Yesterday John Boehner, the Repblican minority leader in the House, said that Obama was pushing “jobs killing tax hikes”. The claim that tax hikes are “job killing” is opinion. Lets look at the facts:

1. The last tax hike was passed in 1993 by a Democratic President, Clinton, with a Democratically controlled Congress.

2. In 1993, the unemployment rate was 7.3%. After that “job killing” tax hike, the unemployement rate dropped steadily to 3.9% in Clinton’s last month in office, December of 2000. (That is the lowest unemployment rate in the last 40 years.)

3. In 2001, a Republican President, Bush, and a Republican controlled Congress passed tax cuts as part of the Economic Growth and Tax Reconciliation Recovery Act (EGTRRA) but used the “reconciliation” process to pass it through the Senate free of a filibuster. (Did you wonder why we needed a “recovery act” if unemployment was at a 40 year low?)

4. EGTRRA as passed by the Republicans (including John Boehner) specifically provided for taxes to increase as of January 1, 2011, so one could argue that the tax hike is a Republican tax increase (especially since the Democrats have expressed a willingness to extend for those earning less than $250,000 per year).

5. Unemployment then INCREASED for the next 2 1/2 years up to 6.2%.

6. Just to show a pattern, the Republicans lowered rates in 1988 when unemployment was at 5.5% and while it “plunged” briefly all the way down to 5.2% it was back at 7% half way through 1991.

7. Back in 1982, Reagan lowered taxes when Unemployment was at 8.6% and by the end of the year, it was up to 10.8% and didnt’ get back to 6% for 5 1/2 years.

8. Nixon’s tax cut in 1970 when unemployement was 3.9% was a relative success in that unemployment only rose to 6% by the end of 1971.

The issue is really one of vocabulary. When a Republican talks about wanting to create jobs, every proposal is actually designed to increase profits which (according to supply siders) will translate into jobs (eventually). However, what you will always see immediately after a tax cut is a very quick increase in GDP. For example, the Nixon tax cut led to a 9% growth in GDP while unemployment was rising to from 3.9% to 6%, and similarly, during the two plus years of rising unemployment following the Bush tax cuts, GDP rose every quarter. So when Republicans talk about “trickle” down, it is probably the only true word in their tax/jobs vocabulary because any benefit to working classes is, in fact a trickle.

Just for full disclosure purposes, GDP rose every quarter during the Clinton administration,including the quarters following the “jobs killing tax hike”, without any dampening resulting from the tax hike.

One of the myths about allowing the high bracket taxes to rise is that “it is crazy to raise taxes during a recession”. Even if that were true and there are no data to support it (see above where the ’93 tax hike, which was after a mere 8 quarters of GDP growth, was followed by decreases in unemployment and steady growth in GDP), we are not in a recession and, assuming no double dip, we will have had 6 quarters of GDP growth before the tax hikes go into effect. If we do go into a double dip, there will be plenty of time to undo the tax hikes before they impact.

To be fair and so as to provide full disclosure, FDR did bump tax rates in 1936 and unemployment did rise but FDR, under Republican pressure, also cut spending in 1937 and 1938 by almost 25% from 1936 levels.  It is impossible to conclude which had the greater impact in causing the spike in unemployment that occurred between 1937 and 1938.  Given the extremes of the depression and the lack of analogy to todays economy, the tax increase is probably not a harbinger of the impact of allowing the Bush tax cuts for the higher brackets to expire.

Advertisements

Due to my fascination with this subject, I took the time to read the whole 130 plus pages of the decision in this case and found it very interesting and definitely worth some time to discuss.

If I can bore the reader with a quick review of the underlying law, please bear with me.  In interpreting the “equal protection” clause, it is well settled that laws which limit the rights of a class of people are only valid if there is a rational basis for the classification, i.e. the law furthers a legitimate State interest.  Further if the classification is “suspect” (i.e. if it relates to a group that has suffered from discrimination), the basis for the law must be more than merely rational but is subject to enhanced scrutiny to determine if the State has a “compelling interest” in the limitation on that class’s rights.

In reviewing the ban on gay marriage, the court first analyzed the factual presentations of both the plaintiffs, two couples who sued to enjoin the ban’s enforcement, and the parties who intervened in the litigation when the State (through both  its Attorney General, a democrat, and its Governor, a Republican) refused to defend the law suit.  In that review, the court found, in acting as the trier of fact (analogous to a jury in a regular trial) that the interveners had put on zero credible evidence of any rational basis for the ban other than their perception that redefining marriage to include same sex couples was morally improper.  The opinion went on to conclude that the State has no constitutional right to justify a limitation of a person’s right based solely moral views of the majority. 

As an aside, there are many examples of valid laws where immoral conduct is barred because of its ancillary impacts.  For example, all states (except Nevada to a limited degree) criminalize prostitution, presumably in part due to a perception of its immorality.  But prostitution has the potential for identifiable negative ancillary impacts on both the prostitute and his/her client and that the gives the State a rational basis for concern.  Those impacts  include but are not limited to the spread of disease, the impact on marriages of clients, etc.  Additionally, neither prostitutes nor their clients should be considered classifications who have a history of being discriminated against.  Hence those laws are uniformly upheld notwithstanding that morality plays a role in the basis for the prohibition because there is no suspect class impacted and because there is a rational basis for the restriction.

But in the case of same sex marriage, all the credible evidence at trial, including the testimony of a witness who is against same sex marriage, clearly demonstrated that there is no negative impact from allowing gays to marry other than that its opponents notions of morality are offended.   The evidence of the plaintiffs’ experts addressed the impact on children of same sex couples, divorce rates etc. and uniformly, they opined that there is no identifiable difference between outcomes in opposite sex couples and same sex couples.  And even if there were some differences, since the state permits “registered civil unions” with the rights of married couples, the State was essentially approving of any such differences by sanctioning civil unions. 

The court went on to note the history of substantial discrimination against homosexuals and lesbians, and concluded that, as a matter of law, sexual orientation is a suspect classification requiring enhanced scrutiny.  After concluding that there was, as a conclusion of fact, no rational basis for banning same sex marriages, it was a small analytical step to conclude that there was no compelling interest for the State in that ban.  Result:  the ban is unconstitutional

But enough of the technical law and content of the decision and more about context.  In two recent U.S. Supreme Court cases  with decisions authored by Justice Kennedy, the Court has invalidated both the anti sodomy law of Texas because it discriminates against homosexuals without proper justification and a Colorado Constitutional Amendment banning laws protecting the rights of gays and lesbians for similar reasons.   Anyone who watches the Court knows that Justice Kennedy is the “swing vote” between a staunchly conservative minority including Justices, Scalia, Thomas, Roberts and Alito and the liberal wing including Justices Ginzberg, Breyer, Sotomayor and (presumably) Kagan.  Assuming those two camps remain true to expectations, Kennedy will likely be the determining factor in an expected appeal of Perry to that Court.  It is interesting to note two things:  one is that Kennedy was not only the swing vote in the two important recent decisions and two is that he was the author of both majority opinions.  It is also worth noting that there were harsh, almost vitriolic, dissenting opinions in both cases from Justice Scalia.  Judge Walker was clearly aware of the history in those two cases and appears to have been very careful to couch his opinion in terms which spoke directly to Justice Kennedy. 

Given the likelihood that the case will eventually be appealed to the Supreme Court, there are two scenarios to explore:  one is whether the Court will hear the case and the other is on what basis it will be decided if it is heard.  On the first scenario, there are two possible reasons why the case might not be heard. 

The first reason would be if the interveners chose not to petition the Court.  While it might seem like an automatic step, there are actually valid reasons for a tactical retreat assuming the 9th Circuit Court upholds the trial court decision.  Firstly, given the current composition of the Court and the recent history, one should be pessimistic regarding the possibility that Justice Kennedy will reverse his apparent position on discrimination against gays and lesbians.  There may be a better chance for the opponents of same sex marriage to await a new president and hopefully (from their perspective) the retirement of Justice Kennedy resulting in a “friendlier” replacement. 

There second reason for not seeking a hearing is the factual conclusions reached by the Court based on the specifics of the trial which were so unfavorable to the opponents of same sex marriage.  Remember, in the eyes of Judge Walker, the interveners did a poor job of justifying the ban on same sex marriage, i.e. demonstrating that California had a rational basis for the ban.  If this issue were to go to trial again in a different state with a similar ban, the opponents of same sex marriage would have been schooled on how to better frame their perspective and would be better able to structure the factual presentation to create the possibility of different findings of fact.  Essentially, the opponents of same sex marriage can have a “second bite of the apple”.

The second reason for the matter not being heard by the Supreme Court would be if it declined to hear the case.  Litigants do not have a right to be heard by the Supreme Court.  Rather, the appealing litigant petitions the Court and, if 4 Justices think the case should be heard, the Court grants a hearing.  At this point it would be pure speculation to guess which Justices might wish this issue to be heard on the specifics of this case.  Those who are generically opposed to rights based on sexual orientation might wish to defer hearing the issue with the Court’s current composition, while those who might favor the trial court’s decision might have concerns about Justice Kennedy taking this next step and also wish to defer until there Court’s composition has changed, allowing a 9th Circuit decision to act as the law.

As to a likely outcome, it will likely turn on Judge Walkers opinion that morality, in the absence of other criteria, is not a proper constitutional basis for laws limiting the rights of a class of people.  There appears to me to be a strong sense on the right, as voiced by Justice Scalia in Romer v. Colorado, that states have a legitimate interest in preserving the “mores” of its citizens.  While this has, to date, been a minority view, it really places the real issue four square.  Should we, as a nation, allow the majority to impose its moral views on any particular minority?  One can look to cases overturning laws against interracial marriages, race bans in zoning, etc., and see that we, as a Nation, have a long history of attempting to impose our prejudices on minorities based on the sensibilities of the majority.   Those practices have, almost always, been struck down.   And if the majority can impose its view of morality as a basis for limiting rights, what other rights are at risk?  Can states bar gays and lesbians from adopting?  What about bisexuals? 

This piece is already too long so I’ll end here and entertain questions in comments form.  Eventually I’ll try to do a similar entry on the Massachusetts federal court case invalidating the Defense of Marriage Act.

The Nuclear Option

March 1, 2010

Again, the point of this piece, as with other items I write from time to time, is less about the substantive matter at issue (in this case health care reform, again), but about political process, in general, and the filibuster concept specifically.

In ancient times, the Senate being the grand chamber of the Congress, composed of those esteemed gentlemen who were appointed by state legislatures, not elected by the people, consisted of only 26 members.  These elite folk determined that, unless 60 % of them voted to limit debate, any senator should have the right to speak at his discretion to fully explicate his position.  Over time, the filibuster came into play as a method for individual senators to utilize this rule to stop the chamber from actually voting on a particular matter the passage of which was abhorrent to those individual members.  As a matter of respect for their membership, cloture (the cutting off of debate) was rarely ever put to a vote as this was a sign of disrespect in a chamber were the appearance of respect was part of the fabric.  In the second half of the 19th century, as certain issues become more and more controversial, the possibility of filibuster became something of a weapon wielded by the minority to force the majority to compromise.  Actual filibusters remained rare.

For those of you old enough to remember the Nixon and Johnson administrations, you may recall that there were actual filibusters.  When the Civil Rights Act when to the floor of the Senate, Strom Thurmond actually tried to stop the passage by exercising his right to talk indefinitely.  Eventually he gave up and the Act was passed by less than the supermajority needed to cut off debate.  However sometime in the Reagan years, the concept of “notice of intent to filibuster” came into play and if a senator gave notice of intent to filibuster, a bill was tabled unless sixty senators voted to limit debate.  Thus was born the policy of requiring a 60 senator vote at the outset of debate so that the senate did not take up its precious time debating a matter on which there would be no vote, i.e. the threat of a filibuster on any bill was taken so seriously that the Senate evolved into requiring a 60 vote majority to pass almost any legislation.

After a while this became an intolerable obstruction to the day to day business of the Senate and a compromise was reached through  Budget Bill.  Under this compromise, matters which related to the budget efforts to reduce the deficit would be exempt from the filibuster rule.  (Interestingly, Senate Rules which provide the right to filibuster also allow for their amendment, including amending the provisions relating to the filibuster, without the right of filibuster or the need for a cloture vote to bring an amendment of those rules to a vote.)  As a result, for a number of years, the senate has regularly used this process, called “Reconciliation” to avoid the need for a cloture vote.   Examples of this include amendments to the Medicare and Medicaid programs, the creation of the CHIP program and its revision to create the SCHIP program and on and on.  Interestingly, this process has often been used by the Republicans and Democrats alike when the cloture process has created an insurmountable hurdle to the need to bring a matter to a vote.  While this process has been used a number of times by both parties over the last generation, its use remains relatively infrequent.

In the Bush 43 years, when it became clear that George W Bush would have an appointment to fill a vacancy on the supreme court, the Democrats raised the prospect of a filibuster if there was dissatisfaction with the conservative background of a nominee.  When the possibility of a filibuster of a Supreme Court nominee surfaced, the Republican majority in the Senate threatened to amend the Senate Rules to prohibit filibuster with respect to judicial nominees, the so-called “Nuclear Option”.  (Remember this could be done with a simple majority because the filibuster right does not apply to debates relating to amendment of Senate rules.)  While this amendment to the Senate rules was avoided by a compromise worked by the “gang of 14”, seven senators from each of the two parties, the possible death knell for the cloture rule has been a ghost haunting Senate process ever since.

And along comes  a special election in Massachusetts which drops the Democratic majority to less than 60/40 and so, effectively, Democratic legislation  is subject to  filibuster.  And here we are with a Health Care Reform Bill being held hostage by the ‘notice of intent to filibuster’ and the ensuing result that the Senate has again devolved into the need for a supermajority to get major work accomplished.   And here we are again with the notion of utilizing the reconciliation process which is exempt from the filibuster possibility and the need for a cloture vote  to end it.  And here we are again with the minority Republicans shouting foul at the possible use of this process when the Republicans  have used the reconciliation process for its own benefit in the past.

All of this is wonderful demonstration of the double edge nature of U. S. politics, of how the filibuster is alternatively a great political weapon for first one party in the minority and then the other, and of how reconciliation is a tool for first one majority and then the other.  What troubles me, however, is how little of all this is actually understood by the electorate as a whole and how politicians can in one year use one of these processes as a weapon or tool and then decry its use when roles of majority and minority are reversed.  I am reminded of an episode of the Jay Leno show and his “Jay Walking” segment during the “nuclear option” debates over  judicial nominees in which he asked people on the street what a filibuster was.  The answers, while funny in a humorous sense, are quite disturbing when you realize the potential for political manipulation it suggests.

Please share your thoughts on the process.

The Health Care Debate

October 8, 2009

I’m not going to bore anyone with my views on the need for competition, the likelihood of a “government option” being positive or negative, or even whether there should be ‘mandates’.  Rather the focus of this piece is on the need for reform.

We have the lowest life expectancy of any industrialized nation and yet we spend almost twice as much per capita on health care as any of those nations.  Our infant mortality rate is the highest, higher than Slovenia, Poland, UAE and a host of other nations.  Oh we can blame other factors like crime and affluence, obesity and culture.  I’ve even seen one commentator blame our genetic make up (hard not to think of that as code for what is really racism).  But the reality is that we are the only system in any industrialized nation that continue to act like “fee for service” works in the area of health care.

As a mature democracy, we would never suggest that education should be based on fee for service.  While I do not  suggest we have the best schools, no one will argue that all are entitled to at least a basic education provided by the state.  And we know that, to the extent we tried to make education a “fee for service” system, large portions of the population would go uneducated.  Is health care any different. Does anyone really believe that people should not be ‘entitled’ to basic health care services as part of a just and humane society?  And yet fully 1/3 of our population under age 65 are either uninsured or underinsured and have no access or only very limited access to even rudimentary services.

As a practical matter none of the other industrial societies have ‘fee for service’ health care systems comparable to ours.  In every one of them, all have access to basic health care services, whether rich or poor, employed or not.  Oh there may be some long waits for some services, slightly fewer people may survive stage 2 cancers for quite as long as they do in the U.S., and the array of pharmcological choices may be slightly more limited than here (and is that bad?).  But the bottom line is that in single payor countries like Canada and Australia, it costs almost 50% less to provide longer life expectancies and lower death rates for all age categories, than in our private insurer/fee for service system.

A quick story is instructive.  I have a co-worker, an educated lady whose husband is retired military.  She is of the view that Obama’s plan is socialized medicine which she will fight to the death.  She is scared to death that such a pland will deprive her of her current coverage and force her to accept the government as her medical care provider, a recipe for disaster in her view.  The irony is that, as a spouse of a military retiree, the current system she so adores is in effect “socialized medicine” i.e. her medical providers are, in essence government employees who are paid a salary, not fee for service providers who are self employed or employed by private businesses.

But as has been said in this space on prior occasions, the problem is not identifying a solution.  The problem is in the process.  Our laws are made by politicians who spend millions of dollars of contributors’ money to get elected and then, lo and behold, tend to vote in ways that line the pockets of the industries that contribute.  Those same contributors also fund ‘think tanks’ which spew rationales for the status quo that only defy logic to those those that have a pulse and an eighth grade reading ability (and chose to use it).  The result is an irrational fear of socialized medicine and belief that the mythogical god “competition” is the only possible solution. 

“Don’t confuse me with facts, I’ve made up my mind.”

No the problem with the health care debate is not “what should we do?”  The answer to that is clear.  The problem is that we have a political infrastructure which prohibits us from acknowledging the obvious and implementing it.

Unless one is very active in looking for and absorbing a variety of news sources which treat matters with some depth, one might miss a critical event thats about to occur.  The U.S Supreme Court is probably going to gut McCain Feingold and give corporations unfettered power to make campaign contributions. 

As background, the Court held a number of years ago, in ruling that the federal government had only limited right to regulate campaign contributions, that, effectively money is speech and the first amendment bars limits on the freedom of speech.  Recently, several corporations made contributions to the cost of producing an anti-Hillary film that was to be aired right before an election and the lower courts (upheld by the Court) determined the film to be a campaign film.  The Court will now determine whether that film can be shown as a campaign presentation having been funded with corporate contributions outside the limits of McCain Feingold.  The premise of the ruling requested by the film’s producers is that those corporations are “persons” and therefore are entitled to first amendment protection in the form of the right to use its wealth to influence elections.  The ultimate ruling is now likely to be in favor of the producers based on the alignment of the Court, with Kennedy, the regular “swing” vote siding on the ‘right’.

Is this the right decision and why should we care?  As to the first question, there are liberals and conservatives on both sides of this issue.  Politically speaking, there are liberals who see this as an opening for political contributions by “Big Labor” in addition to big business and there are conservatives who’d rather not see unions have an expanded role in campaigns.  In fact the producers are represented by a well know first amendment attorney who has worked for many ACLU causes.  And they say “politics makes strange bedfellows”. 

But lets look at the two legal issues, is money a form of speech and are corporations “persons” entitled to first amendment protection.  As to money equating to speech, an example might help.  Last year I made $500 in political contributions in an effort to make my voice heard in a local election not governed by McCain Feingold.  That was all I could afford.  This enabled my candidate to purchase roughly 3 seconds of local TV airtime.  Concurrently a local gaming company privately held by a local family backed the opposing candidate and contributed orders of magnitude more to that candidate, giving enough money to purchase hours of local TV air time.  In effect, that corporation’s contribution enabled it to drown out my voice by the sheer weight of its contribution.   In effect, that family is permitted by virtue of its wealth to have a greater and very direct impact on the outcome of the election. 

And if money is speech does a corporation really have a first amendment right?  Did the framers of the Constitution really mean for Congress to be hamstrung in its rights to control corporations?  Did they even think about corporate entities?  While corporations did exist at the time, they were nothing at all like the corporations of today.  They were not the megaliths that exist today.  And they had little if any political role.  And if they are “persons” for purposes of the first amendment, is that because of the constitution or because of the State laws that creates them and treat them as a “person”.  And what of the concept of “strict construction”?  Why is it that the 5 Justices who decry judicial activism the loudest when the fourth amendment is stretched to bar limits on abortion because abortion is not an express right, are not saying that corporations are not mentioned in the constitution and so have no rights? 

The whole concept of free speech is that the free flow of information in the marketplace of ideas assures that the electorate will have the opportunity to make its decision on the basis of all available concepts.  Freedom of speech does not require that wealthy be given a higher podium in that marketplace or more time at the podium so as to tilt the playing field in their favor.  But when we allow corporations to use their wealth to monopolize that marketplace, to overwhelm it with their ideas and values, the values and ideas of the less wealthy, of which there are far more, are drowned out to the point of irrelevancy.  When one looks at the data of the last generation of elections, the one fact that jumps off the page is that the candidate with the most money to spend wins a greater percentage of the time than any other single determinant, i.e. the vast majority of the time.   And the margin of victory is generally directly proportional to the difference in funding.  Therefore,  one can conclude with some certainty that, if corporations are allowed to pour significantly more dollars into elections, they will have a significantly greater impact on the results.  One can reasonably argue that this will move us from a Democracy towards a “Corporatacracy” where the greatest share of political power is wielded directly and clearly by the wealthy, corporate interests and not by individuals.   Does the first amendment really require this?

As 2010 fast approaches, we enter a decennial orgy of partisan machinations which will set the tone of politics for the ensuing decade.  On April 1, 2010, hordes of non-ACORN workers will descend on us to take that complete count mandated by our Constitution called the Census.  This will be followed by the conflagration of gerrymandering our system has repeated 22 times.  However, with the aid of more detailed counting processes and the use of ever more complex computer analyses of that data, our state legislatures will create a set of districts which will contain overly homogenized populaces to guaranty the states’  respective majorities a virtually safe majority in a majority of legislative districts and hopefully all the congresssional districts. 

Oh gerrymandering isn’t new and no one who is rational can expect it to end.  But there is a more recent set of phenomena that we need to talk about, and that is its impact on our discourse and the resulting political effects.  Joe Wilson is on of many representatives (of both parties) in districts that are so homogenized that no opposition candidate can hope to attract either the funding or electoral support to be seriously considered.  As a result, the primary for the majority party is the real election in those districts.  There are two side effects of this kind of process:   the opposition voters are essentially silenced and the winner is the candidate with a mere plurality who has wooed the largest segment of the party “base”.  As a result, such a winner can be expected to both ignore the opposition in his or her political thinking and to focus more on that “base”, generally the more extreme of that party.  This catering to the base makes it far more difficult for those legislators in those districts to participate in bipartisanship or political compromise.  And the new gerrymandering that will take place in 2011 will exascerbate this problem to the next order of magnitude.

And so we get the kind of discourse that has evolved to new levels of ill-manneredness present over the last 2 or 3 decades.  We get a member of the House, calling the President a liar in the midst of a joint session of Congress.  We get a former Governor catering to her following and seeking the approval of the ‘base’ by making up out of whole cloth the concept of a “Death Panel”.  We get Tea Party leaders encouraging people to call Mr. Obama both a fascist and a communist, oxymoronic opposites, in same breath.

The problem isn’t the ideology of the two parties.  The Republican party doesn’t really believe in small government or smaller budgets (although certainly some Republicans do) when it comes to catering to its funding source, big business.  An easy example of the party’s philosophy in practice is the Medicare drug benefit enacted by a Republican controlled Congress and signed into law by a Republican President.  That “benefit” had 3 main impacts:  One, it provided the vast majority of medicare recipients with a relatively small benefit before those recipients would have to reach deep into their pockets to fund the so-called “donut hole”; Two, it barred Medicare from negotiating prices with the Drug Companies, so both recipients and the Federal Treasury (read as you and I the taxpayers) were obligated to pay the list price for all covered drugs, resulting in;  Three, the cost of the program, will cause Medicare to incur trillions in deficits and eventual insolvency over the coming decades. 

Conversely, the Democrats, as a party, seem to be unwilling to address even the simplest of controls when it comes to their large funding sources, i.e. “Big Labor”.  The Democratic Party should be fighting to make our public education system, a social program if ever there was one, the best in the world.  However, even in a compromise to obtain sorely needed funding for education, the Democratic Party fails, time after time, to participate in enacting accountability systems that can assist administrators to force out bad teachers or make educational systems operate more efficiently? 

My response to both sets of issues is the same, our political discourse is so polarized that we are moving away from a government aimed at addressing problems efficiently and towards a system that is based solely on the polemics necessary to perpetuate a given parties strangehold on those districts where safety of a majority is the guiding principal.  If you are a conservative voter, don’t accept simplistic conepts like Death Panels and rush to the conclusion that health care reform is some kind of horrific government take-over of the medical universe.  Doctors, who know the system best, are overwhelmingly in favor of reform, even if costs are controlled or reduced, because, among other things, those 40,000,000 new insureds that we as a society need to insure, are 40,000,000 new customers (who are currently getting free  but costly care in your local Emergency Room).  Yes there will be  a cost that will be funded partly through employer payments, taxing of “cadillac’ insurance plans and closing of certain tax loopholes, but that cost is both necessary and important.  On the other side of the coin, if you are a liberal, recognize that we cant’ have a single payor system and that compromise is an essential part of our system where we give a little to get most of what we view as necessary.

In simplified terms, we need to pull back from this brink of polarization.  We need to recognize that we can’t have 100% of what we believe is best and learn to work with our opponents to find that “win/win” solution instead of fighting tooth and nail to have only the “zero sum” compromise that makes both sides unhappy.

As a resident of Nevada, I can empathize with South Carolinians on the maelstrom visited upon them by the media in the wake of their Governor’s ongoing disclosures.  While the nature of Governor Sanford’s infidelities is at best roughly analogous to Senator Ensign’s, the view from voter’s perspective tends to blur the distinctions between them and between those incidents and the recent Democratic embarrassments of Governors Spitzer and Blagojevich.  And of course, one’s own party allegiances and left/right leanings come into play in parsing any differences.

My own take on these affairs (no pun intended) is that there are two wholly divergent perspectives from which to view assess them.  One can sit back, pretend one has no vices and judge the participants from the point of view of the degree of imperfection demonstrated, reach a conclusion as to their fitness for ongoing public service in general and in their current elective office in specific, and then call forth the action dictated by those conclusions.  Alternatively, one can assess the circumstances from a strictly political perspective and judge not how the behavior weighs upon fitness for office but rather measure the likely impact on the actor’s political position, ability to impact on policy and his role as a leader within the political environment associated with his office.  Under the latter rubric, in assessing the politics of all this, one has to view not only the impact of the behaviors in question on the electorate as a whole but also on the electorate within the actor’s own party and  as well as the effect on the broader electorate’s view of the actor’s party in addition to the actor.  On a personal note, I like the line, “let he who is without sin cast the first stone”.  I will not be casting any stones, let alone the first.  I offer my views only the political perspective.

As to the two Democratic governors, I note two distinctions:  both were the target of possible criminal proceedings and both were quickly out of office.  While one resigned and the other removed, both departures could not have been accomplished without the active participation of the respective state party machinery moving to assure its long term survival by cleansing itself of the offending governor.  In both state democratic parties, the risk associated with offending those that had voted for the governor appears to have been outweighed by the need to be seen as decisive in pressing for the removal of the cancer before any possibility of it metastasizing on other party candidates in upcoming elections.  In the esoteric environment of polls and non-elective politics, the two state parties appear to have taken the correct step.

On the other hand, the Nevada and New York Republicans do not appear to have reached the same conclusions.  As noted above, neither Ensign nor Sanford are currently charged with illegalities so the severity of the scandal can be said to be more moderate.  But one cannot ignore the political leanings of the two Republicans on ‘moral’ issues.  Both have been outspoken critics of other elected officials whose infidelities have become grist for the publicity mill and both were active in the efforts to have an unfaithful president removed from office.  (I will accede to the point that those efforts will in part predicated on the allegations of perjury not just on the underlying infidelity but note that both Governor’s lied in their efforts to avoid detection albeit not in a perjury context.)  An interesting side note is that both Republicans were included on most short lists for the Republican presidential nomination for 2012. 

While I suspect that somewhere someone is doing extensive polling on the precise nature of how various demographic groups are viewing the various storylines, the blogosphere shows its own sets of reactions that are telling.  My own unscientific review of bloggers views is that Republican and right leaning bloggers do not appear to be bothered by the apparent hypocrisy of the Republican Governors’ condemnations of  others juxtaposed to their own infidelity and cover-up, and they are quick to emphasize the apparent criminality associated with the Democrats’ scandals.  On the other hand, Democratic bloggers seem greatly offended by the apparent hypocrisy of the Republicans  but are not overly vocal in their calls for resignation.  Could it be that Democrats are taking the longer view on how all this will play out in 2010 and 2012? 

Blogosphere and polls aside, the real issue, in my view,  is the impact of all this on  the “silent majority” of Republican voters and what they actually think of all this.  Are they forgiving of their leaders?  Will the failure to cleanse their party shift some of those on the left fringes of the right, the so-called Reagan Democrats,  back to the Democratic Party?  Will the abilities and politics of Ensign and Sanford enable them to restore their own images sufficient to limit any spillover on other Republican candidates in 2010?  Will the far right/party base lose its enthusiasm as contributors and grass root supporters in sufficient quantities to deepen the Republican slide that started in 2006?  Will it turn out that the “11th Commandment”, in stopping Republicans from taking the actions that the Democrats took with Spitzer and Blagojevich turn out to be the metastatic force that the Democrats appear to have avoided?

No one can assert that the Republican Party is as strong as it would like to be is most states (South Carolina could be an exception) or on the national scene.  These two June disclosures obviously don’t help 

As a resident of Nevada, I can empathize with South Carolinians on the maelstrom visited upon them by the media in the wake of their Governor’s ongoing disclosures.  While the nature of Governor Sanford’s infidelities is at best roughly analogous to Senator Ensign’s, the view from voter’s perspective tends to blur the distinctions between them and between those incidents and the recent Democratic embarrassments of Governors Spitzer and Blagojevich.  And of course, one’s own party allegiances and left/right leanings come into play in parsing any differences.

My own take on these affairs (no pun intended) is that there are two wholly divergent perspectives from which to view assess them.  One can sit back, pretend one has no vices and judge the participants from the point of view of the degree of imperfection demonstrated, reach a conclusion as to their fitness for ongoing public service in general and in their current elective office in specific, and then call forth the action dictated by those conclusions.  Alternatively, one can assess the circumstances from a strictly political perspective and judge not how the behavior weighs upon fitness for office but rather measure the likely impact on the actor’s political position, ability to impact on policy and his role as a leader within the political environment associated with his office.  Under the latter rubric, in assessing the politics of all this, one has to view not only the impact of the behaviors in question on the electorate as a whole but also on the electorate within the actor’s own party and  as well as the effect on the broader electorate’s view of the actor’s party in addition to the actor.  On a personal note, I like the line, “let he who is without sin cast the first stone”.  I will not be casting any stones, let alone the first.  I offer my views only the political perspective.

As to the two Democratic governors, I note two distinctions:  both were the target of possible criminal proceedings and both were quickly out of office.  While one resigned and the other removed, both departures could not have been accomplished without the active participation of the respective state party machinery moving to assure its long term survival by cleansing itself of the offending governor.  In both state democratic parties, the risk associated with offending those that had voted for the governor appears to have been outweighed by the need to be seen as decisive in pressing for the removal of the cancer before any possibility of it metastasizing on other party candidates in upcoming elections.  In the esoteric environment of polls and non-elective politics, the two state parties appear to have taken the correct step.

On the other hand, the Nevada and New York Republicans do not appear to have reached the same conclusions.  As noted above, neither Ensign nor Sanford are currently charged with illegalities so the severity of the scandal can be said to be more moderate.  But one cannot ignore the political leanings of the two Republicans on ‘moral’ issues.  Both have been outspoken critics of other elected officials whose infidelities have become grist for the publicity mill and both were active in the efforts to have an unfaithful president removed from office.  (I will accede to the point that those efforts will in part predicated on the allegations of perjury not just on the underlying infidelity but note that both Governor’s lied in their efforts to avoid detection albeit not in a perjury context.)  An interesting side note is that both Republicans were included on most short lists for the Republican presidential nomination for 2012. 

While I suspect that somewhere someone is doing extensive polling on the precise nature of how various demographic groups are viewing the various storylines, the blogosphere shows its own sets of reactions that are telling.  My own unscientific review of bloggers views is that Republican and right leaning bloggers do not appear to be bothered by the apparent hypocrisy of the Republican Governors’ condemnations of  others juxtaposed to their own infidelity and cover-up, and they are quick to emphasize the apparent criminality associated with the Democrats’ scandals.  On the other hand, Democratic bloggers seem greatly offended by the apparent hypocrisy of the Republicans  but are not overly vocal in their calls for resignation.  Could it be that Democrats are taking the longer view on how all this will play out in 2010 and 2012? 

Blogosphere and polls aside, the real issue, in my view,  is the impact of all this on  the “silent majority” of Republican voters and what they actually think of all this.  Are they forgiving of their leaders?  Will the failure to cleanse their party shift some of those on the left fringes of the right, the so-called Reagan Democrats,  back to the Democratic Party?  Will the abilities and politics of Ensign and Sanford enable them to restore their own images sufficient to limit any spillover on other Republican candidates in 2010?  Will the far right/party base lose its enthusiasm as contributors and grass root supporters in sufficient quantities to deepen the Republican slide that started in 2006?  Will it turn out that the “11th Commandment”, in stopping Republicans from taking the actions that the Democrats took with Spitzer and Blagojevich turn out to be the metastatic force that the Democrats appear to have avoided?

No one can assert that the Republican Party is as strong as it would like to be is most states (South Carolina could be an exception) or on the national scene.  These two June disclosures obviously don’t help

Leaving aside the make up of the current Supreme Court for the next generation, the courts are going to have to address the same sex marriage issue on a national basis in the foreseeable future.  As there are more and more state sanctioned same sex marriages, eventually some will need to have divorce, alimony and child support issues addressed by a state of in which same sex marriage is not recognized but in which one of the same sex spouses is a resident.  The full faith and credit issue will have to be addressed foursquare.  

While the issue is complex, the court of a state like Kansas may want to avoid granting alimony to one its residents because in its view, under its constitution, that resident is not legally married and absent some kind of “palimony” theory, is not entitled to alimony.  When that happens, the whole federalist house of cards will be up for grabs.  At one end of the possible spectrum of results, the courts may conclude that a state has the right to refuse recognition of the marriage, refuse to grant a divorce, alimony or child support, and wash its hands of the matter.   The concept of “forum shopping” would therefor permit a spouse in a same sex marriage to chose his obligations by picking the state in which the litigation occurs. At the other extreme is a decision that a marriage in any state must be treated as a marriage in all states.

While you would then you have a marriage in 50 states for purposes of enforcing rights in state court actions but under the Defense of Marriage Act, you still would not have marriage before the U.S. government.  Or worse, you might have a marriage in a state court proceeding but not in a federal court proceeding?  How would a state court enforce pension rights or handle spousal bankruptcy matters if parties are married under state law but not federal law?

Let the games begin.