Don’t Blame Bureaucrats

Regarding our recent discussion about the purported “flexibility” of private business vs. “government bureaucrats” — there really is a problem with inflexibility in government, but the infamous “bureaucrats” are not the cause.

In the current Atlantic, James Fallows writes about “How America Can Rise Again.” It’s supposed to be cheerful, I think, but it isn’t. This comes near the end:

The late economist Mancur Olson laid out the consequences of institutional aging in his 1982 book, The Rise and Decline of Nations. Year by year, he said, special-interest groups inevitably take bite after tiny bite out of the total national wealth. They do so through tax breaks, special appropriations, what we now call legislative “earmarks,” and other favors that are all easier to initiate than to cut off. No single nibble is that dramatic or burdensome, but over the decades they threaten to convert any stable democracy into a big, inefficient, favor-ridden state. In 1994, Jonathan Rauch updated Olson’s analysis and called this enfeebling pattern “demosclerosis,” in a book of that name. He defined the problem as “government’s progressive loss of the ability to adapt,” a process “like hardening of the arteries, which builds up stealthily over many years.”

We are now 200-plus years past Jefferson’s wish for permanent revolution and nearly 30 past Olson’s warning, with that much more buildup of systemic plaque—and of structural distortions, too. When the U.S. Senate was created, the most populous state, Virginia, had 10 times as many people as the least populous, Delaware. Giving them the same two votes in the Senate was part of the intricate compromise over regional, economic, and slave-state/free-state interests that went into the Constitution. Now the most populous state, California, has 69 times as many people as the least populous, Wyoming, yet they have the same two votes in the Senate. A similarly inflexible business organization would still have a major Whale Oil Division; a military unit would be mainly fusiliers and cavalry.

Well, yeah. That’s about as concise a description of our basic problem as I’ve seen anywhere. But do we dare revise the Constitution and change the makeup of the Senate? Until very recently I’ve been opposed to any mucking around with the Constitution, but maybe we should be discussing it — not just Senate reform, but Senate revision.

The whole article is worth reading. The problem with it is that Fallows keeps coming up with reasons why America really isn’t going to hell in a handbasket, but I don’t find his assurances very reassuring.

Can Obama Reboot?

While I don’t agree with everything Frank Rich wrote in his column today — for example, Rich seems to think Congress should abandon health care reform — but he’s right here:

Obama’s plight has been unchanged for months. Neither in action nor in message is he in front of the anger roiling a country where high unemployment remains unchecked and spiraling foreclosures are demolishing the bedrock American dream of home ownership. The president is no longer seen as a savior but as a captive of the interests who ginned up the mess and still profit, hugely, from it. …

…Obama has blundered, not by positioning himself too far to the left but by landing nowhere — frittering away his political capital by being too vague, too slow and too deferential to Congress. The smartest thing said as the Massachusetts returns came in Tuesday night was by Howard Fineman on MSNBC: “Obama took all his winnings and turned them over to Max Baucus.”

President Obama is only one year into his term. Can he reboot his administration? Can he recapture some momentum? I think it’s possible for someone of great political skill — Bill Clinton comes to mind — to dig out of a hole and reclaim public confidence, but whether Obama can do it remains to be seen.

The return of David Plouffe indicates the White House knows it has to change course. However, it shouldn’t be the job of a political adviser to tell the President to stop being vague, slow and deferential.

Other Stuff to Read: Bob Herbert, “They Still Don’t Get It

Update: It won’t happen, but here’s one way the Obama Administration could shake things up.

We’re All State-Created Entities?

Someone in a comment suggested that we non-libertarians are ignorant and we should educate ourselves by reading the Volokh Conspiracy, a well-known blog you’ve probably heard of. So I went over there to see what the brilliant Volokh Crew had to say about the recent Citizens United case regarding the free speech rights of corporations.

So here it is, and IMO the whole thing is a tortured exercise in stacking one straw man argument on top of another, beginning with the title, “Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities’?”

One especially remarkable part of the argument (See subhead 3, Nearly Everyone and Everything is Probably a “State-Created Entity.”) says,

Even individual citizens might be considered “state-created” entities under this logic. After all, the status of “citizen” is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. — the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, “citizens” are no less “state-created” entities than corporations are.

First, in theory, the government IS the people, and the House at least is supposed to BE the people, the citizens, sitting in representation, and when Congress votes to set up a program like Social Security, this is really the people through their government making something to improve the quality of their lives, not government “giving” them something. And in my mind setting up a government program to benefit people is not the same thing as conferring a “right.”

Anyway, as I understand it the argument boils down to this: if the status of citizen were taken away a person would still exist, and if the status of corporation were taken away a business would still exist. Therefore, a corporation is just like a citizen.

To which one commenter asked, “does my marriage have the right to free speech beyond the individual rights my wife and I possess?” Another asked, “Do you believe that corporations have a right to vote in state and federal elections?” (Which echoed something Justice Stevens said in his Citizens United dissent: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”)

A corporation by definition is an entity separate and distinct from its members. The corporation as a corporation can do things like enter into contracts and pay taxes, and these obligations are separate from the personal obligations of the members. So when you are talking about a corporation doing something, you are not talking about its members acting through a corporation. You are saying the corporation itself is doing it.

As I understand it, the essential legal question underlying Citizens United is whether a corporation itself enjoy the status of “person” under the 14th Amendment? The question is not whether the individual members of a corporation may be deprived of free speech rights because they are acting through a corporation.

The crew at Volokh and Reason seem both to be ignoring this, and instead are saying that individuals are being deprived of their free speech rights because their use of a corporation for purposes of free speech is restricted. But that is not really the legal issue at the heart of the case. And, anyway, government makes all sorts of restrictions on means of communication, from licensing of broadcast bands to public nuisance laws that don’t let me blast my political opinions from a super-duper megaphone to my entire neighborhood 24/7. Not that I want to do that.

Another argument they are making is that if corporations can be “censored” in political campaigns, wouldn’t that overturn free speech cases involving media corporations, such as New York Times v. Sullivan? But the Sullivan case was not about government-imposed restrictions on the newspaper’s speech, but about the newspapers’ liability in a civil suit. And since the First Amendment specifically protects freedom of the press, seems to me the press itself enjoys a particular protection no matter who owns it. But again, that’s not the real issue.

The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government. But because a corporation somehow has gained the status of “person,” the corporation itself can claim 14th Amendment protection of its rights. Again, this has nothing whatsoever to do with who owns the corporation or the rights of the members.

No Trust Among Democrats

E.J. Dionne writes of the resistance in the House to pass the Senate hcr bill:

The core problem is that the House Democrats no longer trust the Senate Democrats. And let’s be honest: There is no reason in the world for House Democrats to trust the Senate Democrats at this point, or even to feel very kindly disposed toward them.

That’s why there is resistance in the House to the most straightforward solution, which is for the House to pass the Senate health-care bill and send it to the president, and then to use the reconciliation process (which requires only 51 votes in the Senate) to pass the changes in the bill that House and Senate negotiators have agreed to — or, at least, as many of those changes as is procedurally possible. They can’t get all the changes into law that way, but they could get a lot of them.

The catch is that the House Democrats don’t believe the Senate Democrats will necessarily keep their word and pass the reconciliation bill containing the amendments. And it’s not only the question of trust: anyone who has watched the Senate for the last year can be forgiven for wondering if it is even functional enough (given Republican obstruction and a lack of cohesion in the Democratic caucus) to keep a promise sincerely made.

I hadn’t thought of it that way, but Dionne probably is right. Dionne goes on to say that the leaders of both houses are trying to find a work-around that would allow the House to have the final vote on any final bill, but I’m not sure I understand exactly how that would work.

News of what’s going on now changes hourly. I hear there are talks; I hear there is no plan; I hear that the Obama Administration wants to both slow down and speed up the process. So, nobody really knows what’s going on.

The most significant development today may be that David Plouffe, President Obama’s campaign manager in 2008, is stepping into the role of White House adviser. Maybe he’ll get the Dems in Washington to re-think their priorities.

Stuff to Read

I’m way too depressed about what appears to be the utter collapse of the Democratic Party in the face of one bleeping election loss to blog about anything. Here’s some other stuff you can read:

Karen Tumulty, “Why Incremental Health Care Reform Won’t Work

Paul Krugman, “Do the Right Thing

Ezra Klein‘s last several posts.

Dahlia Lithwick, “Watching as the Supreme Court turns a corporation into a real live boy

Black Thursday

Nancy Pelosi says there aren’t enough votes in the House to pass the Senate health care reform bill.

Josh Marshall: “In other words, plug pulled. Health care reform over.” That’s how I see it also. Greg Sargent is more hopeful:

The key is that Pelosi said the bill can’t pass the House “at this time” or “right now.” What’s more, this doesn’t address another possibility being studied by House leaders right now: Passing the Senate bill while simultaneously creating a mechanism that would make it possible, or even mandatory, to fix the bill later through reconciliation, meaning those fixes would only require 51 votes in the Senate.

The roller coaster is too much for me. I want to go somewhere quiet where there are puppies and kittens to play with. Let me know when it’s over.

In another blow to progressive hopes, the Supreme Court today overruled prior rulings that allowed government to restrict how corporations and special interest fund candidates. They can now spend all the money they want expressly calling for candidates’ election or defeat. And just in time for the midterms!

Once again, Justice Kennedy was the swing voter who sided with the troglodytes Roberts, Scalia, Thomas, and Alito. Dissenting were Stevens, Bader Ginsburg, Breyer, and Sotomayor.

Light Fires

There seems to be some movement in the House toward passing the Senate health care reform bill so that something can be signed into law, and I think if the Dems in the House had any clue what’s good for them, they’ll do that. And the sooner they do it, the better for their re-election campaigns this year.

Matt Yglesias says that it’s too late for House congress critters to say they aren’t really for that crazy liberal health care reform thing, because they already voted for it once.

And of course if health care dies, the instant CW becomes that health care was too left-wing. That America hates those lefty left-wingers who voted for it. Lefty left-wingers just like Representative X. If you pass the bill, you can try to make the case for it. If you don’t pass the bill, you’ve made your opponent’s case for you. Which might not be so bad except you already voted for the bill. Once you vote for something, you’ve got to try to pass it.

If the wimps are so afraid Republicans will be mean to them, the worse thing they can do is let hcr die. Because then the Republicans will take it up, put a big FAIL sign on it, and hang it around Dems’ necks.

As for the Senate — Josh Marshall got an email from a Senate staffer that read in part —

The worst is that I can’t help but feel like the main emotion people in the caucus are feeling is relief at this turn of events. Now they have a ready excuse for not getting anything done. While I always thought we had the better ideas but the weaker messaging, it feels like somewhere along the line Members internalized a belief that we actually have weaker ideas. They’re afraid to actually implement them and face the judgement of the voters. That’s the scariest dynamic and what makes me think this will all come crashing down around us in November.

All the more reason not to call upon the Senate to come up with yet another bill. Let the House pass the Senate bill and let it be signed into law, and go on to economic stimulus and job creation. Now.

Ezra Klein says the Dems’ best option is for the House to pass the Senate bill and then “run their fixes through the reconciliation process.” He also makes an alternative suggestion

Medicare buy-in between 50 and 65. Medicaid expands up to 200 percent of poverty with the federal government funding the whole of the expansion. Revenue comes from a surtax on the wealthy.

And that’s it. No cost controls. No delivery-system reforms. Nothing that makes the bill long or complex or unfamiliar. Medicare buy-in had more than 51 votes as recently as a month ago. The Medicaid change is simply a larger version of what’s already passed both chambers. This bill would be shorter than a Danielle Steel novel. It could take effect before the 2012 election.

If health-care reform that preserves the private market is too complex and requires too many dirty deals with the existing industries, then cut both out. But get it done. Democrats have a couple of different options for passing health-care reform this year. But not passing health-care reform should not be seen as one of them.

President Obama is talking about “a stripped-down measure with bipartisan support,” which tells me he learned nothing from the stimulus package episode last spring. He’s had a year in office now, and while he’s made some moves in the right direction, overall he’s been underwhelming. If he doesn’t make some adjustments pretty soon he may not get a second term. See also Paul Krugman.

Is Health Care Reform Dead?

The short answer is, I don’t know, but probably. There are a couple of possible scenarios under which some kind of hcr legislation might still be passed, although it seems one is being ruled out already — to hustle and get a vote on a bill before Brown is sworn in. That’s not going to happen.

The other possibility is that the House would pass a bill identical to the Senate version, which I understand would allow the Senate to go through the procedural nonsense that requires 60 votes. They could then pass the bill with 51 votes. This is probably our only real hope, but the more progressive members of the House say they won’t vote for that bill.

Then there’s the reconciliation option, but I understand that only bits and pieces of the hcr bill could be passed that way, not the whole bill.

We’re already hearing from DINOs like Evan Bayh that the reason Coakley lost is that the Dems moved too far to the left, and they’d better hustle their butts back to the right. That’s going to be conventional wisdom, folks. Count on it.

Peter Daou has a more measured analysis of why the Dems are coming apart at Huffington Post. The whole piece is interesting, but this is worthy of special note:

The single biggest reason Obama’s hope bubble burst is because of the unintended convergence of left and right opinion-making. The cauldron of opinion that churns incessantly on blogs, Twitter, social networks, and in the elite media generates the storylines that filter across the national and local press, providing the fodder for public opinion. Stalwarts of the left, dedicated to principles not personalities, hammered the administration; couple that with the partisan criticisms from conservatives and libertarians, and the net effect was to alter conventional wisdom and undercut Obama’s image and message.

I would say this message isn’t just for President Obama, but all Democrats in Washington. The Democratic Party needs to realize that the foot-dragging of people like Max Baucus (who held hcr up in his finance committee for many long weeks, thereby delaying its passage), Ben Nelson, and Evan Bayh is devastaging to the long-term prospects of the Democratic Party. These guys may be doing what they need to do to win re-election in very conservative states, but in doing so they are killing the Dems’ chance to re-brand itself as a party that can actually do something useful.

The Dems had a small window of opportunity to prove that it really does matter which party one votes for, and that most folks are better off with them, and they blew it.