A Telling Choice of Words

In his latest screed, after endorsing the least flattering interpretation of every statement associated with the Obama campaign, Michael Gerson makes an interesting choice of words:

It is one thing to mischaracterize a federal waiver; another to accuse an opponent of being the Angel of Death.

Overlooking the absurd level of hyperbole, let's recall who Gerson is, the former leader of G.W. Bush's speech writing team, and his self-professed expertise in political rhetoric. As a partisan hack, he finds it easy to dismiss all of Romney's lies as fair game, distort the statements of anybody associated with Obama in the manner he sees as most beneficial to his own political party, and engage in the aforementioned hyperbole.

But "Angel of Death"? Not "an angel of death" or even "angel of death", but the "Angel of Death"? Really?

I'm sure Gerson would attempt to defend himself by arguing that the Obama campaign's suggestion that policies Romney endorsed as a business leader and presidential candidate actually can cause people to lose their insurance, and that losing your health insurance in this country carries potentially devastating medical consequences, was tantamount to comparing Romney to the mythic figure who taps you on the shoulder when it's time for you to die. Absurd? Absolutely. It doesn't work on a literal level, nor for that matter does it work on a metaphorical level.

But if Gerson were honest about it, I suspect he would admit that he intended something quite different with his deliberate and inflammatory choice of words. He's using rhetoric that invokes Nazism, specifically "Angel of Death" Dr. Mengele. It would be difficult to believe that Gerson's intended message is anything but, "Can you believe it? Obama's suggesting that Romney has the values of a Nazi."

Recall, right in that column, Gerson is whining about Biden's flubbed "chains" joke. Which case is stronger - Gerson's prattle that Biden engaged in "racially charged hyperbole" or my argument that Gerson, master of political rhetoric and nuance, would not have accidentally invoked Mengele.

Michael Gerson Couldn't be More of a Hack if He Tried

And yet he keeps trying.

For the Obama campaign, this is not an aberration; it is a culmination. The demonization of Romney is a main element of its strategy, pursued by Obama’s closest associates and former employees, not by loosely affiliated partisan groups. Deniability is not even remotely plausible, but it doesn’t remotely matter. Even when exposed, the Obama campaign never retracts, never apologizes — convinced that the news cycle will quickly erase inconvenient memories.

This from the guy who used to sit adoringly at Karl Rove's knee? The Obama team can take some comfort here - you don't elicit crocodile tears that large unless the hack criticizing your campaign knows his side is losing.

But the most vivid accusation (made by a closely associated PAC and embraced by the campaign itself) is that Romney’s ruthless business practices were responsible for the closing of a firm, the loss of a couple’s health insurance and thus the death of a woman from cancer. Except that Romney wasn’t connected to the closing of the firm, the woman continued to have health insurance from another source and her cancer was diagnosed five years after the plant shut down.

Which represents the crossing of an ethical line. If the conduct of the Obama campaign team were universalized, candidates would no longer require any evidence to accuse one another of complicity in a death. To accept this as a new political norm would be to define defamation down.

Because, you know, saying that your opponent favors policies and engaged in business practices that cost working Americans their health insurance is exactly the same as accusing somebody of murder. Suggesting that somebody committed murder, on the other hand, is fair game - as long as the nonsense is directed at a Democrat...

I am admittedly a sucker for rhetorical idealism. But it can’t be a small thing, a typical thing, a trivial thing, to ask for belief and then betray it.

Yeah... like Gerson's "compassionate conservatism". Flushed down the memory hole.

When Words Get Broken

If I'm doing songs, one for Joe Biden.

The Romney-Ryan Campaign Song

Two men who see lots of... Opportunities.

"Trust Me, Paul Ryan is Really Smart"

While driving yesterday I heard somebody present a question to Byron York to the effect of, "I keep hearing that Paul Ryan is really smart, but the only evidence people offer in support of that is 'He read Ayn Rand in high school and he wrote a budget plan.' Why should I believe he's smart?"

York fumbled out an answer that, unintentionally, spoke highly of the President and not so highly of Ryan. Specifically, York argued that Ryan has mastered details of the budget, and if you meet with him in private he will wow you with his grasp of those details. I'm reminded of fifth grade, in which some kids I knew had memorized pretty much every detail from the back of trading cards for the entire NHL roster. The kids at issue weren't slouches, but I need a bit more than that to be wowed by a grown-up.

York's next argument was that Ryan was not only the Republican Party's front man on the budget, but that the President took him seriously and met with him to discuss budget issues. That is reasonably accepted as a compliment of the President - the implicit argument is that nobody as smart as Obama would agree to discuss budget issues with a mediocre mind. I thus see what York is attempting to argue, but I don't think the point holds. That is, if I am going to negotiate over something, and my opponent in the negotiation is markedly less intelligent than I am, I'm going to be very happy with my opponent's choice of representative. I'm certainly not going to argue, "No, send in somebody who is my equal."

I'm not suggesting that to be the case, either - when the Republicans say "This is our budget guy," who would York expect the President to meet with? The most obvious inference that can be drawn from the fact that the President discussed budget issues with Ryan is not that he's a strong or weak opponent, but that he's the guy his party put in the position

At the end of his response, York preferred to answer a question of his own rather than the one the caller asked. That is, rather than pointing to evidence of Ryan's smarts, York instead argued that Ryan's knowledge about the federal budget is "beyond question". Frankly, it's not beyond question - if you look at Ryan's budget proposals the first thing that strikes you is that he has omitted the most relevant details. Perhaps he's willing to discuss those details, in private and off-the-record, but I don't feel any need to take York's word for it.

If I am to accept York's argument, it's actually quite damning of Ryan. If I assume he's a smart man with encyclopedic knowledge of the budget, the he knows what spending he will need to cut to turn his budget proposal into reality. If I am rejecting the idea that he's simply not smart enough to understand the reality of his proposal, then I have to accept the conclusion that he's being dishonest about his plan.

In the more than two years since his budget was unveiled, Ryan has not specified any tax breaks he would eliminate. Independent analyses have shown that offsetting the tax cuts would require changing things such as the mortgage interest deduction, the tax exclusion for employer-financed health insurance or other popular tax preferences widely used by middle-income households.

Why after two years hasn't Paul "Encyclopedia" Ryan shared any relevant details? If the problem isn't a lack of smarts, and it isn't a lack of knowledge, the only remaining possibility is a lack of candor. If he's smart enough to know what he's selling, he knows how much of it is snake oil.

Update: How would Romney's version of Ryan's plan balance the budget? In his own words, "We haven't run the numbers on that specific plan".

Looking for Proof of Intelligent Life in the Political World....

Sometimes political events bring to mind the classic Ronald Reagan SNL sketch, in which whenever cameras were rolling or members of the public were around he would play the part of an affable grandfather, but the moment they were gone he turned into an energetic, detail-driven dynamo. There was probably some truth to it, that we never got to see the "real" Ronald Reagan who was concealed by a carefully contrived cowboy persona. Whatever his actual behind-the-scenes persona, Reagan was comfortable with his public image.

A few decades later, G.W. Bush offered the public a similarly contrived public persona, that of a Texas rancher who liked to drive around in a pickup truck and clear brush in his spare time. No pictures of G.W. on horseback - to put it mildly, he was not that much of a rancher. And never mind that the ranch was purchased as a campaign prop and sold pretty much the minute G.W. retired from the White House. But the public image worked... to a degree.

Bush apparently chafed at the public's perception that he was not very bright. So, during his presidency he arranged for some meetings with authors and other prominent individuals in which he would attempt to wow them with his deep understanding of their work, before ushering them out to share the news of how brilliant he was. The principal tool appears to have been flattery - convince the participant in the meeting that the President had read their work, thought about it, compared it to other ideas, and found it compelling. Flattery will get you... a lot of places.

I suspect that the campaign didn't succeed - at least, not to the degree the White House had hoped. That is, although I do recall hearing a number of people, some of whom were unquestionably intelligent, claim that the President was very impressive in their meetings, the formula was pretty obvious. But more to the point, it raised the question of why a man who is so impressive in a controlled meeting behind closed doors demonstrated none of the same brilliance and insight in any other context.

All presidents have aspects of their personality that they would prefer to hide from the public, and often they are quite successful in managing their public images. No matter how it is created, once a public persona is firmly established it can be difficult to overcome. John McCain seemed like something of a maverick until he fully embraced G.W., and some who scrutinize his record question the extent to which the label ever truly fit, but the image was strong enough to carry him through his presidential campaign. At the time, the public would have been shocked by some of the behavior attributed to Kennedy, Johnson and Nixon, and while we now view Watergate as consistent with Nixon's personality, the Nixon you hear on tape is not the Nixon people thought they elected.

Negative images can stick, as well, which is no small part of the reason why political campaigns work so hard to tar opponents before they're known to the public. "Dukakis in a tank". Gerald Ford was probably less clumsy than the average president, but a few prominent incidents led to him being regarded as somewhat accident prone. Al Gore was not the dissembler that his detractors claim, but any number of myths persist about supposed false claims or exaggerations that made for good headlines but turned out to be misrepresentations of what Gore had actually said.

In G.W.'s case, it's difficult to believe that we were simply talking about stage management. That is, once his team made the decision to play up his intellect, it should have been possible to modify his public persona to better display his intellect. Once the decision was made to push his intellect, it should have been possible to demonstrate publicly what was reportedly being demonstrated in private. The fact that G.W.'s P.R. team failed in that effort suggests that the public persona was more genuine than what was going on in controlled, private meetings.

Here's the thing: Yes, the President and his team have enormous power to craft a public image and push that image forward. If it resonates with the public, it can be difficult to overcome, even with facts. By virtue of his intellectual incuriosity and desired "blue collar, man of the people", Bush was able to convince people that he was less intelligent than he actually was. But when he became uncomfortable with that persona, the public simply knew too much about him for him to take it to the other extreme. Had he settled for the middle, where by all appearances the truth most likely would have been found, he might have achieved at least that much.

In contrast with G.W. or Reagan, some candidates want to be seen as intelligent, even brilliant, and work to advance that perception. Sometimes they don't have to work very hard at it - our nation loves dynasties, business and political, and it also associates wealth with intelligence. So if you're rich and have a strong family name, you are 90% of the way to selling yourself as brilliant.

Even if you turn out to be Donald Trump, crass, boorish, prone to making absurd claims and statements, you are likely to maintain your reputation as a business genius simply by virtue of your claimed wealth, no matter how many failed ventures, bankruptcies and dubious licensing schemes you leave in your wake. Frankly, you can see why somebody like Trump would seethe at the "you didn't build that" misquote, because at this point there's little left to the myth behind his fortune - he looks like a narcissist of middling intelligence who learned the building trade (and got some very important connections) through his father, then got very lucky gambling with his inherited fortune.

But the fact is, when somebody is brilliant you can usually find evidence of that. Not in nebulous, Chauncey Gardener-type statements that require you to either defer to the speaker's brilliance or invite you to read into the statement the "brilliant" insight you are hoping to hear (yes, I'm talking about Alan Greenspan). But in documented, public actions, statements and writings that demonstrate the claimed level of intellect. When somebody tells you, in essence, "Trust me, when he's alone in private he says smart things," tell them, "I'll believe you when I hear the tape."

If You're Serious About Balancing the Budget....

Robert Samuelson displays many of the foibles typical of his species, the Beltway pundit, and thus his calls for balancing the budget are often predicated upon the belief that in order to prevent fiscal catastrophe we must immediately cut entitlements, even though in the next breath he's willing to commit the same or more money to his own pet issues. The facts take a back seat to conventional wisdom. Such arguments can be frustrating in that they tend to ignore the needs of the people on the receiving end of those benefits and what will happen to them (and future beneficiaries) if spending is cut, lump all entitlement programs together regardless of how and how well they are funded, and disregard the issue of healthcare inflation both in terms of its role in the increased cost of Medicare and in relation to how retirees might get health care if the program is significantly cut. That said, we're talking choices and priorities, and it does appear that Samuelson really would prefer to have a balanced budget and to control the growth of the national debt.

A couple of days ago, Samuelson pointed out that Mitt Romney's "tax plan" makes no sense.

There seems to be a Democratic mole inside Mitt Romney’s campaign. Could it be Romney himself? Well, of course not. But considering the campaign’s behavior, it might just as well be. President Obama and his allies have cast Romney as a wealthy fat cat who’s out of touch with everyday Americans and who would use his presidency to enrich the already rich. To counter this damning image, the last thing you’d expect Romney to do is embrace a tax plan favoring the super-rich.

Actually, you would expect Romney to embrace a tax plan that favors himself and his ultra-rich friends and sponsors. What you would not expect him to do is to be honest about his intentions during the election, or even when pushing the bill. If you look at Romney's actual claims and statements, it's not that he's openly embracing a tax plan that favors the ultra-rich. It's that we know enough about his proposals that we can calclulate the enormous benefit he intends to provide to the rich and the additional tax burden his plan will impose on the middle class. Romney himeself is content to run around the country claiming that his tax plan is about "fairness", that "job creators" deserve tax cuts, and denying that he's going to soak the middle class and run the deficit through the roof.

Really, what we seem to have here is Samuelson recognizing that Romney's political spin is completely at odds with the facts and doing a double-take. Samuelson is so invested in the spin that the facts take him by surprise. And that's not a problem only in relation to Romney. Albeit in a more genteel manner than, say, Ross Douthat, Samuelson gives an approving nod to the Republican party line about the President:

The idea is to present a compelling contrast to Obama, whose low understanding of and meager sympathy for business seem plain and have arguably hobbled economic expansion.

It's not necessary to support the claim that the President has "low understanding" of business, because it's part of Samuelson's conventional wisdom. As with Romney's tax plan he might reconsider his position if hit over the head with enough facts, but he's not going to go out and investigate - that's a reporter's job. As for the "meager sympathy for business", again Samuelson gives no hint of what he means. But when you hear the most vicious complaints and attacks on the President they are often within the context of his desire to return to the Clinton-era tax rates for the wealthiest earners, the possibility of eliminating the privileged status of carried interest - the loophole billionaire hedge fund managers and people like Romney use to pay low capital gains rates on their income instead of paying the same rates as regular wage earners, a small increase in the capital gains tax to pay for the ACA on top of a possible return to Clinton-era tax rates for capital gains (following what used to be a Republican sentiment on different types of income), and his believe that it's appropriate to impose a modest estate tax on gargantuan estates. David Frum believes that part of the supposed angst of the wealthy is that the President recognizes that luck plays a role in the success of businesses and the accumulation of wealth, but I doubt that Samuelson would deny that fact.

Samuelson also repeats his canard that Obama's hypothesized lack of understanding of business has "arguably hobbled economic expansion". In other words, Samuelson is not comfortable endorsing that argument - he sees and offers no factual support for that claim. He is merely repeating it arguendo, without concern for the facts. Some Beltway pundits would explain that they present such unsubstantiated arguments in the interest of balance - the apparent notion that if you're criticizing Romney you have to say something bad about the President or you're being "biased", and if you throw in a criticism you can defend against accusations of bias by respoding, "Hey, I criticized Obama as well." I'm not sure what Samuelson's excuse is, but suffice to say if he can find absolutely no evidence in support of that argument he should stop repeating it.

So at the end of that blast of hot air, what does Samuelson believe Romney should do? What sort of pro-business reforms might Romney embrace to raise additional revenue or be more fair to the middle class? Samuelson has a number of ideas:

1. Increase the top income tax rate to 30%: "Although the wealthiest 5 percent still pay about 40 percent of federal taxes, it’s questionable whether further reducing their tax burden would bolster the economy.... Romney might have emulated Reagan by proposing a top tax rate of 30 percent....

2. Raise the capital gains tax to 30%: "In 1986, Ronald Reagan supported eliminating the preferential rate for capital gains, which then remained at 28 percent from 1987 to 1997. The economy did fine."

3. Eliminate irrational tax breaks, like the one employed by hedge fund managers: "Because low capital gains rates apply (illogically) to hedge fund and private-equity managers, we may have too many hedge and private-equity funds."

Samuelson also sees no need to eliminate the estate tax, pointing out that in 2009 it applied to very few estates ("only 0.6 percent of adult deaths") and that it's abolition is being pushed by Romney and his party primarily because of the need "to satisfy Republican constituencies, which fervently support ending the estate tax and keeping capital gains rates low".

That is to say, Samuelson appears to be embracing every single one of the Obama administration's tax proposals that supposedly shows "low understanding of and meager sympathy for business" - and saying, "That's a good start, but your proposed rate increases are inadequate." Samuelson is happy to jump on the "Obama doesn't understand business" bandwagon, whatever the facts, but can't understand why Romney won't propose a serious or credible budget proposal that doubles down on Obama's supposedly "anti-business" tax policies? Seriously?

What it it about Beltway pundits that leads them to so reliably complain about the need for some form of bipartisan compromise to balance the budget, criticize the White House for not somehow engineering such a compromise, then describe a desired outcome that is pretty much consistent with what the President has already proposed?

Mitt Romney's Job Plan - Leaked!

To be clear up front, I'm not stating that this document is real. It was or was not leaked to me by somebody who may or may not be an important member of Mitt Romney's campaign, who may or may not be a Bain investor, and who may nor may not actually exist. I may or may not have had it come to me as a relevation after I held what may or may not have been a seer stone to my forehead.

Now, do I know that it's true? As Harry Reid can attest, it's difficult to be certain. By which I actually mean that it is or is not difficult to be certain.

Top Secret
Internal Use Only

Job Strategy Memorandum

From:        Mitt Romney

To:             Campaign Staff

Subject:    Job Creation Strategy

As you know, ever since my retroactive retirement from Bain Capital I have been focused on unemployment. The present job situation is completely unacceptable. I have tried to be upbeat, and have even tried to joke about it, but the truth is painful. I am unemployed, and that’s simply not acceptable. It's not good for me, it's not good for you, and most importantly it's not good for America

I am therefore announcing the following strategy for job growth, a plan through which 12 million jobs will be created during my first term of office The numbers for this plan are solid. They come from a variety of independent, objective sources. To the extent that I depart from their numbers, as you can see, my logic is bulletproof. If their numbers are correct and my numbers are correct my plan will create 12 million jobs over four years.

The best part is, it’s really simple.

First, the data. In April, Macroeconomic Advisers projected growth of 11.8 million jobs over the years 2013-2016. Moody’s Analytics projects job growth of 11.84 million over the same period. We can reasonably call that 12 million jobs. If we get 11.8 million new jobs, nobody is going to complain about what amounts to a rounding error.

Here’s the plan:

Natural job growth:                                          11,800,000

Plus me!                                                                        1      

Subtotal                                                            11,800,001

Minus Obama:                                                                 (1)   

Total:                                                                11,800,000

Remember, this is not about me. It’s about America, and I cannot emphasize enough how important it is for the country that my jobs plan succeeds. This plan is too important to sit on my desk until after the election. I want everybody on my team to immediately devote their full attention to the rapid implementation of this plan. We have a serious unemployment problem here, and it’s your job to fix it.

Mitt              

In regard to the memo, some might say that it's untrue, dishonest, and inaccurate. That it's wrong. But why let trivialities like that get in the way of a good scoop? We have newspapers to sell here, folks. Ad impressions to generate.

Mortgaging a Community's Future With Budget Chicanery

For all of the uproar about federal budget deficits, we hear far too little about the games states play to feign "balancing" their budgets. Common approaches are to sell off decades of future revenues (e.g., parking meter revenues) for a one-time cash payment, or to contract for services with payment to occur out of future budgets.

How will future sessions of government balance the budget with those pre-existing commitments and reduced revenues? Who cares, right? It's all about "right now", and with term limits the legislators who mortgaged the future probably won't be around when it's time to pay the bills.

I don't recall the source, but I was recently directed to a particularly egregious example of a local government selling out the community:

The bottom line: For borrowing $105 million in 2011, taxpayers will end up paying investors more than $981 million by 2051, or almost 10 times what the district borrowed. That’s wildly more expensive than a typical school bond, in which a district pays back two or maybe three times what it borrowed.

Forty years of crippling debt in exchange for an easy way out for the school district. This, because it's too politically difficult to raise taxes even in the modest amount necessary to support a fiscally responsible bond issue? The right wing fantasy once again crashes into reality. The "beast" isn't starving, and the money to pay off that $billion debt will come out of taxpayers' pockets.

Really, while granting that state governments are at least as guilty as local governments when it comes to this type of game, it's time for states to impose some limits.

What Is "Hardware Stuff" For?

As far as I can tell, "hardware stuff" is a term of art for the spare parts used by self-repairing animatronic robots.

Cafeteria Catholics and the Free Exercise of Religion

A few days ago, in a column entitled "Defining Religious Liberty Down", Ross Douthat attempted to reinterpret the Free Exercise Clause of the Constitution in a manner that, in essence, would allow anybody who shares his religious beliefs, as well as a few others whose beliefs don't offend him, to do and say whatever they believe their religion demands, with no response or push-back from even a single individual. Anybody who does not accept that, Douthat lectures, "then don’t tell religious people that you respect our freedoms."

Douthat gets off to a weak start by attempting to reinvent the Free Exercise Clause,

[T]he Bill of Rights guarantees Americans something that its authors called “the free exercise” of religion.

It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair. Most religious communities conceive of themselves as peoples or families, and the requirements of most faiths extend well beyond attendance at a sabbath service — encompassing charity and activism, education and missionary efforts, and other “exercises” that any guarantee of religious freedom must protect.

That is to say, Douthat finds the words "significant because as he understands them, if he claims to have been inspired by religion, they shield his every word and action from criticism. Not just from discrimination, not just from state actors, but from the responses of private citizens who happen to hold different values.

As I previously stated, Douthat is not speaking in defense of broad religious liberty. He is speaking out for his own beliefs, and other beliefs that he finds acceptable. He does not even consider that you might oppose his words or actions on religious grounds. If you so much as whisper a protest, you're violating his religious liberty - with his faith, or perhaps its his narcissism, obscuring that he's displaying the very arrogance he ascribes to anybody who disagrees with him.

Beyond the sheer arrogance of his position, Douthat overstates his constitutional case. In upholding the state's right to prohibit sacramental use of peyote, Justice Scalia, also a Catholic, has attempted to explain the Free Exercise Clause,

The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment... provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U. S. Const., Amdt. 1 (emphasis added). The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such."... The government may not compel affirmation of religious belief, ... punish the expression of religious doctrines it believes to be false, ... impose special disabilities on the basis of religious views or religious status, ... or lend its power to one or the other side in controversies over religious authority or dogma....

But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf.

Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

That's a long excerpt, so let's pull out two important points: first, the Free Exercise Clause prohibits the government from "lend[ing] its power to one or the other side in controversies over religious authority or dogma", and second it allows for the broad regulation of society in manners that affect individual and group religious liberty, as long as "prohibiting the exercise of religion... is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision".

One more important point, Scalia rejected the Court's precedents that would have required the state to articulate a "compelling state interest" before allowing a law to take precedence over an individual's free exercise of religion. If Douthat believes it is the secularists who were responsible for weakening that protection, he's looking in the wrong direction.

That is to say, Douthat is ignoring every conservative approach to constitutional interpretation, appears disinterested in learning the interpretation provided by even the most conservative, most religious Supreme Court Justices, and advocates a personal interpretation of the Constitution's language consistent with a 20th century understanding of its terminology - and at that, not a broad understanding, but a personal understanding. The theological equivalent would be for him to pick up a bible, read one verse, and announce that he knows exactly what it means - no need to examine history, context, the opinions of past religious leaders, the teachings of his church. In both cases, it's the sort of personalized, shallow interpretation that has long been scorned, respectively, by political and religious conservatives.

Douthat remains upset that the government is regulating birth control in the context of the secular operations of religious organizations. Yet any form of health insurance is going to cover procedures or medicines that violate somebody's religious beliefs. Douthat prefers to misrepresent the facts, purporting that the regulation treats "religious hospitals, schools and charities as purely secular operations", knowing full well that's not the truth. For example, a religious school that hired few, if any, non-practioners of its faith, and catered to a similarly non-diverse student body would not be affected by the regulation. But more than that, although Douthat does not mention private employers, the logic of his intepretation of the Free Exercise Clause would extend his objection to the mandate to purely private contexts.

What would happen if a religious organization, or a religious private individual, acquired Douthat's employer and stripped out of his insurance policy coverage for procedures and medications inconsistent with somebody else's religious beliefs? It's not apparent that Douthat has even considered that possibility. If he has, it would appear either that he does not believe that the rules he favors are likely to affect him - that is, he does not anticipate such an employer acquiring the Times - or would view the new owner's religious views as unduly extreme and thus not worthy of protection. Fortunately for Douthat, even within the context of birth control he suffers no direct impact.

Douthat also complains that a judge in Cologne, Germany - apparently operating under the wacky belief that his court is not regulated by the First Amendment to the U.S. Constitution, held that "circumcision as a violation of a newborn’s human rights". Douthat takes umbrage at the notion that a judge could impose such a rule in relation to a baby boy, but makes no mention of baby girls. Yes, there are serious differences in kind and degree between male circumcision and female "ritual genital mutilation", but those concerns are secular. Douthat complains,

Here again, defenders of the decision insisted that it didn’t trample on any Jew’s or Muslim’s freedom of belief.

Douthat, predictably, does not identify even a single person who claims that the ruling does not impinge on "any Jew’s or Muslim’s freedom of belief" because if he were to approach the supporters' case honestly he would have to acknowledge that they are in fact supporting a balancing test - the rights of the child against the rights of the parent to perform a medical procedure that the parent believes is mandated by religion. Douthat can't keep himself from resorting to hyperbole, that the ruling "would effectively outlaw Judaism itself", as if no Jew has ever had an early or late circumcision, or as if it's impossible for a boy or man to convert to Judaism once he's nine days old. I don't mean at all to belittle the religious issue, but there's no need for that type of sensationalism.

The fact that Douthat has to reach all the way to Germany to find evidence of an encroachment on religious liberty is less evidence of the rarity of this type of conflict, and more of the fact that Douthat's argument is driven by his own ideology. He could instead pick up the cause of parents who, in the name of their religion, would deny an infant or child a potentially life-saving blood transfusion.

Douthat's third and last example is "the great Chick-fil-A imbroglio". Although a handful of politicians to whom Douthat alludes are deserving of cricism for suggesting that they might discriminate against Chick-fil-A based upon the statements of its founder, Douthat is confusing the exercise of speech rights with the free exercise of religion. He also fails to distinguish fair comment - a politician's standing up for the rights and freedoms of his own constituents - for interference with the free exercise of religion.

Does Douthat believe that the president of Chick-fil-A's statement was mandated by his religion? No? Then what we're seeing is his choice to make a public statement about his personal religious beliefs. While that might fall under Douthat's made-up version of what the Free Exercise Clause is supposed to mean, from a constitutional perspective we're actually talking about freedom of speech. The president of Chick-fil-A has the constitutional right to say what he wants about gay marriage based upon his religion, and everybody else in the country has the right to respond with support, condemnation or indifference. Even within the context of grandstanding politicians it's a speech issue - no politician or political entity has actually discriminated against Chick-fil-A based upon its president's statement.

Also, within the context of religion, what are we to make of Douthat's assertion that the president of Chick-fil-A "supports 'the biblical definition of the family unit'"? Because last I checked, the Bible included some family units that, by today's standard, are quite unusual. Even if we limit discussion to the New Testament, Douthat will find no shortage of people who will quote scripture to support their belief in polygamous marriage.

Whether intentionally or because he can't help but view the world through a manichean prism, Douthat creates a false dichotomy between the president of Chick-fil-A and the politicians, with the president simply engaging in the free exercise of religion and the politicians are, de facto, neither religious nor concerned about the free exercise of religion. Is Douthat seriously arguing that Mayors like Rahm Emanuel and Michael Bloomberg don't care about religious freedoms? That they're on the side of secularists who would back judicial edicts that "effectively outlaw Judaism itself"? And has Douthat truly failed to notice the considerable criticism of the political grandstanding from the secular community? I recognize that it's easier to caricature your opponents, to roll up every person who takes any position you don't like, to ignore their actual statements, and to pretend they're a monolithic "other" that stands against all that is true and good. But even if he can't reach the point of internal consistency, can't Douthat at least try to be plausible?

Toward the end of his column, Douthat mentions the need to balance the free exercise of religion against the interest of society, but rather than giving that difficult balance the serious consideration it deserves he invokes the absurd,

We do not allow people to exercise beliefs that require, say, forced marriage or honor killing. You can believe in the gods of 15th-century Mesoamerica, but neither Chicago values nor American ones permit the use of Aztec sacrificial altars on the South Side.

Again, it's the easy cases. The ones few to none would find controversial. The implication is, "The judge thinks that circumcising male babies is akin to human sacrifice," rather than examining the court's actual rationale and the actual balancing of interests that the court attempted to achieve. Harder cases, like denying a child antibiotics for an infection, a blood transfusion for surgery, or medical treatment for an easily treatable ailment that, left alone, is life-threatening or terminal? Douthat, it seems, has no interest in the difficult questions.

Even in the context of his examples, though, it's surprising that Douthat can't find a parallel. Why do we forbid honor killing in the name of even the most sincere religious belief? Why do we forbid parents from forcing their children to marry in the name of religion? Because we recognize that the parent's free exercise of religion can affect their child, and that the child is a separate individual with rights that may justify overriding the parent's religious beliefs and, at a certain age, that it should be the child's choice as to whether to follow the religious beliefs of a parent or to choose a different path.

The judge in German was not forbidding circumcision - he was holding that the procedure could wait until the child was old enough to make an informed decision. While you can disagree with that decision on a number of grounds, if you accept that society can forbid parents from completely disregarding a child's autonomy and individual rights in the name of religion, we're talking about a ruling that differs in degree from the circumcision ruling but not in kind.

If you read Douthat, no surprise here, no small part of his argument is predicated upon the fact that he's not comfortable with sex, and is particularly uncomfortable with female sexuality.

To the extent that the H.H.S. mandate, the Cologne ruling and the Chick-fil-A controversy reflect a common logic rather than a shared confusion, then, it’s a logic that regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as similarly incompatible with basic modern freedoms.

Nobody familiar with Douthat's past writing is going to be surprised that when he thinks of birth control he thinks of slutty coeds trying to get into his pants, not of married women who want to limit the size of their families or women of any age trying to address conditions such as endometriosis and menstrual cramps. But it astonishes me that to Douthat, the sole reason that a judge might be concerned about circumcision would be that it might "deny one’s offspring the kind of sexual gratification that anti-circumcision advocates claim the procedure makes impossible". When he writes,

[Religious ideas] certainly cannot be exercised in ways that might make anyone uncomfortable with his or her own sexual choices or identity.

Douthat gets it exactly backwards. It's not others who want to limit his exercise of his religion lest he "make anyone uncomfortable with his or her own sexual choices or identity" - it's he who wants to impose his religious values on the rest of society so that he never has to feel uncomfortable with his own, awkward sexuality. And believe it or not, from there Douthat's thinking becomes even more convoluted,

It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held.

I'm looking around... funny, I can't see any pornography from here, my marriage seems intact, I have a child so I can't be all that "fertility challenged"... although I suspect that Douthat means the opposite, that the challenge of fertility he perceives is that, believe it or not, some people want to have sexual intercourse while avoiding pregnancy. The only intrusion into my conservative family idyll is a nag of a columnist lecturing me about the decay of society. So I guess from where I'm sitting, at least at the moment his puritanical bent is a bigger issue than our decadent society.

To be more fair to Douthat, yes, it's difficult to conceive of a religion that would not find fault with some aspect of our society - whose practitioners would not find something to be at odds with their sincerely held religious beliefs. That, however, has been the case for all of human history. Yes, like Douthat many religious people will be uncomfortable with our society's treatment of sexuality. But let's be honest, you don't even have to be religious to take issue with our society's approach to sexuality, nor is it only the non-religious who engage in sexual practices that would make Douthat blush.

Douthat believes that the use of birth control is morally wrong? Fine, great, nobody's making him use it. But let's not pretend that there aren't millions of devout Catholic men and women who don't share his dogmatism on the issue. He is free to lecture them that they're not being true to the teachings of their church, and they have every right to ignore him. A constitutional right, at that. It's not those men and women who want "to use the levers of power to bend [Douthat] to [their] will" - again, it's quite the opposite.

When Douthat complains that anybody who disagrees with him necessarily "regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as... incompatible with basic modern freedoms", he's quite incorrect. But it's perfectly reasonable to point out that much of the "chastity, monogamy, male-female business" emphasis of "Western monotheism" was historically directed not at regulating boys and men, but at regulating girls and women. Not that Douthat would care, but the 20th Amendment - granting women the right to vote - is still less than a century old.

We're similarly not that far removed from an era in which our nation had legal slavery, and even closer to an era in which interracial marriage could result in incarceration - and in both cases, you could find defenders of the practices who advanced sincere, Christian religious arguments in favor of the status quo ante. Now, I expect Douthat would find it obvious that Christianity holds slavery and racial discrimination to be abhorrent. When the government says, "You have to let African Americans rent rooms in your hotel," that offends some hotel owners' free exercise of religion. When society forces changes of that type, is it a bad thing, period, end of story, because it offended some people's religious sensitivities at the time, or can we accept that after a period of adjustment most religious institutions will find themselves agreeing with the change?

Contrary to Douthat's suggestion, our society has a long and proud puritanical streak. While it does not bother Douthat, and perhaps he would even prefer that it were more dominant, there are people in our culture who object to the treatment of women as second-class citizens, and who find it objectionable that people like Douthat use their religious beliefs to advance public policy that makes it more difficult for women to participate in society as equals. It is in fact possible to recognize our society's puritanical streak and recognize that some aspects of our popular culture are, to put it mildly, over-the-top. If you spend time actually looking at our society, both aspects are very hard to miss.

If you want to cloister yourself among people of your religion, living in seclusion, untouched by the corrupting elements of society at large, you have every right to do so. What you cannot reasonably expect to do is to come out of that seclusion into greater society without ever being offended, and you cannot reasonably expect to engage with a larger society that does not share your religious values without ever having those values weighed against the needs and rights of others, and of society as a whole. And sorry, if it feels like society is "bending you to its will" when it tells you that you cannot impose your religious beliefs on others, such is the consequence of living in an open society where others are also permitted to hold and exercise religious beliefs of their own, even if they differ from yours.

If This Is Ross Douthat's Best... His Best Isn't Good Enough

At least when David Brooks serves the right-wing echo chamber, he attempts to put a creative spin on things - to translate the memo into his own words. If Ross Douthat's stenography is anything to go by, he's well on his way to being every bit as insightful and relevant as Richard Cohen. You have to wonder if he's even thinking about what he says.

Mitt Romney isn’t just wrong on specific policies or too right-wing in general. He’s part Scrooge, part Gordon Gekko; an un-American, Asia-loving outsourcer; a tax avoider and possibly a white-collar felon.

Douthat doesn't believe it's necessary to offer evidence for any of his claims, and it's obviously no coincidence that he's lapping up and repeating every anti-Obama line served up by his party, no matter how outlandish. The tactic of taking a statement by an irrelevant person peripherally associated with the campaign and pretending that the person's isolated statement is an official stance of the campaign? "It's in there." And seriously, Obama's the one claiming Romney is anti-American? Would Douthat have us believe that Romney's pushing back against his party's innuendo that Obama's a corrupt, terrorist-loving, anti-American socialist, who has never held a "real job" and whose only love of capitalism is for the crony variety? Does Douthat care that Romney pushes that dogma, and routlinely dispatches his lapdogs to advance those slanders?

Remember when Mitt Romney released his birth certificate to the media? Douthat doesn't recognize that as a nod to his party's "birthers"? Where can I find a clear and unambiguous statement by Mitt Romney that he disavows birtherism and believes that the President was born in the United States? Not a staffer telling us what Romney believes - Romney actually stating what he believes.

It's one thing to criticize politicians for dirty tactics. It's quite another to play the part of a dim-witted pot calling the kettle black. He pretends that Romney's complacent? Romney's been on board with the dirtiest attacks against Obama from day one. When your candidate sets the tone, sure, complain that the campaign has taken a nasty turn, but when the best campaign tactics your candidate can muster range from the distortion to the outright lie, and his minions routinely make absurd attacks on the President, one thing you cannot claim is that he's "complacent".

Douthat also regurgitates a string of Republican talking points about the President's policies.

Since the campaign kicked off, the president’s domestic policy rhetoric has become much more stridently left-wing than it was during the debt-ceiling debate. He’s dropped all but a pro forma acknowledgment of the tough choices looming in our future, and doubled down on the comforting progressive fantasy that we can close the deficit and keep the existing safety net by soaking America’s millionaires and billionaires.

Douthat knows that's a load of nonsense, which is why he doesn't substantiate his rhetoric with any actual quotes of Obama or positions the President has taken - not even a link. Worse, he knows that if he were to actually share the quotes, not only would people find his polemicism to be absurd, a lot of the people who reflexively nod along with that brand of right-wing prattle would find themselves agreeing with the President. Let's not forget, the Tea Party Movement emerged from an angry backlash against the Wall Street bailout. Let's also not forget that the tax increases Obama proposes are tiny and take us back not to an era of "soaking the rich", but to an era of rapid economic growth during which the rich (as usual) did better than every other economic class. The horror.

I know it's easier - and more profitable - for columnists like Douthat to echo the party line, ignore the facts, support their party's candidate. But when it's done that badly, it's just plain embarrassing.

Update: Predictable as ever, here's Richard Cohen. Douthat wants to be the other side of that coin?

Dirty Politics? Surprise! You're Soaking In It!

Frank Bruni has taken to his fainting couch over Harry Reid's brutal attack on Mitt Romney,

Spew first and sweat the details later, or never. Speak loosely and carry a stick-thin collection of backup materials, or none at all. That’s the M.O. of the moment, familiar from the past but in particularly galling and profuse flower of late.

It has spread beyond the practiced rabble-rousers of the far right, and Democrats are exuberantly getting in on this unbecoming, corrosive game. For many years they bemoaned an unfair fight: Republicans were by and large willing to play faster, looser and flat-out nastier than they were. Is there as much credibility to that lament today?

Well, yeah, it would be nice if everybody were above-the-board, if people didn't resort to anonymous sources to spread political dirt, if the shoving matches between political candidates were fairly mediated or assessed by the media, and the like. A bit more of that and you might see politicians run cleaner campaigns.

But here's the thing: If you write a column wringing your hands over how Harry Reid is a big meany-pants who won't leave poor Mitt Romney alone, you're not part of the solution. Harry Reid may as well be turning a giant key in you back and setting you off to do his bidding, like clockwork. Your indignation doesn't bother Reid - he's not the one running for office. He wants you to keep the story alive and guess what, the more indignant you are, the more fire you breathe about how unfair he's being, the more you contribute to the continuation and prominence of the story.

Bruni refers to the allegation that Romney may not have paid taxes for a significant number of years as a "casual slander of Romney". By definition, a slander is a false statement that is harmful to somebody's reputation. Unless Bruni knows for a fact that Reid's statement is false, he is engaging in the same form of over-the-top rhetoric he is criticizing. Bruni's exaggerated response reinforces Reid's point - that he's happy to be proved wrong, but that can only be done if Romney releases his tax returns. Bruni would be better off making his argument from neutral ground - Reid's tactics are wrong even if it turns out that the substance of his remarks are correct.

A fair question: Is Reid's statement, true or false, harmful to Romney's reputation? Would anybody be surprised if Romney found a way to pay zero taxes - or even if he found a way to get tax refunds while raking in hundreds of millions of dollars in deferred compensation? Would anybody think less of him? I suspect not. I suspect that the Republican leaders who presently defend tax avoidance as an act of patriotism would double down on that argument and that the polls would remain pretty much where they are. As many Republicans have pointed out, we appear to be at a point where any harm to Romney is self-inflicted.

I don't mind columnists lamenting the decline of civility in politics, the lockstep partisanship that prevents Republicans from working with Democrats to address issues of serious public concern, how issues such as Romney's taxes are a distraction from what's really important - and in fact allow Romney to blow smoke and pretend it's serious policy, because political commentators are so focused on the horse race and "low blows" that, for the most part, they don't reserve any column space for actual analysis. But if you're one of the people in a position to shape the public debate, and you choose the horse race and back-and-forth as the priority for your analysis, you're playing right into the hands of the people you criticize. In Internet parlance, you're feeding the trolls.

Defensive Medicine and Fear vs. Reality

Robert Samuelson describes the hypothesized fear that some claim causes doctors to prescribe unnecessary (and sometimes potentially harmful) tests to avoid a potential malpractice claim,

The [journal Health Affairs] argues that rapid growth [in health spending] was driven partly by powerful non-medical forces: Demanding patients insisted on scans; doctors feared malpractice suits if they refused; and doctors and hospitals wanted to maximize revenues. What explains slower growth is that these incentives weakened....

One change was the adoption of prior authorization by many private insurers. Doctors usually had to get permission for advanced imaging and, if patients’ conditions didn’t comply with guidelines, explain why. This may have discouraged referrals, because doctors don’t like being overruled. Patients also became less demanding, because deductibles and co-payments rose.

Yet despite less of this expensive testing in cases where it's not needed or where the need is borderline, there has been no increase in malpractice litigation. To the contrary, the number of malpractice lawsuits continues to drop.

The leading problem with the argument that unnecessary imaging studies were driven by fear of malpractice litigation is that a doctor can only be held liable for malpractice if he violates the governing standard of medical care - a standard defined by doctors, not by lawyers. The conceit is that the additional test might reveal something that did not show up in prior tests, saving the doctor from a "failure to diagnose" claim, but even without the test if the doctor established that he adhered to the governing standard of care the claim would not succeed.

Under the former model implied by Samuelson, the doctor meets with the patient, the doctor either says "This really expensive imaging study is unnecessary and won't help me diagnose your problem," or makes a statement he knows to be misleading, "We need this really expensive test to verify your diagnosis", the patient responds, "I want it anyway", and the doctor goes along with the patient's request.

The first explanation offered for the drop in testing, that insurance companies became more likely to require prior approval and "doctors don’t like being overruled" undermines the notion that fear of malpractice litigation is a significant factor. It is difficult to believe that a doctor who is willing to order medically unnecessary tests on large numbers of patients in order to avoid the tiny chance that one will later file a frivolous lawsuit against him is going to have such a dramatic change of heart, "I'm not even going to mention the additional test because the patient might want it, and then the insurance company might say 'no'."

Further, Samuelson informs us, "Data from one insurance group suggested that about half the MRI slowdown involved lower back, elbow and knee pain." (The article Samuelson references also mentions low-value MRI's of the pelvis.) Lower back pain can be associated with serious medical conditions, but the study distinguishes MRI's "used to diagnose lower back pain" from those ordered when a patient is "considering surgery or physicians strongly suspected systemic disease". But leaving the lower back aside, it's difficult to believe that doctors are ordering large numbers of knee and elbow MRI's as "defensive medicine".

More than that, its unlikely that the doctor is going to know what any given insurance company will or will not approve before his office checks the policy terms and, if necessary, makes the request. It's even less likely that it will be the doctor making the call. Why would a doctor fret if an insurance company says "no" to one of his clerical staff? If the doctor believes that the test is medically necessary, he is likely to fight the insurance company. I've dealt with medical clinics who have a full-time employee whose only job is to push back against insurance companies' efforts to deny or limit care.

The second explanation, speculation that "Patients also became less demanding", seems like a big stretch. If a test is medically necessary, the doctor is going to push the patient to get the test despite the out-of-pocket cost. If your doctor tells you, "You need a $5,000 medical test in order for me to diagnose your condition," even if you're one of the "27 percent" of "workers with deductibles exceeding $1,000", odds are you're going to bite the bullet. Odds are you'll be billed after-the-fact, and you only pay a deductible once. If you're looking at very expensive medical testing odds are that you have an underlying medical condition that is going to take you across that line, anyway.

The concept of "defensive medicine" Samuelson implies would also presuppose a highly informed patient. They see the doctor for diagnosis and treatment. The doctor provides care he believes is appropriate. They then ask, "Shouldn't we also use the [specific expensive medical test or imaging study]?" The reality is, confronted with a non-specific diagnosis or statement by the doctor about a low-probability but high consequence possibility in a differential diagnosis, the patient is likely to ask, "Isn't there anything else we can do," with the doctor identifying the additional test that could be performed.

It's difficult to see how the "defensive medicine" line would have changed. It's unlikely that the doctor who is inclined to order unnecessary testing is fretting, "Oh no, if I mention the test there's a one in four chance that they have a high copay and they might refuse it," or "Oh no, if I mention the test they may have insurance that requires pre-authorization and the request may be denied." If they don't mention the test to the patient they're right where they would be without "practicing defensive medicine" - they can still be accused of not mentioning or ordering the test. If they recommend the test and don't push the patient to fight an insurance company denial or to pay the copay, they are similarly exposed.

If the assumption is that certain doctors will liberally prescribe medically unnecessary tests only if they don't expect to encounter friction - only if they expect an insurance approval, and only if they believe that the patient's contribution to the cost of the test will both be known to the patient in advance and not scare off the patient - then "defensive medicine" really translates into, "I'll order whatever testing I think the insurance company will pay for." There's a madness to that method, as there's always one more test you could order and, frankly, the patients with the best insurance likely fall within the population that is least likely to sue.

It could be hypothesized that the economic changes have forced a learning process on the part of doctors - that frivolous malpractice lawsuits are so rare, ordering unnecessary medical testing has no meaningful impact on whether or not any given doctor gets sued. But then, as Samuelson notes, there's the elephant in the room:

Finally, some reimbursement rates fell. In 2005, Congress mandated that Medicare couldn’t pay free-standing imaging centers — often owned by doctors — more than it paid hospitals for outpatient imaging. This “reduced profits for imaging centers and resulted in extensive consolidation in the industry,” the study said. Under complex reimbursement rules, doctors had incentives to establish imaging centers or install scanning devices in their offices, says Levy. And these imaging centers seemed “particularly active in stimulating demand.”

That is, it appears that the leading cause of unnecessary medical imaging, performed at the highest cost, was physician self-referral - sending patients to receive tests at centers owned in whole or in part by the doctor making the referral, with the referring doctor having both the need to keep his imaging center busy and receiving a share of its profits. No, I'm not going to argue that this was a standard practice across the board, and even within the context of self-referral I'll give the majority of doctors the benefit of the doubt, that they referred patients to their own clinics for tests they would have ordered anyway - the difference being much more one of where the test is performed than whether it is ordered. But self-referral has long been identified as one of the leading causes of unnecessary medical testing, a genuine, documented cause of medical inflation.

It is easy to understand why a doctor does not want to be accused of malpractice under any circumstances, and why a doctor would want to avoid being sued even in a context in which he will easily defeat the suit in the early stages of litigation. People who argue that "defensive medicine" plays a large role in the cost of medicine ignore the fact that to the extent that "defensive medicine" exists, it is largely driven by emotion. Were "defensive medicine" is driven by facts, you would expect to see a reduction in low-value medical testing when the rate of malpractice lawsuits drops. Yet the prevalence of low-value testing and the cost of medical care is not correlated to the number of malpractice lawsuits. If doctors believed that certain expensive tests were necessary to avoid potential lawsuits, even if not medically necessary, you would see them pushing patients to pay for the tests and fighting insurance companies to gain approval. Instead you see them deferring to insurance companies or, it would seem, not even mentioning to patients tests that might stretch the patients' pocketbooks.

What you do see through studies such as the one Samuelson describes is that you can reduce the number of low-value tests across the board by changing the economic environment for such testing. That is, whether referrals for low-value testing are driven by a strong desire to diagnose a tricky condition, self-referral and profiteering, or "defensive medicine", there appears to be an across-the-board reduction in the number of such referrals when you change how you compensate doctors for the tests and the amount that patients must contribute in order to obtain the low-value test. Rates of malpractice litigation, damages caps and the like don't matter.

As long as any malpractice lawsuits are allowed, you're going to see doctors express that they fear frivolous lawsuits. History tells us that, short of a grant of absolute immunity, changing the tort system won't affect how doctors practice medicine. (The prior, ugly history of when doctors were all-but-immune from malpractice litigation should not be forgotten.) But, to the extent that defensive medicine even exists, if you can eliminate most or all "defensive medicine" by adjusting financial incentives, it's a peripheral issue - something that can be successfully addressed through indirect, economic reforms. Given that despite years of debate, there's still no consistent definition for or objective measure of what constitutes "defensive medicine", and "tort reform" has had no impact on its supposed practice, focusing on economics seems like the way to go.

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?
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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.

An Israeli Settler's Facepalm Column

For reasons I'm not sure that I want them to explain, the New York Times editorial board thought it would be a good idea to publish a whinge from an Israeli settler, Dani Dayan, who, after sharing with us a self-serving history of the conflict and complaining how unfair it would be to make settlers leave the occupied Palestinian territories, sputters about a "two state solution". That he, an immigrant from Argentina, has a greater legal and moral claim to the land upon which he lives than those whose families have been on that same land, without interruption, for thousands of years.

Moreover, the Palestinians have repeatedly refused to implement a negotiated two-state solution. The American government and its European allies should abandon this failed formula once and for all and accept that the Jewish residents of Judea and Samaria are not going anywhere.

It's entirely the fault of the Palestinians, you see, that they have not implemented a settlement that does not exist and has never existed. One wonders, was Dayan chuckling when he wrote that line? He has to know that the primary purpose of constructing settlements throughout the occupied West Bank was to frustrate the peace process and to prevent a two-state solution. Dayan admits, "In the areas targeted for evacuation most of us are ideologically motivated and do not live here for economic reasons." Yet now he purports that a one-state outcome he has actively pursued for decades is somehow the "fault" of the Palestinians and gloat that the settlement enterprise he helps lead is now so entrenched and enormous that it's functionally impossible to remove? Yes, he does, and the New York Times blithely publishes his calumny.

Worse, the author feigns ignorance about why pretty much everybody other than his community of settlers prefers a two-state solution. While he has fevered dreams of "The influx of hundreds of thousands of Palestinian refugees from Syria, Lebanon, Jordan and elsewhere [that] would convert the new state into a hotbed of extremism", with the dismally poor and underdeveloped West Bank imagined to be a huge magnet for immigration, paranoia is not a good substitute for common sense.

Why look to how Palestinians live in Jordan, next door to the West Bank, when out from under the thumb of occupation, when you can instead paint a video game fantasy. And as always, a fair retort to "We would have to reoccupy", rather unlikely given the terms and placement of peacekeepers in association with any settlement, is "If that were to actually become true, no one will be able to question the legitimacy of Israel's action." A Palestinian land would be no more dangerous to Israel than is Lebanon, which isn't to say that such a situation would be ideal but it would be manageable.

There are two good reasons to support a two-state solution, and they're interrelated. The first is that we are talking about two people with two different cultures, different religions and very different interpretations of the same modern history. The logistics of integrating those two populations into a single nation state are complicated. Sorry Robert Frost, good fences don't always make good neighbors. It's reasonable to infer that Dayan has no interest in having Palestinian neighbors, at least living any closer than the ones he might see through the scope on a sniper's rifle.

Second, the complexity of a one-state solution that preserves a good outcome for both peoples cannot be underestimated. Israel would combine itself with the occupied territories into a state that has a significant demographic problem - an inevitable Palestinian Muslim majority. If peace brings the immediate right of return to Palestinian refugees - a right that advocates of the two-state solution would limit to the new Palestinian state, the demographic shift from Jewish majority to Palestinian majority could be almost immediate.

Demographics were the impetus for Ariel Sharon's withdrawal of settlements from the Gaza Strip - he hoped to be able to argue that Gaza was no longer under Israeli occupation such that he could subtract its population from the number of Palestinians living under occupation. But once you declare a single state, you can no longer resort to the conceit that "They're on their own lands." You're stuck with either making the Palestinian people citizens, somehow forcing them to leave or formally adopting a system of Apartheid.

The strongest arguments against a one state solution come from people who are concerned for the future of Israel - who don't want it to cease being a Jewish State, but who see that as inevitable under a one state solution that does not actively embrace Apartheid, either refusing citizenship to Palestinians or giving them a second class status that amounts to the same thing.

Opponents of a peaceful settlement and two state solution, including those behind the settlement of the occupied territories, have a point. They have created facts on the ground that will make it extremely difficult to implement a two state solution. It's not unreasonable for Dayan to declare victory. But rather than pointing fingers at the Palestinians and trying to make it their fault that he moved onto their land, as part of an admitted effort to keep them from having a state of their own, it's time for him to acknowledge the price of that victory.

Once you accept Dayan's declaration of victory, the road by which we reached this point becomes a distraction. If we are to drop all pretense that the two lands and peoples can be separated, we must create a plan for their integration. What type of single state does Dayan want Israel to become? The three choices for Dayan are ethnic cleansing, Apartheid and democracy.

The question to Dayan becomes, "Now that you've declared victory, what's your plan for physically integrating Israel and the occupied territories, and for creating a democratic system which protects the religious rights and freedoms of both peoples once they have all been granted the right to vote and be represented in the Knesset? If he doesn't have an answer, it surely cannot be because the issue has never occurred to him. It's a front and center concern for those who advocate and oppose the one-state solution. If he's unwilling to explain how he would integrate the state, the reasonable inference is that he opposes a democratic solution.