Before Charles Lane Accuses Others of Hypocrisy, Perhaps He Should Look Up the Definition

I've commented in the past about accusations of hypocrisy, and how they are often misplaced. It's not hypocritical for Warren Buffett to pay only the taxes required by current law, while simultaneously arguing that taxes on the wealthy should be raised. Even assuming that the material facts are identical, it's not necessarily hypocritical for somebody to take a different position than the one they took years or decades earlier, as sometimes people change their minds. It's not hypocritical to stop protesting an action or issue that once drew you out to the streets, every time that issue comes up -- you can continue to feel strongly about the issue while succumbing to issue fatigue, recognizing that your protests are not having any effect, or moving onto other issues or priorities that get in the way of organizing protests and rallies.

Still, accusations of hypocrisy abound. Certainly there are times that they are warranted, but often they're the hallmark of a lazy columnist. Falling into that latter category, Charles Lane is waving his finger at "liberals".

Building the Keystone XL pipeline, to speed the flow of crude from Canada’s oil sands to refineries in Texas, would be “game over for the climate,” says NASA-scientist-turned-climate-activist James E. Hansen. Heeding Hansen’s words, environmentalists have sworn to stop the project, which requires U.S. government approval.

Perhaps we should note, up front, that not all environmentalists are liberals, and not all liberals are environmentalists.

Yet large, bipartisan majorities of the House and Senate support Keystone XL, as does 60 percent of the American public, according to the latest USA Today poll.

And... that has absolutely nothing to do with whether the project is environmentally wise.

Today, it is still on hold, because Tuesday night 41 Senate Democrats voted against ending debate on a bill to green-light Keystone XL, thus thwarting what might have been a disastrous exercise of democracy.

Perhaps it escaped Lane's notice, but that is not the first-ever use of a filibuster in the Senate. As Lane himself noted in a prior screed,

Republican opposition to Obamacare may be hypocritical, irrational and opportunistic — especially GOP opposition to the exchanges, which the party previously favored in various forms. And, yes, the modern filibuster takes counter-majoritarianism to an extreme even the Framers probably didn’t contemplate.

But the Constitution lets the Senate write its own rules.

The fact that Senators who are part of an institution that has created and upheld the filibuster actually employ a filibuster is in no way hypocritical. Even if we assume (in defiance of the facts) that each and every one of those Senators would vote for straight majority rule in the Senate, it would not be hypocritical of them to employ the actual rules of the Senate when voting on legislation.

In short, the filibuster may have just saved the planet, at least for now.

Or so it must be believed by Keystone XL’s opponents — even though they include some of the same people who decried the filibuster, not unreasonably, as an obstructionist, anti-majoritarian evil when Republicans employed it against President Obama’s health-care reform, cap-and-trade and other progressive legislation.

Here, through his link, Lane suggests that Markos Moulitsas is a hypocrite for opposing the filibuster and... he doesn't offer a link, but perhaps Moulitsas praised the Senate vote somewhere? As with Warren Buffett and his taxes, even if Moulitsas is overjoyed that the pipeline bill was filibustered, it's not hypocritical for him to advocate changing the Senate's rules while nonetheless encouraging Senators to use those rules to advance policy positions he favors. The concept isn't even slightly difficult to grasp -- it is possible to believe that something is bad on the whole such that it should be eliminated, even when recognizing that it has potential value under certain circumstances.

When I saw the film, Shattered Glass, I had some sympathy for the Charles Lane played by Peter Sarsgaard, a well-meaning guy who got duped by one of his employees. But the Charles Lane who writes for the Washington Post seems to have a different problem -- he seems to be lazy and indifferent to the facts, the sort of approach to journalism that can allow somebody like Stephen Glass to get away with feeding him the most absurd fabrications as long as they don't conflict with his preconceptions. When you click through the link to the actual statement by Markos Moulitsas, Lane's exemplar of a hypocrite, you hear this:

There's a huge movement, and I think it's going to happen, to change the filibuster rules from requiring sixty votes to requiring forty "no" votes. Right now if you want to filibuster you don't even have to show up, you know, the onus is on the "pro" side to round up the sixty votes. So when you turn it to forty votes you gotta have those forty people there, and if one of them has to go to the bathroom, boom, you call cloture, and that's that.

Moulitsas was not calling for the elimination of the filibuster -- he was calling for the perpetuation of the filibuster, but with a change in how you vote for cloture. Given that Lane knows that forty-one Democrats voted to filibuster, and he should know that Moulitsas favors a filibuster rule that would sustain a filibuster based on those forty-one votes, his insinuation of hypocrisy has no basis in reality. It's instead an example of Lane getting his facts wrong. And with that example having been dredged up from September 10, 2010, either Lane couldn't find an actual example of a statement from a liberal that would support his thesis, or he got lazy.

Majority rule is not the only progressive principle some progressives seem ready to sacrifice on the anti-Keystone altar.

First, are we talking about "liberals", are we talking about "progressives", or does Lane view the term as interchangeable? Either way, I am not aware of any consensus among either group that we should eliminate representative democracy in favor of direct democracy.

If we're simply talking about Senate rules, to put it mildly, there is no consensus among liberals or progressives that the filibuster should be abandoned. Some believe that it should be eliminated, but others (as with Lane's exemplar progressive, Markos Moulitsas) favor continuing the filibuster but changing the rules to make it less of a tool for obstruction, and still others would leave well enough alone. Meanwhile, it was not so many years ago that Republicans on the floor of the Senate made frequent calls for a "straight up or down vote" when confronted with the filibuster. Some of that opposition may have been opportunistic, but the fact is that the recognition that the filibuster is anti-democratic and could benefit from reform is not something that is unique to the political left.

Remember the corrupting influence of money on politics? Billionaire Tom Steyer has spent millions on TV ads backing environmentalist Democrats and trashing the pipeline itself, thus purchasing outsize influence in the White House and the Democratic Party.

Although this should go without saying, campaign finance reform has traditionally been a bipartisan issue, once championed by none other than John McCain. As should also go without saying, proponents of campaign finance reform have not proposed that no money be spent on political advertising. But beyond that, we're back to Warren Buffett and his taxes. You can believe that wealthy individuals and corporations gain an outsized voice in politics and government through their direct and indirect contributions, while nonetheless believing that you should take full advantage of the existing laws to advance your causes. There is no hypocrisy in advocating for a change in the law while operating under the existing laws, and it would be extraordinarily foolish to refuse adequate funding for your political goals out of principle when the likely consequence would be that your opponent would win. Heck, Steyer even spoon-fed that reality to those who are a bit slow on the uptake, and Lane quotes the explanation:

“On issues as critical as climate change, we will take action and work within the system that we’ve got until we can change it,” Steyer pragmatically told Forbes magazine.

How can Lane read that statement yet fail to understand that it's not an example of hypocrisy?

Next up, infrastructure,

Most of the time, liberals tout the job-creating potential of critical infrastructure projects, based on the indirect “multiplier effect” that even short-term construction can have on economic growth.

Perhaps lane doesn't realize that with his opening qualifier, he hobbled his argument before it left the starting gate. There is a vast difference between supporting infrastructure projects most of the time, and supporting them all of the time. We should note, also, that many conservative voters recognize the need for and benefit of infrastructure projects -- but that doesn't mean that either side has to embrace every infrastructure project, that they cannot prioritize certain types of project over others, or that they cannot object to an infrastructure project that they deem wasteful or harmful.

For Keystone XL, though, different rules apply.

Apparently, to lane, "different rules" means roughly the same thing as "the same rules".

We are instructed, by Daniel Weiss of the Center for American Progress, among others, that the $8 billion project will create “only” 3,900 “direct” one-year construction jobs and a mere 50 permanent ones. Forget the 42,000 jobs that a State Department analysis said would be “supported” by the project.

Here, rather than pointing to the actual State Department report, Lane links to a post from the Washington Post's Wonkblog. That blog post indicates that "About 3,900 of [the] jobs would be temporary construction jobs", and that once built, "the pipeline would support 50 jobs". In other words, Lane is complaining not that the one person he mentions got the facts wrong, but that he should have provided additional facts.

When you go to the written statement of Daniel Weiss, you find that his reference to the number of jobs that would be created by the Keystone XL pipeline was specifically addressing the number of permanent jobs that would be created. While Lane can certainly argue that a greater discussion of temporary jobs would make the statement more complete, surely he can understand that temporary jobs are not of great significance to an assertion about permanent jobs. After all, if he cannot make that distinction, he is guilty of the same offense he attributes to Weiss -- Lane does not mention that either that the 42,000 indirect jobs would be temporary, continuing only during the construction of the pipeline.

Lane is also engaged in a sleight of hand. The people -- liberal and conservative -- who favor infrastructure projects have done so in no small basis upon the position that although a typical infrastructure project is relatively short-term, we need to invest in our nation's decaying infrastructure and that the short-term boost in employment can help stimulate the economy. As previously stated, this was never an endorsement of any infrastructure project. In fact, the proposed focus has typically been on public infrastructure.

But as Lane knows, those commenting on the very small number of permanent jobs that will result from pipeline construction are addressing a different issue. They were attempting to rebut exaggerated claims by pipeline proponents about the number of jobs the pipeline would generate, and to point out the indisputable fact that the pipeline will create an inconsequential number of long-term jobs. There is absolutely no reason to believe that the people making these observations about Keystone XL would not say exactly the same thing about other major infrastructure projects.

Construction unions understand that employment in their field is inherently temporary in the sense that it ends when the building is built. They strongly favor Keystone XL. Yet this reliably Democratic middle-class constituency is also being thrown under the anti-Keystone bus.

Wow... crocodile tears for union worker.

It's even slightly surprising that unions whose members would benefit from construction jobs favor construction projects. I would not be surprised if there was significant union support to build "the bridge to nowhere". The question of whether a particular faction supports a project does not answer the question of whether the project is wise or appropriate. Further, given that only a few short paragraphs ago Lane was grousing that progressives have forgotten their principle of "majority rule", Lane wants to have it both ways. If it's hypocritical and an affront to progressive principles to not abide by the judgment of the minority, how can it be simultaneously an affront to progressive principles to not allow a vocal minority to impose its will on the majority? Does Lane not find it obvious that it's one or the other?

The least attractive violation of progressive values by Keystone XL opponents’ was their attempt to recast this joint project of Canada and the United States in xenophobic terms.

Oh, this should be good....

One Steyer-financed ad warned that China is “counting on the U.S. to approve TransCanada’s pipeline to ship oil through America’s heartland and out to foreign countries like theirs.”

So... based on one ad that virtually nobody in the nation has seen, Lane has concluded that progressives have embraced xenophobia.... (Has Lane ever noticed the Republican Party's treatment of issues like immigration?)

The only basis for this claim was that state-owned Chinese companies have a modest investment in Canada’s oil sands. The Post’s Fact Checker, Glenn Kessler, awarded the ad four Pinocchios, noting that “it relies on speculation, not facts, to make insinuations and assertions not justified by the reality.”

That's it, then? One ad, financed by one individual, seen by virtually no one? It's difficult to imagine how Lane could build a stronger case.

Speaking of the planet, perhaps the only person on it who still hasn’t made up his mind about Keystone XL is President Obama, though his dithering has recently given way to expressions depressingly reminiscent of those in the Steyer ad.

In reality, President Obama has expressed that he is waiting for private lawsuits over the pipeline's proposed path to be resolved, and for the State Department to complete its analysis of how the pipeline will affect the environment, before taking a position on the pipeline. It's easy to understand why some might want the President to take a firm position, pro- or con-, before all of the facts are in. It's also easy to see why the President would instead choose to remain neutral pending either the outcome of litigation and studies that might prevent the pipeline's construction, or the presentment by Congress of legislation for his signature. Lane chooses the pejorative, "dither", but there is no reason to believe that the President is being even slightly indecisive on the question, as opposed to playing a careful political game on a hot button issue.

And yes, obviously, his suggestion that the President is xenophobic is absurd.

“Understand what this project is,” he said at a news conference in Burma last week. “It is providing the ability of Canada to pump their oil, send it through our land down to the Gulf [Coast], where it will be sold everywhere else.” Their oil. Our land.

Does Lane disagree that the oil belongs to Canada? Does he disagree that a pipeline that will run across the United States is accurately described by the President as crossing "our land"? If Lane actually believes that the President's statement reflects xenophobia or anti-Canadian agitation, he should seek psychiatric help.

Yet his own State Department’s exhaustive review of the project found that re-exports of the oil, either as crude or in refined form, were unlikely.

This time around, Lane links to the actual State Department report. However, he is not being honest about the report's conclusion:

It is likely that increasing amounts of WCSB crudes will reach Gulf Coast refiners whether or not the proposed Project goes forward (products from this processing will be used in both domestic markets and for export). As a result, future refined product export trends are also unlikely to be significantly impacted by the proposed Project.

The report does not suggest that export won't occur. It suggests instead that enough Western Canadian Sedimentary Basin (WCSB) crude will reach the Gulf, with or without the pipeline, that net exports are unlikely to be affected.

Lane's second link is to a Reuter's analysis of the President's statement, which it declares to "ring[] only half true".

"Some of it will stay in Gulf, some of it will leave," said Sarah Emerson, president of Energy Security Analysis, Inc. in Boston. "I don't think anyone would have built if they thought the oil was just going to stay in the Gulf Coast, that is like bringing coal to Newcastle."

It would be fair to accuse the President of overstatement. However, once again Lane is guilty of the very offense he attributes to others -- he is misrepresenting the State Department's report and is implying, in defiance of the facts and his own sources, that export is unlikely to occur.

Hypocrisy and rhetorical flimflam are standard in politics, and liberals are not the only guilty parties in the Keystone XL battle.

At this point, Lane has identified zero examples of hypocrisy. Not a one. It's not even clear that he understands the meaning of the word. As for "rhetorical flimflam", it's a colorful way of describing something that is inherent to politics. To observe, even with colorful language, that politicians are guilty of practicing politics seems somehow banal.

Keystone XL proponents have undoubtedly tapped corporate coffers to fund their share of exaggerations about the project’s benefits.

Lane speaks of this as if it's an assumption, not a fact. It's a fact.

And of course climate change is real and must be addressed.

Which doesn't mean that Lane isn't going to insist that the President state a firm opinion, or insult him for declining to do so, while we await the environmental impact report.

But in this case progressives are not only being intellectually dishonest and traducing their values, they’re doing so pointlessly: This end doesn’t justify these means.

Really, other than waving his hands a lot, all Lane has documented is that one wealthy person produced one TV ad, approved by nobody but himself and seen by virtually no one, that has an element of xenophobia; and that the President has implied that more of the WCSB crude will be exported than is likely to be the case. And in producing that tepid indictment of "liberals", he has misstated the facts, misrepresented the positions of people he has held up as hypocrites, and misunderstood the basic issues under debate.

Far from being “game over” for the planet, Keystone XL would not boost greenhouse gas emissions significantly, according to State Department experts. With or without Keystone XL, Canada’s oil sands will still be turned into crude oil and shipped, often by rail, to markets in the United States and elsewhere. The environmental movement’s energies — not to mention Steyer’s millions — would be far better spent elsewhere.

Lane's implication is that the crude is going to be extracted, shipped and used, so environmentalists may as well shut down and go home. Sometimes, even a fight for a losing cause can bring about results that benefit the losing side -- a better educated, more aware public, the exercise of greater caution when proposing and planning future projects with significant potential environmental impact, and the like. Also, while Lane writes off the possibility, perhaps those environmentalists don't intend to call it quits if the pipeline is not constructed. But, frankly, it's not his place to tell environmentalists how to expend their energies or to tell Steyer how to spend his own money.

In their tendentious effort to deny these realities, progressives risk violating yet another cherished principle that, in their view, distinguishes them from the right: that of letting facts and science, not ideology, determine policy.

And here Lane is back to his earlier trick of conflating the terms "environmentalist" and "progressive" -- as if there are no conservative environmentalists nor any progressives who don't oppose the pipeline. And in relation to letting the facts and science dictate policy, what was it that Lane said only a few sentences ago?

And of course climate change is real and must be addressed.

So which is it -- is this a situation in which climate change is real and must be addressed, or a situation in which that science is already known and weighs in favor of the pipeline? If Lane's theory is that the oil will be extracted and used, rendering the existence of the pipeline irrelevant to the debate, he's missing the actual goal of the environmentalists opposed to this project -- they don't want that oil to be extracted or used at all. That's not because they are ignorant of science and climate change, or because they are refusing to consider the science when forming their positions on WCSB crude -- quite the opposite. Given that Lane is now endorsing making decisions based on science, it also seems odd that he wants the President to get ahead of the environmental impact analysis for the Keystone XL pipeline. It's almost as if Lane is privileging ideology over science.

Campaigning for a symbolic victory over the fossil-fuel industry, they may end up with a pyrrhic one — if any.

It goes without saying that the environmentalists could lose their fight against the pipeline. But it also goes without saying, even with due respect to Lane's accusations of imagined hypocrisy, if the environmentalists who oppose the pipeline prevail they will not view their victory as pyrrhic. More likely, they will be energized for their next battle.

Do you know what would have made Lane's column better? If, rather than launching a poorly reasoned screed about "liberals", "progressives" and "environmentalists", that did little more than reveal his sloppy, lazy fact-checking, he had tried to lay out the case for why the pipeline is a good idea. He might have tried to explain how the pipeline compares to other possible infrastructure projects in terms of need, job creation and long-term benefit. He could have attempted to address environmental concerns, rather than brushing them off. Too much to ask?

Those Unsustainable Deficits....

Incredible,

Based on the math, it is hard to justify a $250 million valuation for The Washington Post. The company reported it lost nearly $50 million for the first half of the year on its newspaper operation that generated $138.4 million in revenue. Of the $50 million loss, nearly $40 million was a noncash pension expense. So you could argue that the company lost only $10 million on operations. But it lost $33 million in the first half of 2012, too, also including pension costs. Circulation fell about 7 percent in the first half of 2013.

This is the paper that employs George "The Ichneumon Larva" Will, Charles "The Greek" Lane, Charles "Stein's Law" Krauthammer and Robert "Shoddy Quality" Samuelson? One imagines those four have already agreed to massive cuts in their pay and benefits. (And then one wakes up.)

Detroit Isn't Greece

Remember that movie from a few years ago, where a kid grew increasingly neurotic and agitated about government debt until a psychologist teased out his secret, "I see Greek people... they're everywhere... and they don't even know they're Greek!" Well, neither do I, but had they made that movie the child might have grow up to be Charles Lane.

I have three basic problems with people who are inclined to point to units of government and declare, "That's like Greece". First, those making the comparison often seem to have little understanding of the situation in Greece. Second, their comparisons are usually spurious. Third, the gist of their argument usually has nothing to do with Greece or the circumstances that led up to its economic crisis, and usually have a lot more to do with a desire to cut social spending or to attribute some form of blameworthiness to the ordinary people who have profited the least and suffered the most from the mistakes and misconduct of their governments. I'm not seeing Lane as an exception.¹

Greece's economic crisis did not emerge in a vacuum. If any nation in the Euro zone was not aware that Greece was playing games with its finances first to qualify for entry into the Euro and subsequently to nominally meet the limits on the size of its deficits, the ignorance would have to have been willful. Greece's governance was impaired by ineptitude, corruption, and a willingness to turn a blind eye to tax fraud. But the average Greek person was part of a culture that was more entrepreneurial than most - just oriented toward small, family-run businesses as opposed to the version we're used to - and on the whole they were paying a higher share of their income in taxes than a typical U.S. citizen. It's all too easy to shrug off the hardship they are experiencing, first from the economic collapse and second from austerity measures, while ignoring the fact that those who profited the most from the lead-up to the crisis are also typically those most insulated from its consequences.

A comparison between Greece and Detroit perhaps holds true in relation to the perceptions that lead to a mentality of austerity - a notion that the people are at best undeserving and at worst need to suffer. Never mind that most of them are trying to get through their lives under difficult circumstances. The City of Detroit has lost close to two thirds of its population since its peak. It's easy to look at Coleman Young, who chose to transform himself into a cartoon, and forget that he became mayor following a period of crisis and actually did good work during his first term. It's astonishing, how bad things became over his subsequent terms, or the culture of incompetence and entitlement that took over the City's government during his era.

It's easy to forget that when provided with the opportunity to do so, the people of Detroit made the very responsible choice of electing Dennis Archer as mayor - but (one might infer, when confronted with the entrenched corruption and incompetence left beyond by Young as well as the lack of resources and political capital necessary to effect a significant reform of the city and its government) he left office after one term and was succeeded by the young, charismatic,² and (alas) corrupt Kwame Kilpatrick. It's also easy to forget that Kilpatrick was succeeded by Dave Bing, who is much more in the model of Archer, but by some combination of timing, personality and opportunity, more willing to take on the entrenched interests that have impaired the city. As they say, at least in relation to trying to forestall the appointment of an emergency manager and possibly to keep the city out of bankruptcy, too little, too late.

It has been painfully obvious for decades that Detroit needed serious outside intervention. That did not occur for three reasons: first, few people were willing to pay the political price associated with the necessary reforms. Mayor Bing was able to propose consolidating neighborhoods and essentially shutting down the sparsely populated ares of the city because things had degenerated well past the point of sustainability - but the need for those measures were obvious more than twenty years ago. Second, change isn't cheap - and nobody wants to pay for it. For example, there are huge, slowly decaying buildings and structures in Detroit that remain in place, eyesores that stand in the way of brownfield redevelopment, because they're too expensive to remove and nobody in their right mind wants to develop land that sits next to a decaying hulk or contaminated land. The state is unwilling to divert that type of money into Detroit, and it's not even on the federal radar screen. Third, it's very easy to blame the people of Detroit for their own plight, even though things get far more complex when you start looking at individuals. Our nation's approach to its anachronistic large cities³ and the problems of the inner city is largely one of disinterest and neglect - and that's not likely to change as long as the nation, as a whole, perceives the residents of those areas as undeserving of help.

Still, Detroit has its bright spots. If Lane ever actually makes it to the city, he may want to check out Greektown.
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1. For example, Lane waxes poetic about the union-busting powers granted to Detroit's emergency manager then complains, "German chancellor Angela Merkel could only wish for such quasi-dictatorial power over her Greek clients", seemingly unaware that Germany has been a driving force behind the failed austerity measures that have been imposed upon Greece to the extreme detriment of ordinary people; he argues "Greece’s state-owned money pits include a railroad and ports. The political class in Detroit saw fit to own water works and parking garages", as if it's unusual for a municipality to own a water utility or parking structure and as if the comparison between that type of service and owning seaports and railroads has any validity, and in ignorance of the fact that Detroit's water utility produces high quality water and sells its services to other area communities; he suggests that Detroit's pension obligations are somehow analogous to the cause of Greece's economic crisis, never mind that pensions had nothing to do with Greece's crisis and the relative size of Detroit's pension obligations to its tax revenue is far more a creature of its collapsed tax base than of the fact that city employees receive pensions.

2. I did not personally find Kilpatrick to be appealing - I would label his style and swagger as appalling - but I can't deny that many others thought he was charming and liked his bravado.

3. Many cities that were once important, even crucial, hubs for trade are now largely irrelevant. Many of the industries that were once consolidated in major cities have shifted to other states, and even to other nations, with little to take their place. Detroit has lost 60% of its population, leaving behind a tax base insufficient to support its infrastructure, but without enough jobs or opportunities for the people who remain behind. As huge numbers of capable workers have left the city, a disproportionate number of those left behind have marginal jobs skills, physical or mental illness, drug addiction, or some combination thereof - with a predictable effect on the community, its schools, and its attractiveness to employers.

Believe it or Not, People Eat More Than Once Per Year

Charles Lane proposes abolishing "the Supplemental Nutrition Assistance Program (SNAP), commonly known as food stamps", and transferring the funds to other programs,

If the working poor’s current share of food stamps went instead to increase the earned-income tax credit and expand eligibility for it, Republicans and Democrats would have less to argue about. The tax credit is a wage supplement, delivered through the income tax system, widely considered one of the most successful federal programs at encouraging work and eliminating poverty. It has also enjoyed consistent bipartisan backing.

The problem with this, and I'm a bit surprised that it even needs to be said, is that an additional amount added to your tax refund (if you qualify), many months into the future, doesn't fill the refrigerator.

Lane asserts that he would effectively prevent people hit by an economic downturn from receiving food assistance, but fancies that by compelling "Congress [] to distribute the SNAP budget among other programs for the poor, for which many SNAP recipients also qualify", part of that money "would go to an expanded and more generous unemployment insurance program". Except that nothing in his proposed distribution to "other programs for the poor" compels that result, and unemployment insurance programs are state-based. Frankly, if the law abolishing food stamps gets down to the level of specifying how the money is to be "redistributed", mandating a certain level of federal funding for state unemployment insurance programs, mandating that states actually apply that money to increased befits sufficient to make up for the loss of food assistance, his cure sounds like a regulatory nightmare. And that's before we get to the fact that while SNAP is means tested, programs like unemployment insurance and Social Security retirement are not. When Lane asserts, "For example, a third of the seniors living on food stamps also get Supplemental Security Income (SSI)", which is a means tested program, the question arises, what about the other two thirds?

The fundamental objection to SNAP is not that it doesn't help the categories of people, "low-income people who are either working, jobless through no fault of their own, elderly or disabled", whom Lane sees as the "deserving poor" - although of itself, that assertion makes it appear that part of Lane's goal in this proposal is to reduce benefits to people he sees as "jobless through [some] fault of their own" - it's the notion that "they" are taking from "us". That can be a nebulous population of "undeserving poor", the apparent actual target's of Lane's proposal, but let's not understate the degree to which the opposition is driven by demagoguery involving confabulated "Cadillac-driving welfare queens" and "Young bucks buying T-bone steaks". You can easily find opponents of any number of means-tested government programs who object that other people don't deserve the same benefits, with no thought given to the fact that most critics of the same programs would place them squarely in the "undeserving" category.

If Lane wants to propose that aid to the poor be simplified, and transitioned into more of a cash-based system, I can get on board with that. We certainly have the technology to distribute cash aid efficiently, and could consolidate what are presently monthly payments of cash through a variety of social welfare programs into weekly or even daily transfers - no more waiting until the next month rolls around to buy the groceries, you'll have money in the morning. We could add to that a "tough lesssons" provision - that the government can vendor rent and utility payments on behalf of somebody who receives public assistance but if they choose instead to take the cash and then fail to pay their bills they're "on their own". Of course, as a society we're generally too paternalistic to do the former, which is why we have programs like SNAP in the first place - so people can't spend money on the "wrong things" - and are generally not willing to do the latter because we don't like the specter of people on public assistance, and even less households full of children, living without heat or water, or evicted for nonpayment of rent. Frankly, most recipients of public assistance can handle the responsibility, and while we do have to be cautious about the fallout on families when, say, dad spends the household budget on crack, we don't do much to inculcate responsibility in the rest of the recipients when we insulate the adults in a household from the consequences of their bad financial choices.

Lane seems to be proposing an odd, circuitous path to take money from a population he sees as the undeserving poor, and transferring that money to the more deserving poor. The biggest problem with his proposal is that both groups need to eat, and starving one group to give the other a larger annual tax credit won't help either of them.

Achieving Medicare Savings for Durable Medical Equipment

Charles Lane has discovered the problem that Medicare often pays an inflated price for durable medical equipment, prosthetics, orthotics and supplies (DMEPOS). My reaction is two-fold: First, although Lane has identified an area of Medicare spending in which savings could be obtained, he's focusing on a tree. Second, Lane only hints at the resistance that is likely to be encountered should Medicare attempt to minimize DMEPOS expenditures.

Lane tells us that "between 2000 and 2010, Medicare spent $69.4 billion on DMEPOS, almost all of it based on the old, inflated reimbursement rates." So, roughly $7 billion per year. In 2010, the Medicare budget was $560 billion. Even if we assume that there was significant growth in the cost of DMEPOS over that decade, such that by 2010 we were spending $12 billion per year, we would still be talking about just over 2% of spending. If we assume reforms not yet implemented could save 1/3 of that amount, we would be looking at saving $4 billion per year. That type of reform is significant - but only makes a material difference to the cost of Medicare in the aggregate.

One of the arguments often made in response to President Obama's proposed tax increases is that they're too small to make a difference.

The proposed tax increase would fail to address the deficit seriously. According to the Joint Committee on Taxation, the proposed tax increase would raise only $68 billion by shifting the top tax bracket from the Bush era rate of 35 percent up to 39.6 percent (plus a few from the health care law). The government expects to spend $9.9 billion per day, or a projected $3.627 trillion for this year. Based on these numbers, the addition $68 billion from a tax increase would pay for 6.8 days of government operation.

It's a fundamentally dishonest argument, and it's absurd to pretend that we could identify a single tax increase that could bring the budget into balance - at least without tanking the economy. The modest savings that can be achieved by cutting waste in DMEPOS spending should not be overlooked, as small steps are worth taking, but Lane seems to overstate the importance of that one aspect of Medicare spending to its overall budget picture, using ten year figures to exponentially increase the size of an average year's expenditure, and omitting any mention of the size of the Medicare budget.

Lane argues that the "obvious solution" is "competitive bidding". Certainly, one way to avoid excessive cost would be to allow Medicaid to use its market power to negotiate with manufacturers, perhaps leaving Medicare recipients free to choose other equipment but making them responsible for any cost in excess of the negotiated price for equipment on its approved list. Distributors could be paid a percentage of the approved cost as their fee for handling the equipment and training recipients in its use. Manufacturers and distributors, I expect, would go ballistic, and would attempt to scare Medicare recipients by talking about "government bureaucrats deciding what equipment you get", and the like. It would be interesting to see Lane flesh out his "obvious" solution in a future column - and if he has the space, he can also address how we can convince the Republicans in Congress that Medicare should be allowed to use its market muscle to achieve savings not just here, but also (and more importantly) for pharmaceuticals.

It's worth noting that a great deal of DMEPOS, despite its substantial cost, is effectively abandoned when the patient no longer needs the equipment. It would be nice if it were possible to recover, refurbish and reuse some of that equipment. Unfortunately, even before considering patient resistance to being given refurbished, older equipment, the cost of recovering, refurbishing and redistributing medical equipment would likely exceed the potential savings.

Collective Action - Aspiration vs. Reality

Charles Lane wrote a column recently in which he complained that "collective action" is overrated:

[T]he gist [of Mancur Olson's argument] is that large numbers of people do not naturally band together to secure common interests. In fact, the larger the group, the less likely it is to act in a truly collective manner.

As Olson explained, the interests that unite large groups are necessarily of the lowest-common-denominator variety. Therefore the concrete benefits of collective action to any individual are usually small compared with the costs — in time, effort and money — of participation. “Free-riding” is a constant threat — as the difficulties of collecting union dues illustrates.

By contrast, small groups are good at collective action. It costs less to organize a few people around a narrow, but intensely felt, shared concern.

Lane suggests that Olson's thesis is supported by the existence of lobbyists and "special-interest groups that swarm Congress", seeking favorable legislation. He also speaks as if this is a new thing, or that the recognition of diverse interests and competing factions didn't arise until Olson published his 1965 book.

I agree with the general thesis that, the larger the group, the more difficult it is to achieve consensus, and that the difficulty compounds as you try to achieve consensus on a greater number of issues or across a broad range of subjects. Lane is also correct that factions tend to look out for their own self-interest, "whether or not success comes at the larger society’s expense". Lane is correct that groups that self-select for a specific purpose (e.g., to lobby Congress for a favorable tax law, or a protectionist regulation that protects them from competition) can be effective at advancing their agenda. They tend to be even more successful when they are well-funded.

However, he runs into trouble when he attempts to turn his critique of collective action into a critique of stable democracies and, more specifically, the Obama Administration. Turning to a later book by Olson, Lane argues,

His paradoxical, and deeply depressing, conclusion: Political stability is a curse of sorts, because, over time, stable societies accumulate interest groups, with all the distortion and complexity that breeds. “On balance,” he wrote, “special-interest organizations and collusions reduce efficiency and aggregate income . . . and make political life more divisive.”

Lane diagnoses the United States with that "British disease", with too many factions looking out for their own self-interest, with the result that the bargaining table is "too crowded to agree on the problem, much less a solution."

But if we step back for a moment, the foundation of the Lane/Olson "British disease" thesis is weak. First, Britain's fall from its status as a dominant world power followed the collapse of colonialism and its involvement in two world wars. Over that same period the U.K. underwent a massive social transformation. Its likely that the social transformation did lead to a greater number of voices vying for the attention of Parliament, but Britain's decline began long before, under a class-based power structure that was far less responsive to many of those voices, so it's difficult to even find a meaningful correlation, let alone causation. To focus on an increased number of "special interests" while ignoring the economic drivers of Britain's shrinking influence is to miss the forest for the trees.

Further, if it is in fact true that older democracies become ineffecient due to their being overwhelmed by a proliferation of special interests, where can we find the modern, nimble democracies not yet weighted down by faction? France's Fifth Republic? Greece passed its most recent Constitution in 1975 - what should we make of that? Which of the democracies borne of the fall of the Iron Curtain are exemplars of the efficiency and lack of faction that Lane attributes to long-term stability?

In criticizing the President, Lane also misses the entire point of appeals to unity and collective action. It's not that the President is lacks "realism". It's that he, like every President who came before him, recognizes that you don't unify the people or inspire the type of solutions Lane claims he favors by telling the people, "We're hopelessly divided by faction, we have no chance of solving tough issues, so 'every man for himself,' 'good luck and thanks for all the fish.'" The notion of the people as a collective, pulling together, is part of the preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[note 1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Divisions among the citizenry, and the need to nonetheless pull together, have been part of presidential rhetoric from the time of George Washington:

Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes.

But these considerations, however powerfully they address themselves to your sensibility, are greatly outweighed by those which apply more immediately to your interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the union of the whole.

Lyndon Johnson:

This is one nation. What happens in Selma and Cincinnati is a matter of legitimate concern to every American. But let each of us look within our own hearts and our own communities and let each of us put our shoulder to the wheel to root out injustice wherever it exists. As we meet here in this peaceful historic chamber tonight, men from the South, some of whom were at Iwo Jima, men from the North who have carried Old Glory to the far corners of the world and who brought it back without a stain on it, men from the east and from the west are all fighting together without regard to religion or color or region in Vietnam.

Jimmy Carter:

With God’s help and for the sake of our nation, it is time for us to join hands in America. Let us commit ourselves together to a rebirth of the American spirit. Working together with our common faith we cannot fail.

I suspect that Lane has been thinking about the issue of faction and how it impedes government action, and has a better column hidden somewhere inside his head, but made the poor choice of trying to build his case based upon a flawed thesis about the "British disease", presidential rhetoric that is consistent with that of every other president, and the conceit that the concept of faction and competing interests is relatively new to politics. Lane also overlooks the dark side of faction, with its "us versus them" thinking, and although he acknowledges "", he elides from his column any mention of wedge issues and the manner in which political factions and parties attempt to create and exaggerate differences between groups in order to prevent political change or progress. Sometimes it's the rhetoric Lane criticizes, that of unity and common interest, that allows for the type of change he claims to endorse.

Lane betrays his actual complaint when he engages in the language of his own faction, that of the Very Serious Person:

But the president’s paean to collective action lacked Olson’s realism. The question is not just how much more government we need or want, if any. It’s also how much more government we can afford, in light of its purposes and given the risks Olson identified — which have already materialized in the form of unsustainable but politically untouchable entitlement programs.

The question for Lane, though, is not how much government we can afford, because his faction is unconcerned with how government could provide the same level of service at a substantially lower cost. Were Lane to break out of the groupthink of his faction he would acknowledge (as has his paper) that the only government "entitlement" that is projected to be unsustainable is Medicare, while Social Security can be made sustainable for the indefinite future with relatively modest changes. Fixing Medicare? Lane's own newspaper doesn't think the problems are all that difficult to fix, but it's also telling that Lane isn't advocating the immediate, significant cost savings that could come from emulating the better national health insurance plans of other western democracies.

At the end of it all, Lane does a pretty good job of evidencing his larger point, that it's difficult to find solutions when people won't look past their self-interest. He grouses that the President isn't sufficiently serious about entitlement reform while failing to admit that President Obama keeps offering Reagan-style Social Security reforms that will keep its books in balance, despite the howls of factions on the left. He similarly ignores the fact that the Patient Protection and Affordable Care Act (Obamacare) attempts to improve the quality of Medicare while reducing costs, and that its cost-saving measures would be stronger but for the obstructionism and demagoguery of the Republican Party. And of course, he fails to note that Obama was ready to enter into a "grand bargain" with the Republicans on taxes, spending and entitlements but... the Republicans walked away from negotiations.

I can't argue with Lane's feelings - we would all feel better if the government stopped listening to anybody else, and honed in on what we, individually, believed to be in the best interest of the nation. I guess it needs to be said: that's not realistic.

Social Security Disability - Incentives vs. Job Opportunities

Charles Lane is troubled by Social Security Disability Insurance, the benefit that goes to a person who has a history of employment but who becomes disabled. As presently funded, there is an actual problem with the sustainability of SSDI, and the CBO has observed,

A number of changes could be implemented to address the trust funds projected exhaustion. Some would increase revenues dedicated to the program; others would reduce outlays. One approach to reducing expenditures on DI benefits would be to establish policies that would make work a more viable option for people with disabilities. However, little evidence is available on the effectiveness of such policies, and their costs might more than offset any savings from reductions in DI benefits.

So we have a bit of a conundrum: it may be possible to help more SSDI recipients return to the workforce, but that positive step could increase the cost of the program.

Charles Lane appears to be confused the entire concept of disability insurance,

Social Security Disability Insurance, however, pays people who can show that they are too mentally or physically impaired to remain in the labor force. In short, for many workers, SSDI creates a quasi-right not to work.

I'm not sure how to respond to that. Yes, if you are disabled from work to the point that you qualify for disability insurance, public or private, you can receive those benefits in lieu of the salary you're no longer able to earn. But if you're not able to work, to call that a "quasi-right not to work" is to completely miss the point.¹ Also, as Lane notes, the benefits are far from generous,

The average monthly benefit is $1,100, slightly less than the average Social Security retirement check, but after two years on SSDI, beneficiaries also get Medicare. Indeed, SSDI added $80 billion to the cost of Medicare in fiscal 2011.

Recall, we're talking about people with sufficient work histories and credits to qualify for the program. How many adult workers does Lane believe look at an average $1,100 per month benefit, an amount that may actually be as low as $500 per month depending on their work history, and conclude, "That's a sweet deal."

Lane observes that after two years of disability an injured worker can qualify for Medicare. If he wants to argue that Medicare is not free, agreed, Medicare is not free. But what does he propose as the alternative? Leaving a significant population of disabled adults uninsured? Does he imagine that being unable to get the treatment and medication they need will render disabled more employable over time?

As is the wont of a certain class of Social Security reform advocates, Lane believes that the history of the Social Security program is "haphazard" and did not properly consider the consequences of giving disability benefits to workers. His evidence for that contention? The program initially treated disability benefits as "an early-retirement program for people with cancer, heart disease and other grave physical conditions", but in the 1960's the program was modified to include all adults with a sufficient work history who "suffered from a condition rendering them unable to 'engage in substantial gainful activity' for a year or more".

You'll note at this point that there is nothing "haphazard" about that history. Congress simply found that the need for disability insurance was greater than it first thought, and expanded the program to a larger pool of working adults. And this happened half a century ago.

Lane suggests that this resulted in "undeserving"² adults obtaining disability benefits, emphasizing at various points in his editorial, "mental and musculoskeletal ailments"³ and "people claiming crippling back aches and depression". He complains,

Both the Carter and Reagan administrations tried to cull undeserving cases, but the resulting backlash was so strong that Congress actually liberalized the rules in 1984.

The short version, in the midst of one of the worst recessions in U.S. history, realizing that the number of workers signing up for disability insurance had reached new heights, President Carter became concerned about removing people who are capable of working from SSDI, and Reagan continued that push. They pushed back, and Congress took the side of the disabled worker. Perhaps that's what Lane sees as "haphazard", that Congress would actually side with disabled workers? Perhaps he believes that any time Congress rejects a President's preferred policy, even after years of back-and-forth, the outcome is "haphazard"? Because once again the process of reform does not appear to have been haphazard.

The changes Lane describes occurred as part of a deliberate process over a period of decades. If Lane wants to argue that they were unwise, he should work on making that case.

Lane notes something that is in no way surprising, and is in fact a repeat of the phenomenon that inspired Carter to suggest reform:

Applications spike during serious recessions, as laid-off workers turn to SSDI when unemployment benefits run out. Thanks to the Great Recession, applications spiked in 2010 to an all-time high of 2.94 million, before declining slightly last year.

Let's note that the percentage of adult workers who self-describe as having a disability has not changed. What changes during a prolonged recession is that larger numbers of disabled workers apply for SSDI benefits. In relation to those workers, Lane won't even endorse the arguments of the Presidents Carter and Reagan Administrations, that a significant population of disabled workers should be booted off of SSDI. If he agrees with the outcome, it's difficult to see why Lane devoted a third of his column to a clumsy clumsy criticism of the program's evolution.

I don’t mean to imply that all, or even most, SSDI beneficiaries are malingering. Indeed, some of the recent increase in enrollment would have occurred anyway due to the aging of the population.

Lne previously argued, "There’s no evidence that workers in general are substantially less healthy than they used to be", but now he's asserting that's not actually the issue. He's arguing that older workers with genuine disabilities, unable to find work, will apply for SSDI benefits when their unemployment runs out. That's consistent with Lane's apparent belief that SSDI should primarily serve as "an early-retirement program for" disabled workers.

1. "Employers pay nothing when their workers go on SSDI." - I commented on this when Peter Orszag wrote a weak argument for turning SSDI into some sort of private insurance program. Within the context of Lane's argument, if the problem is that people who actually have qualifying disabilities seek SSDI after years of unemployment, when their UI benefits run out, it would be an odd sort of employer-sponsored disability insurance plan that would remain available to them.

   If the goal is to turn SSDI into a form of worker's compensation, or to roll it into worker's compensation, you would create an incentive for workers to seek benefits when faced with job discipline or immediately upon losing their jobs, and would likely impose a massive cost on employers who employ marginal workers. Lane can talk all he wants about how "Under the ADA, employers who refuse to hire or promote the disabled may be liable for money damages in federal court", but employers already find ways to screen disabled workers out of the candidate pool.⁴ If you make them pay a percentage of a disabled worker's future disability benefit, without regard to whether the worker's disability has any relation to their job, you can expect to significantly shrink the number of job opportunities for workers who are suspected to have present or future disabilities, and can pretty much give up on the idea of getting present SSDI recipients back into the work force - if things don't work out, why would the employer want to bear the cost? ("We didn't reject the applicant because of his disability. We rejected him because he had a hole in his employment history.")

2. "[F]or many workers... the alternative to a steady SSDI check (and, often, Medicare) would be a minimum-wage job, possibly one without insurance." - Given that SSDI benefits are low, as Lane points out on average only $1,100 per month, for a great many recipients a minimum wage job would be a step up. For those whose work histories entitle them to benefits at the higher end of the scale, it seems quite unlikely that they see SSDI as a desirable alternative to their former salaries.

   I'm not sure what Lane is trying to suggest in relation to Medicare. I expect he understands both why people with physical and mental disabilities benefit from being able to access adequate medical care, and why it is generally more difficult for somebody to return to work if they have unaddressed medical needs.

   If Lane is arguing that we should give continued benefits to workers during a transition period, let them try to return to work without losing their benefits or Medicare if things don't work out, well... guess what.

3. "The program has no training or rehabilitation component." - The program does include some components designed to help or encourage recipients to transition back into the workforce. But as the CBO noted, there's scant evidence that programs meant to transition disabled workers back into the workforce are effective, and they can easily cost more than simply continuing their benefits.

   If Lane is taking the position that it's worth it - even if it requires raising taxes and paying for programs, the human benefit of helping injured workers get back to work with decent wages justifies the expenditure, it's unlikely that he'll get any push back from the community of disabled workers. What's he waiting for?

Lane's attempt to soft-pedal his views on SSDI are, perhaps, betrayed by his rhetorical questions,

More than 6 percent of the U.S. working-age population is on SSDI. Does that statistic represent laudable social solidarity, a scandalous excess of the welfare state, or a tragic but unavoidable idling of human resources? Or is it an expression of this country’s understandable ambivalence about exactly what we should expect from the disabled, in an age when we know that depression really does disable some people — and that a man with two prosthetic legs can run in the Olympics?

If somebody is actually disabled by depression, the analogy is not to "a man with two prosthetic legs [who] can run in the Olympics". A better analogy would be to that same guy trying to run the same race without his prosthetic legs.⁵ I would like to think that buried somewhere in that thought process is the idea that we should provide people with mental illness with the support, treatment and medication they need to avoid leaving the workplace, or get back to work, but somehow I don't think that's what Lane has in mind.

Lane suggests that we have "conflicting goals and sentiments" about SSDI that must be balanced. But if you are of the position that SSDI represents "laudable social solidarity" (whatever that means) or "a tragic but unavoidable idling of human resources", what's to balance? In the former case it's a net positive, and in the latter case it's in Lane's own words "unavoidable". By "balance", Lane means that those who view SSDI as a good thing or those who believe we can't do better, need to compromise by agreeing to somehow pare the program back, to make it smaller and more affordable. It's fine to argue that if you believe that SSDI is "a scandalous excess of the welfare state" or if you take a step back from any of Lane's conflicting sentiments and simply note that the present system is not financially sustainable, but if you don't believe the system is on the whole a negative, and the budgetary issue doesn't even make your list of "conflicting goals and sentiments", it's difficult to see why you would be pushing reform as an absolute necessity. You might argue, "Let's raise taxes," or "Let's cut somewhere else."

Lane suggests at the end of his column that our society should provide "a sufficient safety net for everyone who needs it", but given that he has already told us that SSDI provides a very low benefit, how much less does he propose it can pay while remaining "sufficient"? Lane argues that SSDI needs to be administered "in a more cost-effective way", but his only proposed improvement, providing better support and services to help disabled workers return to employment, is likely at best cost-neutral and is likely to require increased expenditure. And while Lane speaks of "SSDI’s growth", let's be clear that he has conceded that the present "growth" principally results from the early entry of some disabled persons into the system because of the economic downturn. The percentage of disabled workers who receive SSDI may rise during a prolonged recession, but the percentage of disable workers remains constant.

If Lane wants to reduce spending, he pretty much rules out programs that will attempt to maintain employment and facilitate return to work for people who might otherwise enroll or continue collecting SSDI. If Lane wants to provide "a sufficient safety net", it's difficult to see how reducing benefits would be acceptable to him. If we are to believe that he actually believes most SSDI beneficiaries have bona fide disabilities, seeking out and cutting off the few who don't doesn't seem like a significant money-saver. So, what does Lane have in mind?
---------------
1. Lane gets sick days at work, I assume - if he contracts gastroenteritis, does taking a sick day constitute... a queasy-right not to work? Seriously, what's the difference? A vacation day might be a quasi-right not to work (on that day), but a sick day is driven by physical incapacity.

2. The question of who is "undeserving" is, at heart, quite political. Then, as now, the primary impetus for defining who is or is not "undeserving" and trying to get them off of SSDI seems driven primarily by the desire to cut program costs. If Lane has a proposed redefinition of "disability" that he believes will protect disabled workers while making it easier to identify those who could resume work without additional assistance, what's he waiting for?

3. Lane appears to believe that "mental and musculoskeletal ailments" didn't qualify workers for SSDI prior to 1965. In fact, if such conditions were permanent, workers could qualify for SSDI on their basis from the program's inception. The change to the program was that workers could become eligible for SSDI even if their conditions weren't permanent.

4. Lane also argues that "The Americans With Disabilities Act... enshrines the notion that every American can and should hold a job regardless of physical or mental limitations." The ADA, of course, does nothing of the sort. The purpose of the ADA, in simple terms, is to reduce barriers that keep disabled persons out of places of public accommodation and impede employment and that, when it's not unduly burdensome to do so, employers must offer "reasonable accommodation" to workers who suffer from a covered disability. If the disability genuinely prevents an applicant or employee from performing a necessary job task, an employer faces no liability concerns for declining to hire or promote a disabled person into that job.

5. It would also be appropriate to acknowledge that in both cases we're talking about exceptions - most SSDI recipients are not receiving benefits due to being diagnosed with major depression, and most people with two prosthetic legs are not running in the Olympics.

Is the Roberts Court Embracing a "Living Constitution"

I hardly know what to say in response to this editorial by Charles Lane, attempting to analyze why the Supreme Court might embrace a newly invented doctrine in order to reverse "Obamacare". Lane points to a bit of hyperbole from Akhil Amar, who suggests that a 5:4 decision reversing the Affordable Care Act will prove that the Supreme Court now decides cases based on politics, money, party and party loyalty, not the rule of law. He then snipes at law professors as "more liberal than the general public", adding,

Remarkably few of them have shown the perspicacity of Amar’s Yale colleague Stephen Carter, who has written: “Both sides have a point. The mandate to purchase health insurance does indeed run counter to the libertarian strain of the American tradition, and the arguments in support of federal power don’t have a logical stopping place. On the other hand, one must also recall the egalitarian aspects of the American tradition.”

To the extent that Carter's comment is fair, it's a fair statement of politics, not of law. There's nothing in the Constitution that expresses that legislation must respect this amorphous "libertarian strain" that Carter reads into the "American tradition". If you have any libertarian tendencies, you don't have to look very hard to find a Supreme Court ruling that will make you choke on your coffee. Seriously - pick a tenet of libertarianism, any tenet, and I'll find you a case that contradicts it.

The position that "arguments in support of federal power don’t have a logical stopping place" is not actually true - if you look at the policies of the various states, virtually all of which have insurance mandates of one form or another and one of which has a health insurance mandate akin to the one at issue in the ACA, you'll not find even one example of a state going beyond a "logical stopping point". What Carter is actually observing is the application of a slippery slope fallacy to the insurance mandate, in essence, "If something might occur then it will occur". The same fallacy can, of course, be applied to the regulation of activity under the Commerce Clause - or, for that matter, pretty much any constitutional argument.

It is much easier to assert a slippery slope argument, pulling an absurd example out of the air or off of a right-wing talk show, and to suggest that "If we allow an insurance mandate the government can make us eat broccoli", than it is to address the actual issues implicated by the case. But when you hear somebody resort to the slippery slope instead of addressing the realities of the healthcare market, you can pretty much take for granted that the reason they are doing so is that they are incapable of addressing the subject in a logical manner - at least without conceding most or all of the case made by the proponents of the ACA.

The counter-argument described by Carter is no better. Just as there's no "libertarian strain" clause in the Constitution, there's no "egalitarian" clause. When the Constitution speaks of equality, it is in the 14th Amendment's "Equal Protection" clause. The General Welfare Clause does not imply legislating people into some form of economic equality. Being treated as an equal by the state, by the courts and by the law, is something entirely different from a legislated economic equality.

While Carter does present two political philosophies that are in tension in relation to healthcare reform in general, they're not in conflict when it comes to the health insurance mandate. If there's a mandate in which everybody must buy insurance, the sensitivities of libertarians will be offended but people are being treated as equals by the law. If there's no mandate, but the law requires the provision of certain medical care to the uninsured whether or not they can pay for that care - the status quo - again libertarians are offended but people are being treated equally.

There are plenty of Supreme Court cases that advance egalitarianism - the line of cases that have given constitutional level protection to programs and policies that financially benefit the less fortunate (such as the right to counsel in criminal cases), or require that if the government provision of services (such as education), members of the community be treated as equals. But within the context of healthcare reform Carter appears to be speaking of altruism, the idea that the better off should provide for the poor, which is much more of a political philosophy, and much more of an argument for the subsidies that are not presently subject to a constitutional challenge, and appear to be constitutionally noncontroversial, as opposed to the mandate that is under discussion.

Lane asks, in advance of the Court's ruling, "What, then, led the academics to misread this case?" The "misreading" being that scholars did not expect the Supreme Court to be receptive to a newly invented distinction between regulating "activity" versus "inactivity", a distinction that quickly reduces the analysis of the issue to a semantic game, as opposed to precedent. And there's the answer: If you recast the analysis of the case that kicked off the modern approach to the Commerce Clause, Wickard v Filburn, you can transform it from a case that regulates activity ("You can't grow wheat beyond the legally imposed crop limit") and instead regulates inactivity ("You must buy your feed grain from other producers").

Perhaps the extent of the sophistry is lost on Lane, but fundamentally that's what Amar is describing - the extent to which opponents of the ACA are willing to invent new legal doctrines, eschew logic in favor of the slippery slope, and ignore or reverse almost a century of case law in order to achieve an outcome that is, at heart, political. Amer did not say that his faith in the court will be lost if the ACA is reversed, in whole or in part, by a larger majority - he was alluding specifically to a split along political lines, implicitly with the majority advancing a political argument as it's "legal" reasoning.

In explaining how the Court might come to dramatically change its approach to Commerce Clause cases, Lane presents an awkward attempt to distinguish law from politics:

I don’t think this history proves that “politics, money, party and party loyalty” crassly determined the decisions of the 1930s. If that were true, why accord them precedential weight today?

Rather, what it shows is that the United States periodically redefines the role of the federal government in society, in a process that is both political and legal — and, sometimes, more revolutionary than evolutionary. In that sense, we do have a “living Constitution.”

If it needs to be said, the reason you give precedents, good or bad, "presidential weight" is because - as was noted up front - they're precedents. Several members of the Court have made clear that they do not feel any reluctance to overrule cases they view as legally unsound, but even they have traditionally hesitated at reversing cases that are integral to our modern state and government. There is nothing in the Constitution that mandated the libertarianism of the Lochner era, nor that prevented the Court's shift to an expansive view of the Commerce Clause in Wickard, but let's not pretend that we could return to the Lochner era without a massive disruption of our government and society. The better approach would be for the Supreme Court to defer to the political branches on matters of politics.

When Lane suggests that opponents of "Obamacare" are embracing a "living constitution", and are "spotting [a] historical opportunity [to reinvent the Commerce Clause] and making the most of it", he's correct. They are taking the position that the objective reading of the text of the Constitution should take a distant back seat to the political issues of the day, and that if you lose at the ballot box you should attempt to get politically sympathetic judges to convolute new arguments to reverse the opposing party's legislative accomplishments. A conservative Justice might respond,

If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

So yes, it will be interesting to see if, as Lane suggests, a 5:4 conservative majority will reject the idea that political issues should be resolved by elections, that constitutional analysis should not turn on the actual language of the Constitution, that it's less important to ask whether Congress has the power to do something than it is to look at its choice of words when drafting legislation that falls within the scope of its powers, and very much bring the Constitution to life.

Dictum vs. Holding

Back when I started practice, I attended a seminar at which a judge described a common problem with briefs submitted by lawyers who came of age in the era of Lexis and WestLaw: They would punch keywords into the search box, hit enter, find language in cases that supported their arguments, then quite that language without bothering to determine if they were citing the holding of the case - the court's binding decision - or dictum, statements not directly bearing on the issue before the court and thus not binding.

So I find it interesting that a law professor is excited about a column by a reporter (who studied law at Yale) that references and quotes as its sole legal authority a quote taken from a legal opinion in which the judge, as dictum, quoted dictum. For goodness sake.

Please, all you law profs, stop bringing back this sort of memory of law school. Some things, I would prefer to forget.

Education Reform - The Hunt for a Magic Bullet

A few days ago Michael Gerson shared his thoughts on education reform. I'm left suspecting that Gerson has never attended a public school. I'll admit, criticizing a Gerson's column is fairly criticized as going after the low-hanging fruit - easy picking - but at the same time, given its prominent publication in the Op-Ed section of the Washington Post, I don't think that Gerson's witch's brew of ignorance and contempt for the profession of teaching should be left unchallenged.

One of the most obvious flaws in Gerson's commentary is his eagerness to attribute students' academic successes to rookie teachers from Teach For America, while criticizing the prior state of the school and suggesting that the school has only recently been rescued from chaos and failure:

Public school students here [in D.C.] perform two grade levels behind their peers in New York City. Last year, Smith taught some children who were "nonreaders" -- meaning they had somehow reached the fifth grade with the reading skills of kindergartners.

Nobody is disputing that the situation is atrocious.

Trinidad's local elementary school reflected the chaos around it. "Students ran the school," says Scott Cartland, the principal of the Wheatley Education Campus. "The kids were running down the halls, roaming."

Certainly, that's something that can be said to be a failing of prior administrators.

[TFA corps member and fifth grade teacher Amber Smith] teaches a boy named I'Kareem, who sits in the front row, raising his hand at every question and sometimes in the lulls between questions, just to get a head start. He is a handful. No thought goes unexpressed. He has some social challenges. But he reads at the eighth-grade level, and he told me that in chess club, "I'm always winning." In Smith's classroom, I'Kareem gets extra time and attention. In a chaotic classroom, he would be lost.

But wait a minute. First, we're talking about a child who has presumably been at this school for going on six years, with Gerson telling us that the school has had order in the halls only for the most recent two years. Whether in terms of Smith's teaching, order in the halls, or any other change in the school, Gerson tells us that it's "still too early" to see any improvement in student performance. Smith makes no claim that she's responsible for I'Kareem's above-grade reading skills in a school where on the whole his peers lag significantly behind him. So, quite plainly, I'Kareem was not lost before the changes were implemented and, despite having acknowledged "social challenges" (whatever that means), he was not lost. I expect that Gerson was introduced to I'Kareem as an example of the good the reforms can do, but he should have had the perception to realize that there was a lot more at play in I'Kareem's above-grade reading skill than a couple of years with more orderly hallways and the attention of his fifth grade teacher.

Gerson's lecture that "I'Kareem gets extra time and attention" being duly noted, what's his basis for suggesting that I'Kareem gets time and attention in his fifth grade class that he did not get in prior classrooms? Believe me, I am fully aware that some teachers will ignore kids who are working at or above grade level in favor of focusing on the kids who are lagging behind, and to a large degree programs like "No Child Left Behind" force teachers and schools to focus on lower performers - there are only so many hours in the school day, and hours of teaching time must be divided between all students. But we shouldn't simply assume that he didn't receive "extra time and attention" from prior teachers.

Also, if the prior context involved teachers giving "extra time and attention" to students other than I'Kareem, to try to bring them up to grade level, its' fair to ask what is happening with those kids in Smith's classroom. We're dealing with a zero sum game - there are only so many minutes in an hour, and even the most dedicated TFA corps member can't add extras. If Gerson weren't slurping up the Kool-Aid, he could as easily criticize Smith for diverting her attention away from "those who need it the most" in order to engage in the more rewarding task of teaching a student who is already ahead of the curve. That might be completely unfair to Smith - I don't know how she divides up her classroom time or what motivates her decisions - but when you take a "facts be damned" approach to analysis the data you skim off the surface can often support any number of divergent, even mutually inconsistent hypotheses.

If we assume that I'Kareem did not receive "extra time and attention" during his earlier schooling, to what do we attribute his above-grade reading level. If he went to the same classes with the same teachers as the rest of his peer group, but ended up reading at the eighth grade level while they (on average) read at the third grade level, shouldn't we be asking "What makes him, or his experience, different?" Also, if we assume that I'Kareem was reading well above grade level before Principal Cartland took over the school, as I expect was the case, would Gerson be still be holding him out as an example of "evidence of success"? Whether then or now, the exception doesn't prove the rule.

We've had pundits who were in love with the idea of rigid disciplinarians "turning around" inner city schools for... how many decades, now? Yes, we want safe, secure schools that can provide a decent learning environment for students. But if we're going to pretend that there is nothing special about the inner city school, that the kids there are no harder to teach than kids anywhere else, why the intense focus on behavior codes and rules that often go way outside of what would be tolerated by parents in a middle class school. Some of the practices of successful inner city school programs seem designed to make up for shortfalls in the children's home environment, even as lip service is paid to the notion that kids are the same everywhere and that the teaching staff is at the root of all problems.

Gerson implicitly concedes that discipline, of itself, does not bring about automatic gains in academic performance. Two years into Wheatland's reform under principal Scott Cartland, "It is still too early... to see dramatically rising test scores". For that matter, the school's performance has bounced about a bit and has not appreciably changed during Cartland's first two years of service - that's not an indictment of him or school discipline, but highlights how you need to be careful about "magic bullet" solutions. Toting a baseball bat as you patrol the newly pacified halls of your high school (and here I describe Joe Clark, not elementary school principal Scott Cartland) may inspire a hagiographic motion picture about your life, but it won't of itself significantly improve the school's academic performance.

As for the only specific detail Gerson offers, a fifth grade classroom in which "disruption is confronted immediately, with a note of the infraction put up on the white board", substitute putting a child's name on a chalkboard and you could be describing a scene from the one room schoolhouse in Little House on the Prairie. Gerson believes this to be innovation? (Strangely, during my tenure as a substitute teacher - the person who often gets the worst from even the best kids in a class - that wasn't a tactic I found necessary to maintaining classroom order. What's the point of the list? The teacher knows who has misbehaved, so do the students, and if you're going to write somebody up (or not) the only thing that counts is that action.)

Gerson also effuses about Teach For America, with little indication that he's done more than read their promotional literature. His first comment wouldn't strike most people as praise, but that's before you recognize that he's contemptuous of the teaching profession as a whole:

Smith is a Teach for America corps member, meaning that fresh out of college, with five weeks of training, she was thrown into the deep end of the teaching profession in a low-income school.

More accurately, she graduated from a college with decent grades, applied to Teach for America, was admitted into its ranks, and was treated like pretty much any other rookie teacher entering an inner city classroom - with the exception that TFA corp membership is a short-term commitment. With due respect to Gerson's suggestion that 65% of TFA corp members pursue a career in education, the crucial question is how many of them stay in the classroom? (The answer appears to be "less than 20%".) Becoming a principal, administrator or policy maker has value, but TFA sometimes sends the message that those are the only roles that matter, and that teachers are fungible. I'll commend the teacher profiled in the piece for choosing to stay in the classroom beyond the end of her two-year commitment, but heck - if the next teacher to come through the door is every bit as good as her, why does that matter?

Gerson fictionalizes,

Teach for America has become a revolutionary force in education reform because it has taken a rigorous, scientific approach to teaching. Contrary to the mythology of the profession, successful teaching is not a matter of inspiration or credentials. In the exhaustive study of its own outcomes, Teach for America has isolated some common characteristics of good teachers: perseverance, high expectations and the constant adjustment of methods to achieve ambitious outcomes.

First, where can I find any evidence that TFA "has taken a rigorous, scientific approach to teaching"? Which of the "insights" Gerson attributes to TFA represent this "scientific" approach? Perseverance? High expectations? Adjusting your methods when they don't work? Um... yeah. And they care so much about all of this "science" that they cram it all into a five week summer course?

During my aforementioned days as a substitute teacher, I spoke with another teacher and commented how it would have been helpful to have had some of the formal training that I assumed to be part of a standard education degree on teaching technique, classroom management and behavior issues. The response? "To tell you the truth, we had a single, one semester class on teaching and managing the classroom, and it wasn't very helpful." To me, that reflects a contemptuousness of a "scientific approach to teaching" akin to that displayed by TFA's five week summer course - the rough equivalent of a one semester course on actual teaching technique. (Granted, an experienced teacher could probably give me the rudiments of what I wanted to know - principally, techniques to manage disruptive behaviors and the testing of limits, inside of an hour.) There's nothing magical about TFA's five week course - not surprisingly, it results in the bright graduates of elite colleges performing at roughly the same level as any other rookie teacher:

Studies have found that, when the comparison group is other teachers in the same schools who are less likely to be certified or traditionally prepared, novice TFA teachers perform equivalently, and experienced TFA teachers perform comparably in raising reading scores and a bit better in raising math scores.

The question for most districts, however, is whether TFA teachers do as well as or better than credentialed non-TFA teachers with whom school districts aim to staff their schools. On this question, studies indicate that the students of novice TFA teachers perform significantly less well in reading and mathematics than those of credentialed beginning teachers.

TFA corps members who become credentialed and stay in the classroom "do about as well as other similarly experienced credentialed teachers in teaching reading; they do as well as, and sometimes better than, that comparison group in teaching mathematics." In other words, as should come as no surprise, teachers get better over time. Even Michelle Rhee admits she was a disaster as a first year TFA teacher - due to the fact that she had not yet learned to manage a classroom. So what's with the contempt for teaching as a profession?

Some interesting facts about teacher performance: teachers tend to perform better when they're in schools with other high-performing teachers. Also, a teacher's high performance in one school does not automatically mean that the teacher will be equally effective in another. Beyond that, an absurd number of teachers, sometimes exceeding 50%, teach out of field. I recall a high school computer science class in which a math teacher substituted for the regular teacher - the first thing he did was try to turn on an Apple II computer (remember those) by hitting the power light (the actual power switch was on the back of the machine) and declaring "This computer doesn't work." Teachers will be less effective if they don't know the subjects they are teaching.

If I were to extract a one-word takeaway from what makes a great TFA corps member great, or what sets high performing teachers apart from the crowd, the word would be "enthusiasm" - or in a few more words, enthusiasm for teaching coupled with the firm belief that you can make a difference and that your students can perform, translated into action to make your beliefs a reality. What do we call somebody without enthusiasm? Burned out. Talk to teachers in inner city schools and what do you hear of as a serious problem? Teacher burnout. Have you ever worked in a context in which your peers were energized and enthusiastic about their jobs? Or a workplace full of clock watchers? Both enthusiasm and burnout are contagious, and it's in no way surprising that students pick up on a teacher's or school's enthusiasm (or lack thereof).

How do you make a teacher "better" coming out of the gate? There's of course the school of thought that if you pay teachers better, you'll attract better candidates. That may be true to some degree, but in our society it's a moot point - save for in a handful of elite public schools and in a few experimental programs around the nation, we're not going to pay teachers appreciably better - and when hard budget choices are to be made, teaching jobs will remain among the first to go on the chopping block. Meanwhile we have people like Charles Lane saying that teacher layoffs are no big deal because "300,000 is the upper end of a range that could be as low as 100,000" - about nine percent of our nation's teachers being laid off versus a "mere" 3% - and suggesting that the only people who think that's a big deal are those beholden to teacher's unions. He also pretends that layoffs will only marginally affect classroom size, as if the layoffs will primarily hit regular classroom teachers as opposed to those with specialized skills - art, music, physical education, foreign languages, etc.

But more to the point, who are we trying to draw into teaching? If we're trying to attract people who are presently drawn by high salaries, buying into our nation's mythology that the highest earners are invariably "the best and the brightest", we're going to be both investing a phenomenal amount of money in teacher salaries and disappointed in the outcome. I know some really great trial lawyers who are very smart people, but would hate every minute of their lives if they were accountants. And the opposite is true. Even if you assume that teaching is a job that "anybody can do", there's a legitimate question of whether it's a job anybody would want to do.

Raising salaries does make a difference within the current pool of candidates - school districts that offer better pay and working conditions will, on the whole, get more applicants for their jobs than those that do not, and will generally have more high quality candidates to choose from for any job opening. And salary competition isn't enough - many "failing" school districts pay well, but people don't want to work in the schools. That is in no small part why TFA dresses itself up as a "corps" of teachers providing a form of public service, with a commitment short enough that its recruits can see a clear end date to their service. A new teacher applying for the same job is doing so with no similar short-term commitment. With some that represents a level of commitment to a cause far above and beyond what TFA asks of its corps members. With others it's because they can't find a job elsewhere. Particularly in this economy, TFA is displacing some certified teachers who are applying for jobs that are going to corps members, but by the same token they're allowing struggling school districts to be more selective in who they hire.

Related to increased salary is the issue of "merit pay", something that seems to be advocated by those who place the most faith in standardized tests and a means of measuring teacher and student performance. But when I talk to good educators, they speak of how "No Child Left Behind" and its emphasis on standardized test scores takes away from the time they can spend educating their students, and sucks the joy out of teaching. Helping kids prep for a test is different than helping them learn. I can't think of a single person, ever, who has praised the teacher who taught a test prep course as "inspirational" or as "having made a difference in my life." I guess it's a way to be objective, forcing teachers to comport to the role of fungible drones, but it seems inapposite to what I think of as quality education. And frankly, I'm skeptical that standardized test scores are a good measure of student performance. Practicing for a test will raise your performance for that test, but without necessarily providing any other benefit.

There's a valid question of whether colleges of education do a good enough job educating teachers. Should more time be spent focusing on pedagogy, the principles and methods of classroom instruction? Should teachers be held to higher academic standards than is often presently the case - one college I know of doesn't require calculus for its undergraduate economics classes because they're heavily populated with students from the college of education; many offer less rigorous classes for non-majors that may be sufficient for a teacher's subject matter certification. A teaching college should be trying to prepare highly qualified teachers, not tiptoeing around the possibility that academic rigor will scare off applicants and leave its classrooms with empty seats. But... let's just say that problem is far from unique to colleges of education. Note also, the cost of an education at a top college is far beyond the investment justified by a $30-$40K starting salary. Absent a subsidy, students who pay for an elite college through loans can't afford to take an entry level teaching job.

On the other hand, some view teaching more as an art. You could add more classes on pedagogy to a teaching program, but they're not going to make much difference - what matters most are the skills you learn on the job. Most likely there's actually a balance to be reached, with college classes providing a foundation. New teachers are likely to benefit from strong support, mentoring, and instruction on pedagogy once they're in the classroom - and may be better able to retain and implement what they learn within that real world context. Students are also less likely to encounter classes on the theory of the theory of teaching - classes taught by people who are far removed from their classroom experience, or who have never taught in a classroom, but are still "qualified" to teach new teachers how to teach. (The epitome of the cliché, "Those who can do; those who can't do, teach; those who can't teach, teach teachers.")

One way or another, with due respect to TFA's ability to market itself and the commitment and good work of its corps members, an approach that appears both better for teachers and (in the longer run) students and schools is that of The University of Chicago's Urban Teaching Education Program (UTEP):

UTEP, a two-year master’s program in education that focuses on urban education in Chicago, drastically differs from TFA, which provides only five weeks of summer training for teachers before dropping them, often alone and unsupported, into these extremely difficult environments. What results is a 61 percent retention rate for teachers after five years. Comparably, after the initial two years of training that gives graduates a master’s in education, UTEP teachers have cohort supervision and support for three years after they begin teaching. UTEP has a 95 percent retention rate for teachers after five years, and 91 percent are still teaching in Chicago. These high levels of commitment can be attributed to the significant training and support networks that Huang says are necessary to teach effectively in urban schools.

TFA cannot adopt a UTEP-style model. It has to stay sufficiently light to scale to the large number of corps members it recruits, and it's not positioned to provide the type of training or support that UTEP can offer. By the same token, UTEP can't produce enough graduates to serve the nation's need. The proper criticism of TFA is not that it provides limited education to college graduates, pats them on the behind and puts them in inner city schools - the proper criticism is of those in its ranks who deliberately advance the line that a five week course is all it takes to be an effective classroom teacher, who cherry-pick pro-TFA research to suggest that corps members outperform other teachers (whatever the facts), and who scorn teaching as a profession - and, of course, with credulous columnists like Michael Gerson who eagerly lap up and regurgitate that tripe. At this time we have about twenty years of TFA alums to look at - twenty years that firmly establish that TFA no magic bullet.

UTEP should not be an exception, nor should its focus on teacher support and skills development be limited to the inner cities. Colleges of education should start doing a better job researching and teaching educational technique. Most seem content to produce graduating class after graduating class of teachers "qualified" to get an entry level position in a conventional school environment - but why not engage in research that challenges some of the conventions? We've had how many decades of "sit quietly in rows of desks while the teacher lectures you", and our biggest "innovations" are along the lines of mandatory homework policies? Surely we can do better.