Democracy

Starting from Scratch: How Would a New America Solve the Tax Problem?

The brewing battle between Senator Paul Ryan and President Obama serves as a tragic reminder of just how impossible it is in this country, at least lately, to pass a responsible plan for controlling government costs. Sometimes we are precisely nowhere.

I’ve come to the conclusion that the tax dilemma — convincing people that to keep the government services they want, they need to consent to some form of responsible taxation — presents a simply intractable problem in a sufficiently polarized political climate, especially where (as here) one of the most powerful lobbyists on the issue has, as his stated goal, passing irresponsibly low taxes for the specific purpose of forcing a fiscal crisis he can leverage to trim programs he dislikes. Our leaders should be above such cynical manipulation, and our citizens smart enough to detect it. But they’re not.

Which raises the question for me of, what can we do eliminate this kind of tax gamesmanship?

Probably nothing. Grover Norquist and his allies have basically checkmated democracy. But we could solve this problem if we took it back to square one, and redesigned the entire budgeting process to solve these problems in advance. Imagine a new constitutional convention, where the re-founders assemble to deploy all of their political engineering talents to intelligently solve not just the problem of tyranny, but the many, many problems democracy has managed to invent over the years. How would they do it? A suggestion:

• Provide for nonpartisan, yearly assessment of government costs: imagine a constitutionalized Office of Management and Budget, and charge them with generating, by the close of each fiscal year, an estimate of what amount of funds the government must raise to cover costs (and pay down any such deficits as may arise). This office shall be required to submit its figures to the President, and the Congress, before the first of each fiscal year.
• Constitutionally require the Congress to raise that amount of money over the course of the next year: this is self-explanatory, but the text would run something like, “Congress shall enact legislation necessary to raise” all funds necessary to meet OMB’s estimate. This provision would also make clear that it provides no new source of congressional power and that, in assessing compliance with the requirement, all sources of revenue may be considered.
• Provide penalties to ensure compliance: we should not assume that Congress will play by any rules, especially in a fractious environment. That’s what got us into this mess in the first place. So, the rules should provide for either (1) a mutually unpalatable alternative tax, automatically enacted if Congress fails to guarantee funding by a certain date; or (2) authority for some unitary actor to make decisions in the case of Congressional gridlock (the President?).
• Account for the effects of progressive taxation: this is really a sub-point on the last issue. The alternative tax option could be, for example, an automatic proportional escalation across all tax brackets, so the automatic increase would build on, rather than supplant, previously democratically agreed-upon tax brackets.
• Allow Congress to set an alternative minimum funding bar: it’s probably impossible for any OMB-like creation to correctly account for future legislative priorities — or for overwhelming, structural deficits. So, Congress (or maybe the President?) should be allowed to supersede OMB’s recommendation of the minimum income required.
• Consider judicial solutions: as an additional enforcement mechanism, the system could provide for taxpayer standing to challenge Congressional inaction, and vest original jurisdiction in the U.S. Supreme Court to resolve any such controversies, and proscribe remedies.

Arguably, this is a radical solution. But the entire history of American democracy is the history of experimentation with political systems, often with great success. It doesn’t hurt to remember that it’s ultimately our job to come up with solutions for our problems.

We Were Promised Jetpacks, “Act on Impulse“

The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law:

And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

As much as I’m willing to grasp at anything that might help the government sustain the mandate, I hope it’s obvious to everyone that while the democratic process is itself a limit on federal power, it’s not one that can be relied upon to restrain government action. The Constitution precommits us to certain values, with the knowledge and expectation that we might, one day, try to transgress beyond them. In such cases, the Constitution is there to limit the people’s transgressions against themselves, and snap them back into line.

The very essence of the Court’s countermajoritarian role is that elections alone are inadequate safeguards on popular liberty. If this is something we as liberals accept in social causes — when we try to invalidate validly-enacted, but nonetheless noxious bans on gay marriage — we can’t ignore it when it hurts us. That’s the conservative approach, so plainly on display on Erick Erickson’s site (judicial activism is fine when they do it, you see!). But we should be above that.

Still No Evidence Voter ID Laws Work

In other equally-shocking news, water is wet and the sky is blue. The National Review trots out a recent case of voter fraud to prove the urgent need for voter ID laws, but neglects a critical distinction. The fraud case involved absentee ballots, not ballots cast at a poll site in the ordinary course. Absentee ballots are cast by mail, and have nothing to do with election day voting processes. Stricter voter ID laws would literally have done nothing here.

What Can Presidents Do About Gas Prices?

Not a damn thing (and Republicans agree!). Even if Obama authorized companies, today, to drill anywhere they wanted to, market forces wouldn’t reflect the price drop (if any ever came) for months. Here’s a problem with democracy: voters expect leaders to change parts of the world over which they have no actual control, or somehow achieve directly contradictory goals. Should the President talk tough with Iran, and let you guys suffer high gas prices; or fold like Superman on laundry day, so you don’t have to dip into the vacation fund? Pick a side, we’re at war. The only thing Presidents can do is talk about the issue cleverly. Which, admittedly, Obama isn’t doing.

Error Deflection

Because it’s come up a few times, and because I feel like a more life-based post is in order, I’d like to hit on a topic that’s come up before: even and especially when making especially important decisions in politics, or the law, how do we choose between two courses of action?

The concept I use to address some of these questions is “error deflection,” a term borrowed from one of my favorite law school professors. It starts by accepting that we act (always) on the basis of imperfect information, and that, especially with hard decisions, mistakes will often result. (“Bad facts make bad law.”)

Accepting the possibility of error, we change the question from “what should I do?” to, “accepting that I may be wrong, how would I like to be wrong?” Mistakes often have consequences, but they’ll always have different consequences. Choices effect results, in success or in error.

This has the effect of changing a question from one about possibilities, to one about values. For example, many choices are intrinsically about risk: do you preserve the status quo, or try to make it better? Error deflection in these cases is all about you. Do you take chances to build a better world? Or is what you have worth defending, and too valuable to potentially lose?

Others, especially in politics, reduce to questions about worldview. The presumption of innocence is nothing more than a conscious choice to always deflect the risk of error in a verdict towards liberty over safety. If we’re going to be wrong, we’d rather free a murderer than jail Valjean. Similarly, the liberal case in national security chooses to deflect error towards the open society. We’d rather take a 1% risk of a terrorist attack than accept the fact (or, 100% likelihood) of a society that profiles on the basis of race. And we don’t believe the ethical calculus of the presumption of innocence alters just because the magnitudes of risk increase across the board. True, freeing a terrorist is a horrifying prospect; but torturing an innocent man, and keeping him from his family until the “cessation of hostilities” is pretty bad too.

The concept works especially well with murky probabilities. Pretend that anthropogenic global warming is a 50% theory — it’s equally likely, in other words, that mankind is or isn’t affecting the climate. We shouldn’t be paralyzed by indecision, because the question of whether to do something about it, once recast, is easy. A 50% chance of human annihilation is worse than a 50% chance of trying to avoid it and failing, no matter how much it costs Exxon. (This is the case I made a few years ago. I’m just updating it for new readers.)

And, error deflection can be romantic! Should you call the girl? Well, it depends. Would you rather know, or always wonder? (And here’s a song all about error deflection: Fires in France, “Love is Strong.”)

Finally, what about the cases where success is impossible? Well, if you have nothing to lose, you might as well try. Sometimes you have to roll the hard six.

(Photo credit to this person.)

The SOPA/PIPA Question as a Quintessentially American Debate

With apologies, again, for delays. Enjoy this picture of subzero skiing as compensation/explanation for my prolonged absence.

How gratifying to see democracy work as well as it has during the SOPA debate. A cadre of lobbyists devise a plan to protect their interests inimical to both the people, and to the larger society; the people fight back; and with alarming alacrity, at a rate comparable to Republicans abandoning Mitt Romney, the lobbyists’ pet representatives jump ship. This is how it’s supposed to work!

For late-comers, the Stop Online Piracy Act is a bill introduced by the lovable Lamar Smith (R-TX), putatively drafted to end commercialized piracy of American intellectual property, especially by overseas actors (like China). This much of the goal is laudable, and drew presidential approval during Obama’s recent State of the Union Address. But SOPA’s mechanism obliterates the safe-harbor provided by the DCMA (the Act that allowed my old firm to successfully defend YouTube’s continued existence, against the assault of Viacom and other content providers), and contemplates a world where content providers may, by simply lodging a protest, see any site that hosts allegedly stolen content shut down without a hearing or chance of reply. Under extreme interpretations of the bill, as originally drafted, this site could be shuttered, in full, on the basis of a copyright complaint about any picture used here without permission. Like the above.

By this late hour, the threat appears at an end, with the Obama administration issuing a thinly-veiled veto threat. But in retrospect, I urge you to look at SOPA as part of a larger narrative, and one liberals (or progressives, if you prefer) blissfully appear to be making some headway. During the darkest depths of the Bush administration, more than a few commentators drew on Ben Franklin’s famous exhortation:

Any society that would give up a little liberty to gain a little security will deserve neither and lose both.

As a watchword for those worried about the nation’s slow slide into a police state. Freedom, the theory goes, involves risk, but it’s well worth the reward. A free society, which we declare ourselves to be, prefers to allow some chinks in our national security armor rather than to close them all at the price of our liberty of movement, conversation, and discussion.

SOPA presents an identical issue. We’ve come to value the internet as a place for free and unbridled conversation, which knits us closer together and enriches each individual’s cultural experience. The price of that liberty, though, is the continual risk of piracy, and the concomitant loss of profit that entails for content providers. By placing the burden of proof to establish piracy and shut down an offending site on content-owners, the Digital Millennium Copyright Act chose to deflect error towards freedom of expression, rather than airtight protection of intellectual property. SOPA proposed the reverse solution, and failed, to the benefit of all. It’s tempting to view individual skirmishes in the broader political landscape as isolated incidents, but to the extent the defeat of SOPA favors liberty over restraint, it inures to the benefit of the larger society.

Indefinite Detention, and Our Unlikely Ally in the Fight

At the close of the last year, President Obama signed into law the National Defense Authorization Act for 2012, which includes language that commentators claim, not unfairly, would permit the indefinite detention of even American citizens by a willing administration. The operative sections permit “detention under the law of war without trial until the end of the hostilities” of any “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” See NDAA, § 1021(c)(1)), (b)(2). The initial definition includes no carve-out for American citizens: theoretically, then, under this provision, any American citizen suspected of “support[ing]” a terrorist cell could face indefinite detention without trial or hearing.

Thankfully, President Obama will decline to exercise this authority for the duration of his tenure in the White House (pdf):

I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret [the NDAA] in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

President Obama’s signing statement lawfully construes the NDAA by building off of the closing subparts of § 1021, which follow:

(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities- Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Essentially, President Obama reads subparts (d) and (e) to reduce the entirety of Section 1021 to a tautology: “the law is what the law is.” As commander-in-chief, that’s certainly his prerogative. But because executive authority to detain stems from congressional grant, subparts (d) and (e) arguably actually permit the executive to exercise whatever authority he believes to be lawful. I’m heartened that we can trust President Obama not to claim the maximum authority he’s been given, but equally certain that we cannot so readily expect the same restraint from those members of the loyal opposition currently vying for the seat behind the Resolute desk. If the unthinkable should happen, then, Mr. Obama has in Marian fashion forged a sword that he will not wield, but could, by another’s hand, slay the state all the same. Republicans have always opposed Boumediene v. Bush, the 2008 Supreme Court decision that forbade indefinite detention without trial for war on terror detainees, and required that any such individuals at least retain the right to petition for a writ of habeas corpus. It’s all too easy to imagine a President Romney, on day one, moving swiftly to undercut Boumediene and put the apparatus of detention fully in place. And now, with the NDAA’s enhancements, there’s no indication he’d even need Congress’ help.

If this is a fight that ultimately materializes, though, let’s keep in mind how many allies we actually have. For one, Justice Scalia, dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), has railed at length against the notion that American citizens may be subject to military process simply on suspicion of terrorism:

Justice O’Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10—11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process. [. . . .]

In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U.S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U.S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80—84 (2003); see also Cramer v. United States, 325 U.S. 1 (1945). [. . . .]

There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods.

Though not our normal practice, here I’ve preserved in-line citations to illustrate just how broad and deep the legal opposition to indefinite detention runs, and how easily even a Justice as conservative as Scalia may call it to mind. Absent a true, nationwide suspension of the writ of habeas corpus — which has happened only once in our entire history, and which Congress would never authorize — a six-member majority of the Supreme Court, at least, will not permit the full evils of the NDAA to ever be realized. And that is an encouraging thought.

American Empire

Andrew Sullivan collects commentators on American imperialism, such as it is, while Salon wonders why we can’t call a spade a spade. My own take is, it’s entirely proper to consider America an empire, in the sense that empires still exist in the modern world. But that doesn’t have to be a bad thing.

We should start with a realization that, in the post-colonial era, there really aren’t any more “empires” in the Roman, British, or (sure, why not) Akkadian sense. Bound by commerce and a decent but dearly-bought respect for the horrors of war, great powers really don’t fight great powers anymore. Nor do they colonize, aggressively assimilate lesser powers, collect satellite states, or win allies at the point of a sword. America is certainly as close as the modern world gets to No matter what the Iraq excursion was — and how exciting to use the past tense — it was not a colonial mission, in that the assimilation of Iraq as a territory was never a likely or even feasible result. Those types of national adventures died with the onset (and triumph) of early modern liberalism. Further, classical “empires” don’t negotiate as peers, as America has with Iraq’s provisional government.

If we accept that classical imperialism-by-conquest is a thing of the past, we can re-ask the question with redefined terms. Post-colonialism, “empire” feels like another way of saying “hegemony-plus” — and America might satisfy that definition. Like a hegemon, empires direct the course of the world, define international norms, and actively export their culture. The imperial difference is the implication of command (imperium), and of a unitary actor. America as hegemon shares her role with most of western Europe: when nations look to model their government on successful nation-states, founded on democratic values and based on individual self-determination, they have a choice between American- and British-style democracy, and quite often elect the former. American and European cultures mutually influence each other and, in combination, influence the rest of the world.

The difference is that, left to its own devices, America could (and often does) go her own way. The American security umbrella defends vast portions of the world which, consequentially, needn’t dedicate as much of their separate national wealth to maintaining an active military. The trade-off is, in military matters, America more often leads, with European nations serving as junior partners in the venture.

That this power even exists itself supports the claim to an American empire. What we do with it is another thing entirely. From Robert Fagles:

The price of empire is very steep, but Virgil shows how it is to be earned, if it’s to be earned at all. The poem can be read as an exhortation for us to behave ourselves, which is a horse of relevance that ought to be ridden.

For so long as we possess the power, we should earn it on a daily basis. I’m not convinced we have, these last ten years, but it’s possible that we’re getting better.

A Local’s Impression of the Wall Street “Occupation”

One of the better signs; click to enlarge.

As some of you may know, I live on (and so have ostensibly been “occupying”) Wall Street for the past two years or so. Some thoughts, then, from the front lines.

For those who live or work on Wall Street — a group increasingly composed of the former as opposed to the latter — the inconvenience factor remains more bark than bite. To walk anywhere on Wall Street between William and Broadway, locals must suffer through a gauntlet of more-annoying-than-usual tourists, and tolerate the baffling presence of three-officer mounted patrols by the Stock Exchange, but that’s about it. Call it a large-footprint, low-impact police presence.

To the protesters themselves, let’s correct a few misconceptions. First, contra this guy, if the group is “mostly white,” it’s because the occupiers represent a pretty decent cross-section of America. College-age white hipster-types, or what’s become the pejorative media face of the movement, are in the minority next to middle-aged men and women of all races: the tea party age range, in other words, but with the racial and gender diversity of the left. Latinos represent somewhere on the order of 10-12.5% of the group, and come with translators, Spanish-language signs, and a parallel Latino “Assembly” (more on that later). You won’t hear much of religion beyond some signs (“Jesus stood with the 99%!”, etc.), but the movement has appointed, badge-carrying chaplains, and apparently sports its share of observant Jews. On Friday night, across the street from Zuccotti Park, about 200 people gathered for a crowd-chanted Kol Nidre, followed by a full Yom Kippur service. I’ll have pictures later; it was impressive.

Violence and violent rhetoric are nowhere in evidence; for all the media makes out of the Marxist presence (“Down with corporations!”, etc.), they’re a minority clustered at the back of the park, and hearing them speak, they lack the bloodlust of their progenitors. Apparently, violent revolution is  passé; these guys just want a constitutional convention. Similarly, anti-police activity and signs seem blissfully contained, the latter limited to one or two signs on the periphery, and the former to marches, which draw from a broader population base than the “occupiers.” Most of the protesters are affirmatively non-violent, with more than their share of puppies and guitars, and a free massage station that (I was told) was purposefully designed as stress relief for those occupiers who get too angry, at the police, or the city, or whatever. Yeah, it’s kind of funny, but it beats the alternatives.

I can’t disagree with those who say the protesters lack a coherent message; they still do. But the organization of the movement itself is more than a little impressive. Every night at 7, the occupiers hold an Assembly to discuss the day, their philosophy, and issues of camp management; later in the night, the same information is communicated in Spanish at a Spanish-language Assembly. On Friday, we heard a debate about whether to ban smoking in the park. A schedule of events is prominently displayed on the south side, convenient to the sleeping section of the park, and cleaning crews circulate throughout the area to preserve some semblance of sanitation. Labor is cleanly divided, with “stations” to fulfill most of the occupiers’ needs: there’s a Food Station, a “Comfort Station” for distributing toiletries, donated bedding, and hygiene products, and a sign-making station (pictured above). The National Lawyers’ Guild has a small volunteer outpost, and volunteer Legal Observers circulate throughout the park (and on marches) in bright green hats, so you can find them in a pinch. New Latino arrivals are greeted with translators at another station, where legal staff warn how political activity can impact your immigration status. City regulations forbid the use of microphones and amplifying equipment, but the group makes do with the “People’s Mic”: when an announcement has to be made, a leader yells “Mic Check!”, and those just within earshot respond, and repeat the message as needed. “Mic Check” comes in handy for everything from speeches and religious services to mundane camp management announcements. One we heard:

MIC CHECK!

Mic check!

A PUPPY IS MISSING…

A puppy is missing!…

Think of it like the Beacons of Gondor, but for hippies. I hope they found the puppy.

At this level of organization, it might seem baffling that the group still lacks a coherent, unitary political agenda. But focusing on this deficiency might risk misunderstanding the movement. This isn’t a protest for something; instead, it’s a (thus far) remarkably effective way of increasing the visibility of the radical left generally, in all of its iterations. For most movements, that’s the first, not the last step: it took the Continental Congress months, and the monumental efforts of one John Adams, to translate decentralized anger into an independence movement, and it took Fox News, Dick Armey, and Glenn Beck to forge a movement from the angry rabble of the tea parties. Give these guys time, and some support at the top, and something interesting might come of it.

That said, I admit that there’s a lot to dislike about the protesters. According to some, the occupiers have solved the “bathroom situation” by using customer restrooms at local businesses, all without (of course) paying a dime. That’s inappropriate, gross, and provides an unnecessary point of friction between the protesters and the community. Second, there’re far too many Ron Paul supporters. Ugh. And some locals have apparently “joined” the protesters just so they can smoke pot in public (though to their credit, I heard a few organizers getting very angry about the potentially de-legitimizing effect public drug use would have on the movement).

Finally, we can already derive a central theme to the movement: that corporations wield too much influence over the daily lives of Americans. If we woke up tomorrow and Dodd-Frank was fully implemented, Citizens United overruled by constitutional amendment, and investment banks healthily restrained by a resurgent SEC, I think most of their demands would be met, and the country would be better for it. These are people who actually care about their country — one sign, “If corporations are people, how many corporations are buried at Arlington?” really hits home — and want to leave it better than they found it. At least they’re doing something about it, and I for one see no irony in using corporate products to promote an anti-corporate message. Didn’t we use English law to dismantle the English monarchy? As far as causes go, I’d already take this one over the tea party’s cause célèbre of re-establishing child labor.

Protests, Alienation, and the Underused Franchise

The Economist, per longtime reader Mike, argue that the noisy protests of a class that doesn’t even bother to vote ought to be written off as meaningless:

Many of these aggrieved youth believe that the government has become unresponsive, that their voices have been silenced, and therefore protest is the only option. But this strikes me as a fundamental misreading of the past three years. It is likely that few of the protesters have actually taken part in the more mundane aspects of the system they’d like to take down—for example, only 24% of 18- to 29-year-olds voted in the 2010 mid-term elections. And while they were quietly seething, the tea-party movement was showing America what democracy actually looks like, pushing their candidates forward and holding them accountable. When liberals complain that the Republicans are beholden to the tea-party movement, is that not an admission that the system is responsive?

I can’t disagree that youth turnout in this country remains pitiful. But I don’t think low turnout is an effect of laziness, or some alienation based on general teen angst; it’s the effect of a larger agenda, emanating exclusively from the right, and geared to keep young people out of politics. If young people feel alienated from national politics, it’s because they’re deliberately made to.

When we train Democratic election protection workers, we teach them three things. First, that their role is to preserve the integrity of the franchise, and not to electioneer, or otherwise favor Democratic candidates. If their efforts result in an increase in Democratic votes, it must be because they have cleared away obstacles that impede willing voters, not placed them in front of others. Second, we teach them to look for racial intimidation tactics — the presence of police officers (not generally a requirement under state election laws), and overly aggressive or unnecessary requests for identification. Third, we give them a thorough background in state student-voter laws. Most states permit university students to vote based on their university residence — this is fair, because young people will naturally feel more connected to the democratic process of their adopted home and, it’s where they actually live.

But students frequently receive conflicting information about their right to vote, from Republican-controlled state agencies, or activists masquerading as election officials at pollsites. 2008 saw more than a few state boards of elections — like Virginia — engaged in a deliberate attempt to confuse and deter student voting, which was perceived as likely to (and ultimately did) flip the state into the Democrats’ column.

Consider this alongside other obstacles in the voting process — unnecessarily early registration deadlines, obstacles to registering for (and receiving) an absentee ballot, and the hopeless gerrymandering of city voters, all barriers opposed by Democrats but propped up by Republicans — and is it any wonder students and young people feel alienated, and driven to protest?