But, right now, it cuts against the Republicans. They need a way to defuse things, but they are afraid to approach the explosive device.  Mostly, they are afraid of being fragged.

At the very center of this web is the personal ambition of one man, Marco Rubio.  In Rubio’s hands probably lay the success or failure of the Gang of Eight.  The other three Republicans, even McCain, would be hard-pressed to sign on to anything he didn’t bless.  Rubio has to thread the needle.  He is smart enough to know that there is no compromise possible that would satisfy the most rabid anti-immigration folk from his side of the aisle. They can’t be coopted, so they have to be given lip service while ultimately being ignored. What he has to calibrate is the percentage they are of primary voters.  If it’s 25-30% he looks like a statesman.  If it’s 40% or above, he may likely will be committing short-term electoral suicide. 

So, what should we expect an ambitious young conservative do?  It depends on how Machiavellian we think he is.  Paul Ryan, in an analogous situation on a budget committee considering a Simpson-Bowles-like compromise, walked away to enhance his conservative street cred.  Can Rubio do the same thing?  He may be trying right now to do just that, under the guise  of calling for a calm, measured approach.  He’s slowing down the process, calling for more hearings, looking for opportunities to throw things back to the Senate where the virulently anti-immigrant Ted Cruz and Alabama’s Jeff Sessions excel at obstruction.  But, if he chooses not to go down that road, and really wants a compromise, a great many people will be hanging on his every word, pause, and gesture.  Rubio can take his party towards a less confrontational approach with Latinos, and become a true national leader at the same time.  It’s a power that he has openly sought, but it’s a little reminiscent of the Indiana Jones movie where everyone searches for the Holy Grail.  Should he choose poorly, he may also scream, shrivel, and turn to dust. 

Depressing?  Chances are, it’s going to be a bleh baseball season for the Bronx Bombers and a bleh political season for Mr. Obama. They might both be struggling to break .500.

.500 doesn’t get you in the playoffs, much less win the World Series.  It definitely doesn’t build a legacy.

Still, it is only Spring.  Stranger things have happened.


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Monday, April 1, 2013

Guns, Gays, and Embryos

Guns, Gays, and Embryos

Thomas Paine once wrote, “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”

I think that most of us would agree that those sentiments have been continuously on display.

This last week brought arguments before the Supreme Court on the Defense of Marriage Act (“DOMA”) and California’s anti-gay marriage Proposition 8.  On the gun control front, a White House event with Newtown families rather brutally demonstrated that the moment, if there ever was one, is long gone. In North Dakota, the GOP-dominated legislature has passed, and their Governor has signed, three bills that effectively ban virtually all abortions, except for those pregnancies that would result in death or “irreversible impairment” to the mother. The lawmakers in North Dakota were fully aware of what the law of the land is: they were foresighted enough to include taxpayer funds to pay for the legal defense of their actions. 

Whatever your positions on DOMA, the Second Amendment, and abortion might be (and reasonable people can certainly disagree) it is the DOMA arguments that should draw your attention.  The eventual ruling could have broad implications, far beyond same-sex marriage, because the issues go directly to the interplay of power between the Federal Government, the States, and ordinary citizens.  Ultimately, all three, guns, gays, and embryos, raise the same question; what are the liberties law-abiding citizens possess and may enjoy without excessive government interference?  

Think about your rights in two ways.  Fundamental ones, such as those enumerated in the first Eight Amendments (freedom of speech, religion, etc.) and then all the rest.  Fundamental ones can only be abridged if there is a “compelling interest” and even then only with due process.  For every other right, including prosaic things like driving, selling hot dogs from a cart, practicing medicine, or drinking, the government needs only to demonstrate a “rational basis” to regulate or restrict.

Who can make these laws?  Obviously, the Federal government is in charge of externals, such as treaties, tariffs, making war or conducting diplomacy.  But, after those, we have the Tenth Amendment; “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

Does the Tenth Amendment allow states to choose which Federal laws they will obey? Not really.  The Fourteen Amendment says; “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

And, does the Federal Government show modesty in expressing power; do they leave things to the states? Absolutely not.  Instead, Washington often suddenly discerns an overpowering need for some sort of uniform national standard, and then charges in with “preemptive legislation” which supersedes the states. 

As you might have anticipated, conservatives love the Tenth Amendment, dislike the Fourteenth Amendment, and hate preemption, except when they don’t.  Liberals love preemption and prefer the Fourteenth Amendment to the Tenth Amendment, except when they don’t. What both sides really like is power, and the sides they pick in these little wars depend on which governments (and branches of government) they presently control. 

DOMA demonstrates that. The law dates from 1996, when Congress, concerned that Hawaii might recognize same-sex marriages, defined marriage as between a man and a woman.  It is a particularly unusual law, because it aims squarely and quite negatively at a defined class of people.  But, does it unduly interfere with a constitutional right, or unnecessarily intrude in the state’s domain? Well, here is where we start to get into the murky area of what is an individual liberty, what is a state right, and what is a proper area for Federal preemption. 

Traditionally, who can marry and under what circumstances has been defined at the state and local level.  This was fine for conservatives when only opposite-sex marriages were being performed, but now nine states have permitted same-sex marriage.  At oral arguments before the Supreme Court last week, Paul Clement, speaking in support of DOMA, struggled to explain this, as he claimed, in essence, that the Federal government must create a new protected class, men and women as married couples, and intervene to insure they were the only type of married people.  This would foster a government interest in “uniformity” and justify preemption.

Whatever you may think of same-sex marriage, you can see the intellectual weakness in that position, and Justice Sotomayor called him out  How do you get the Federal Government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the States?” 

Justice Kagan noted that the only uniformity the Federal government has traditionally pursued in marriage is to uniformly recognize the marriages that were recognized by the states that married people were married in.  In short, if it was good enough for New York, or Utah, or Louisiana, it was good enough for Washington.

Clement’s response was circular, and it was one that should give the Right, and actually, all of us nightmares.  Times have changed, Clement argued, and so long as the States were following what Congress thought best, there was no need for Federal intervention.   “When you look at Congress doing something that is unusual, that deviates from the way they — they have proceeded in the past, you have to ask, Well, was there good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity…..Up until 1996, it essentially has it both ways: Every State has the traditional definition. Congress knows that's the definition that's embedded in every Federal law. So that's fine. We can defer.”

Justice Kagan pounced on him.  What had really changed wasn’t the need for uniformity, but something more primal, a desire by Congress to single out a group for special opprobrium. She quoted from the legislative history: “Well, is what happened in 1996 — and I'm going to quote from the House Report here — is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."

Clement seemed momentarily nonplussed; but good lawyer that he is, he pivoted and said, in effect, if Congress had a rational basis for discriminating, then the motives of “a couple of legislators” are immaterial.

There you have it. Congress may discriminate, and override state law, at the time or place of its choosing, and for any motive.  It may intercede even when the clear intent of a law is to aim specifically at a particular group for no other justification besides that it doesn’t approve of their otherwise legal behavior?   In the vernacular, that’s Clement’s story, and he’s sticking to it.

And that is why gays, guns, and embryos may all be linked.  Divisive issues involving Constitutional rights being fought over in the legislative arena.

Congress didn’t like gay marriage in 1996, so it passed DOMA.  But, let’s say times and attitudes change, and a new Congress, more tolerant, decides to go in the opposite direction.  Does Congress have the right to preempt state and local laws as Paul Clement says they do?  How would the good people of South Carolina feel if hundreds of gay couples decide Charleston is the perfect place for a June wedding?

How about guns? In District of Columbia v. Heller the Supreme Court held that the Second Amendment gave an individual the right to own and possess firearms for any lawful purpose.  The Second Amendment right is not unlimited; you do not have a guaranteed right to keep and carry a weapon in any manner, in every place, and for every purpose.  Nor does it preclude prohibitions on the possession of firearms by the mentally ill or felons. Does a more pro-gun control Congress have the authority to enact preemptive legislation that would create a national standard of “Heller compliant” restrictions that apply everywhere?  Or, more likely, given the power that the NRA has, can Congress enshrine unlimited gun-rights as the uber-law in the country regardless of what would have been permitted the states under Heller?  Imagine a phalanx of assault weapon-toting Texans marching over to Mayor Bloomberg’s home to say hello before heading down to the local library and elementary school to “protect” the children.  Rick Perry might cheer, but I doubt too many New Yorkers would be happy. 

And abortion?  In Roe V. Wade the Court found a fundamental right to privacy that allows a woman to have an early abortion without a third party’s consent.  The right to an abortion is not unlimited, the State can regulate after presumed fetal viability, but it cannot prohibit or unduly restrict it before then.  For at least the first 24 weeks of pregnancy, it’s none of the state or federal government’s business.  Could an activist Congress preempt all state legislation and create a national standard for abortions? A more conservative Congress would reel in the more liberal states.  But, just as with guns, the Supreme Court has not defined what is too much abortion; instead it has indicated what is too much regulation. Could a more moderate to liberal Congress push a uniform national standard that goes beyond Roe?  Hello, North Dakota.

Realistically, what Paul Clement was doing was playing with fire. He was centralizing power in a body (Congress) that he thought would be friendly on this issue, instead of respecting the states to make their own judgments based on their own social norms.  It was only a year before when the same Paul Clement was a big Tenth Amendment guy, arguing before the Supreme Court that the Republican dominated Texas Legislature had the right to ignore the Voting Rights Act and draw its own voting maps without pre-clearance.  Then, a few months after that, he did another about face, and authored a paper on behalf of the US Chamber of Commerce, advocating for preemptive Federal tort reform.

Clement is a brilliant man and a skilled advocate.  But he’s not an idealist, applying empirical principles to achieve intellectual consistency. He’s a politician/lawyer/partisan, advocating for his, and his client’s moral, political, and business interests, regardless of what the Constitution may say. Tenth Amendment here, preemption there.  Whatever works: just win, baby.

That is why the DOMA case is important beyond the implications for same-sex marriage, and, just as critically, why Clement’s profound indifference to the rule of law needs to be rejected.  What Clement really made DOMA about is power, the power of a faction to gain control of the national government and impose their will, on any issue, at any time, and disregarding any precedent.   

The promise of a democratic government is that it will work for the common good.  The menace, in Tom Paine’s words, is clear. “Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.”

Or, as Benjamin Disraeli once said: “My idea of an agreeable person is a person who agrees with me.”


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