With the wry irreverence for which his creator was known, Mark Twain’s Pudd’nhead Wilson advised us to ”put all your eggs in the one basket and – WATCH THAT BASKET.” Republicans have taken that advice to heart.
The 113th Congress is on the verge of setting a record as the least productive Congressional session in the history of the country. Next to this, the “do-nothing Congress” that handed Harry Truman his historic come-from-behind victory in 1948 was a hive of activity.
Some lemonade-from-lemons conservatives have tried to claim success in this unprecedented failure. Some are saying that, as small-government conservatives, they prefer fewer laws to more laws. But we know from simple observation that this isn’t true. When Republicans took charge in Wisconsin, or Virginia, or Pennsylvania, and any other place, they passed all kinds of laws: anti-abortion laws, voter suppression laws, union-busting laws, laws cutting social programs for the needy, and laws cutting taxes for the needless.
What’s really going on here is not conservative antipathy to passing laws. What’s really going on here is that Republicans are convinced that they don’t need to pass laws - not even laws they support. They think they don’t need to pass laws because they have Obamacare, to which they want to give their full attention. The accusation that President Obama is engaging Iran in nuclear weapons talks to distract attention from Obamacare is all the proof we need of a Republican one-track mind.
Four different House committees held Obamacare hearings on Tuesday – not because they want it to work, but because they are sure it will fail, that it has already failed, and that their surest route to the presidency and bicameral supermajorities is to talk all about Obamacare, only about Obamacare and nothing but Obamacare. Watch that basket!
There is some possibility that the Republicans are right, that they can make Obamacare fail. Some of the legal challenges against Obamacare could unravel the whole thing. I’m not all that concerned about claims by newly religious employers who never minded offering their employees health insurance options that covered birth control until Obamacare told them they had to offer their employees health insurance options that cover birth control. Our Supreme Court majority may in fact be so unprincipled as to buy that argument – opening the door, for instance, for employers to refuse to comply with anti-disrimination laws that contradict their religious beliefs. But that ruling wouldn’t undo Obamacare.
I’m more worried about the challenges that attack the allowance of premium subsidies to people who buy insurance on the federal exchanges. For whatever reason, the law provides for subsidies only for those who buy insurance on state exchanges. It would make no sense for the availability of subsidies to turn on the distinction between federal and state exchanges, and courts aren’t supposed to read laws in a way that makes no sense. But as I say, our Supreme Court majority is more partisan than principled, and a ruling striking down subsidies for those in the 36 states that refused to set up their own exchanges would be devastating to Obamacare.
But even though there is some possibility that the Republicans will be right and Obamacare will fail, I think there is much greater possibility that Republicans will be wrong and Obamacare will succeed. The latest reports indicate that tens of thousands of people are signing up for Obamacare insurance policies every day, now that the federal web site has been attended to by a competent tech manager. As Obamacare stacks up successes, and reality starts to shine through the ideological fog, the program is likely to become significantly more popular.
Even if Obamacare is not an unqualified success, the public may well turn against the Republicans who, after all, have no health care plan to replace Obamacare. The 2014 elections could be very interesting, because Republicans have no Plan B. If all-Obamacare-all-the-time doesn’t work out for them, they are leaving themselves no record of legislative accomplishments to run on – only a record of obstruction and high-risk games with the federal credit rating.
Let’s take Senate Majority Leader Mitch McConnell as an example. Senator McConnell is running for a sixth term representing Kentucky. Interestingly, most of his election wins have been relatively close. In 2008, for instance, Senator McConnell beat Bruce Lunsford, who had never held elective office, by only 6 percent of the vote. John McCain beat Barack Obama in Kentucky that year by 16 percent of the vote.
In 2014, Senator McConnell’s likely Democratic opponent is Alison Lundergan Grimes, the Kentucky Secretary of State who won that position by a 21 percent margin in 2011. Recent polling has Secretary Grimes running statistically even with Senator McConnell for 2014.
Meanwhile, Kentucky’s Democratic Governor Steve Beshear (who lost the 1996 Senate race to Senator McConnell) is running a successful state implementation of Obamacare. As of November 22, more than 56,000 Kentuckians had signed up for insurance through the Kentucky exchange. Had Majority Leader McConnell had his way, there would be no Obamacare exchanges – and McConnell was willing to shut the federal government down to get his way.
Come November 2014, Senator McConnell may find that Kentuckians actually appreciate those who made affordable health insurance available more than they appreciate those who opposed affordable health care. And in this respect Kentucky may prove not to be unique.
This week marks the 150th anniversary of Abraham Lincoln’s Gettysburg Address and the 50th anniversary of John Kennedy’s assassination. Media commentary has mostly been about the remarkable oratory of the first and the national and personal tragedy of the second.
Kennedy was a pretty remarkable orator himself. He was well read, in both modern and classical literature, and he surrounded himself with a number of similarly well read advisors, most importantly Ted Sorenson, his special counsel and speechwriter.
I have always thought of JFK’s inaugural speech as one of the great inaugural speeches, although I admit the probability of bias from growing up in the ’60s, that most optimistic American era, the very apex of the American Century. Kennedy’s inaugural speech was masterfully optimistic; Kennedy framed our direst challenges as great opportunities and solemn honors. Kennedy rendered the real possibility of nuclear war thus: “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”
But what is most memorable to me about the speech is its muscular call to collective action, both domestically and internationally. Over and over again, Kennedy called for unity among allies: “United, there is little we cannot do in a host of cooperative ventures. Divided, there is little we can do—for we dare not meet a powerful challenge at odds and split asunder.”
Kennedy called for international collective action against poverty – twice in general terms, and once in “our sister republics south of our border.” Kennedy cast the fight against poverty as the duty of a democratic society, including specifically the well off in that society: “If a free society cannot help the many who are poor, it cannot save the few who are rich.”
Kennedy concluded his appeal for American unity with the speech’s most familiar and enduring passage: ”And so, my fellow Americans: ask not what your country can do for you – ask what you can do for your country.” Kennedy made clear that by this request of his fellow Americans he meant to ask for “high standards of strength and sacrifice.”
Well read as he was, Kennedy certainly intended the echo of John Donne’s most famous line, “Therefore, send not to know for whom the bell tolls, it tolls for thee.” Kennedy’s “ask not” echoed Donne’s “send not,” not only in its grammatical construction but also in its moral concept of mutual obligation among people, and obligation of individuals to the collective society.
The notion that any moral obligation runs from people to government has become somehow anti-patriotic, at least among the modern Right. And the notion that moral obligation might run from the wealthy to the poor has become apostasy. Today’s Right regards wealth as not just hard-earned and well deserved success, but also as manifestation of moral superiority, as if by Calvinist predestination. The morally superior bear no obligation to the poor, whose material poverty manifests their moral poverty.
If the wealthy are deserving and the poor are undeserving, then the proper role of government is to reward the deserving and punish the undeserving – or at the very least, to avoid punishing the deserving and rewarding the undeserving.
I doubt any politician today would dare to challenge Americans to sacrifice for their country. Kennedy began his inaugural by observing that much had changed in the 185 years after America’s founding. Today’s Right, with its “every man for himself” ideology, brings home how much has changed in the 53 years since our president called on us to work in common cause for a world without war or want.
The American legal battle over same-sex marriage began in Hawaii. Today, Hawaii’s legislature sent a bill to legalize same-sex marriage to Governor Neil Abercrombie for signature, becoming the 16th state to adopt marriage equality.
Twenty-three years ago next month, three same-sex couples went to the Hawaii Department of Health and applied for marriage licenses. The Department asked the Hawaii Attorney General for legal advice, and on December 27, the Attorney General advised that the doors of the institution of marriage did not open wide enough to admit same-sex couples.
The three couples went to court. Lambda Legal Defense, then and now one of the premier gay rights legal advocates in the country, declined to take the case – Lambda didn’t think litigating the right to marriage was strategically wise, and wasn’t convinced in any event that marriage rights were all that big a deal.
The trial court dismissed the couples’ lawsuit on October 1, 1991, and they appealed to the Hawaii Supreme Court. In May 1993, that court concluded that the exclusion of same-sex couples from marriage required proof that the exclusion served a compelling governmental interest – the highest bar in constitutional jurisprudence. In other words, the court held that the correct standard of judicial review for the case was not what is known to lawyers as “mere rationality,” but “strict scrutiny.” The state Supreme Court sent the case back to the trial court.
Haunted by the specter of homosexual wedlock, the Hawaii legislature passed a bill explicitly limiting legal marriage to opposite-sex couples. The legislature also set up a commission to study same-sex marriage, and the court case was held in abeyance while the commission studied.
In December 1995, the commission recommended passage of marriage equality legislation. The legislature was not amused, and the court case resumed. Trial began on September 10, 1996.
On September 21, 1996, President Bill Clinton signed the Defense of Marriage Act, which pre-emptively prohibited the federal government from recognizing any state-sanctioned marriage between members of the same sex, and permitted states to refuse to recognize such marriages.
Applying the Hawaii Supreme Court’s “strict scrutiny” mandate, the trial court found that disallowing same-sex marriages was unconstitutional, and the state appealed. While the appeal was pending, Hawaii voters in 1998 approved the first of almost three dozen state referendums limiting marriage to opposite-sex couples. On December 9, 1999, the Hawaii Supreme Court ruled that the referendum ended the nine-year case against the three same-sex couples who had filed it.
DOMA lasted not quite 17 years – last June, the U.S. Supreme Court rejected the section that prohibited the federal government from recognizing state-sanctioned same-sex marriages. Marriage inequality in Hawaii lasted a little longer – Governor Abercrombie is committed to sign the bill, which will take effect on December 2. On that day, 115 million Americans will live in marriage equality jurisdictions.
The U.S. Senate voted yesterday for ENDA, the Employment Non-Discrimination Act, a bill that would prohibit employment discrimination on the basis of sexual orientation or on the basis of gender identity. Somewhat surprisingly, the bill got support from 10 Republican senators.
Since pretty much all Senate business these days has to get past a filibuster, 60 votes were needed – and 64 votes were gotten, both for cloture and for passage.
The New York Times noted another somewhat surprising factoid: five of seven Mormon senators voted for the bill, including three Republicans.
The Times did not pause over the fact that there are seven Mormon senators. Mormons – more formally, members of the Church of Jesus Christ of Latter Day Saints – make up a little less than 2 percent of the American population, but 7 percent of the United States Senate. By contrast, for example, African-Americans make up more than 12 percent of the population and just recently doubled their senatorial contingent to 2 percent. Latinos are more than 16 percent of Americans and just 3 percent of senators. Women are a little more than half of the population and just 17 percent of the Senate.
So Mormons are probably one of the more over-represented demographics in the Senate. Two of the seven Mormon senators are Democrats – Majority Leader Harry Reid of Nevada and Tom Udall of New Mexico. Five are Republicans – Mike Crapo of Idaho, Orrin Hatch and Mike Lee of Utah, and Jeff Flake of Arizona.
Both of the Mormon Democrats and three of the Mormon Republicans supported ENDA. Only Senators Crapo and Lee were opposed. This is new, interesting, and a good thing. It appears to reflect in part a high-level effort within the Mormon church to ameliorate the church’s harshly anti-gay image in the light of its high-profile campaign to ban same-sex marriages in California.
No one should misapprehend that the Mormon church has become pro-gay – church doctrine still holds that acting on same-sex attraction is sinful. But the church now allows that gay people might hold jobs during their earthbound reprieves from perdition.
New York State has a law that limits a person to make no more than an aggregate of $150,000 in contributions to political action committees, or PACs, during any calendar year. With the New York City mayoral election coming up, the New York Progress and Protection PAC challenged that limit. Today they won.
The PAC contended that it had a donor who wanted to give $200,000 for the PAC to run ads in favor of Republican mayoral candidate Joe Lhota. Today, the federal appeals court in Manhattan issued an injunction lifting New York State’s $150,000 limit. Here are the reactions of people on the two sides, as recounted by the New York Times:
The president of the Center for Individual Rights said, “With this decision, New York City voters will now get a more democratic mayoral race, one with an even financial playing field. This will result in a campaign where ideas speak rather than money.”
The executive director of Common Cause New York said, “Elections should empower the free expression of all voices, and not just act as auctions where office is sold to the highest bidder.”
I think I understand the two sides of the issue well enough. Advocates of free spending believe that spending limits amount to limits on free speech, and that a person’s spending on political issues or candidates should not be limited. Advocates of spending limits believe that free spending gives the votes of well-to-do people more power than the votes of less-well-off people, and that in a democracy the weight of a person’s views should be determined by the quality of the expression of the person’s ideas, not by the person’s wealth.
I come down firmly on the side of equal say. Over the decades I’ve read many an argument for the proposition that politicians aren’t swayed by campaign contributions, but I don’t buy it. And money is rarely distributed equally on both sides of a political issue or a political campaign. But even if we suppose that executive actions and legislative votes are not influenced by campaign contributions, the underlying problem that won’t go away is that the unrestrained flow of money in politics creates a bitter and corrosive cynicism among the public about elections, about politicians, and about government.
There is a conceivable state of facts such that unlimited campaign contributions would level the playing field. In that world, everyone has equal access to money. If everyone has the same financial resources, or at least close to the same, then everyone is free to decide how important politics is among other priorities. Those who care more about politics can spend more on politics, and there is a certain fairness in that. The problem, of course, is that although this state of facts is conceivable, it doesn’t exist, it has never existed, and it won’t exist at any time that we can foresee.
But it is entirely beyond me – maybe a commenter can help me out here – how lifting spending limits ensures that “ideas speak rather than money.” There is no conceivable state of facts such that spending more money on politics changes politics from being about money to being about ideas.
Late last June, a one-vote majority of the U.S. Supreme Court ruled that same-sex marriages that are validly performed under state law must be recognized by the federal government, and validly married same-sex couples must be afforded all of the rights and obligations the federal government affords to opposite-sex couples. The Court struck down the section of the federal Defense of Marriage Act, or DOMA, that prohibited federal recognition of state-sanctioned same-sex marriages.
At the same time, the Court dismissed the appeal of the California Proposition 8 case, leaving in place lower court rulings that Proposition 8 was unconstitutional, and therefore allowing same-sex marriages to proceed in California.
Since then, marriage equality advocates have proceeded forcefully on three fronts: legislative, judicial, and popular. In many states, advocates are simultaneously pressing multiple approaches, and developments are coming so fast it’s hard to keep up.
Tomorrow, New Jersey becomes the 14th state to allow same-sex marriage. The Democrat-dominated New Jersey legislature passed marriage equality legislation in February 2012, but Republican Governor Chris Christie vetoed it. Legislators have until the end of 2013 to override the veto, but have yet to secure the super-majority needed – although progress has been made.
Meanwhile, the New Jersey courts have been considering legal challenges. In 2006, the New Jersey Supreme Court ruled that same-sex couples are entitled to substantial equality with opposite-sex couples, and the legislature responded by enacting a civil union law that afforded same-sex couples the same rights under New Jersey law as opposite-sex married couples enjoy. But the lawsuit continued, with the plaintiffs contending that denying the “marriage” label to same-sex couples was by itself a denial of equal treatment.
Before that issue was resolved, the Supreme Court issued its DOMA ruling. At that point, the plaintiffs contended, New Jersey law had to confer the marriage label on same-sex unions in order for same-sex couples to be eligible for federal marriage rights – and, absent federal marriage rights, same-sex couples in New Jersey were not getting substantially equal treatment.
Last month, the New Jersey trial court agreed, and ordered New Jersey to permit same-sex marriages beginning on October 21. Governor Christie appealed to the New Jersey Supreme Court, and asked for a stay of the lower court’s ruling pending final outcome of the appeal. His request was denied, and therefor same-sex marriages will begin tomorrow as ordered by the trial court.
We can be sure that the New Jersey Supreme Court did not rule lightly on the stay request. To grant a stay, the court had to find that the appeal was likely to succeed. The court is certainly aware that if it denied the stay and allowed same-sex marriages, and then later sustained the appeal, the marriages solemnized while the appeal was pending would be in question, and the court would have created a mess. As a result, we can take the stay denial as a virtual guarantee that the court will rule that same-sex marriage must be permitted.
Hawaii is going through the same process, sort of in reverse. In Hawaii, the legislature in 1994 enacted a prohibition against same-sex marriages. But a lot has changed since then, and in fact in 2011, after several tries, the state legislature approved same-sex civil unions.
Meanwhile, federal litigation challenging Hawaii’s ban on same-sex marriages failed in the trial court and went up on appeal to the Ninth Circuit Court of Appeals. That is the same appeals court that rejected California’s Proposition 9 ban on same-sex marriage, although on narrow grounds not applicable to other states. The appeal was put on hold pending the outcome of the Supreme Court cases on DOMA and Proposition 8, but now it’s ready to proceed.
But it looks like Hawaii legislators will beat the Ninth Circuit to the punch. Democratic Governor Neil Abercrombie has called the legislature to a special session beginning October 28 to consider marriage equality legislation, and the Honolulu Civil Beat reports that the votes are there.
Presumably, once Hawaii adopts marriage equality legislation, the Ninth Circuit will dismiss the case as moot. But the Ninth Circuit won’t be left out in the cold – it also has pending an appeal in a Nevada case, where the trial judge rejected a marriage equality claim. That appeal will remain live, and will probably be decided some time in 2014.
Another interesting state is New Mexico, which is one of only two states left whose marriage statue neither explicitly permits nor explicitly prohibits same-sex marriages. (The other one is New Jersey.) After the Supreme Court decisions last June, several New Mexico county clerks began issuing marriage licenses to same-sex couples, reasoning that the constitutional guarantees of equal protection recognized by the Supreme Court in the DOMA case applied. Some of the clerks got sued for their efforts, so the state’s county clerks asked the New Mexico Supreme Court to rule on the issue and clear things up. Arguments are scheduled for October 23.
In Ohio, two men who were married in Maryland filed suit in July demanding that Ohio recognize their marriage. The matter has some urgency because one of the grooms is terminally ill, and death, ironically, is a time when marital status is financially most important. The trial judge issued a temporary order that Ohio recognize the marriage, finding that the men were likely to succeed on their claim that Ohio’s ban on such recognition is unconstitutional. Thereafter, the judge converted the case to a class action, and arguments whether a permanent injunction should be issued are scheduled for December 18.
The litigation with the best star power is a federal case challenging Virginia’s ban on same-sex marriage. The plaintiffs’ lawyers are Theodore Olson and David Boies, the conservative-liberal odd couple who brought the case that led to the invalidation of California’s Proposition 8. That case took four years to resolve, from initiation in the trial court to decision by the Supreme Court. I suspect this one won’t take as long.
Lots has changed since Olson and Boies filed their Prop 8 challenge in 2009. For starters, in 2009, less than five percent of the population lived in marriage equality states. Now, one-third of the population live in marriage equality states. Same-sex couples have been filing joint income tax returns and collecting survivor benefits on each others social security, and the sky has not fallen.
Sixteen countries now allow same-sex marriage – ten in Europe, but also three in South America, plus Canada, New Zealand, and South Africa. In addition to 13 American states and the District of Columbia, two Mexican jurisdictions permit same-sex marriage, and Israel recognizes same-sex marriages performed elsewhere.
American popular approval of marriage equality has more than doubled in less than 20 years. In 2013, for the first time, popular approval exceeded 50 percent by more than the polling margin of error. A Washington Post poll in March found 58 percent support for marriage equality and only 36 percent opposed.
In particular, public opinion has shifted in the states closest to adopting marriage equality. In New Jersey, for instance, the three major polls taken in 2013 show marriage equality advocates no lower than 59 percent and opponents no higher than 31 percent. In New Mexico, a September poll showed advocates leading, 51 – 42. An August poll in Hawaii has advocates ahead by 54 – 31. In Nevada this month, it was 57 – 36. Even in Virginia, it’s 56 – 36.
2013 has been a stunningly successful year for same-sex marriage advocates. Already this year, on top of the DOMA decision, six states representing 20 percent of the country’s population have begun issuing marriage licenses to same-sex couples. When Russian President Vladimir Putin took to the New York Times op-ed page to lecture Americans on the proper conduct of a democracy in today’s world, even conservatives like Senator John McCain condemned Putin for hypocrisy, explicitly citing Russia’s legislative efforts to suppress homosexuality. The spectacle of American conservatives admonishing Russia for poor treatment of gay people was definitely a high point of the year.
And 2013 ain’t even over.
In the aftermath of the Tea Party-inspired, Ted Cruz-driven government shut-down and near default, the commentariat is hyperventilating about the effect the fiasco will have on Republican incumbents. Every two-handed pundit in the business has pointed out that, on the one hand, public approval of the Republican Party is at all-time lows, but on the other hand, Republican members of the House of Representatives mostly come from deep red districts where holding the federal government hostage is considered to be a heroic act of patriotism.
The thing is, House districts can be gerrymandered, but Senate districts, otherwise known as “states,” cannot. So I propose that a better test of the electoral impact of the Tea Party insanity is not the 2014 House elections but the 2014 Senate elections. It’s also a simpler test – there are a lot fewer Senate seats than House seats, and, states being constants where House districts are variables, Senate primaries and elections are much easier to compare over time.
Thirty-four Senate seats are up for election in 2014, including a special election in South Carolina, where Tim Scott will be running for election to the remainder of Jim DeMint’s term. Fourteen of the 34 are held by Republicans. Of those 14, two are retiring (Saxby Chambliss of Georgia and Mike Johanns of Nebraska) and one has not declared (Thad Cochran of Mississippi).
That leaves 11 incumbent Senators running for re-election. Of those, six voted against and four voted for re-opening the government and suspending the federal debt limit. (One senator, Jim Inhofe, didn’t vote. Both of the retiring senators, as well as the undeclared Senator Cochran, also voted in favor – which might not be a coincidence.)
The four accommodationists are Minority Leader Mitch McConnell of Kentucky, Susan Collins of Maine, Lindsey Graham of South Carolina, and Lamar Alexander of Tennessee. All four of them can be characterized as members of the Republican Establishment, but only two – Collins and Alexander – can plausibly be characterized as moderates.
McConnell, who is running for a sixth term, was already facing a Tea Party primary before the shut-down. McConnell has polled well ahead of his Tea Party rival so far, but four of his five elections to the Senate have been relatively close – in 2008, for example, he beat Democrat Bruce Lunsford, a business man who had never held elective office, by just six percent of the vote. In 2014, if McConnell gets past the primary, he will be facing Kentucky’s secretary of state, Alison Lundergan Grimes, who won election to that position in 2011 by an impressive 21 percent margin.
So McConnell’s vote to re-open the government probably indicates that McConnell is less concerned about his Tea Party primary opponent than his general election opponent.
Collins is running for a fourth term in moderate Maine. Collins has no declared primary opponents, and she won re-election in 2008 by 23 percent of the vote.
Graham is running for a third term. Graham has been expecting a Tea Party challenge, but no primary candidate has yet declared. Graham won the state by 16 percent in 2008, although hypothetical primary polling for 2014 should cause Graham some concern – for instance, Congressman Joe “You Lie” Wilson ran two points ahead of Graham in a 2011 survey.
Alexander is also running for a third term. The Tea Party vowed a primary well before the government shut-down, and its candidate is Joe Carr, a member of the Tennessee House of Representatives. Carr is making a prime issue of Alexander’s vote to re-open the federal government – right up at the top of his campaign’s home page, Carr tells Alexander “You sold-out Tennesseans” and “gave into the demands of President Obama.” An August poll showed Alexander beating Carr by almost three to one, but another poll casting Alexander against a hypothetical “someone more conservative” put Alexander five points behind the hypothetical.
There’s a long way to go, but at this point I think it’s unlikely that any of the four accommodationists will lose to a primary to a Tea Party candidate. If I’m right, in other words, the Tea Party shut-down not only failed completely in its effort to end Obamacare, it also failed to gain ground in its insurgency against the Republican Establishment.