Indiana Win For Tea Party Encourages Further Polarization and Gridlock

The defeat of Richard Lugar by Richard Mourdock in Indiana last might might have consequences far worse than changing one Senate seat from conservative to extremist right wing. I am, of course, assuming that Indiana doesn’t provide another shock as when this conservative state went for Barack Obama in 2008. Jonathan Chait has a warning as to what could be the most serious outcome:

The most important and alarming facet of Lugar’s defeat, and a factor whose importance is being overlooked at the moment, is one of the things Mourdock cited against him: Lugar voted to confirm two of Obama’s Supreme Court nominees. Obviously, Lugar would not have chosen to nominate an Elena Kagan or a Sonia Sotomayor. But he was following a longstanding practice of extending presidents wide ideological latitude on their Supreme Court picks. In the absence of corruption, lack of qualifications, or unusual ideological extremism, Democratic presidents have always been allowed to pick liberal justices, and Republican presidents conservative ones. That’s not a law. It’s just a social norm.

But the social norms that previously kept the parties from exercising power have fallen one by one. Under Obama’s presidency, Republicans have gone to unprecedented lengths to block completely uncontroversial appointments, paralyzing the government and using the power to paralyze government to nullify duly passed laws. It is bringing on an approaching crisis of American government.

The social norm against blocking qualified, mainstream Supreme Court nominees is one of the few remaining weapons the Republican Party has left lying on the ground. But if Republican senators attribute Lugar’s defeat even in part to those votes for Kagan and Sotomayor, which seems to be the case, what incentive do they have to vote for another Obama nominee? And then what will happen if he gets another vacancy to fill – will Republican senators allow him to seat any recognizably Democratic jurist? Especially as the Supreme Court interjects itself more forcefully into partisan disputes like health care, will it become commonplace for the Court to have several vacancies owing to gridlock, for the whole legitimacy of the institution to collapse?

Not to mention the most blatantly political and unjust action by the Supreme Court since dominated by conservatives–blocking a recount and choosing the president in 2000.

The outcome is certainly not clear. Republicans have gotten away with seriously hindering the Obama administration by blocking nominees without justification, but a Supreme Court Justice is a far more high profile position. People who are unaware of how much the Republicans have obstructed progress are more likely to notice this and perhaps begin to realize how unreasonable the Republicans have become in recent years. The Republicans very well might pay a political price if they repeatedly filibuster moderate liberal Supreme Court nominees, and this might also lead to changes in Senate rules. This might not even be limited to the Supreme Court. Would anyone really put it past the Republicans these days to filibuster replacement appointees for members of the Cabinet who choose not to remain in Obama’s second term.

This all assumes that Obama is reelected, but this is hardly certain (as James Carville warns). Lugar’s defeat will scare other Republican Senators into following the extremist Tea Party line. While Mitt Romney might prefer a more moderate course,  assuming he doesn’t mean much of what he has said this year, it is hard to see him standing up to the far right, forcing him to govern from the far right regardless of what he might prefer.

Leaving political office often does provide the more sane (or less crazy if you prefer) Republicans to say what they could not say while in office. Lugar has warned against the hyper-partisanship we are now seeing:

If Mr. Mourdock is elected, I want him to be a good Senator. But that will require him to revise his stated goal of bringing more partisanship to Washington. He and I share many positions, but his embrace of an unrelenting partisan mindset is irreconcilable with my philosophy of governance and my experience of what brings results for Hoosiers in the Senate. In effect, what he has promised in this campaign is reflexive votes for a rejectionist orthodoxy and rigid opposition to the actions and proposals of the other party. His answer to the inevitable roadblocks he will encounter in Congress is merely to campaign for more Republicans who embrace the same partisan outlook. He has pledged his support to groups whose prime mission is to cleanse the Republican party of those who stray from orthodoxy as they see it.

This is not conducive to problem solving and governance. And he will find that unless he modifies his approach, he will achieve little as a legislator. Worse, he will help delay solutions that are totally beyond the capacity of partisan majorities to achieve. The most consequential of these is stabilizing and reversing the Federal debt in an era when millions of baby boomers are retiring. There is little likelihood that either party will be able to impose their favored budget solutions on the other without some degree of compromise.

Unfortunately, we have an increasing number of legislators in both parties who have adopted an unrelenting partisan viewpoint. This shows up in countless vote studies that find diminishing intersections between Democrat and Republican positions. Partisans at both ends of the political spectrum are dominating the political debate in our country. And partisan groups, including outside groups that spent millions against me in this race, are determined to see that this continues. They have worked to make it as difficult as possible for a legislator of either party to hold independent views or engage in constructive compromise. If that attitude prevails in American politics, our government will remain mired in the dysfunction we have witnessed during the last several years. And I believe that if this attitude expands in the Republican Party, we will be relegated to minority status. Parties don’t succeed for long if they stop appealing to voters who may disagree with them on some issues.

John Danforth, who has often been a voice for reason after leaving the Senate, had this to say about Lugar’s defeat:

THINKPROGRESS: What do you think is happening here?

DANFORTH: An effort by some, and apparently a large number, 60% in Indiana, to purge the Republican Party and to create something that’s ideologically pure and intolerant of anybody who does not agree with them — not just on general principles, but right across the board.

THINKPROGRESS: Do you stand by your view that GOP is beyond hope?

DANFORTH: If this trend succeeds, yeah. What they will be left with, if indeed they want to purge the party of all but people who have a particular ideological slant… it’s not a way to win elections, it’s not political sustainable. It might make them feel good for a time but doesn’t work, it hasn’t worked. It didn’t work in Nevada or in Delaware in last election. They won nominations but couldn’t win elections. I don’t know how you win elections without getting 51% of the vote. I don’t see how you’re gonna get 51% of the vote if you make it clear that people in your own party, who don’t absolutely agree with everything you want to do, aren’t wanted.

Court Rules AT&T Must Pay In Throttling Case

An unlimited data plan should be exactly that–unlimited. Instead cell phone companies often use the word unlimited to sell plans but don’t really mean it. For example, AT&T has been throttling down the speed of phones, even if not using very much data compared to limited plans. The phones still work, but they cannot be used to stream video, and web browsing becomes very slow.

Matt Spaccarelli sued AT&T, complaining that his phone was throttled after using only 1.5 gigabytes to 2 gigabytes of data during a billing cycle. In contrast, people purchasing a tiered plan for the same price Spaccarelli paid at $30 would get 3 gigabytes of data. Spaccarelli was awarded $850. Unfortunately AT&T’s small print prevents class action suits so each customer in his situation will have to sue individually.

 

Posted in Courts, Gadgets. 5 Comments »

The Perils Of The Mandate Issue

The Democrats are facing a new political land mine next fall, and it appears that many Obama supporters fail to appreciate the danger. The Obama administration has decided to fast track the individual mandate  so that its Constitutionality will be decided by the Supreme Court next year. Looking at the arguments in favor of this strategy in the linked article,it would certainly be better for supporters of the mandate to have the case argued by the Obama administration as opposed to a Republican administration should Obama be defeated, but the prominence of this issue can be harmful to Obama’s reelection chances.

Election Law Blog has another argument which has been widely repeated today, seeing it as favorable for Obama whether or not they rule that the individual mandate is constitutional.

If the Court strikes down the law, Obama makes more of an issue of a Court out of control (think FDR) during the 2012 campaign (something I suggested in this Slate piece).  If the Court upholds the law, this takes some of the wind out of the argument likely to come from the Republican presidential nominee that the health care law is unconstitutional.  No lose before the election.  Sometimes, you can win by losing before the Roberts Court.

The problem is that mandates will now be a major issue for Republicans to talk about going into the 2012 election, and it is possible that their consideration of the issue could be postponed until next fall. Obama needs to sell Americans on the benefits which they will receive in the future from the Affordable Care Act, but arguments over the mandate will dominate the discussion. Win or lose, this will fire up the conservatives and also impact moderates who backed Obama in 2008. If the court rules in Obama’s favor, those who object to the mandate will still object. If the court rules against him, this only strengthens the ridiculous claims from the right that Obama is pushing far left ideas. Only those who already support the Democrats will be swayed by the argument that the Roberts court is out of control if they rule against the mandate.

Unfortunately many liberals fail to understand the visceral opposition which Americans have to being told what to do. Obama realized this during his primary battle with Hillary Clinton when he opposed the mandate. Unfortunately, while actual legislation was being written Obama appears to have forgotten the political problems with the mandate. Health care reform is necessary, and the mandate might be the easiest way to get around the free-rider problem, but there are other ways. We could have open enrollment periods like the voluntary Medicare Part D program, with those who purchasing outside of such open enrollment periods being subject to the old insurance company rules. There could be higher premiums for those who sign up later, as is also done with Medicare Part D, to make up for the premiums not paid into the system when the individual was younger and healthier. There could be financial penalties, possibly enforced by the IRS, upon those who cost the government money by seeking health care coverage after failing to purchase insurance to compensate for this cost to society. Bankruptcy laws could be changed so that people who declined insurance when available cannot easily eliminate debts for health care.

The end result would be the same–most but not all would obtain health insurance. The difference politically would be tremendous. Republicans understand this and, as is generally the case, will come out ahead politically even when they are generally wrong on health care policy. The irony is that mandates are an old Republican idea which they only recently abandoned in order to use the issue against Obama. The Democrats should have known better than to adopt this old Republican idea.

Texas Law Requiring Sonograms Struck Down By Court

A federal judge struck down requirements in a new Texas law requiring doctors to perform a sonogram before an abortion, ruling that the measure violates the free speech rights of both doctors and patients. That’s one victory for both reproductive rights and preventing a government take-over of health care, Republican-style.

Supreme Court Throws Out Another Birther Case

The Supreme Court has again rejected a Birther suit claiming that Barack Obama is not a natural born American citizen.While most Americans realize this is nonsense, a CNN poll shows that 41 percent of Republicans are delusional enough to believe the Birther claims.

There is absolutely nothing to the Birther claims with documentation already establishing that Obama was born in Hawaii. Despite this, a number of right wing blogs have been discussing this case as if there is merit to it. Reading their hopes that the Supreme Court would rule in their favor made me wonder what would happen if they did. The Supreme Court has already intervened inappropriately in one presidential election in 2000 so it is hypothetically possible that they might rule in favor of right wing claims here. Although it would be even more ludicrous for them to question Obama’s legitimacy than it was to intervene in 2000 on Bush’s  behalf, what if the Supreme Court did rule that Obama was not eligible to be president? Would such a ruling mean an immediate end to his term in office? Would his past executive orders no longer be valid? Would laws passed by Congress remain valid with his signature or would a new president have to resign them?

Obviously these issues would only come about if the Supreme Court would ignore reality and take up the Birther suit for political reasons. While these questions do not really relate to Obama, there might material for a good novel based upon a fictional president who really did not meet the Constitutional criteria to be president.

The Mandate Is Now Winning 3-2 In The Courts–But Remains A Bad Idea

While rulings against the Affordable Care Act tend to get more publicity, a third judge has ruled that health care reform is constitutional. The latest case was heard in  the District of Columbia by a Clinton appointee. We now have three Democratic appointees ruling in favor of the law and two Republican appointees claiming it is unconstitutional. It remains to be seen how the Supreme Court will rule.

The ruling points out that to make one of the arguments against the law is to “ignore reality.” This could also be said for most conservative arguments on pretty much any topic these days.

While I believe the constitutional arguments against the individual mandate are nonsense, and that the mandate is not sufficient reason to oppose the necessary reforms in the act, it remains a mistake for Democrats to support the individual mandate. This is an old Republican idea which Democrats never should have adopted. There are other ways to handle the free rider problem.

The division here is often between the more traditional Democrats and those of us who vote Democratic primarily because we oppose the type of big government supported by Republicans which generally is more intrusive in the lives of individuals. Unlike conservatives, we also recognize that there are areas where government action is necessary when the market fails, such as with the individual insurance market.

The underlying problem here is that, while there are justifications for it, the individual mandate changes the perception of health care reform from something being done by government to assist those who desire assistance to something which is being imposed by big government. I know some on the left respond to arguments such as this by claiming it helps conservatives by using conservative frames. As I have argued many times before, they are wrong. Individual liberty has historically been the liberal position and liberals should both embrace this position and take it into consideration in the drafting of legislation. The old Republican position of using individual mandates to solve the free rider problem should be rejected in favor of alternative measures.

Many ideas have been proposed to handle the free rider problem to prevent people from waiting until they are sick to purchase health insurance if there are no restrictions on pre-existing conditions. We could have open enrollment periods like the voluntary Medicare Part D program, with those who purchasing outside of such open enrollment periods being subject to the old insurance company rules. There could also be higher premiums for those who sign up later, as is also done with Medicare Part D, to make up for the premiums not paid into the system when the individual was younger and healthier. There could be financial penalties, possibly enforced by the IRS, upon those who cost the government money by seeking health care coverage after failing to purchase insurance to compensate for this cost to society. Bankruptcy laws could be changed so that people who declined insurance cannot eliminate debts for health care. Changes such as this could limit the problems from the free rider problem, while eliminating the major reason why many on both the left and right have opposed the current plan.

Activist Judge Throws Out GOP Health Care Idea

An activist judge in Florida who was appointed by Ronald Reagan has thrown out a poor Republican health care idea, the individual mandate. In contrast to the previous court decision against the individual mandate which allowed the rest of the law to progress, this ruling is against the entire act.

As I noted at the time of the previous court decision, as long as the major battles are over the individual mandate, the Republicans win political points. Very few people are aware that this, like many aspects of the Affordable Care Act, is an old Republican idea which Republicans rejected as soon as Democrats supported it. While it was a bad idea when initially proposed by Republicans, the Democrats have foolishly allowed themselves to be the party which is forcing people to buy insurance. This changes the way people see health care reform from something which is done to help them to something which is done to them by the government.

Most likely the Democrats will fight this ruling. While the Constitutional argument against the law is poor, and it appears even the Founding Fathers sided with the Democrats here, this could even be a losing legal battle considering the current make up of the Supreme Court.

It is a battle which does not need to be fought. The important issue isn’t whether we have an individual mandate but whether measures are included in health care reform to ensure that people cannot game the system by waiting until sick to purchase insurance once insurance companies are prevented from denying coverage to those with pre-existing conditions.

There are many other ways this could be accomplished. We could have open enrollment periods like the voluntary Medicare Part D program, with those who purchasing outside of such open enrollment periods being subject to the old insurance company rules. There could also be higher premiums for those who sign up later, as is also done with Medicare Part D, to make up for the premiums not paid into the system when the individual was younger and healthier. Changes such as this could limit the problems from the free rider problem, while eliminating the major reason why many on both the left and right have opposed the current plan.

Republicans Win Major Battle In Health Care Spin Wars

A far right activist judge ruled today that the individual mandate is unconstitutional. From a legal perspective this is probably not very significant. Other judges have already ruled in favor of the mandate, but we cannot  be certain what the conservative activist judges on the Supreme Court will do. Until it reaches the Supreme Court this ruling has limited meaning as it does nothing to prevent the implementation of other aspects of health care reform and the mandate doesn’t even take effect until 2014.

While of limited meaning legally, this was a big win for the conservatives in the spin wars. A while back the mandate was widely supported by Republicans but Democrats were divided, with Barack Obama opposing the mandate. Republicans, who concentrated on political gain rather than trying to solve the problem, outsmarted the Democrats by suddenly opposing the mandate and leaving the Democrats to take the blame for this policy.

A mandate does make health care reform simpler by avoiding the free rider problem, but there are many other possible solutions. The problem with the mandate is that it turns health care reform from something being offered by government to help those in need to a an intrusive big government program which is imposed upon all. The failure of  many Democrats to understand this is why they have been in the opposition far more often than not over the last few decades.

Having the mandate dominate the news is a tremendous victory for Republicans. Instead of talking about how health care reform will prevent insurance companies from excluding people based upon pre-existing conditions or about subsidies to assist those who cannot afford it to purchase private insurance, the talk will be about the unpopular mandate. Regardless of whether they win in the courts, the political battle is being played on the Republicans new turf.

If the Democrats are smart, they will not fight this decision and will instead concentrate on changes to the health care reform legislation to handle the free rider issue by a different means. Republicans might initially try to interfere, but ultimately the insurance company will realize they are not winning any victories by being required to insure people with pre-existing conditions if there are no disincentives for people to wait until they are sick to purchase insurance.

There was also action related to health care reform in the Senate today which shows how the Republicans are more interested in playing politics than in solving problems–or in helping small business. One of several aspects of the Affordable Care Act which should be changed is the new 1099 requirements imposed upon small business. Republicans have championed this issue when speaking before small business groups. However when it came to a vote  today, Republicans stopped Democratic attempts at removing this provision. After all, if the provision is removed, Republicans will lose this issue to attack Democrats with.

Santa’s Not The Only One Watching To See If You’ve Been Naughty or Nice

If you are an aspiring terrorist, beware of using your credit card at Bombs R Us and certainly do not join the al Qaeda loyalty program for discounts. The government is watching the use of credit cards, calling cards, and loyalty cards. From Wired:

Federal law enforcement agencies have been tracking Americans in real-time using credit cards, loyalty cards and travel reservations without getting a court order, a new document released under a government sunshine request shows.

The document, obtained by security researcher Christopher Soghoian, explains how so-called “Hotwatch” orders allow for real-time tracking of individuals in a criminal investigation via credit card companies, rental car agencies, calling cards, and even grocery store loyalty programs. The revelation sheds a little more light on the Justice Department’s increasing power and willingness to surveil Americans with little to no judicial or Congressional oversight.

For credit cards, agents can get real-time information on a person’s purchases by writing their own subpoena, followed up by a order from a judge that the surveillance not be disclosed. Agents can also go the traditional route — going to a judge, proving probable cause and getting a search warrant — which means the target will eventually be notified they were spied on.

The document suggests that the normal practice is to ask for all historical records on an account or individual from a credit card company, since getting stored records is generally legally easy. Then the agent sends a request for “Any and all records and information relating directly or indirectly to any and all ongoing and future transactions or events relating to any and all of the following person(s), entitities, account numbers, addresses and other matters…” That gets them a live feed of transaction data.

DOJ powerpoint presentation on Hotwatch surveillance orders of credit card transactions

The problem here isn’t necessarily the use of information of this type, but the nature in which it is being obtained without a warrant or judicial oversight. The judicial system is only being used to get an order to prevent disclosure of the surveillance after the federal agent has written his own subpoena to obtain the information.

SciFi Weekend: Caprica Canceled, New BSG Spin-Off Planned; Spock Cited in Texas Court; Time Traveler Filmed?; Zombies and Mean Girls

As I reported earlier this week, and predicted last week, Caprica has officially been canceled. The show already had one hiatus this year, which probably did not help matters as I bet many viewers are having difficulty keeping track of the large number of plot lines. There will be a second hiatus with the remaining episodes not airing until 2011. As the show is undoubtedly costlier to produce than many of the other shows on SyFy, I can understand why the network decided ratings were too low to justify renewal. However, now that the shows have been made, I would think that it at least holds its own against many of the other shows being aired. If ratings are really that terrible that they don’t want to show the remaining episodes during prime time this fall, they could always air them at odd hours for fans to record.

SyFy is looking at replacing the show with another Battlestar Galactica spin-off based upon William Odama’s role in the first Cylon War. Presumably shows about Cylons involving  actual war do better in the ratings. A two hour pilot movie is planned with production expected to start next year. The Los Angeles Times Reports:

Syfy announced Friday that it’s gearing up to bring fans an all-new chapter in the BSG saga with “Battlestar Galactica: Blood & Chrome.”

The two-hour spinoff pilot, from executive producer David Eick, will follow a twentysomething William Adama during the 10th year of the first Cylon War. He soon finds himself leading a top secret mission that could change the course of the war.

“While maintaining the themes of politics, social propaganda, and the timeless question: What does it mean to be human?, ‘Blood & Chrome’ will also return us to the authentic, relentless depiction of combat and the agony and ecstasy of human-Cylon war, which was the hallmark of ‘Battlestar Galactica’s’ early seasons,” Eick said in a statement.

“Blood & Chrome” was originally ordered last summer by the network as a Web series, with former “Battlestar Galactica” co-executive producer Michael Taylor tapped to write the nine mini episodes.

In a statement, Mark Stern, executive vice president of original programming for SyFy and co-head of content for Universal Cable Productions, had this to say:  “The ‘Galactica’ universe as re-imagined by Ron Moore and David Eick is rich with possibilities and backstory. We jumped at the chance to revisit the William Adama character and explore this exciting chapter in the BSG narrative which falls between the events of the original series and the prequel, ‘Caprica,’ currently airing on Syfy.”

The  Los Angles Times also interviewed executive producer David Eick about the planned show:

GB: What can you tell us about where this falls in the mythology?

DE: The show takes place when William Adama, the character played by Edward James Olmos in “BSG,” is in his 20s, fresh out of cadet school, on the precipice of experiencing his first taste of combat.  The era — in our mythology – is the threatening, treacherous period known as the First Cylon War, which fans of “Battlestar Galactica” may remember took place over 40 years before the events of “BSG.”

GB: In some ways, all the previously shown history might be seen as confining — we know who lives and dies at this point — so how do you sidestep those challenges?

DE: I’m not sure it’s true that our past history is confining — just because we might meet someone in “Blood & Chrome” whom we don’t recognize as a younger version of someone from the realm of “Battlestar Galactica” doesn’t mean that character necessarily died.  Alternatively, we may meet the ancestors of characters we’ve come to know in “BSG,” which can be Easter eggs for the “BSG” faithful without being a distraction to new viewers of “Blood & Chrome” who may not be familiar with “BSG.”

GB: Anything you can tell us about the title or its origins?

DE: Michael Taylor, one of my partners on the cracking of this story and the writer of the teleplay, gets full credit for the title.  We’d been calling it “the ‘Young Adama’ project,” and then one day the script shows up with that wild and provocative title.

GB: Is there a new character being introduced that you might give us a hint or two about?

DE: “Blood & Chrome” is loaded with new characters, but I’d say the most compelling and unusual is the woman with whom Adama connects most deeply in the pilot — Beka Kelly, an enigmatic, seemingly impenetrable software genius who gives Adama a run for his money in more ways than one.  She’s definitely in the tradition of “BSG’s” and “Caprica’s” uniquely strong, remarkable female characters and will be a huge casting opportunity for someone out there, whom we look forward to discovering…

While Caprica has been canceled, some other genre shows received better news in the past week. ABC picked up No Ordinary Family for the entire season and BBC has renewed Merlin for a fourth season.

In other interesting, even if perhaps not very significant, genre news reported here earlier in the week, the Texas Supreme Court has cited Spock while interpreting the Texas Constitution. The ruling (more details in previous post) quoted Spock ‘s credo “the needs of the many outweigh the needs of the few” spoken as he was dying in Star Trek II: The Wrath of Khan. If conservatives get upset when an American court cites a foreign court, how will they react to a court citing a Vulcan? Will conservatives begin attacking the principles of The United Federation of Planets as they now attack international law?

The discovery of someone who appears to be using a cell phone in an old Charlie Chaplin film, The Circus, resulted in a lot of buzz about the possibility of a time traveler being caught on film. It was way too much fun to speculate about time travelers to worry about details such as how one would use a cell phone in an era lacking cellular service. The explanation that this was actually an old hearing aide is far less interesting.

Maybe the time traveler in the video above had found a way to communicate through time, like Olivia Wilde in the video above which presents an urgent plea from 2057 to vote. You don’t really want a future in which President Sarah Palin declares super-war on Norway do you?

The Big Bang Theory - The Apology Insufficiency

There continues to be a great hour of genre comedy from 8:00 to 8:30 on Thursday nights. I doubt anyone has questioned including The Big Bang Theory as a genre show considering its frequent references to science fiction and comics, along with its major presence at ComicCon. Last week’s episode had Leonard hook up with Raj’s sister and next week’s episode features a guest appearance by Eliza Dushku (of Dollhouse) as an FBI agent who interviews other cast members for Wolowitz’s security clearance.

I also loosely classify Community as a genre comedy due to its many references to movies and pop culture. This was most obvious in last week’s episode featuring zombies. There’s an even worse threat than zombies on next week’s episode–mean girls led by Hilary Duff.  A video preview is above.