Monday, July 29, 2013
One of my favorite hammers is what game-theory types call "coordination," a hammer created to pound a nail called the tragedy of the commons. A tragedy of the commons happens when everybody does what's in their best interest, and the result blows up in their face. The classic example is the fishery. If all of the fishermen in a particular area agree not to overfish the fishing ground, there will always be enough fish to catch. But if someone cheats, the cheater gets more fish than anyone else, and, more important, if he is the only cheater, the fishing ground continues to thrive and no one notices. Thus, it is in each fisherman's interest to cheat. But if they all cheat, the fishing ground is destroyed, and they all lose. This is a tragedy of the commons, and it is prevented by the establishment of enforceable rules against cheating.
But I'm not here about fishing. I want to talk about gerrymandering, the practice of drawing Congressional districts to make them most favorable to the party in power in the state legislature (which draws the districts). The "commons" here is the US House of Representatives (our version of the UK's House of Commons!), to which we send representatives to advance our political interests. As partisans with political interests, we each want our party to have as many House seats as possible. But as citizens, we want the House to be a functioning legislative house, not a dysfunctional mess. The only way to assure a House the works is to send Representatives who represent their entire districts and are able, therefore, to compromise on issues that have the support of the majority of the people in their districts. But the best way to get the most members of your party in the House is to gerrymander - to "cheat" on the policy of full representation in order to get an advantage for your party.
The method is very simple, when the Congressional districts are redrawn periodically, the majority party in the state legislature figures out a way to make as many districts as possible "safe" for that party's members. That usually means drawing districts that consist, to the extent possible, of (i) 100% minority party voters, or (ii) a significant majority of majority party voters.
Suppose there are 140 Democrats and 160 Republicans in a state, and the Republicans control the legislature, which has to create three Congressional districts of 100 voters each. If the population is divided equally, the Republicans will have a registration advantage in every district, but not a "safe" seat, as an immoderate Republican might well lose to a moderate Democrat in any or all of the districts. If, instead, the legislature can put 100 Democrats in District 1 and split the remaining Democrats evenly between the other two districts, then two of the districts will be safely Republican, consisting of 80 Rs and 20 Ds each. The ration of R's to D's is 8 to 7, but the ratio of R Reps to D Reps is 2 to 1. Nothing to it.
If the majority party assumes that anyone who can command the votes of half its primary voters is a good choice for Congress, then it is always in that party's interest to create these gerrymandered districts. Unfortunately, that assumption is not correct. By making a district safe for either party, the state legislature effectively makes that party's primary the key election in each Congressional cycle. Thus, the majority party within each district elects the Representative from that district. Or, to put it another way, to become the Representative from a district, a candidate need appeal only to a majority of the primary voters of the majority party in that district.
History has begun to show us that the most liberal Democrats and most conservative Republicans tend to win primaries these safe district primaries. Why? Because "electability" is not an issue there. If more than half of primary voters are either very liberal or very conservative, but the winner of each primary would have to get a substantial number of votes from the other party to prevail in the general election - because, say, a substantial part of each party would prefer a moderate from the other party to an ideologue of their own party, the primary voters will have to take into account the electability of its party's primary candidates. Thus, even if the majority of the voters are ideologically far from center, they may vote for a moderate of their party over someone who shares their ideological views to assure that their party wins the seat in the general election. Without this electability consideration, however, the ideologically inclined voters have no incentive to vote for a moderate candidate, and both parties end up putting an ideologue in the general election and, by virtue of the party's overwhelming majority in the district, in the House.
Gerrymandering destroys the commons of the House in two ways. First, by assuring itself that it will dominate the state's Congressional delegation, the party establishment of the majority party loses control of its Congressional delegation, because ideologues win the primaries over the establishment's candidates. At least, that's how it works until the ideologues become the party's establishment. The result is that the people who go to Congress do not know how to be legislators and, even worse, don't even know how to be party members. Party caucuses are refractory precisely because the parties have finagled the state process to get the largest possible caucus.
Second, by sending ideologues to Congress, the party loses the ability to get anything done in Congress, because the ideologues from both sides refuse to do anything together. Thus, even the ideologues who get elected fail to accomplish their agenda, unless their agenda is to stop Congress from acting at all, which for some of these people is the case. But that is not their party's agenda; it is their agenda. And, thanks to their party's stupidity, the obstructionist agenda is the only agenda that is served.
The pernicious effect of gerrymandering can be seen in the so-called "Hastert Rule," whereby Republican Speakers refuse to bring to the floor of the House any bill that does not have the support of a majority of Republicans. (The Democrats don't follow this rule when they are in the majority, which probably means that they aren't gerrymandering as effectively as they could.)
Under the Hastert Rule, electability is replaced by passability, and the same game that occurs in the elections is repeated with respect to legislation.. A bill that a majority of Congress would approve can effectively be vetoed by a majority of the majority, which might be as few as 26% of the House's members. One might ask why a more statesmanly Speaker would permit this sort of rule to apply. The answer is simple: the Speaker is elected by his or her party. In the case of the Republicans, so many ideologues have been sent to Congress thanks to gerrymandering that the Speaker who does not enforce the Hastert Rule will lose the job of Speaker. A majority of the majority insists that the Speaker impose the rule. And that is so because a majority of the majority are ideologues with no clue at all how to be legislators.
Gerrymandering thus cuts to the very heart of the small-r republican form of government the founders intended. Gerrymandering does not just disenfranchise individuals by making their vote in the general election nugatory. Gerrymandering degrades the quality of the people who win general elections by relieving them of the need to represent their district as a whole, by making it unnecessary that they have the expertise in the statecraft that makes a republic better than a mob. Gerrymandering sends to Congress Representatives who do not represent - legislators who do not legislate - politicians not only unversed in the art of the possible, but wholly uninterested in acquiring it.
Old as gerrymandering is, Congress was not always affected by it.
Saturday, March 31, 2012
What childcare mandate? The one in Section 21 of the Internal Revenue Code. Stripped of all the if's, an's and but's, Section 21 says in effect that if you are a married couple with two or more kids, and you both work, and you do not pay at least $6,000 for childcare, then you will have to pay a penalty equal to 20% of the shortfall. The penalty is dressed up as a credit for people who do pay for childcare. But as they say in Latin, tometo, tomato. Obamacare raises your taxes unless you buy healthcare, in which case you get what amounts to a credit equal to the increased tax.
Some (maybe all) of the arguments advanced against the Obamacare mandate are downright silly. The first is the big deal claim that the mandate forces people to buy something "from a private party," a really strange argument coming from people who fought tooth and nail against a single-payer, government system. But the objection is trivial. The childcare credit is available to people who get their childcare from a private provider, just like the healthcare credit. You buy the service, or you pay the tax.
I won't say that there is no "compulsion." The power to tax is the power to destroy, which, I think can fairly be said to include the power to compel for constitutional purposes. But the power to tax exists, so the fact that there is some compulsion to it hardly negates a law ipso facto. It's not clear why the home mortgage deduction is not a compulsion, the childcare credit is not a compulsion, but the Obamacare penalty is a compulsion. Medicare forces us to buy insurance from the government and even garnishes our wages to pay the price. How a private analog that collects payment on the 1040 can be seen as constitutionally worse is not clear to me.
Nor do I find the "broccoli" argument terribly persuasive. For one thing, a mandate as specific as broccoli might give purveyors of other cruciferous veggies a valid reason to complain. The Congress is not in the business of picking winners and losers at so granular a level. The larger point is that the state's right to set reasonable speed limits does not imply that a speed limit of 5 mph could not be struck down for impeding interstate travel or freedom or some such thing. Courts draw distinctions based on real-world implications all the time. Healthcare is healthcare, and broccoli is broccoli. (Which is not to say that Congress could not provide a tax credit for anyone whose physician certifies that he has been following a wellness program with observable results. Remember, every tax credit is a penalty on those who do not qualify for it.)
So what about the Anti-Injunction Act (AIA), which precludes challenges to tax laws before someone is actually face with paying the tax? Justice Alito rightly pointed out that the Solicitor General, who is expected to argue, as I do, that the "penalty" is really a tax for constitutional purposes is also arguing that it is not a tax for purposes of the anti-injunction statute. The jurisprudence of that law is pretty murky, so I don't know, for example, if the government can waive it or if the court can raise it sua sponte to throw cases out.
Calling the tax a "penalty" does not seem to me a way out, but Congress has the power to exempt any act from the AIA, so it might be deemed to have used the word "penalty" with that purpose, if that's where the Court decides to go. But this point really takes us back to broccoli. If the Court decides to reach the merits on this case, it may someday have to limit the holding to its peculiar facts so as not to permit a broccoli mandate. But the Court has done that whenever it has had to, so I don't see why it should be an obstacle in this particular case. Still, if I were on the Court, I would be sorely tempted to throw the case out as premature and let Congress expressly bypass the AIA if it wants to. Apparently, both sides want the case heard, so they ought to be able to pass an exemption for it.
If the penalty is held unconstitutional, the law fails. I think the mandates directed at insurance companies may become unconstitutional absent a legislative solution to adverse selection. I wonder if any insurers were invited to brief that issue. If not, they will bring their own lawsuit, which would not be subject to the AIA as the compulsion applied to them is not enforced by a tax of any kind. If I were on the Court, I think I'd be agree with Justice Breyer that the Court should not have to read through the whole act and decide what rises and falls. But then, I would vote to uphold the penalty, so the question is moot even inside my own brain, i.e., I don't need to say what I would do if I struck down the penalty, which I think I would have to do if that were how I would vote. So I won't.
Saturday, February 11, 2012
So, in effect, The Church is willing to pay for its employees to eschew contraception; indeed, it will help them do so by not paying for contraception. But if an employee chooses to get it on her own, the Church will, presumably, receive the savings as the preventive benefits reduce the cost of the employer's insurance. Moreover, because using contraception saves money, the employee can get it at no charge from the insurance company - which will provide it at no charge only because it is also providing coverage to the employer. In a logical universe, that "only," not to mention the cash benefit, would somehow implicate the institution in the provision of the services. But, fortunately, we're not in a logical universe. We're in church.
Sunday, November 27, 2011
Actually, that not right. What I don't want is a candidate who lies his way to the nomination, because such a candidate will not be any fun at all to watch try to get elected. What I want is an interesting campaign, and Newt and Barack will bring an intellectual depth to the proceedings that will be refreshing for those of us who have endured nearly a lifetime of brain-dead politics. It won't be Olympian, or even Phialdelphian, but it will be substantive, with at least the possibility of the candidates raising some of the right questions. That's really all one can hope for in a national campaign, and G-d knows, we can't expect the media to ask them.
So if you get a chance, see if you can't get Newt on the ticket, even if you want the GOP to lose (or maybe, especially if you want the GOP to lose). The civics lesson will be worth the price of admission.
Tuesday, October 4, 2011
I decided to check out 2 Broke Girls on CBS last night. It's not very good, but that's hardly news. What is news is a bit of dialog. The two young women to whom the title refers were shopping in a Good Will Thrift Store. One picks up a pair of shoes marked at $8 and asks the cashier for a discount. The other girl says to the first: "I can't believe you're trying to shoe her down." At the GOOD WILL store, yet. Oy.
Thursday, April 14, 2011
The question in this case is whether the plaintiffs have standing to challenge a tax credit that Arizona is giving to private school donors. most of whom are contributing to religious schools. Let's ignore stare decisis for a moment. No one relies on "standing" jurisdiction in ordering their affairs, so observing precedent isn't terribly important. Suppose, instead that our "standing" jurisprudence consists of (i) the "case or controversy" language in Article III and a prudential notion that a citizen, qua citizen, has no standing to complain of governmental action. One good reason for such a rule is that someone who is actually aggrieved by the government action is a better representative of his side of the argument than a citizen who is merely, allegedly, opposed to it. I mean, how do we know that the complaining citizen is really not just shilling for the government, that he won't lie down and play dead once the case is brought? Moreover, the courts are too busy to waste time on complaints without real complainants. If no one is hurt enough to complain, why bother to address the alleged problem? (I'm sure all of this has been covered ad nauseam in the relevant authorities, but we're just a couple of guys talking here, not legal scholars, so we'll leave reading the authorities to people who get paid.)
In most constitutional matters, the challenged action does affect someone directly. Someone is held liable for exercising free speech, or denied a permit to assemble peaceably, or not allowed to bear arms, or searched unreasonably, or not Mirandized, or denied counsel, or sentenced cruelly and unusually. But is the same thing true of the Establishment clause?
Suppose that Arizona, instead of allowing a tax credit for donations, had gone right out and declared Shinto the "State religion," but only in the sense that the saguaro cactus flower is the state flower, i.e., with no legal consequence to anyone. Who could complain? Who is hurt? Suppose some guy is denied a job by a private employer on the grounds that he is not a follower of Shinto, the employer reasoning, and admitting, that he believes it's good politics and customer relations for him to hire someone of the state's "official" religion. Our victim might then have a case. But doesn't he already have one under Title VII of the Civil Rights Act? Would he ever get to the Establishment clause? Indeed, is it possible to envision a violation of the Establishment clause that prejudices an individual but does not give rise to a complaint under the "equal protection" provision of the Fourteenth Amendment or some civil rights statute or other?
So, as a practical matter, it may well be that the only violations of the Establishment clause that don't have a remedy outside the Establishment clause are those that involve spending public money to favor one metaphysical worldview over one or more others. As a result, perhaps, the chosen avenue of attack has been the taxpayer suit, wherein someone alleges that the government has misspent his money in violation of the Establishment clause, even without a demonstrable link between such action and any individual harm to the complaining taxpayer.
Enter Flast v. Cohen. In that case, the Court held that a taxpayer, qua taxpayer, can contest Congress's exercise of the taxing and spending power, and because any taxing or spending done in violation of the Establishment clause necessarily exceeds Congress's authority to act, a taxpayer can challenge an Establishment clause breach that involves spending or taxing. That may sound narrow, but recall that any other violation of the Establishment clause would almost certainly create an individual harm that would support standing by an actual aggrieved party, under some other provision of law. Thus, Flast effectively created a taxpayer's remedy for "victimless" Establishment clause violations. Or, so it seemed until Arizona Christian STO came along.
Flast seems to me to rely on the legal fiction that the plaintiff taxpayer is aggrieved because it's his money being spent. If, as Chief Justice Warren argued in Flast, standing is required to assure that the parties are "sufficiently adversarial," the tenuous interest of an individual taxpayer in an insignificant government expenditure - the plaintiff's share of which would surely be de minimis in any other context - seems weaker than that of an atheist to be protected from the consequence of that spending. It does not appear that the plaintiffs in Flast complained of harm as non-religious persons, so I don't know what would have happened if they had. Nor does it appear that the plaintiffs in Arizona Christian STO claimed anything beyond taxpayer status. Still, that seems to me the only acceptable basis for an objection to government establishmentarianism.
Arizona Christian STO points up the weakness in Flast as the only basis for standing in Establishment clause cases. Flast opens a back door, and not everyone fits through it. Non-taxpayers don't fit through it, although they may be aggrieved as members of a derogated religious minority. And now, we find, tax credits don't fit through it either. There is something ironically theological about the dispute over whether a tax credit somehow causes the state's income tax to be unconstitutional. Is forgiving a tax the same thing as spending it? The tax laws routinely allow deductions for gifts to religious organizations. Why not a credit? But I won't be lured into counting the angels on that pinhead. The question should never have arisen. Where an Establishment clause issue exists, a plaintiff should be required to show only that he is objecting on the basis of his religious views being denigrated by the state, and not on the general, problematic basis that the taxing authority has overstepped its bounds.
Flast's kludginess also raises an issue of Federalism that bothers me. I get how the Establishment clause is incorporated into the Fourteenth Amendment's guaranty of liberty, but I'm not sure whether the issue of standing to protest the misuse of state funds under a taxing power that does not arise under the U.S. Constitution is governed by Flast. Imagine a state law that, to save the state money, provides that no taxpayer suit may be brought to contest any tax or expenditure where the taxpayer plaintiff's pecuniary interest in the matter is less than $10 per year. Would such a law be unconstitutional? Would it magically become unconstitutional if applied to a case where the bad taxing or spending violated the Establishment clause? If so, would that not, er, establish that Flast is a dodge?
I believe that the plaintiffs in Arizona Christian STO v. Winn should have had standing to press their claim as members of a group disadvantaged by the law, if they could credibly make that claim. I don't know enough about the group to say. Otherwise, they should be denied standing, not because a credit is different from an expenditure - which I suspect it is, but I don't have to decide yet - but because their interest as taxpayers is de minimis and, therefore, their adversarial bona fides are not sufficient under Article III.
Saturday, January 8, 2011
There’s an Op-Ed this morning in the NYT by Adam Kirsch, Editor of The New Republic, protesting the racial Bowdlerization of The Adventures of Huckleberry Finn (replacing “nigger” with “slave” throughout) and the omission of the so-called “three-fifths compromise” from the reading of the Constitution when Congress opened this week. Mr. Kirsch called his piece “First Drafts of American History,” and, in that context, I think he is right to complain of the changes. But life is full of contexts.
First, the more trivial problem of the Constitution. That document’s text is hardly in danger. It is the organic law of the land, and it will always be available in its original version for lawyers and scholars and anyone else to read. What happened in the House of Representatives on opening day was not a reading of the Constitution; it was political theater featuring a reading of the parts of the Constitution that were relevant to the theatrics. I see absolutely nothing wrong with omitting from that reading whatever cannot be called legally misleading, and if the three-fifths compromise is no longer operative, the House does not advance the project of comparing government’s recent actions to the current version of its authorizing law by including it in a reading of that law.
The object of the deletion is not to rewrite history. (I would say “whitewash,” but the unintentional puns and allusions would be confusing.) The purpose is to shine the light of current organic law on the actions of Congress. I’m not here to protest any Congressional action as unconstitutional, especially the mandatory aspects of Obamacare, which are fine by me. But I would defend the decision not to read parts of the original document that are both offensive or embarrassing and no longer operative. I would be very much against an attempt to publish what purports to be the text of the Constitution without all of its original verbiage, but what the House Republicans did in reading the House’s marching orders seems to me exactly right.
Then there’s Twain. The problem with Huck Finn is that it’s taught too early. If it’s as great a book as the experts say – who am I to judge such things? – why isn’t it first taught late enough in school to make ‘nigger” bearable? On the other hand, if there is a good reason to teach Huck to youngsters, the subtleties of Twain’s views on racism embodied in his method are beyond their ken (which, of course calls into question the reason to read the book in the first place), and they should, indeed, be protected from the surface-level nastiness.
The danger in fiddling with Huck is not that kids won’t get its anti-racist drift without its real words. Kids won’t get its drift with its real words. The problem is that the kids’ text will somehow become the text, that editions that include the original wording will be shunned by libraries now that there’s an anodyne version available, that politically correct colleges will take the easy way out and teach the inoffensive Twain. What the House of Representative read last week does not purport to be the ur-text of their governing document. But euphemizing Huck Finn seems to me a dangerous precedent.
The change to Huck Finn is of a piece with other accommodations to dullness and decay in our national way of going. Should class size be calibrated to an historically high level of absence so that each teacher gets to teach a full classroom? Should we drop caveat emptor because consumers are too dumb to protect themselves from deceit? Is the revision of Huck Finn not just the nanny state assuming we aren’t smart enough to read the original? And is the nanny state right? Or should we work on toughening our skins? Will we become too dumb to govern ourselves? Have we already?
Anyway, I’m fine with that the House did and not fine with what they did to poor Huck.