The House of Un-Representatives

Looking at the election results from Pennsylvania, I was glad to see that we had voted for Barack Obama and Bob Casey, but surprised that we elected only 5 Democrats from our 18 Congressional districts.  Was there that much vote splitting?

Then I learned that Pennsylvania wasn't alone.  As Ezra Klein points out, Democratic candidates for the House got 54,301,095 votes while Republicans got 53,822,442, but Democrats got many fewer House seats, only 193 to 233 for Republicans.  (Nine races are still undecided.)  So Democrats got half the votes but only 44% of the seats.

I looked up the Congressional election results for Pennsylvania, and with 99.61% of the precincts reporting, Democratic candidates for House seats got a total of 2,702,900 votes, Republicans got  2,617,031 votes, and other parties got 41,080 votes.  So Democrats got 50.4% of the votes, but won only 28% of the races.

How could that happen?  It happened because some Congressional districts were lopsided wins for Democrats, while most Republican wins were narrower, so the Democratic votes were concentrated in a few districts.  Specifically, 41.9% of all Democratic votes were cast in the 5 Congressional districts that the Democrats won.

And why did that vote concentration happen?

The easy answer is that the Republican-controlled Pennsylvania legislature fixed the Congressional districts to favor Republicans, but that's only part of the answer.  The fact of the matter is that Democratic votes tend to be concentrated in urban areas, and in Pennsylvania that means Philadelphia and Pittsburgh.  Once that many voters of one party are congregated together like that, it is fairly difficult to construct districts with proportionate numbers of voters of each party.  Republican-controlled legislatures might have made the problem worse, but the problem was going to be there regardless.  And it's only going to get worse as time goes on because there is a growing tendency for people to cluster together with other people with similar political views, as explained in Bill Bishop's book, The Big Sort.

The irony here is that the House of Representatives was supposed to be the branch of the government that would be most responsive to the will of the people, with direct elections every two years.

The Senate was only indirectly responsive to the people, with Senators elected by state legislatures.  Senators are now elected by popular vote, but the allocation of two Senators for each state gives less populous states--which tend to be Republican--a disproportionate amount of power, and the Senate is slow to change because Senators are elected only every six years.

The election of the President is even more indirect, and so the President was going to be the least responsive to the people, because the President is chosen by "electors" selected by each state "in such Manner as the Legislature thereof may direct," which means that popular vote is not needed at all.  And we complain about the role of the "Electoral College" in Presidential elections every four years, but the results of the Electoral College usually match the results of the popular vote.

So we've now got a President who was elected with the support of a majority of the voters.  We've also got a Senate with 54 Democrats and 46 Republicans, which is roughly the same percentages as the popular vote for President and so roughly representative of the voters.  But we've also got a House that is distinctly not representative of the politics of a majority of Americans.

So the whole system has turned upside down, with the President becoming the most representative of the popular will and the House becoming the least representative, a House of Un-Representatives.

How Romney Failed as Manager-in-Chief

In 2008, I was really torn between voting for Hilary Clinton or Barack Obama in the primary.  I made up my mind when I read that the Clinton campaign was running out of money about half way through the primaries.  Apparently, they had planned for a short campaign, expecting to build up an overwhelming lead early, while the Obama had planned for the long haul.  That made up my mind for me because I figured that you can't be trusted to manage the US government if you can't manage your own election campaign.  (And management matters.  Compare, for example, the federal responses to hurricane Katrina and hurricane Sandy.)

Now, I know that the President doesn't really manage the government, and the candidate doesn't really run the campaign, either.  But the candidate picks the people who manage the campaign, and the President picks the people who pick the people who manage the government.  So the quality of the people who run the candidate's campaign is a good indication of the quality of people who will be running the country if that candidate is selected.

For that reason, not only was I worried about Mitt Romney's ideology and politics, but I was also worried about his ability to manage, because it was clear his campaign was being poorly run.  It wasn't just the frequency of his campaign wandering off-message, but also the inability of his staff to anticipate and be able to answer questions that were obviously going to be asked sooner or later.  (The most famous example was a telephone conference called for the purpose of talking about women's issues in which senior Romney staff were unable to say whether or not Romney supported the Lilly Ledbetter Fair Pay Act.)

Now I read (in RedState.com of all places) that it was actually worse than I thought:  "Campaign Sources: The Romney Campaign was a Consultant Con Job."

Supporting (Opposing) Patient-Centered Outcomes

On July 17, the Republican-controlled House Appropriations Committee posted online the proposed, fiscal year 2013 spending bill for the Departments of Labor, Health and Human Services, Education and related agencies.

This bill would end health care research in the following areas:

• The bill ends all funding for the Agency for Healthcare Research and Quality (Sec. 227).
• The bill prohibits any appropriated funds from being used for patient-centered outcomes research (Sec. 217).
• The bill prohibits funds appropriated for the National Institutions of Health (Title II, page 57, lines 20-24) from being used for any economic research.

The second one is strange, because "patient-centered" is a phrase developed in focus groups by Republican pollster Frank Luntz to describe Republican health care policies. For some examples of Republican comments using the phrase following the Supreme Court's decision on the Affordable Care Act, see David Weigel's blog posting on Slate on July 2.

And I found these other more recent examples on Twitter:

• Americans for Prosperity: "RT if you reject the government takeover of #healthcare & want real, patient-centered reform!" (7/20/12)
• George Allen: "I want to be the deciding vote to repeal this health care law & replace it with patient-centered reforms for more affordable health care." (7/16/12)
• Sarah Palin (via Kim Moons): "Our vision is of an America where health care is affordable, it's patient centered, and it's market driven."

So Republicans are in favor of patient-centered care, but are not interested in spending money for any research into what would be effective patient-centered care?

Even more confusing is that patient-centered care is an important part of the Affordable Care Act that Republicans want to repeal.  The phrase "patient-centered" (or "patient-centeredness") appears 15 times in the ACA, not counting the headings of titles, sections, and subsections, and not counting references to the "Patient-Centered Outcomes Research Institute" or the "Patient-Centered Outcomes Research Trust Fund."

One of the main ways that the ACA is supposed to hold down Medicare costs is through "accountable care organizations" (ACOs) and one of the requirements of an ACO is that it meet patient-centeredness criteria to be established by the Secretary of Health & Human Services.  (Sec. 3022)  And one of the ways that the ACA is supposed to hold down Medicaid costs is through supporting the creation of "patient-centered medical homes."  (Sec. 3502)

But Republicans want to repeal the whole ACA, including its provisions for patient-centered care, in order to enact patient-centered care, and meanwhile are working to block any research into developing models or techniques for patient-centered care.

This is terribly schizophrenic.  There are either conflicts and disagreements within the Republican party, or the whole Republican "patient-centered" talking point is just a smoke screen for repealing the ACA without offering anything in its place.

My vote is the latter.

What made Santorum want to throw up?

Former Senator (and now Presidential candidate) Rick Santorum said that, when he read John F. Kennedy's 1960 speech on religion and politics, he wanted to "throw up." When asked about that comment by ABC's George Stephanopolous, Santorum said, "[T]o say that people of faith have no role in the public square? You bet that makes you throw up."

Of course, you can read Kennedy's speech for yourself, and you'll see that he says nothing about denying people of faith any role in public affairs. He specifically says that people of all faiths should be able to participate in politics:

I believe in an America where religious intolerance will someday end; where all men and all churches are treated as equal; where every man has the same right to attend or not attend the church of his choice; where there is no Catholic vote, no anti-Catholic vote, no bloc voting of any kind; and where Catholics, Protestants and Jews, at both the lay and pastoral level, will refrain from those attitudes of disdain and division which have so often marred their works in the past, and promote instead the American ideal of brotherhood.

That hardly seems like something that would cause someone to throw up.

So what so offended Santorum?

I think it was this later section:

Whatever issue may come before me as president — on birth control, divorce, censorship, gambling or any other subject — I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

That is what made Santorum want to throw up.

The goal of Kennedy's speech was to assure the public in general, and Protestants in particular, that as President he would not try to impose the teachings of the Catholic Church on Americans. And the paragraphs quoted above are the most forceful expression of that goal.

And that is what Santorum disagrees with. Santorum has very strong opinions on birth control and abortion and divorce, and Santorum believes that his views on birth control and abortion and just about everything else are superior to all other views. If elected President, it would be not just his right, but his duty to impose those views on all other Americans.

Which makes me want to throw up.

Gingrich's Appeal

Newt Gingrich appeals to many Republican voters because of Gingrich's obvious disdain for Democrats.

Unfortunately, voters soon realize that he as a great deal of disdain for Republicans also.

Which explains why his poll numbers keep going up down.

The Bain Identity

Mitt Romney has been criticized from both left and right as a "flip-flopper." Someone who will say whatever needs to be said in order to move ahead politically. He will say whatever he needs to say in order to get nominated, then say what he needs to say to get elected, and then say what he needs to say to govern. All without any real commitment or sincere belief.

When he ran for governor of Massachusetts, he ran as a moderate and he governed as a moderate, and now that he's running for president in a conservative Republican field he's running as a conservative. In the general election, running against Obama, he'll portray himself as a moderate, and who knows how he would govern?

What doesn't seem to have gotten much press is that Romney ran Bain Capital the same way.

According to this piece in the Washington Post, written by an investment banker who often dealt with Bain Capital while Romney was in charge, Bain Capital had a nasty habit of doing what might be called a "bait and switch." In a private offering, the firm that makes the highest initial bid gets favored position to negotiate the final deal. Bain would make the high bid, eliminate the competition, and then use its favored position to negotiate the price down below its original bid. Some renegotiation is normal when new conditions are discovered on "due diligence" (closer scrutiny), but Bain negotiated downward too often and too flagrantly.

In other words, Bain would say what it needed to say in order to get a favorable negotiating position, and then change its price once it had the position it wanted and the other side was at a disadvantage.

This is what some people would call "gaming the system," and what other people would call "dishonest."

If this description of Bain Capital is correct, then "flip-flopping" is not a fluke of Romney's political career. It is a fundamental character flaw of the man. He lacks integrity.

Romney v. Santorum

Following the results of the Iowa caucuses, the primary matchup for the Republican nomination seems to be between:

1. A candidate who strapped the family dog in a crate to the roof of the car in order to drive from Massachusetts to Canada.

And:

2. A candidate who took the body of a stillborn baby home from the hospital to show his other children.

So it goes.

What was Santorum Thinking?

In Thursday's Republican presidential debate, former Senator Rick Santorum was asked whether as President he would make any changes to the military that would undermine the recent repeal of Don't Ask-Don't Tell.

Santorum responded by saying "Yeah, I -- I would say, any type of sexual activity has absolutely no place in the military."

What?

Did he think that, before the repeal of DADT, the military was chaste?

And then he went on to say: "And the fact that they're making a point to include it as a provision within the military that we are going to recognize a group of people and give them a special privilege to -- to -- and removing 'don't ask/don't tell' I think tries to inject social policy into the military."

Does he think that the repeal of DADT gives gay and lesbian soldiers a special privilege to engage in sex at times or in places not permitted to heterosexual soldiers?

So what was he thinking?

He seems to have a perspective that 180 degrees opposite from the majority of American people who believe that the repeal of DADT will remove social policy from the military.

Taxing the Wealthy

President Obama's proposal to impose higher taxes on those earning more than $1 million each year (which would certainly qualify as "wealthy" by anyone's definition) in order to insure that the wealthy pay at least the same rate of tax as middle income Americans, has produced the usual claims that higher taxes on the wealthy will hurt economic growth.

Claims which are absolute nonsense (to put it politely).

Economic growth generally comes from increasing demand for goods and services, and demand comes from four areas:

1. Domestic consumer spending (including housing);
2. Investments by businesses in plant and equipment;
3. Exports (i.e., sales to other countries); and
4. Government spending on goods and services.

Increasing taxes on the wealthy would have no effect on exports, and would allow more spending by the government (which is expansionary), so increasing taxes on high-income Americans would reduce only the first and second types of demand, if its going to reduce anything.

Almost by definition, wealthy people earn more than they spend on themselves. Someone who earns $1 million each year is not going to be spending that $1 million, but is going to be saving or reinvesting most of it. So increasing taxes on the wealthy is not going to reduce consumer spending.

Increasing taxes on the wealthy might affect business investments, because wealthy people who invest in stocks and corporate bonds help those businesses raise capital for investments in new plant and equipment. But that's not what's happening right now.

• Because demand is down, businesses currently have excess capacity, meaning that they have plants and equipment that they are not using to full capacity and have no need to invest in more.
• As a result, businesses are currently holding hundreds of billions of dollars of uninvested cash.
• Because businesses don't need cash to invest and aren't looking for capital or loans, investors are putting their money into federal securities, which is driving interest rates on federal securities down to record lows. (At the August 31 auction of inflation-protected bonds, four-year bonds actually sold at a negative yield, meaning that investors were willing to pay the United States to hold their money for them as long as they got back money with the same value.)

What that means is that, if you let a wealthy person keep more of their income, they are going to take that money and buy more government securities and not invest the money in the economy.

Right now, the best way to expand the economy is through increased government spending that will put more money in the hands of consumers, and that means tax breaks for middle-income taxpayer and more government spending on construction, which provides more employment.

Which is what President Obama is proposing.

God's Wrath

Every time a major storm hits a major city (e.g., Katrina and New Orleans or Irene and New York), someone, somewhere, says that God is punishing that city because of its acceptance (or tolerance) of homosexuality.

But isn't the opposite claim just as easy to make?

Isn't it possible that the extended and extreme drought in Texas is God punishing Texas being hostile to homosexuals?

Is Osama bin Laden Really Dead?

To those who think that Osama bin Laden might be alive, two questions:

1. If OBL were alive, wouldn't his #1 priority be to release a new video, showing him holding a newspaper with a current headline (perhaps one announcing his own death), in order to demonstrate that the leaders of the USA are incompetent, or liars not to be trusted, or both, and so rally his followers?

2. Isn't the continuing absence of any such video further evidence that OBL is in fact dead?

I doubt that bin Laden is a fan of western literature, but I am quite sure that, if her were alive, he would love to announce that the reports of his death were an exaggeration.

The Rhetoric of Violence

[This is something I wrote in back in August of 2010, but for some reason never published. The recent events in Tucson make me regret not publishing it sooner.]

Republican leaders have gone through the motions of renouncing the threats of violence that have been reported against Democratic leaders during and following the enactment of health care reform, and those Republication leaders seem to consider themselves entirely free of any responsibility for those threats. But those threats are entirely consistent with the rhetoric of the right, including the rhetoric of Republican leaders, and the rhetoric helped to justify violence in the minds of the far right.

Both international law and domestic law recognize times when violence can be justified. The most-well known example in domestic law is the law of self-defense, which allows you to touch, injure, or even kill another person in order to defend yourself against an attack. More broadly, there is a "justification" defense, which allows the use of violence to defend others and not just yourself.

And international law recognizes that a nation may legitimately use force to defend itself against invasions or other foreign threats.

But in each case, the level of violence that can be exerted must be appropriate to the level of violence of the aggressor. You can't respond to verbal threats with physical force, and you can't respond to physical force with deadly violence. In other words, you can't shoot someone who slaps you or shoves you. Similarly, the use of force by nations must be "proportional" to the threat. A country can't bomb a city in response to a border obstruction.

If the health care reform enacted by the Democrats were nothing more than bad policy, bad philosophy, or bad judgment, threats of violence could obviously not be justified, even by the most fervent opponents. But that's not the way the issues were framed by Republicans and conservatives. The health care bill was described as "oppressive" and would deprive Americans of "freedoms." Earlier, there was talk of "death panels." And the procedures used to enact health care reform were attacked as undemocratic and illegitimate. The Republicans described health care reform not merely as bad policy, but as the product of an oppressive, illegitimate government that threatens our life, liberty, and property. They described health care reforms in terms that, if taken literally, would justify armed revolution.

The extremist rhetoric of Republican leaders might not have incited threats of violence by the right, but the rhetoric justified threats of violence. And their defense is that they should not have been taken seriously?

The Pennsylvania Pendulum

A piece of history that's working against Joe Sestak on Tuesday is that, true to the pattern for the past 60 years Pennsylvania will be electing a Republican governor.

For the past 60 years, the voters in Pennsylvania have changed the party in the governor's mansion every eight years, like clockwork. Ed Rendell, a Democrat, has served his eight years, so it's time to elect a Republican governor, and that would be Tom Corbett.

And vote-splitting takes extra effort, so a voter who votes for a Republican governor is more likely to vote for a Republican senator.

Sestak could still be elected to the Senate even if Tom Corbett is elected governor, but it will be a little bit harder, and in a close election that little extra edge could make a difference.

Trickle-Up Economics

I suffer from a certain amount of cognitive dissonance every time I hear a conservative politician or pundit talk about the need for tax cuts for the wealthiest 2% of Americans in order to stimulate the economy. What I hear on the news almost every night is that the biggest factor driving the economy is consumer spending, and that they economy is not recovering because consumer spending remains weak.

So, if lack of consumer spending is the problem, the solution should be policies that give consumers more income to spend, right?

No, the mantra from the right is that we need more money in the hands of wealthy individuals and businesses. Of course, the very meaning of "wealthy" is having more income than you need to spend, which means that increasing the disposable income of the wealthy does not increase consumer spending but simply makes the wealthy wealthier. Investments in plants and equipment would also help the economy, but businesses are investing now because the economy is so bad (the kind of self-reinforcing behavior that makes "boom and bust" cycles work), and most investors are not putting their money into new businesses creating new jobs but into government securities, which is why interest rates are so low.

During the Reagan years, the belief that reducing taxes for the rich would stimulate the economy was called "trickle-down economics." But if consumer spending is the issue, then what we really need is trickle-UP economics. We need to adopt policies and programs that put more money into the hands of the lower economic levels where it will translate into consumer spending and economic growth for the entire economy.

The following chart presents empirical evidence of this truth also. This chart was originally published by Slate and it shows the income growth of different income levels during Republican administrations and Democratic administrations based on data compiled by Princeton political science professor Larry M. Bartels.



The chart obviously shows what it was intended to show, which is that the policies of Democratic presidents cause greater economic growth among the lower income levels, while the policies of Republican presidents promote more growth at the higher levels and less growth at the lower levels. But there's another inference which can be derived from the chart, which is that everyone does better when the lowest income levels are rising. For the top 5%, the income growth might be pretty much the same either way, but for everyone else, there is a correlation between income growth at the lowest levels and income growth at all levels.

So it's not necessarily a zero-sum game, and the "class warfare" that conservatives complain about might not be necessary, because policies that benefit the working class are going to benefit the wealthy, but policies that benefit the wealthy don't seem to benefit wage earners.

Why Health Care Reform Won't Be Repealed

Even if Republicans were to get majorities in both houses of Congress, there really is no likelihood of health care reform being repealed, because repeal won't have full Republican support, despite what Republican may be claiming in their "Pledge to America."

Republicans are claiming to support, and re-enact, all the things that people like. Specifically:

We will make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition, eliminate annual and lifetime spending caps, and prevent insurers from dropping your coverage just because you get sick.

Of course, the Patient Protection and Affordable Care Act of 2010 already does all those things, and those are the parts of the act that people like and support. What the Republicans want to get rid of are what are referred to as the "burdensome mandates," such as the requirement that all but the smallest businesses provide health insurance for employees, and the "individual mandate" that requires individuals not covered by employer-provided insurance to get health insurance or pay a special tax.

The reason that Republicans won't be able to repeal those parts of the act is that those are the parts of the act that the insurance industry likes. Requiring insurers to provide insurance to sick people without requiring healthy people to buy insurance is a prescription for economic disaster, because there would be nothing to stop healthy people from dropping their coverage until after they get sick. So insurers would have to provide the same (or greater) levels of benefits while the number of insureds shrinks, which would cause premiums to skyrocket.

And Republicans know this, which is why the "Pledge" is so specific about the parts of the act that they would want to keep and so vague about exactly what would be repealed. They know that, if they come right out and say that they are going to repeal the employer and individual mandates, they will be (or at least should be) ridiculed for proposing a completely unworkable system.

So if the Republicans actually try to repeal health care reform with actual legislation, they will be caught between a rock and a hard place. If they repeal the entire health care reform act without providing patient protection they will anger voters, but if they repeal the employer and individual mandates and leave the patient protections in place they will anger (if not bankrupt) some of the biggest contributors.

So it's pretty safe to say that there's going to be lots of rhetoric, but not much actual repeal.

Overreaching by the Pennsylvania AG

The Attorney General of Pennsylvania, Thomas Corbett, is now running for governor, and it will be interesting to see what will happen to Pennsylvania's role in the lawsuit Corbett joined in seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional. Corbett was able to join in the lawsuit even though the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill, because the AG of Pennsylvania is an elected office that is largely independent of the governor. So, somewhat ironically, Corbett will be unable to continue to support the lawsuit if he is elected governor, because the next AG will be able to decide whether to proceed.

And Corbett never should have joined in the lawsuit, because it was outside of his powers as AG. If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), it would have been within his powers to represent the interests of the state, but the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate"), and that is not within the powers of the AG.

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" the individual interests of citizens and the right to represent their individual interests in court? And what if I (or other citizens) don't want the AG representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

But that might become moot if the next AG decides to withdraw from the suit.

Overreaching by the Pennsylvania AG

I was surprised to read that the Attorney General of Pennsylvania, Thomas Corbett, had joined in the lawsuit seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional, because the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill. I knew that the AG of Pennsylvania is an elected office, but had forgotten that the current AG is a Republican, not a Democrat. (I live in Pennsylvania and it is a fairly moderate state politically, and tends to alternate regularly between Republican and Democratic administrations.)

If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), I would be somewhat annoyed, but what really bothers me is that the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate").

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" my individual freedom and the right to represent my individual interests in court? And what if I don't want him representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

Why Turkeys Run the World

The Senator Bunning/unemployment benefit extension fiasco is another illustration of a fundamental truth that was revealed to me some years ago in a book (more of pamphlet really) titled "Why Turkeys Run the World." The fundamental truth is that real decision-making power does not reside in the people with a goal or a mission or something to accomplish. The real power rests with people without any goal or agenda whatsoever.

Take Senator Bunning (please). The reason he was able to block Senate action was due in large part to the peculiar (to say the least) rules of that body, but the reason he was so successful was that he wasn't actually trying to accomplish anything, or even actually trying to block anything. If he had been trying to accomplish something, then the other Senators could have negotiated with him. But he didn't actually want anything, so there was nothing to offer him. It was his very purposelessness that gave him power.

A similar dynamic was seen in Senator Lieberman's self-indulgent opposition to health care reform. The real problem was not that Lieberman supported health care reform, or that he opposed it, but that he really didn't give a damn one way or another. Not really caring what happened, he had much greater freedom of action, and much greater power, than the Senators who stood for something.

Elections are usually decided by the independents in the middle, not with the stalwarts on either side of the political divide. Similarly, Congressional power resides in the indifferent and the unprincipled, not the dedicated.

Yoo's Professional Misconduct

Although Associate Deputy Attorney General David Margolis has decided that John Yoo's "poor judgment" did not rise to the level of professional misconduct, the issue is not yet settled, because what is essentially the same issue is being litigated in federal district court, and is now before the 9th Circuit Court of Appeals.

In the recently-released final report of the Office of Professional Responsibility within the U.S. Department of Justice, the OPR concluded that many of the misstatements and omissions in the legal memoranda that John Yoo (then in the Office of Legal Counsel) approved on the use of "enhanced interrogation techniques" were intentional and constituted professional misconduct because he failed to provide legal advice that was thorough, objective, and candid. The OPR concluded that Yoo failed to provide the proper level of legal advice because he "put his desire to accommodate the client" (i.e., the policy makers in the Bush White House) above his professional obligations.

In rejecting the conclusion that the misstatements and omissions constituted professional misconduct, Assoc. Deputy Attorney General Margolis disagreed that Yoo wanted to tell the policy makers within the Bush administration what they wanted to hear, and concluded instead that Yoo was telling the Bush administration what Yoo wanted them to hear. "While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client."

But is the sincerity of Yoo's ideology a defense to charges of professional misconduct?

That issue may be addressed in a federal district court action brought by Jose Padilla against John Yoo in which Padilla alleges that John Yoo's memos resulted in Padilla's imprisonment (and mistreatment). Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal.) Yoo moved to dismiss the lawsuit on the grounds that, among other things, he was a federal officer entitled to immunity to suit. In a ruling last June, the court ruled that Yoo was not entitled to immunity because the opinions expressed in Yoo's memos violates "clearly established statutory or constitutional rights of which a reasonable person would have known."

The district court ruling is currently on appeal to the 9th Circuit (No. 09-16478), and one of the issues being argued is whether Padilla's complaint alleges facts that constitute unprofessional conduct by Yoo, and a brief filed by a group of professors of legal ethics say that it does. According to the "amicus" brief filed by "legal ethics scholars" last month, Padilla has alleged that Yoo "stepped beyond his role as a lawyer to participate directly in developing policy in the war on terrorism," and that allegation supports the conclusion that Yoo did not merely give "poor" or "incorrect" legal advice, but gave advice that violated ethical rules.

In other words, Margolis seems to believe that Yoo did not act unethically because he only allowed his own views to interfere with his obligation to give impartial legal advice, while the legal scholars filing the amicus brief with the 9th Circuit believe that Yoo acted unethically because he allowed his own views to interfere with his obligation to give impartial legal advice.

Now, the 9th Circuit is being asked to rule on allegations and not evidence, but the fact that the OPR has already concluded that Yoo's erroneous legal advice was not accidental but intentional suggests that Padilla will be able to prove the same thing. And Padilla may be able to avoid the mistake that the OPR may have made in assuming that Yoo gave bad legal advice to please the White House and failing to consider that Yoo might have given bad legal advice to please himself.

The Upcoming Tax Brawl

There's been some media attention to the strange one-year repeal of the federal estate tax, and a few comments on the failure of Congress to pass an "extenders" bill to prevent a number of tax provisions from expiring at the end of 2009, but I have yet to see any public comment on what will be THE political story of 2010, which is that all of the Bush tax cuts will be expiring at the end of the year and, unless Congress acts, almost every tax-paying American will be paying more in federal income tax next year.

For the wealthiest Americans, allowing the Bush tax cuts to "sunset" will be quite a shock. A family of four with $500,000 of income filing a joint return with no itemized deductions would pay $136,208 in federal income tax in 2010, but will have to pay $158,801 in 2011, a $22,607 increase, unless Congress acts. If that $500,000 of income includes qualified dividend income, which is taxed at the capital gain rate of 15% instead of the maximum rate of 35% on ordinary income, the results are even more dramatic. In 2010, $500,000 of income with $250,000 of qualified dividends would result in $89,201 of federal tax, but in 2011 the tax jumps up to $158,801, an increase of $69,600, or almost 80%, in only one year.

Barack Obama campaigned on the pledge (which he has repeated several times since being elected), that he will not raise taxes for those earning less than $250,000. For a family of four with $250,000 of income, their tax bill is $51,701 under current law, but goes to $59,341 in 2011, a $7,640 increase.

Reducing the family's income reduces the impact, but the impact is still there. For a family earning $50,000, the tax bill would be $2,763 under current law, but jumps to $3,878, more than $1,000 more, in 2010.

Even a family earning as little as $30,000 would be affected. That family would owe $400 in federal income tax in 2010, but if the 10% tax bracket and marriage penalty relief both expire, that family's tax bill more than doubles, going from $400 to $878.

And here is where the Senate will jump into inaction. As we have seen very clearly in the attempt at health care reform, it takes only 41 Republican votes in the Senate (which the Republicans now have with newly-elected Scott Brown seated) to block any attempt to raise income tax rates for the wealthy. But these tax increases are already enacted and will happen if Congress does nothing, and it also takes only 41 Democratic votes in the Senate (or the Democratic majority in the more progressive House) to block any extension of the tax cuts for the wealthy.

So it's going to be like health care, only worse. At least with health care, Republicans paid lip service to the idea of reform and compromise, but when it comes to taxes Republicans are going to even pretend to be interested in negotiating with Democrats. With increasing pressure from "tea partiers" and the extreme right, and facing election battles at the end of 2010, Republicans have no reason to do anything but draw a hard line and insist on making the Bush tax cuts permanent.

And Republicans also have every reason to block anything the Democrats try to enact, because they would really like to go into the 2010 election being able to point to enormous tax increases on working Americans in 2011 and blaming it on the Democrats who control Congress.

So it's going to be bloody. It's going to be a bare-knuckled street brawl with knives and chains, and if the Democrats don't get their act together and enact real tax reform before November, they're going to find themselves down on the ground, bloody, and being kicked in the face.