Sunday, December 26, 2010

The Very Active 111th Congress, The Highly Questionable Constitutionality of the Defense of Marriage Act

The End of 2 Whirlwind Years
It's become a more or less accepted truth in liberal circles that the 111th Congress underachieved. They failed to get immigration reform done. The health care bill that ultimately passed contained no public option. Cap and trade didn't happen. Those are 3 big expectations of liberals that remain unmet.

To Conservatives, the 111th Congress was a haven socialism, passing a massive increase in government spending through the stimulus package and a huge government takeover of Health Care.

Of course, in the end, the actions of the 111th Congress were neither socialist (the government didn't take over health care, the stimulus was one third tax cuts and all the spending end next year) or inactive (big pieces of legislation passed, more on that later.)

Like it or not, President Obama owns the 111th Congress. It more or less mirrored the first 2 years of his Presidency and in large measure reflected his legislative and executive priorities.

According to , 322 bills became law during the 111th Congress, 321 of them under Obama's watch (1, an act relating to executive compensation was signed by President George W. Bush prior to Obama assuming office - this is possible as Congress convenes on January 5th and the Presidential inauguration doesn't take place until over 2 weeks later.) Of course, many of the bills were inconsequential and non-controversial, such as the ever-present fun of naming post offices and government buildings. But, below is a brief review of the very meaningful legislation that became law over the past two years:

Lilly Ledbetter Fair Pay Act - a major change in equal employment law that removed a restrictive statute of limitations on civil claims involving unequal pay. The act was named for Lilly Ledbetter, a woman who discovered after 20 years of work that she had been consistently underpaid versus her male peers but was ineligible to seek redress under the prior statute.

SCHIP Expansion - this bill expanded children's health insurance to 4 million additional children in poverty and was paid for with an increased in the federal cigarette tax from 34 cents to 101 cents per pack.

American Recovery and Reinvestment Act - the famous economic stimulus bill contained $787 billion in stimulus funds, approximately one third through tax cuts and two thirds through spending which was more or less equally divided between infrastructure projects and temporary entitlement expansions.

CARD Act - a bill that regulates consumer financial arrangements, requiring disclosure of fees by credit card issues, limiting the use of so-called "teaser" rates and minimizing the penalties that can be made for an infrequent late payment.

Smoking Prevention and Tobacco Control Act - gave the FDA authority to regulate cigarettes and their contents, including prohibiting the use of "light" in cigarette labeling, forbidding flavored cigarettes, further restricting marketing efforts by tobacco makers and expanded and more explicit warning labels on packs.

HIRE Act - a much smaller stimulus bill than the ARRA, it provided modest tax incentives for businesses to hire unemployed persons.

Patient Protection and Affordable Care Act / Health Care Reconciliation Act - a series of 2 bills (so divided because of legislative sausage making to enable passage of the controversial legislation) that requires everyone to have health insurance or pay a penalty by 2014, sets up insurance exchanges, removes tax benefits for high benefit employer provided plans, prohibits exclusion from coverage based on pre-existing conditions and levies a variety of smaller taxes, including one on sun tan parlors.

Note: Contained in the reconciliation measure was an unrelated provision that essentially federalized the handling of student loans.

Prevent All Cigarette Trafficking Act - outlawed shipment of cigarettes via the US Postal Service, effectively cutting off a source of business for Indian Casinos, that had made a business out of shipping cigarettes from low-tax locations on reservations to locations in high tax states.

Wall Street Reform and Consumer Protection Act - made major changes to the regulation of financial institutions, including heightened disclosure and transparency requirements in the derivatives market, increased requirements for equity against futures bets, increased oversight to look for systematic risk and a new office of consumer protection.

Don't Ask Don't Tell Repeal - will allow gay Americans to openly serve in the military without any disciplinary consequences.

Tax Cut Extension Act - extended Bush-era tax rates through 2012 and implements a modified estate tax, that is higher than the zero rate in 2010, but significantly lower than the rates most of the past decade.

Two budgets (Fiscal 2009, which was overdue when the President took office and Fiscal 2010) plus funding a portion of Fiscal 2011 (until March 2011)

Senate Only Approval (by law/constitution)

A full slate of cabinet and sub-cabinet level appointments. Of course, this includes all the top level cabinet officers, but encompasses hundreds of other deputies and other Senate "advise and consent" sub-cabinet level positions.

Approval of 2 Supreme Court nominees, including Sonia Sotomayor, the first hispanic justice on the Supreme Court and third woman and Elena Kagan, the fourth woman on the supreme court (and rumored to be the first lesbian on the court, although arguably not the first LGBT member as previous member David Souter, who Sotomayor replaced, was widely rumored to be gay.) Additionally, the nomination of hundreds of lower-level judges were also approved.

START Treaty - a strategic nuclear arms reduction treaty with Russia which will reduce the number of strategic warheads in both countries from 2,200 to 1,500 over 10 years.

Taken in total, the 111th was among the most significant in US history in terms of shaping the future of the country. So, in total, I would say the conservatives are more right than liberals in terms of the amount of activity. Whether they are right on the merits of that activity is a matter of opinion.

There were some major holes in pressing national problems that were not addressed in the 111th congress. Three major issues stand out:

(1) Deficit Reduction Plan
The blue-ribbon commission headed by centrist Democrat Erskine Bowles and libertarian Republican Alan Simpson finally returned its set of recommendation after the election, but Congress has yet to take any sort of meaningful action to reduce the long-term, structural deficit the country faces, an issue that threatens to consume the economy over the next 10 years if not dealt with. Republicans have vowed this will be a top priority in the new House in 2011 and rightfully so. Let's hope the actions are more than window-dressing.

(2) Immigration Law
Illegal immigration continues, largely unabated. It has slowed from its peak in the mid-2000s, due in large part to the declining economy and reduced opportunities for employment, but there are still millions of illegal and undocumented workers across the United States, but obviously concentrated very heavily in the Southwestern states of California, Texas, Arizona and New Mexico. The 111th Congress basically took no action to remedy either the ongoing influx of undocumented workers or to deal with the legal status of those who are already here. Even the very modest DREAM Act, which sought to deal with the legal status of people brought here by their parents illegally as children failed to garner enough support to break a Senate filibuster. The GOP majority in the House has vowed to focus on enforcement first (i.e. stopping the flow) before addressing the legal status of those already there. This isn't the approach that I would advocate (comprehensive reform is clearly needed in my opinion), but any improvement in the situation would be better than nothing. I also think that focusing on border security is mid-guided and expensive; a far better and more cost-effective method of reducing illegal immigration would be to step up penalties and enforcement for hiring illegals, thus decreasing the incentive to come in the first place.

(3) Environmental Legislation
The last major piece of environmental legislation passed in this country was the Clean Air Act of 1991, signed by President George Herbert Walker Bush (yes, three Presidents ago) that instituted a cap and trade system on sulfur emissions and severely restricted the ability to build new coal-fired power plants without significant emissions recapture. Republicans in the House will have absolutely zero taste for going after the sweeping cap and trade plan that the House passed in the 111th but the Senate failed to act on (and it's highly unlikely such a bill could get through the Senate either, honestly.) There may be some common ground on issues such as reducing dependence on foreign oil...I continue to advocate for a revenue-neutral increase in the gasoline tax, a Republican idea that Democrats should embrace, but I haven't heard much discussion on such a bill being taken up next year.

So, there you have it, 2 meaty years in American political history where a lot happened. It would certainly surprise me if as much legislation happens in the 112th Congress, which will be far more politically divided. But, you never know.

Taking Aim at the Defense of Marriage Act
With Don't Ask Don't Tell soon to be a thing of the past, the obvious next frontier in the LGBT fight for equal rights will center around the issue of gay marriage. Let's first summarize where things stand legally.

At the state level,
5 states plus the District of Columbia have Gay Marriage - Massachusetts, Vermont, New Hampshire, Connecticut and Iowa
5 states have "Strong Civil Unions", civil unions that are essentially equal to marriage in all ways except the name - New Jersey, California, Washington, Oregon and Nevada
5 states have weaker civil unions, civil unions that afford only some of the legal protections of marriage - Hawaii, Maine, Maryland, Wisconsin, Colorado
35 states essentially have no legal protections whatsoever for gay couples

The fight for legality of gay marriage has largely occurred at the state level, with one major exception, the Defense of Marriage Act which was signed into law by President Bill Clinton in 1996. This law allows states to not recognize gay marriages performed in other states.

The law is a departure from how marriage has been handled in every other case. States have historically honored all other state's marriages. This includes variations in the law, including the legal age for marriage and laws concerning blood relatives marrying. For instance, if one state requires an age of 17 to marry, but another requires only age 16, the state requiring 17, by law must recognize a marriage performed at age 16 in the other state. Similarly, if one state prohibits first cousins from getting married, but another state allows it, the state with the prohibition must legally recognize a marriage between first cousins performed in the other state.

There is a fairly simple constitutional rationale for this legal recognition process. If two people are married in one state, but not married in another, it creates all sorts of thorny legal issues around division of property and legal rights. For instance, if a couple gets married in one state and vacations in another, it would be a legal mess if property division and medical decision rights did not transfer. This basic precedent was abandoned with DOMA.

I strongly question DOMA's constitutionality. This is not a liberal expansive interpretation of the constitution, it is a quite literal one. Here is the text I cite, from Section 1 of Article 4 of the constitution:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

The full faith and credit clause is very clear...public acts and judicial proceedings that occur in one state must be recognized in other states. Gay marriage is EXACTLY the sort of situation that this clause was designed for. It is both a public act (a legal, public contract, sanctioned by the state government) and, in almost all cases a judicial proceeding (marriages in most states must be performed by a recognized agent of the state...hence the phrase "by the power vested in my by the State of xxx, I pronounce you husband and wife") Whether this case makes it to the Supreme Court or not remains to be seen, but I certainly would like to see conservatives, who have long argued for "strict constructionism", reading the constitution for exactly what it says, explain how the DOMA doesn't clearly overstep the authority provided in the constitution.

Repealing DOMA would be a game-changer for gay marriage, because, in effect, were DOMA repealed, gay marriage would be legal across the US. While only 5 states would still perform the marriages, any gay couple could then go to those 5 states and have their marriage legally recognized across the US.

Vice-President Joe Biden stated in an interview over the weekend that he viewed gay marriage as "inevitable". President Obama, at his last press conference after the lame duck Congress, said his views on gay marriage were "constantly evolving". Both have supported strong civil unions but opposed gay marriage in the past, but have opposed the Defense of Marriage Act. They are both late to the game, but public support from them for gay marriage would be a big boon. And the Supreme Court doing the right thing legally would be an even bigger boon.

A Supreme Court reversal of the DOMA would not doubt prompt an effort to amend the constitution in a way to prohibit federal recognition of gay marriage. That is fine and is a debate worth having. It is also a debate that I suspect that opponents of gay marriage would lose.

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Tuesday, December 21, 2010

2010 Census: Gains in GOP States (as expected), June Date Set for GOP Debate, Whirlwind Lame Duck Winds Down

Census -- The Count Is In
308,745,538. That's the count of all residents of the United States, according to the official 2010 census results.

Some quick background on the count for those less familiar. By constitutional mandate, every 10 years, the United States Government must conduct an "actual enumeration" (i.e. a real count) of all residents of a state. An important note is that the requirement is to count all residents and makes no mention of legality. Therefore, an attempt is made in each census to count illegal aliens and well as legal non-citizens and U.S. citizens. All residents are counted where they reside, which means that those in prison are counted in the location that the prison resides. The only somewhat exception to the "where they sleep" rule is members of the US military, who are counted in their declared home state of residence, since their military deployment (whether foreign or domestic) is not considered to impact residency.

Obviously, no count is perfect. Liberal groups have chronically complained that illegal aliens and the homeless population are chronically undercounted, and this is likely true, as these groups tend to be a combination of very difficult to locate and not particularly receptive to census-taking. In the past, liberals have proposed using a statistical sampling technique to attempt to more accurately portray the population, but the Supreme Court has ruled in the past that while sampling may be used to determine federal funding for programs (whose formulas are written by law and not constitutionally mandated), that the constitutionally mandated purposed of the census, namely the apportionment of congressional representatives and therefore electoral votes, must follow the strict "actual enumeration" process.

Congressional seats are apportioned based on the counts using a formula that is statistically complicated, but conceptually simple...each State gets at least one congressional seat and the balance are apportioned in the way that most equally distributes them relative to the population size of the states.

So with the caveat that 308.7MM people probably somewhat understates the population, let's dig into what the numbers mean from a political perspective.

As expected, the big winners are largely red states in the south and purples states out west with the big losers being the rust belt and parts of the northeast.

Here are the gainers and losers in House seats. along with my rating of the state's political leanings:
Texas (Red) +4
Florida (Purple) +2
Georgia (Red) +1
South Carolina (Red) +1
Arizona (Red/Purple) +1
Utah (Red) +1
Nevada (Purple) +1
Washington (Blue/Purple) +1

Ohio (Purple) -2
New York (Blue) -2
Pennsylvania (Blue/Purple) -1
Massachusetts (Blue) -1
New Jersey (Blue) -1
Michigan (Blue/Purple) -1
Illinois (Blue) -1
Iowa (Blue/Purple) -1
Missouri (Red/Purple) -1
Louisiana (Red) -1

Net Change Blue States: -5
Net Change Blue/Purple States: -2
Net Change Purple States: +1
Net Change Red/Purple States: 0
Net Change Red States: +6

Net Change in States Won By President Obama in 2008: -6
Net Change in States Won by Senator John McCain in 2008:+6

So, as expected, this census will be a modest boon for the GOP over the next 10 years. The other significant element of this is that in 43 states (all except the 7 which only have 1 Congressional seat), all of the district boundaries will be redrawn between now and November 2012. With Republicans in control of 29 Governorships, this process should favor the GOP, as Republicans can draw districts that concentrate the opposition and spread out the support in a way to support the election of more Republicans. In a few states, this process of Gerrymandering is limited by laws that assign responsibility for drawing districts to a panel of independent judges, but in most states, it's open season.

2012 looks to be a tough election cycle for Democrats in both Houses of congress. In the House, the redrawn districts will almost certainly favor the GOP more than before for the reasons above, and in the Senate, 2012 is an echo election to the huge Democratic gains of 2006, with 23 Democrats and the 2 Democratic-leaning Independents up for re-election and only 10 Republicans. Even more troubling in the Senate is the make-up of the seats that are up. Democrats have to defend in tough states such as Florida, Missouri, North Dakota, Ohio, Pennsylvania, Virginia and West Virginia, just to name a few. Republican defenses are mostly in Red states, with Nevada, Massachusetts and Maine perhaps representing the Democrats only 3 real shots at picking up a seat.

A Stake in the Ground for the GOP Nomination
CNN, The Union Leader and WMUR will host a Republican Presidential Debate on June 7th in New Hampshire. To date, this is the earliest line in the sand that will drive the need for decisions by GOP hopefuls on whether they are in or out. June 7th is a mere five and a half months away, so expect business to pick-up briskly in the spring regarding GOP candidacies.

Of course, a big name like a Sarah Palin could duck the June debate and still get in the race later, but it would be suicide for a less well-known candidate, such as John Thune or Rick Perry to sit this one out.

The filing deadline in New Hampshire isn't until next November, but I can't imagine even a Palin waiting that long to get in the mix. And don't forget, the Iowa Caucuses precede the New Hampshire primary by a week.

Almost the End of the Road for the 111th
The last few pieces of business for the 111th Congress appear to be nearing conclusion. The Senate today agreed to a continuing resolution which would continue to fund government agencies at last year's levels through March 15th. This deal was reached after Democrats had first tried to pass some form of a full year budget, but Republicans objected, wanting the new Congress to have a say in how the money was spent (and how much.) The March 15th date was a compromise that keeps the government running but still gives the new Congress a say in the second half of the year. How House Republicans navigate this opportunity when the new Congress convenes will be an early test as to how serious they are about cutting spending. The continuing resolution passed the Senate 79-16. It is expected to easily win approval in the House later today.

The START Treaty appears to be cruising towards approval. A cloture motion today received 67 votes. The cloture motion needed only 60 votes to pass, but the treaty itself will need either 67 if everyone in the Senate votes or 66, if, as expected, Democrat Ron Wyden, who is recovering from medical treatment, sits out the vote.

On top of the 67 who voted for the cloture motion (Wyden was not present), Evan Bayh (D-IN), who did not vote on the motion, is expected to support the treaty and Judd Gregg (R-NH) is on the fence. This leaves the treaty with either 68 or 69 votes versus 66 needed, so it should easily get approved tomorrow evening when the 30 post-cloture hours are completed.

Which brings us to possibly the final piece of major business in the Senate -- the 9/11 First Responders bill. Democrats have been working to pare down the spending in the bill and adjust the funding mechanisms to be more agreeable to Republicans. It is still unclear if the bill will pass before Congress adjourns as Sen. Tom Coburn (R-OK) has vowed to do everything in his power to slow the bill down, citing objections to the process being used to pass it and some of the funding provisions.

Really, Tom? This is the issue that you choose to take a stand on? Depriving financial relief for Ground Zero firefighters out on disability? Guess it's nice to have a safe Senate seat.

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Sunday, December 19, 2010

The Latest Obama Numbers, Where 2012 Stands, Son of Stimulus?

President Obama Stuck in a Channel
On Wall Street, when a stock stays within a narrow range for an extended period of time, traders often referred to the condition as being "stuck in a channel". This seems an apt description for the President's numbers. The daily numbers below show that over the course of the past month and a half, the President's approve minus disapprove have been stuck in a range of approximately -3.5% to +0.5%. Basically, slightly more people disapprove of the President than approve and those numbers aren't shifting much.

Looking at the monthly numbers, which filter out a lot of the noise of variations in polling techniques and short-term mood swings of the public, the numbers look even more stable. Using the monthly technique, going all the way back to July, President Obama has been in a range of -0.7% to -3.5%, a tight 2.8% range for almost 6 months that always showed the Presidents disapproval higher than his approval, but always by a narrow margin.

So, we have a President who is mildly unpopular at this point in his Presidency, a public perception that has been held for about 6 months, which seems like a lifetime in American politics. What does it mean for 2012?

The 2012 Race
Let's triangulate this a few ways. It is VERY early in the race...right now was about the point in 1991 when Saturday Night Live was running a bit "1992 - The Race Not to Be the Guy Who Loses to Bush" mockingly playing Democratic hopefuls trying to convince voters not to vote for them because the nominee was sure to be slaughtered by the mighty 91% approval President George Herbert-Walker Bush. Yes, the same guy who got a whopping 38% of the vote in November 1992. So let's caveat all of this by saying things can and will change, a lot, before November 2012. In which direction is the question.

So, let's look at a few angles.

I. Present Approval Rating
The President's current numbers would represent a very close race as they stand today. As I've written previously, it would likely throw the race into critical toss-ups like Colorado and Virginia, with the former being the exact dividing point to get to a winning electoral count for either party. The President is probably encouraged that the Democratic party held on in a Senate race there this past year, but that is hardly a definitive word. Translated narrowly, it says that a Democratic incumbent can narrowly beat a tea-party Republican in Colorado in the current environment, but a more moderate candidate on the GOP side might have yielded a different result. So, clearly, Republican candidate choice matters in 2012.

II. Public Prognostication
A recent poll had only 26% of the American public believing that President Obama will be re-elected. That is an interesting result, given that it significantly lags his approval rating, which has been tracking in the mid-to-high 40s. It speaks to the fact that quite a number of people who actually like the President and intend to vote for him don't believe that he can win. That's interesting, but not terribly significant. It reflects media coverage of a President under siege, and public reaction to the dramatic gains the GOP made in the House in 2008. It is far more important how people plan to vote than how they think the election will turn out, a topic on which the average voter is not particularly well researched.

III. The Gamblers Edge
I've often looked at intrade odds, as people who bet their own money tend to do their research into what is going to happen. As of right now, the intrade odds of President Obama's re-election are pegged at 55% -- actually to be more precise, the Democratic Party's odds of winning are betting at 55%, President Obama's odds are trading slightly below that.

Obviously, the collective wisdom of the markets doesn't publish its rationale, but some obvious reasons for their greater optimism for the President's chances are the potential for an improving economy between now and November 2012, the lack of a compelling national GOP candidate at this point and the demonstrated prowess of Team Obama at running a Presidential campaign.

These odds are not far off from where I would peg the race...I believe it is close to a pick 'em race, with a slight edge to the President because of the probability that things will get better over the next 22 months.

IV. The Early Match-Ups
There have been two major national 2012 polls conducted in December, each that matched the President up against a variety of potential GOP hopefuls. As I said before, take these with a hefty helping of salt, but they are instructive at least of where the public's heads are today.

NBC News / WSJ
Obama vs. Romney: Obama +7%
Obama vs. Palin: Obama +22%
Obama vs. Thune: Obama +20%

McClatchy / Marist
Obama vs. Romney: Romney +2%
Obama vs. Huckabee: Obama +4%
Obama vs. Palin: Obama +12%

Clearly Mitt Romney fares the best of the potential GOP candidates (although these polls exclude a number of potential GOP hopefuls such as Rick Perry, Bobby Jindal, John Boehner, etc.), as he looks to be close to a toss-up with the President. Mike Huckabee polls next closest, with Sarah Palin and John Thune far behind. These numbers should be far more concerning to Palin than to Thune. Thune is not well known outside of Washington, so his numbers could potentially improve significantly if the American public actually gets to know him. In the case of Palin, she is heavily exposed to the public, some would say overexposed, and it appears that the public doesn't like what it sees. Think about it -- the President has a 45% approval rating and is beating Palin by 12 to 22 points? It doesn't look pretty for the Thrilla from Wasilla.

V. It's the Economy, Stupid
There have been significant studies (I keep promising to publish an analysis, a piece of work that I still owe you, dear reader) that have shown a very strong correlation between election-year income growth and the ultimate vote result. Note that in these studies, only the election year numbers matter, as the American public has long forgotten the first 3 years by the time election day rolls around. By this measure, there is some reason for optimism for President Obama as the economy appears to have turned a corner and may be in a significant upswing by 2012.

A Stimulus By Any Other Name
A stimulus bill containing a mixture of tax cuts and spending increases that costs over $750B all financed through the deficit in the hope of creating growth in a fragile economy. The American Recovery and Reinvestment Act of 2009? No, the tax cut deal of 2010.

It's amazing to me that after all the Republican potshots at the original stimulus package when the economy was cratering, that they have now supported an even larger stimulus package at a time when deficits are larger and the economy has been stabilized. But that's what happened.

The final votes on the stimulus/tax cut deal were pretty resoundingly bi-partisan, with, if anything, far more opposition from the left than from the right:
In the House, the final vote of 277-148 reflected 55% Democratic support and 79% Republican support
In the Senate, the final vote of 81-19 reflected 77% Democratic, 88% Republican support and 50% Independent support

A pretty bi-partisan deficit-fest.

How about that original stimulus? It still has a little juice left, but has nearly run its course. Most of the tax cuts were slated to expire at the end of this year (although some were continued in some form or fashion in the recent tax deal) and a good chunk of the spending has taken place. Here are the latest numbers:

Tax Cuts: $243B spent out of $288B (84% paid out)
Spending: $340B spent out of $499B (68% paid out)

It will be interesting to see if the new GOP House tries to cancel the remaining $159B in spending when it takes over in a month. Almost all of the money has already been awarded, so it might be difficult to do so.

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Saturday, December 18, 2010

An Historic Victory on DADT, The Dream Act Falls, Jon Stewart Takes Aim on 9/11 Relief, START Wrangling Over Missile Defense

Don't Ask Don't Tell Will Be No More
At long last, gay members of our United States military will be allowed to serve openly without fear of reprisal. No more will we lose Arabic translators simply because of their sexual orientation. No more will our war heroes be fired in disgrace because of their family lives. No more will the military be a haven of discrimination. This is a great day for the United States of America.

I have often said that gay rights are the civil rights battle of our time. Today is a victory in that battle. Today is a victory for our military. Not just the thousands of gay troops who, at long last, will be able to proudly serve their country without being forced to conceal who they are. Not just for the boost that military recruiting will get by being able to actively recruit gay enlistees who would have shunned service in the past because of Don't Ask, Don't Tell. No, this is a victory for every member of the military, who can be proud to serve in an armed forces free of discrimination that is taking a forceful stand against bigotry.

This victory was a long time in coming and deserves the celebration and pride of the American people.

The key vote on cloture passed by a resounding 63-33 vote, with all present Democrats joining both Independents and 6 Republicans in favoring the measure (Joe Manchin, the newly elected conservative Democratic Senator from West Virginia, was rumored to have opposed the measure, but was not present for the vote.)

I'd like to recognize the six Republicans that showed the political courage to do the right thing in spite of intense pressure on the Republican side of the aisle to vote no. Susan Collins, Olympia Snowe, Lisa Murkowski, Mark Kirk, Scott Brown and George Voinovich bucked their party to be on the right side of history. Good for them...while Voinovich is retiring from the Senate, the other 5 will face the potential of primary challenges and still stood to their convictions. It is gratifying to see that the pronouncements of the death of the moderate are far overstated.

I'd also like to commend Connecticut Independent Joe Lieberman for his tireless leadership on this issue. Joe can rankle the Democratic leadership from time to time, but he has shown himself to be a true patriot. Let's hope the voters in Connecticut don't forget this in 2012.

This change in policy will never be repealed...progress marches on in spite of the resistors. It's a shame that there are 33 Senators that chose to be on the wrong side of history. Perhaps most disappointing was Senator John McCain (R-AZ), who at one time at least open to discussing progress on this issue. I guess his transformation from maverick to party hack is complete.

The DREAM Act Fails
The DREAM Act, a bill to provide a path to citizenship for illegal immigrants who entered the country illegally as children and served in the US military a path to citizenship will not become law, at least this year. The cloture vote failed with only 55 of the required 60 Senators needed to break a filibuster voting in the affirmative. 50 Democrats, both independents and 3 Republicans voted for the bill, but could not overcome the opposition of 5 Democrats and 36 Republicans voting "nay" (3 Republicans and 1 Democrat were not present at the vote.)

I had written earlier in the week that I did not see how the math could work to get to 60, so the fact that this vote failed is no great surprise to me, but it is a shame. I hope the next Congress will tackle the issue of immigration comprehensively, but I'm not holding my breath.

Jon Stewart Targets GOP Filibuster on 9/11 Bill
The bill to provide medical benefits and compensation to 9/11 first responders, which had been caught up in the GOP promise to filibuster all legislation became the target Thursday night of Jon Stewart's ire on the Daily Show. Jon had firefighters and police officers who were 9/11 first responders and had suffered ill medical effects as a result of working in the debris on his show to discuss their disappointment in Congress not acting.

Former Arkansas Governor Mike Huckabee also spoke on the show, calling on the GOP to support passage of the bill.

My hope is certainly that with the tax bill resolved, the GOP will remove its opposition to the 9/11 first responders bill and that the Senate will find a way to pass the bill this year (the House has already passed it.)

START and Missile Defense
GOP concerns around the new START treaty appear to be centering around its potential implication on missile defense. Specifically, they cite that the preamble, in their eyes, appears to state that future missile defense systems could give Russia the right to withdraw from the treaty. The actual text of the preamble is below:

"Recognizing the existence of the interrelationship between strategic offensive arms and strategic defensive arms, that this interrelationship will become more important as strategic nuclear arms are reduced, and that current strategic defensive arms do not undermine the viability and effectiveness of the strategic offensive arms of the Parties,.."

The GOP concern centers around the use of the word "current", seeing the implication that "future" strategic defensive arms initiatives could be viewed to undermine the viability of the initiative. John McCain has proposed an amendment to the preamble that would change the preamble.

The preambles of treaties are explanatory statements that are non-binding legally but often express the understanding of the countries as to how the treaties will be interpreted. From this point of view, McCain's argument has some merit. But the Senate adjusting wording in a carefully negotiated treaty is walking on a knife's blade at the very least.

The vote on the McCain amendment is scheduled for this afternoon. I don't have a lot of intelligence on its odds of passage, but my guess will be that it will not, as most Democrats will not want to change wording in the treaty in a way that could damage Russian support for the measure.

Next up...back to the numbers as I update Obama's popularity tracking and assess several of the early polls in the 2012 race.

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Wednesday, December 15, 2010

Might the Lame Duck Be Less Lame Than I Thought?

The Unfunded Giveaway Advances
Last week, I went through in great detail, all the reasons why I thought and still think that the deal reached between President Obama and Congressional Republicans was a bad deal for America. The deal appears inevitable at this point, receiving massive support in final passage in the Senate, by a whopping 81-19 margin, with only 13 Democrats, 5 Republicans and Independent Bernie Sanders of Vermont, who entered Senate folk lore with an impassioned eight and a half hour speech on the Senate floor this past weekend that picked apart the provisions of the deal one by one.

The measure now moves to the House, where a vote is expected early next week, and save for a few liberal holdouts (and possibly a couple of Conservatives that don't like the unemployment extension provision), it seems sure to pass by a broad margin. The one potential hiccup is that some liberal House members are vowing to vote on an amendment to modify the estate tax provision. Rich dead people are unpopular enough in a House that is still Democratic for another couple of weeks, that it could actually pass, which might break apart Republican support for the overall measure. But my guess is that House leadership ultimately whips most of the liberals in line and the measure will pass basically unmodified.

Interesting constitutional note: students of the constitution no doubt know that it states that bills impacting taxes and spending must originate in the House of Representatives, not the Senate. One might wonder who then the Senate can have first passed a bill which will now be voted on in the House that has exactly those impacts. The answer lies in technical legislative process. The Senate bill is technically an amendment to a non-controversial air travel infrastructure bill that the House had already passed. The constitution allows the Senate to amend tax and spending bills already passed by the House, so the Senate has simply amended the air travel bill to incorporate the tax and spending measures and the House will actually be voting to concur with the Senate amendment. Hardly seems like what the founders intended in terms of control of the purse strings, but it is technically within the constitutional rules.

Lots of Action Yet to Come
With the deal on taxes and spending, the deck has been cleared for all sorts of action on other fronts, as a unified Senate GOP caucus had vowed to filibuster ALL legislation until a deal was reached on taxes and spending. The Democrats have a short couple of weeks before this congress ends, but it actually appears there is the potential to do a few big things.

(1) The START Treaty
Continuing our constitution lesson, treaties require ONLY Senate approval (the House does not vote on them), but require a 2/3rds vote for ratification. The START treaty renews nuclear reduction efforts with Russia that have been through many rounds, dating all the way back to the Reagan Administration. It is a significant deal that would reduce stockpiles of the US and Russia by 25% over the coming couple of decades. And it appears that there may be sufficient bipartisan support to obtain the 67 votes that are needed for passage. The Senate just voted tonight to commence debate on the treaty. Filibuster is not at issue in this case as the 67 votes needed for ratification exceed the 60 vote requirement to cut off debate.

Odds of Passage? High.

(2) Don't Ask, Don't Tell
Amazingly, this outdated and discriminatory policy may finally die this year. The original strategy had DADT repeal tied to the Defense authorization bill, but that has been bogged down in the Senate as it is a complex bill that touches on many aspects of defense policy and even some repeal supporters didn't like it muddying the waters of other defense issues.

The new strategy, of a standalone bill that repeals the policy, seems to be bearing fruit. The House has already passed the measure today, by a 250-175 vote, mostly along party lines (15 Republicans voted for, 15 Democrats voted against, all of the rest voted the party line.) And the support seems to be there in the Senate. The last 4 Moderate Republicans standing: Susan Collins and Olympia Snowe of Maine, Scott Brown of Massachusetts (who has been quite a pleasant surprise in his willingness to work across the aisle) and newly crowned Tea-Party killer Lisa Murkowski of Alaska have all expressed support for the standalone measure (in a technical sense, she is an elected Republican until January, at which point she becomes an elected Independent who caucuses with the GOP.) It appears that at least 55 of the 56 Democrats in the Senate support repeal (Ben Nelson, as usual, is a question mark) and both Independents (Joe Lieberman and Bernie Sanders) have been vocal advocates of repeal. By my math, this gives the repeal bill the support of 61 current Senators, more than the 60 needed to stop a GOP filibuster.

Odds of Passage? Surprisingly, high.

(3) The DREAM Act
The Obama Administration-backed effort to provide a path to citizenship for people whose families came to the US illegally when they were children and who serve in the armed forces appears to potentially have the votes to pass. Passage in the House appears assured if it is brought to the floor prior to January 5th (when the new GOP majority arrives) and there appears to be 55 committed "yea" votes in the Senate, including conservative Republican Senator Orrin Hatch of Utah, who is one of two primary sponsors of the bill. If the Democratic leadership can get the fence-sitting Democrats to vote yea, Hatch's support, along with the support of Bob Bennett of Utah, Lisa Murkowski of Alaska and Dick Lugar of Indiana would potentially give the bill 62 votes, more than the 60 needed to break a filibuster.

The headwinds the bill faces are several though. Firstly, it is clearly a lower priority on the Senate category than the START treaty and DADT repeal. Secondly, 3 Democrats, Ben Nelson of Nebraska, Mark Pryor of Arkansas and Jon Tester of Montana are committed "nay" votes, meaning that at this point there really are only 59 votes for passage, not 62. And Kay Hagan of North Carolina and Max Baucus of Montana are leaning nay votes. So, now you are down to 57. This makes getting to 60 difficult, although there may be a few more Republicans (such as Susan Collins) that break for the bill.

Odds of Passage? I'm having trouble making the math work, so I'll say low-to-moderate.

Also on the docket before the end of the year is passage of a bill to fund government operations for the rest of this fiscal year (through next September.) Regrettably, once again, Congress failed to pass the requisite appropriations bills prior to the start of the fiscal year this past October, so what we have had is a cobbled-together set of continuing resolutions (I've written extensively over the past year on how destructive this process is, you can refer back to my posts from last September and October for more information), with the latest expiring this week. The House has passed a full-year continuing resolution, which basically keeps Fiscal 2011 spending at 2010 levels by a narrow 212-206 margin (Republicans felt that cut should be more significant as did some Blue Dogs, some liberals wanted a higher level), but has yet to be debated in the Senate. There is still significant disagreement over how to proceed, with many Senate Democrats preferring to pass an omnibus budget rather than simply continuing last year's funding levels (I agree in principle, although the Senate-drafted bill appears to be laden with pork not contained in the House bill.) The Senate is not scheduled to take up debate on the measure until Friday and bill opponents have threatened to force the entire bill, which nears 2,000 pages, to be read aloud prior to debate (Senate rules call for all bills to be read on the floor and while this requirement is routinely waived without objection, only 1 Senator has to object to require the reading), which could potentially push voting on the bill into the middle of next week.

So, there are still some potential significant accomplishments on the table for the lame duck congress. But there is also a lot to sort out in a few short days. Congress was attempting to be home by Christmas, but that may not be possible if they want to finish all of this business.

It should be a busy couple of weeks in Washington.

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Friday, December 10, 2010

An Awful Deal on Taxes and Spending

It's often been said that you know you have reached a good compromise when you find a deal that nobody likes but everybody is willing to accept. The negotiating process starts with two sides with opposing goals and leaves with both sides feeling that they got some things they didn't like in exchange for some things that they did. The sausage making itself is often pretty ugly, but the sausage itself doesn't taste all that bad at the end of it.

I wish I could say that this is the case with the deal that the President cut with Republicans on the Bush era tax cuts. Sad to say, I think this is a case where the compromise was actually worse than the starting point for either side. It isn't often that I oppose virtually every provision of a bi-partisan bill (I'm usually the one advocating for them), but just about everything about this deal is wrong.

Let's start with the tax cuts. $900 billion in reduced revenue over the course of the next two years and no permanent solve around our tax structure. In other words, we are pissing away $900 billion and are going to find ourselves in precisely the same place come 2012. Do any of you have ANY hope that cool heads will reach a reasonable compromise in a Presidential election year?

But don't tax rates need to be maintained to protect the fragile economy? This popular line is proven nonsense. President Clinton passed a large tax increase on the heels of the 90/91 recession and it didn't sink the fact, we had one of the strongest periods of economic growth in our history. Ronald Reagan signed a significant tax increase package in 1985. It would be hard to argue with the success of the second half of the 80s. Taxes don't spur recessions, unless they are very extreme. Asset bubbles and monetary crises do. If you give me the choice between lower taxes and a smaller deficit, I make the same choice every time, and it isn't for the tax cuts.

And look at the cuts for the rich...and not just the living rich either, huge breaks in the estate tax, basically a giveaway to the dead rich. Explain to me how encouraging people not to spend money while they are alive helps stimulate the economy again?

Now, on to the spending hikes. And make no mistake about it, extending unemployment benefits BEYOND 99 weeks is a spending increase. After nearly a full two years, if you are taking government money, it is no longer unemployment insurance, it is welfare. And we have no money to fund it.

But don't we need extended unemployment insurance because of the lack of jobs out there? Beyond the ordinary 26 weeks, absolutely. But beyond 99 weeks? It isn't like there are NO jobs out there...minimum wage jobs abound. Sure, there may not be a job in your town in your field at the income you want. But after two years, it's time to take a dose of reality and move, change fields or accept lower pay. A far better path would be an expanded Earned Income Tax Credit. Then we would be subsidizing the people who DO take the minimum wage jobs and helping them provide for their families, rather than paying people not to take said jobs.

This compromise is the height of irresponsibility. Lower taxes AND higher spending when we just saw a deficit reduction commission report on how much we need to CUT spending and RAISE taxes? Where are the deficit hawks? Heck, where are the people who can do basic math?

I voted Republican (for the first time in a long time) during the mid-terms to force the parties to the table to address the deficit. So far, I'm decidedly unimpressed with both the GOP and President Obama.

Saturday, December 4, 2010

On Tax Cuts, The Filibuster and Our Narrow Thinking, Encouraging News on the Deficit Panel

The lame-duck Senate today is voting for cloture on two Democratic proposals, one to extend the Bush era tax cuts for all individuals with income under $200K and all married couples under $250K and another to do the same for all earners under $1 million. The votes seem assured to fail as all 42 Republicans (because the election in Illinois was a special election, Mark Kirk is already seated for the lame duck session) vowing to hold out for a bill that extends all Bush era tax cuts.

Here is the honest truth that neither party is telling you...we simply cannot afford to extend ANY of the tax cuts to earners at ANY level. The cost of extending to those under $200/$250K is approximately $4 trillion over the next 10 years. The cost of extending to those above that level is an incremental $700 billion.

I like a tax cut as much as the next person. But we can't afford any of them. Not with red ink spilling as far as the eye can see. It's time for all of us citizens to grow up and realize that you can't have huge government spending on two wars, Social Security and Medicare as it exists today AND have low taxes for everyone.

But neither party will tell you that. On 85% of the cost of the extension measure, the parties are in violent agreement. On the other 15% (the tax cuts for high earners), I suspect that the GOP will ultimately get its way, at least for 2011. What a shame that we continue to borrow from China because we aren't grown up enough to pay our bills.

By the way....isn't it ironic that the Bush Tax Cuts were passed under reconciliation so as to prevent a Democratic filibuster but that the Democratic changes in the rules of reconciliation now prohibit them from using this tactic to get their version of the extension? Democrats tightened reconciliation rules when they came to power to limit reconciliation to appropriations bills and deficit-reducing bills. Since the base case is that all the tax cuts expire on Jan 1, this clearly does not meet either of those criteria. The net effect of not being able to pass a deficit-increasing bill under reconciliation is likely to be that an even more deficit-increasing bill is ultimately passed.

Where is Ross Perot when you need him? Or even John McCain from a few years ago, a man who opposed the Bush Tax Cuts on the basis of their impact on the deficit.

Some Reason to Be Encouraged
While the bi-partisan deficit reduction panel didn't reach the 75% bar it set for itself (14 out of 18 members voting for the proposal), it did ultimately get 11 out of 18 members to back a very tough set of spending cuts and tax increases that would reshape the course of our nations budget.

I've written previously about why I support many of the key provisions of their plan, including raising the Social Security retirement age, eliminating or severely curtailing the home mortgage interest deduction and making meaningful cuts in defense spending. At the time, I lamented that it would probably quickly fall by the wayside as spineless Republicans and Democrats, who have seemed unwilling to ask even the most basic sacrifices of the population to balance our budget, would all find something to hate in the bill.

Maybe I was too hasty in my judgement.

On the deficit panel, liberal Senator Richard Durbin voted for the plan. So did conservative Senator Mike Crapo. So did conservative former Senator Alan Simpson. So did moderate Democrat Erskine Bowles.

Since the release of the report, 13 additional Senators, 12 Democrats and Independent Joe Lieberman have all urged support for the proposal.

I'm encouraged, but obviously we are a long way from passage. I strongly urge President Obama to work with the new GOP leadership in the House and Democratic leadership in the Senate to build support for key elements of this proposal early in the new year.

The best thing that we could do for the nation's long-term prosperity is to deal with the structural issue of the deficit. This is an issue that will require sacrifice and needs Presidential leadership. Let's hope the President can show some.