The State of the Union

"We do big things ...the idea of America endures."

- President Obama in his 2011 State of the Union Speech

“No economy can sustain such high levels of debt and taxation. The next generation will inherit a stagnant economy and a diminished country,”

- Rep Paul Ryan (R) in the Republican response to President Obama’s State of the Union Speech.

Generally the State of the Union speech is a non-event. There is lot’s of pre-speech media hype about “the-President- being-at-a-turning-point-in-his-presidency,” afterwards there is lots of discussion on “did-the-President-do-what-he-had-to-do.” Then Super Bowl coverage starts, and everyone forgets about the President’s crisis point, and Congress moves forward to ignore or diminish whatever the President proposed.

This speech was different from last year. After the Tucson shootings, both sides made an effort to tone things down. No one was shouting “You Lie” from the balcony. Senators and Representatives from each party sat together, which made it easier for the President to get members from both parties to stand for his applause lines. As a result we saw Republicans stand and applaud an end to corporate tax loop holes, and Democrats stand and applaud for Tort reform.

But while Obama sold an almost “Morning in America” version of the future and the Republicans were falling all over themselves to compare the United States to Greece, neither side spoke to a larger budget crisis facing the country - that of the States themselves.

States are broke and have been for years. States from Delaware to Idaho are struggling to make ends meet.

Washington and the press have ignored that fact. What coverage there has been, was about a particular problem an individual State was having. For example reporting on California’s budget crisis focussed on grid-lock in the legislature, and not on the wider ramifications of the fact the Government of the eighth largest economy in the world may be broke.

California, New York and Illinois are all facing massive budget deficits. Illinois just implemented a significant hike in its state income taxes - and yet it will not be enough to close their budget gap. Analyst do not see any combination of tax hikes that will close either the California or New York budget gaps.

California Governor Jerry Brown (D) is right.

It is now a zero sum game and there is no money left. When California’s Mayors were lining up outside his office this week to plead with him not to cut their Sate Economic Redevelopment funds, his response was “If I don’t cut you, who do I cut instead?” Gov. Brown has shown that he believes the State can no longer afford to allow sacred cows to graze through the budget undisturbed. He has cut everything from cell phones to State employes (a savings of $20 million a year) to billions from California’s higher education systems.

At the same time, Arizona is implementing drastic cuts in Medicaid. Generally the press has been harsh on this topic, roasting Gov. Jan Brewer (R) as being another heartless Republican shredding the social safety net to protect the rich.

But no one has really dug into to the economics of her decisions.

The reality is Arizona is broke, and the State has no money to support these programs. It isn’t a matter that this is a Republican’s view of “wasteful” spending, it is a matter of the money is simply not there to meet generous State constitutional obligations Arizona imposed on itself earlier in the decade when times were flush.

California is making cuts equally as drastic in its health care budget. Arizona and California are not trend setters, they are becoming the typical story. The housing crisis and high unemployment have crushed State budget after State budget.

In his State of the Union speech, President Obama did speak up for meaningful bi-partisan reform for Social Security. After all in a little over 20 years the Social Security system could be out of money.

Good job.

But what about the State pension funds that are nearly broke today?

Moody’s Investor Services calculated individual States’ pension and debt obligations as a percentage of personal income and State GDP. The top five per capita debt and pension burdens are Connecticut followed by Hawaii, Massachusetts, Mississippi and Illinois. (http://www.chicagotribune.com/business/ct-biz-0128-illinois-debt-20110128,0,4119557.story). This is per capita debt burden is in addition to the debt burden from the Federal government.

The fact that these States are from every region of the country shows how widespread the issue is. Even if the States were able to get their short term economies together, they will not have the funds to repay all the money taken from their employees’ pension or to meet their long term obligations as baby boomers retire.

The economic effect of States not meeting their pension obligations will be huge - not just in the cost of funds for the States to keep operating, but in real human terms.

We are not talking sweetheart deals. The low level employee at the DMV who has had her wages frozen for years with the promise of a good pension may not get enough from her retirement plan to keep her out of poverty and off the streets. If you had to give teenagers driving tests day in and day out while worrying if you will have any money to live on after you retire, you’d be surly too.

Federal policy makers continue to treat the States as solvent, economically viable entities. But many aren’t. If they were corporations and not government entities, some States would be in Chapter 11 right about now.

In his State of the Unison speech, President Obama signaled that direct stimulative spending by the Federal Government is over. Rep. Eric Cantor (R-Va) was even more blunt saying “There will be no bail-out for the States.”

That leaves the States in the cold.

Some politicians believe that economically “A rising tide lifts all boats.” But as any sailor can tell you, you won’t get far if you are dragging 50 anchors behind you.

Fearful Legislation

My condolences to the 25 families who are suffering as a result of the shootings in Arizona on Saturday. I wish all comfort to the families of those who died, and all strength and healing to those who were wounded.

- The OperaDem

It's not a wake-up call, it's a four-alarmer,"

-- Rep. Robert Brady (D-PA), quoted by the Washington Post, saying he'll introduce legislation "that would make it a Federal crime to use language or images that could be interpreted as inciting violence toward members of Congress or Federal officials."

One word to Representative Robert Brady.

Don’t.

Crisis seem to always lead to another curtailment of freedom. In a moment of true threat or panic, government often overreacts, and passes laws that extend its power at the expense of its citizens. Whether it is the Alien and Sedition Act signed by President John Adams, or FDR’s internment of Japanese Americans, our history is littered with such overreactions. Government’s reflex is to legislate.

Government’s best reaction is often no reaction.

For the government to go about its business and let its citizens go about theirs when something like Saturday’s shooting happens, is the best show of strength. We can show that we are strong enough not to be shaken by the act of one unstable young man with a gun.

After Saturday’s shooting, the discussion has in some cases gotten silly. For example, one article asked “Were the cross-hairs used on Sarah Palin’s website more incendiary than the target icons used by the DCCC on their site?” The author’s answer was “yes” because the target is a passive object, and cross-hairs are the result of actively aiming at something. This distinction is academic - especially if you are the one wearing the target and are in the cross-hairs.

Representative Brady want’s to make it a crime to use images or language that could be interpreted [emphasis mine] to incite violence against members of congress or a Federal official.

It is already a crime to directly threaten a Federal official. But now Rep. Brady wants to bring interpretation into the law. I am sure in his zeal to protect the Republic, he is thinking of clear cut images, such as targets imposed on the pictures of officials with “Live Fee or Die” as a caption.

But what about one the Tea Party’s favorite Jefferson quotes where the tree of liberty needs to be watered by the blood of patriots? Would that not be seen as a call towards violence against Federal officials? How about President Obama’s comment “if they bring a knife we bring a gun,” or Sarah Palin’s admonition to ‘reload’?

In the post Lee Atwater political age we live in, who is to say?

Legislation (which I hope will not get past the press conference stage), that outlaws speech that can be interpreted as a threat to the government is a short step from legislation that defines criticism of the government as a threat.

The political discourse in this country has always been rough and tumble. From the days when Secretary of State Thomas Jefferson hired people to work in the State Department to write editorials against President Adams, politics in this country has been deeply personal and personalized. The current climate is direct descendent of the Jefferson/Adams conflict. Every age brought its personal insult and attack, from attacks on Andrew Jackson’s wife, (which he believed drove her to an early grave) through calling the second President Bush a war criminal, slash and burn personal political attacks are nothing new.

But since 2008 the dialog has gotten darker.

Astroturf right wing groups use the same threatening mob tactics at town hall meetings as they used to shut down the Florida recounts. With the “Death Panel” lie the right turned a legitimate disagreement on the reach of Federal government into a personalized sound bite that made people feel the government was out to kill them or a loved one. At the same time, Rep. Alan Grayson’s speech that the Republican’s health care plan was for you to “get sick and die,” while satisfying to the left, was in many ways no better.

Currently Liberals in their zeal to lay blame for Saturday’s shooting at Sarah Palin’s feet have all but accused her of murder. It is hard to make the logical leap from her gun and hunting analogies to a pistol in the hand of schizophrenic young man.

It is impossible to see how legislating speech can change the atmosphere.

What is possible is that each person take responsibility for their part of the political discourse. Both sides need to take a step back, and argue their positions by truly justifying their own stance and not by demonizing the other side.

We can’t legislate that. We simply have to demand our leaders act like adults.

Caveman Justice

If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date.

- Supreme Court Justice Anthony Scalia

As the Tea Party crowd steps into the House chamber, and the press obsess about their impact, Justice Scalia’s comments, shows an even stronger reactionary force is at work in the US Supreme Court.

Justice Scalia’s comments regarding the 14th Amendment were made in an interview in the recent edition of the California Lawyer magazine. http://www.callawyer.com/story.cfm?eid=913358&evid=1.

The question Justice Scalia was asked was a loaded one: “In ... proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?”

As an “originalist” Justice Scalia believes the Constitution is not an evolving document. It means what it says and says what it means. If the Constitution does not specifically enumerate a power or right, that power or right does not exist.

So Justice Scalia’s answer was not a surprise. He said in part “...Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date.”

I hate to disagree with Justice Scalia. After all he has a law degree and I don’t. I thought the 14th amendment was clear:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This section of the 14th Amendment is in two parts. The first part makes it clear that if you are a citizen the government cannot make laws that abridge your rights. Then in the second part of this section, when it changes from using the word “citizen” to the word “person,” the 14th Amendment extends constitutional protection to non-citizens as well.

When it was enacted the original intent of the 14th Amendment was to extend citizenship to the newly freed slaves by overturning the 1857 Dred Scott decision that held negroes, free or slave, were not citizens. But, in one sentence by moving from “citizens” to “person” the amendment’s framers, broaden the rights and protections of the Constitution to everyone, regardless of who the are or their citizenship status.

In this interview the Justice doesn’t address whether a legislature can curtail those rights. He simply patches over this omission with a blithe comment that legislatures can extend rights if the people chose, after all “that is what democracy is about.”

The framers of the 14th Amendment well understood the potential for state legislatures to tyrannize an unpopular minority. They were watching the Southern States, with the support if the President, implement “back codes” curtailing the rights of freed slaves.

By the 1890’s protected by the Supreme Court in “Plessy v. Feguson” state legislatures supported by the majority of voters curtailed and revoked the rights of their African-American citizens. This was exactly the “democracy in action,” the Amendment’s framers feared.

Today of course we have progressed beyond that point.

We no longer worry about African-American, but are alive to the danger of “anchor babies” and “illegal aliens.” The Arizona legislature has, with the support of the state’s voters, enacted a law that clearly abridges the rights of Latinos or people who appear to be Latino. Other state legislatures are preparing to follow in their footsteps.

The framers of the 14th knew they couldn’t list all the people the government could discriminate against in the future. So they elected to restrain the government’s powers against all persons.

The original framers of the Constitution also understood how fragile a person’s rights are in a Democracy. That is why they created the 9th Amendment, which specifically states: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because a particular right is not specified in the Constitution doesn’t mean that right doesn’t exist.

So taken together, these two Constitutional Amendments protect all rights, whether or not they are specified, of all persons in the country, regardless of their citizenship status.

I wonder if Justice Scalia would be so supportive of the wisdom of Democracy if State and Federal laws abridged the right of Italian Catholic lawyers as easily as the abridge the rights of women, Latinos and African-Americans.

Would Justice Scalia be this casual about a legislature of fundamentalist Protestant Christians, with the support of the voters, enacting laws against Catholics as he is when a majority of fundamentalist Protestant Christians write laws limiting what treatments or advice Doctors can give women?

I think not.

Justice Scalia, we do have these things called rights and a Constitution to project them. And “hey” just for the record, women are persons too.

Promises, Promises

“Read my lips. No new taxes!”

- President George H.W. Bush at the 1988 Republican National Convention

This is are probably one best known political quotes in recent American political history.

In cutting a deal with the Republicans to extend everyone’s “tax cut” from the Bush era for two years, Obama got only a one year extension of jobless benefits in return. Obama, the born-again supply-sider is now suddenly saying raising taxes in a recession is bad economics. No matter how he positions it, he will be seen as having broken one of his key campaign promises, and betraying a core position in his campaign.

Just as President George H.W. Bush was when he raised taxes in the middle of his Presidency.

Bush had economics on his side. He needed to raise taxes to address the deficit created by Ronald Reagan. But he did not prepare the political landscape for the switch. He did not make the Democrats pay a political cost for raising taxes. He did it as part of a negotiated deal with congress.

Sound familiar?

In 2008 President Obama made letting the Bush tax cuts for the “wealthy” expire a center piece of his campaign. It was one of the main differences he drew between himself and John McCain. Two years later he gave on this point almost from the beginning of negotiations over a tax deal. He claims that he did so to preserve tax cuts for everyone and to extend unemployment benefits for a year.

There were some hard, interesting political reality behind Obama’s actions.

Almost as popular a stance as letting the tax cuts for the “wealthy” expire, was preserving the tax cuts for everyone. Looking at the polls these two positions are almost identical in popularity, and had broad support through nearly all demographics.

An interesting point in the tax cut discussion was why the definition of “wealthy” kept changing. The percentage of people earning $250,000 or more has dramatically increased since 2000. From a political viewpoint, 2008 was the first time that Democrats had as much support among voters earning $250,000 to one million dollars as Republicans.

This fact helps explain why he simply did not have the votes in the Senate for a middle-class only tax cut. The Democrats were reluctant to alienate a new and growing Democratic voter group over a position that was only slightly more popular than the alternative.

All of this may have figured into the White House’s calculations.

But if Obama had played his hand differently, he could have easily had the strength to let the tax cuts for the “wealthy” expire while getting everything he got out negotiations he got from the Republicans.

Had the Democrats forced a tax cut vote before the election - say in the beginning of September. Hard on the heels of the that vote the next vote should have been on unemployment benefits. Again the Republicans would line up against it. As the Democrats controlled both houses of Congress they only needed to bring these up for a vote one time, make the Republicans vote against both proposals and never bring it back to the floor after their defeat.

This strategy would have forced the Republicans into a position of explaining to the voters in the weeks before the election why they were voting against tax cuts for the middle class to keep tax cuts for the rich.

If that had happened the Democrats would have had strong message to run on (since they were too afraid to run on health care). Obama could have pounded the Republicans every day of September and October on how they were sticking it to the little guy while helping their rich supporters.

If things had gone well, the Democrats could have brought the tax vote up again in October, along with unemployment benefits. The Republican position would have been even harder for them to defend, and the Bush cuts could have been rolled back then, and the Democrats could have also gotten unemployment benefits through.

Instead the House Democrats took symbolic votes on topics like cap and trade, that pleased the base but angered everyone else. The Senate, with Harry Reid occupied with his re-election, took a pass, and most Democrats cowered in the corner afraid to run on the party’s accomplishments over the last two years.

As it stands now, Obama is in the position of saying, “No next time I will really mean it, when I say roll back the tax cuts!” Democrats will have no reason to believe him. Republicans now think they can simply whisper their opposition and Obama may leave the field without a fight. Obama’s electoral base feels let down, congressional Democrats feel betrayed. All of which left Obama weakened.

Time has passed and the tax cut fiasco has been buried under START and “Don’t Ask, Don’t Tell.” It has gone from being seen as collapse of Obama’s political will to a great bipartisan accomplishment. But, the political landscape is littered with political careers ended by such accomplishments. As Obama looks towards the new Congress, he should remember that. Otherwise, he may wind up like the first President Bush, remembered mainly not for his accomplishments, but for breaking a key promise and becoming a one term President.