There's No Such Thing as a Secure Back Door

The Washington Post editorial board, rather predictably, follows its tendency to defer to the state on issues of law enforcement and national security,

Law enforcement officials deserve to be heard in their recent warnings about the impact of next-generation encryption technology on smartphones, such as Apple’s new iPhone. This is an important moment in which technology, privacy and the rule of law are colliding.

The issue arises from the fact that Apple's latest version of iOS, and the next version of Google's Android OS, will automatically encrypt many routine communication functions, and will also remove any mechanism through which Apple or Google can decrypt phone content for law enforcement.

The technology firms, while pledging to honor search warrants in other situations, say they simply won’t possess the ability to unlock the smartphones. Only the owner of the phone, who set up the encryption, will be able to do that. Attorney General Eric H. Holder Jr. said this could imperil investigations in kidnapping and other cases; FBI Director James B. Comey said he could not understand why the tech companies would “market something expressly to allow people to place themselves beyond the law.”

While certainly, over enough time and enough cases, situations will arise in which content saved on a smart phone could be useful to law enforcement, and some of the criminals in those cases won't already be using readily available third party encryption apps, I am reminded of the saying, "Bad facts make bad law" -- a comment on the propensity of courts to carve out exceptions to constitutional protections because, in the most common example, a really bad person did something particularly awful and existing law would render key evidence inadmissible. We should not compromise everybody's rights based upon the inevitability that a very small number of people will do bad things.

The Post argues that "This is not about mass surveillance", but really it's not about surveillance at all. It's about accessing the content of a smart phone that has been physically seized by the police. If the police have a warrant that allows them to intercept voice and data transmissions from a smart phone, or to remotely activate the phone and use it as a listening device, the change doesn't affect their ability to do so. The change means that law enforcement cannot take a seized iPhone to Apple and ask them to bypass its pass code to decrypt its content.

The Post argues,

But smartphone users must accept that they cannot be above the law if there is a valid search warrant.

Similarly, owners of safes and vaults must accept that they aren't above the law if there is a valid search warrant -- but that being the case, sometimes the only way into a safe or a vault is through the application of brute force. The idea that law enforcement would be handed a master key that could open any safe, vault or lock box in the nation would be ludicrous to the editorial board, which writes,

A police “back door” for all smartphones is undesirable — a back door can and will be exploited by bad guys, too.

An encrypted smart phone is similar to a safe, with the pass code serving as the key or combination you need to access the contents. It happens to be a particularly good safe, such that if the owner uses a complex pass code or you don't have the patience to work through the 10,000 basic four digit pass codes without locking yourself out of the device, it's really tough to get the content.

When the Post writes,

However, with all their wizardry, perhaps Apple and Google could invent a kind of secure golden key they would retain and use only when a court has approved a search warrant.

They're engaging in wishful thinking: "We can't have a back door, as that would create an unacceptable security hole, so what we should have instead is... a back door!" A back door that would be the immediate target of criminals and intelligence agencies worldwide. A "golden key" that would have to be stored somewhere, and attempts to gain access to it not only through reverse engineering or brute force, but by bribery, blackmail, theft and extortion, would begin immediately. The editorial board appears to be aware that making everybody's phone vulnerable to bad actors is a bad idea. Unfortunately, once you ungild the "golden key", it's their only idea.

David Ignatius States the Obvious

Which is to say, Ignatius has penned an editorial entitled, Claims of U.S. weakness and retreat of U.S. power are unfounded. That shouldn't be a surprise given the author, but it seems increasingly rare to see basic common sense on foreign policy issues from the Washington Post's editorial crew.

Ignatius has some criticisms for the President, but they invite criticism of their own:

I agree that [President] Obama’s foreign policy has not been as firm, especially in dealing with Syria and Russia, as it should have been. As a result, the United States has suffered some reputational damage.

It's reasonable to infer from Ignatius' statement that he believes that the U.S. should have taken military action in Syria. The problem is that, as Ignatius recently told us, there are no good ways to intervene in Syria. It's an odd sort of criticism, that the President should have boldly taken a different path that might have had negative results, perhaps worsening the situation. Truly, if Ignatius believes that there is an appropriate, stronger line to take with Syria, he should explicitly describe the intervention that he favors. Further, if his concern is truly with "global security", Ignatius should explain why he omits reference to Libya where the U.S. did intervene militarily to topple a despot, but where a consequence of that intervention has been the creation of a great deal of regional turmoil -- and also stands as an object lesson as to what could happen if Bashar al-Assad is toppled without the involvement of a very large western occupation force ready to impose and hold the peace.

It's also not clear why Ignatius believes that being more "firm" with Russia would do anything to change Russia's policies or Putin's behavior. Does he believe that Russians will somehow eject Putin from power if they perceive that President Obama is unhappy with him? I would expect not, given that it's obvious that the President is unhappy with him yet his domestic popularity has improved. I think Daniel Larison makes an apt observation:

When U.S. Russia policy prioritized working with Russia on matters of common interest, relations with Moscow measurably improved and the U.S. made some modest gains on a few issues. When Washington returned to its old habits of agitating over internal Russian affairs and seeking to overthrow Russian clients, relations went into rapid decline. Since then, U.S. punitive measures have contributed to the intensifying Sino-Russian cooperation....

Again I'm left wondering, what "firm" measures does Ignatius believe would change Russian behavior, and on what basis?

Ignatius made an argument toward the end of his editorial that I wish he would clarify:

The worriers [about weakness] get one big thing right. A strong, forward-leaning United States is essential for global security.

There are many regions in the world where the people don't enjoy much security, and many more where ethnic minorities are mistreated. Is Ignatius lobbying for U.S. military intervention that is truly aimed at "global security", or is he conflating "global security" with "the advancement of U.S. foreign policy interests"? The latter seems more consistent with the editorial position of the Washington Post, which under the leadership of Fred Hiatt reliably supports military adventurism in the name of muscular foreign policy. But there is a huge difference between that and actually working to achieve "global security", even if human rights violations are sometimes offered as a justification for intervention in a nation or region that, in the mind of the editorial board, affects U.S. foreign policy interests.

When looking for the prior link to Daniel Larison, I noticed that he has also written about this argument. Larison argues that many of those who make that argument about "America’s indispensability... are routinely wrong about specific issues":

Ignatius’ review of the [book, "Taking on the World" and its authors'] constant alarmism reminds us of something else that should be only too familiar to those of us that have observed or participated in foreign policy debates. No matter how often such people are profoundly wrong about important events and the appropriate way that the U.S. should respond to them, they continue to be relied on as authorities and guides in subsequent debates. Alarmists are never held accountable for their alarmism, at least not as long as they subscribe to the prevailing consensus view about what the U.S. role in the world should be. If you can get “one big thing right,” you need never worry about being right ever again. Then again, the alarmists are just taking their belief in American “indispensability” to its predictable conclusion: if a “strong, forward-leaning” U.S. is “essential” to global security, frequently panicking about potential “retreat” and “weakness” becomes a major part of maintaining that role.

Larison sees the tendency to perceive a constant need for U.S. intervention to address perceived threats around the globe results in the notion that non-intervention is treated as a failure of American strength, character and endurance, and creates an all-or-nothing foreign policy in which leaders are not trusted to determine which threats are serious such that, even in relation to minor threats, doing nothing becomes unthinkable. Larison argues that the "false belief in American indispensability breeds intense anxiety about security and causes people to imagine dangers that don’t even exist", resulting in U.S. involvement in "disastrous and unnecessary conflicts". I think the sort of argument Ignatius is implicitly making, "I don't know what we should do, and every choice is bad, but we must appear strong or, at a minimum, we risk reputational damage".

Ignatius sees Obama's actions as a retreat from military action, and also as consistent with history,

...[A] retreat to lick the nation’s wounds is fairly common after wars — and rarely does lasting damage.

But it apparently does not occur to him that strong military action in Syria, or attempting to escalate tension with Russia to the point that Putin might be cowed, are both ideas fraught with peril. That is, sometimes discretion is the better part of valor.

Ed Rogers Is Terrified That Obamacare will Succeed

Ed Rogers, one of the Washington Post's political demagogues blogging in the PostPartisan (get it?) section of their website, blathers about Obamacare:

Since I’m always admonishing others to admit the obvious, I will now make an admission of my own: I’m rooting for Obamacare to fail. And I encourage others to do the same.

If you're familiar with Rogers or his history, that's really all that he needed to say. It would stand as a naked admission of his political bias, and his preference to cause harm to the millions of people who will benefit - and are already benefiting- from the PPACA if it gives advantage to the Republican Party. And if he left it at that, it would be fair to point out that people of Rogers' ilk used to go ballistic over criticism of George W. Bush, pretending that any criticism constituted a near-treasonous (or... should I say treasonish) wish for the nation to fail. But... he can't stop there.

I do not hope the uninsured stay uninsured, but Obamacare is not the solution.

You know what would have been a good follow-up to that claim? A proposed solution. Do you think we got one? Get real. The reason Rogers and his ilk are jumping on the "Glitchgate" bandwagon is because they don't have any ideas.

Obamacare is a harmful policy that will be bad for the country if it is forced upon Americans and the American economy.

You know what would have been a good follow-up to that hyperbolic claim? Any evidence that it is connected to reality. Do you think we got one? Yeah, same answer.

Why would anyone hope it limps into existence and settles like a cancer on the U.S. health-care system?

Wow... people having health insurance is like cancer. Who would have thunk.

The president asked his critics to stop rooting for its failure, but I, for one, refuse to do so.

And there he circles back to my first point, but again he finds himself unable to stop.

Also, the failure of Obamacare would do a lot to expose the false promises of big government programs.

Let's see... the three biggest ticket items are Medicare, a highly popular and effective health insurance program, Social Security, a highly popular and effective program to provide retirement benefits and disability insurance, and the military. Which of these does Rogers believe will be proved to be a "false promise" by a government program that, rather than following the successful lead of Medicare, compels people to buy insurance from private companies?

President Obama has been and always will be an unapologetic promoter of classic liberal activism.

Do you have the first clue what "classic liberal activism" means? If it were a little less polite, it might be a meaningless phrase Rogers picked up from Rush Limbaugh.... Does Hannity use that phrase? Seriously - when I search for the phrase "classic liberal activism" in quotes, Google returns a whopping six results, three of which are the same screed from WorldNetDaily, Joseph Farah's gift to reactionary trolls who want to play journalist. Perhaps that's Rogers' source?

Liberals think that Washington knows best and that increasing citizens’ dependency on government is a goal in and of itself.

When the facts fail you, there's nothing like a hollow man argument to save the day. Which liberals hold that belief, Ed? Can you name even one? Didn't think so.

Like all Republicans, I believe we need smaller government.

Straight from the hollow man to the false generalization. History tells us that Republican Presidents like to talk about smaller government, while nonetheless significantly expanding the size, reach and cost of government. Going back to 1982, which presidents have presided over the slowest growth in annualized federal spending? Clinton and Obama, by significant measure. If Republicans believe in smaller government, why do they have such a difficult time voting for politicians who reduce the size of government, implementing policies to reduce the size of government, or applauding the presidents who actually walk that walk? (Which again takes us back to my first point).

Obamacare is the opposite of a smaller, less obtrusive government.

No, as Rogers would figure out if he were to actually think about the issues, it is not. Millions of people are trying to sign up for health insurance through the exchanges because they want insurance. Millions of people went to the exchange site the day it opened for that very reason. Rogers may sit around with his wealthy Republican peers, sniveling about how ordinary people don't really want health insurance, but the fact is that millions of people like the provisions of the PPACA that are already in effect (such as allowing kids to stay on their parents's health insurance until the age of 24) and are eager to finally get health insurance that they can afford or that will cover their pre-existing conditions. In terms of being "smaller", quite obviously the program is designed to minimize the public role. The opposite of that would be single payer.

The failure of Obamacare would discourage and hopefully deter those who think a bigger, more domineering U.S. government is the answer to our problems.

Actually, the lesson would be that we should do the sensible thing, and follow the lead of pretty much any other western democracy - all of which have national health insurance programs of one sort or another that are both popular and largely successful. It is the adherence to "free market" principles that keeps this nation's health insurance costs so high, while providing the average American with less care than they would be able to obtain under a less costly "socialized" model.

And most important, the horrors of this debacle and the collapse of Obamacare would have a chilling effect on politicians who want to promote big government solutions.

And there you get to the real problem - Rogers is cheering for Obamacare to fail because his bladder trembles at the thought that it might succeed. And then governments might do crazy things, like adequately funding public education and fixing roads and bridges.

The (Non-)Political (Non-)Persection of JPMorgan Chase

The Washington Post tells us what some conspiracy theorists have to say about the prosecution of JPMorgan Chase for the London Whale fiasco and for the sins of its acquired companies leading up to the financial crisis:

We’re less impressed by the more backward-looking attack on JPMorgan for allegedly misleading investors about the quality of securities it marketed before the crash. Mr. Dimon reportedly is facing a demand for $11 billion in fines and other payments to settle the case, under threat of a Justice Department criminal investigation. Yet roughly 70 percent of the securities at issue were concocted not by JPMorgan but by two institutions, Bear Stearns and Washington Mutual, that it acquired in 2008. Among the investors supposedly ripped off were the sophisticated government-sponsored enterprises known as Fannie Mae and Freddie Mac. As was inevitable, some say the case is payback for Mr. Dimon’s criticism of Obama adminstration policy.

The editorial continues,

We don’t take that view; nor do we pity JPMorgan, which is still a lucrative business despite its legal woes and which purchased the institutions for their valuable assets mixed in with their massive liabilities. When it bought them, it bought their legal issues, too — known and unknown.

There's an obvious tension between the Editorial Board's whine, "70 percent of the securities at issue were concocted not by JPMorgan but by two institutions, Bear Stearns and Washington Mutual, that it acquired in 2008" and their subsequent statement, "When [JPMorgan Chase] bought them, it bought their legal issues, too — known and unknown". If they're responsible, then the percentage doesn't matter. Even if you buy into the subsequent "poor little rich boy" argument, "then-Treasury Secretary Henry M. Paulson Jr. told Mr. Dimon that doing so would help the country by stemming market panic. That gives the case a certain 'no-good-deed-goes-unpunished' quality", the companies' misconduct was not exactly a state secret at that point and potential liabilities were factored into the fire sale prices. Robert Pozen offers another version of the "poor little rich boy" stance, that admits as much,

If JPMorgan had purchased Bear Stearns under "normal" circumstances, JPMorgan's shareholders would have been a reasonable target of the lawsuit. Typically, if one corporation (call it A Corp.) buys another (call it T Corp.), A assumes all of T's former liabilities-its bonds, pension obligations, and, yes, its legal liabilities.

The transfer of legal liability relies on the logic that A could have performed due diligence prior to acquiring T, and reduced its offer price to account for any potential legal liability. Thus, the expected cost of future lawsuits flows through to T's shareholders, as it should in the normal case.

But JPMorgan's acquisition of Bear Stearns was different. JPMorgan purchased Bear Stearns at the behest of top federal officials-who needed JPMorgan to quickly announce a deal in order to quell a potential financial panic. Furthermore, the offer price was effectively set by these federal officials. There was no opportunity for JPMorgan to learn about Bear Stearns' legal liability, nor to adjust its offer price accordingly. Indeed, JP Morgan initially walked away from the acquisition because it did not have enough time for due diligence.

Thus, punishing JPMorgan's shareholders does nothing to align incentives-it merely punishes shareholders for acts in which they are blameless. Even worse, this fine discourages companies from engaging in "white knight" acquisitions at the request of federal regulators. In the future, company executives will demand broad guarantees against losses from the government before taking over any troubled institutions.

The short answer to that is that, while I feel some sympathy for a company that plays white knight and ends up with a worse deal than it anticipated, nobody forced JPMorgan Chase to say "yes". Pozen admits that they understood the risk and chose to go forward with the purchase anyway. As for their being a fixed price and no room to negotiate, clearly there were negotiations - JPMorgan Chase was free to walk away, did so, reconsidered, and came back to close the deal. Further, the facts belie the notion that the government presented JPMorgan Chase with a "take it or leave it" price - they had initially agreed to pay $2/share, and it was the threats of Bear Stearns shareholders to fight the sale that inspired them to raise their offer to $10/share. The total selling price was less than the value of Bear Stearns' Manhattan headquarters - you can't look at the negotiations or the purchase price without recognizing that JPMorgan Chase knew it was taking on potentially massive liabilities.

As for future "white knights" being afraid to step forward, let's be honest: JPMorgan Chase acted because it saw a business opportunity. Pozen and the Washington Post Editorial Board assume that JPMorgan Chase was unaware of the possible downside. I don't attribute that level of incompetence to its negotiators, and have little doubt but that they carefully considered outcomes far worse than the present proposed fines when they agreed to buy Bear Stearns at a stock valuation of 7.5% of its 52 week high.

But more than that, if the Board sincerely does not endorse the view of the conspiracy theorists, the unidentified "some" who "say the case is payback for Mr. Dimon’s criticism of Obama adminstration policy", why did Fred Hiatt and his crew choose to title their editorial, "JPMorgan Chase’s political persecution"? Was Hiatt trying to mislead readers into believing that the Post endorses the stance of the conspiracy theorists? Does he understand what the word "persecution" means? And why are they suggesting that holding JPMorgan Chase responsible for misconduct for which they acknowledge it to have assumed liability imperils the government's reputation for impartiality? How would it be impartial for the government treat JPMorgan Chase more favorably than it would treat another, similarly situated company?

Alas, these are the types of questions that Fred Hiatt's Editorial Board can never seem to find space to answer.

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.)

Washington Post and Student Loan Interest: "Don't Punish Our Gravy Train"

The editorial board for Kaplan, Inc. the Washington Post is extremely concerned about the increase in student loan interest rates:

With the student debt crisis already hurting the economy and hobbling the young, the last thing the country needs is a federal policy that makes college even more costly. But that’s what the country got earlier this week when Congress allowed the interest rate on the subsidized federal loans to double from 3.4 percent to 6.8 percent.

When the Washington Post discusses government expenditure and subsidies, particularly anything it deems to fall into the category of the "entitlement", you typically get hand-wringing about how unaffordable that type of spending is, and how important it is to cut subsidies to make one program or another more affordable. It's difficult to look at the Post's complaints without wondering, why is its stance so far apart from its positions on other social spending programs, or coming up any answer but, "because of Kaplan."

The Post, not unreasonably, presents an argument that I guess we're not supposed to notice would also apply to programs like Medicare and Social Security:

Those who want to keep the rates affordable understand that college educations benefit the work force and the country as a whole. Those who would increase the burden on borrowers see a college education as an asset that benefits the individual alone. That’s a dangerous idea, at a time when this country is steadily losing ground to its increasingly better prepared competitors abroad.

But even if - perhaps especially if - you accept that education is necessary to sustain and build upon the success of a nation, and that it's thus important for college to be affordable and accessible, we should be having a larger conversation about funding.

• Are there better ways to subsidize higher education? Why loans, for example, and not increased direct subsidies to colleges? Why not grants?

• Do subsidies cause students to borrow more money than they need? College does not necessarily have to involve penury, but even the once relatively austere dorm life is increasingly turning into a luxury experience - with much of that money coming from loans. Easy borrowing contributes to the manner in which colleges compete to maintain and expand enrollment, driving up costs in a manner that does nothing to improve the quality of education they offer.

• Do easily obtained, subsidized loans, combined with a philosophy of "college for everyone" and the opportunity to postpone engagement with the adult world, encourage people to pursue college degrees that they have little interest in obtaining?

• Should student loans take into consideration probable future income? Should there be some form of wake-up call, "The typical graduate with your major earns approximately 1/3 of the salary you will need in order to comfortably repay your student loans"?

• Should we also revisit dischargeability of student loans in bankruptcy? Society already, in essence, bears the risk of default for much student borrowing by virtue of loan guarantees - so why do we privilege private lenders and maintain what can be crippling debt loads on students for whom the dream of college does not work out?

• Should we revisit how student loans are guaranteed, so that colleges bear some responsibility when their graduates have a higher-than-expected rate of default?

The traditional four year college is evolving into an institution that prepares students for graduate degrees. While there are four year programs that prepare students for a specific career field, the day is long gone where a business would look at a bachelor's degree as a meaningful job qualification. It may be among the minimum qualifications, but it doesn't distinguish one applicant from the many others who meet the minimum qualifications for the job. Unless your bachelor's degree is from one of a handful of "brand name" colleges, it seems to be less and less important to your job prospects that you have anything but the diploma, and even in the brand name context an undergraduate degree has diminished relevance.

I would not mind seeing some introspection from the Post, an acknowledgment of its ownership of Kaplan and an acknowledgment of the many shortcomings of for-profit education. Many students with high school diplomas need some form of education or certification before they're going to be able to compete for jobs that offer a career path. Many of those students lack the interest or aptitude for a bachelor's degree plus graduate school, or for a path like engineering, or would benefit from taking a bit of time between high school and college to determine their own wants and needs. How do we subsidize appropriate options for those students without creating a cash cow for diploma mills, or vocational training programs that (even if good) don't do a good job of aligning students with the realities or expectations of the job market?

The Post seems happy to conclude, "Keep interest rates highly subsidized during college, then raise them (up to a cap) after college",¹ a philosophy that doesn't actually address any of the issues facing students other than making it less visibly painful to borrow and spend while enrolled in school. That is probably a solution that works for Kaplan. I'm just not sure that it's the right answer for students or for the rest of society.
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1. The actual proposal they describe, and implicitly endorse,

The government could tie [student loan] rates to its borrowing costs, keeping the rate low while the student is in school. When the loan enters repayment, the rates could be allowed to rise by a set amount but would never exceed a cap, which would protect families from interest spikes.

Fred Hiatt's Gang Misses the Point

In a rather churlish, unsigned editorial, immediately after suggesting that President Obama did not intervene in Syria due to political concerns,¹, the Washington Post Editorial Board complains,

Mr. Obama’s reasons for quashing the Syria plan were surely not purely political. But the president’s only public explanation for his resistance, in a recent interview with the New Republic, amounted to excuse-making. He wondered why he should concern himself with Syria and not the civil war in the Congo, as if the United States cannot intervene in any war unless it does in all; he asked whether providing weapons to rebels would “trigger even worse violence,” ignoring the testimony of his own aides that, under his present policy, the carnage “every day . . . it gets worse,” as new Secretary of State John F. Kerry put it.

What the President actually said was,

Every morning, I have what's called the PDB—presidential daily briefing—and our intelligence and national security teams come in here and they essentially brief me on the events of the previous day. And very rarely is there good news. And a big chunk of my day is occupied by news of war, terrorism, ethnic clashes, violence done to innocents. And what I have to constantly wrestle with is where and when can the United States intervene or act in ways that advance our national interest, advance our security, and speak to our highest ideals and sense of common humanity.

And as I wrestle with those decisions, I am more mindful probably than most of not only our incredible strengths and capabilities, but also our limitations. In a situation like Syria, I have to ask, can we make a difference in that situation? Would a military intervention have an impact? How would it affect our ability to support troops who are still in Afghanistan? What would be the aftermath of our involvement on the ground? Could it trigger even worse violence or the use of chemical weapons? What offers the best prospect of a stable post-Assad regime? And how do I weigh tens of thousands who've been killed in Syria versus the tens of thousands who are currently being killed in the Congo?

Those are not simple questions. And you process them as best you can. You make the decisions you think balance all these equities, and you hope that, at the end of your presidency, you can look back and say, I made more right calls than not and that I saved lives where I could, and that America, as best it could in a difficult, dangerous world, was, net, a force for good.

Hiatt's editorial board plucks out the one statement, the comparison to the Congo war, and ignores the rest. Why? Because it's easier to misunderstand or misrepresent that last statement, and thereby to advance the editorial position of the Washington Post, as opposed to responding to any other point the President made... or giving that statement an accurate reading.

The President was responding to the argument often made, and explicitly made in the editorial board's argument, that "we have to do something because people are dying." It may be an unpleasant reality to face, but the President was pointing out the fact that people are dying in nations other than Syria and the U.S. cannot intervene everywhere. The implied invitation to Hiatt's crew is not to snivel, "that's excuse-making", but to explain why Syria is different. Why do they favor intervening in Syria to "save lives" when they are content to let the Congo region bleed?

Also, concern that arming factions in Syria could make the conflict worse is not overcome by the argument that things are getting worse without intervention. The Post makes no attempt to counter the President's position, or even to argue that intervention would be more likely to stabilize the region or in a worst-case scenario be a wash. If you're headed toward a brick wall at 60 MPH, stepping on the accelerator will worsen the situation. That doesn't change at 70 MPH or 80 MPH - the situation still gets worse.

It's reasonable to infer from its past editorial positions that the Post is not particularly concerned about the post-war, because if the "moderate" groups that are armed to topple Assad turn out to be... not so moderate when they take control of the country, or are ultimately defeated by more radical forces, they would be content to have the U.S. invade and occupy Syria. For those of us who aren't as eager to have the U.S. invade nations in the Middle East, though, it makes sense to avoid taking steps that can further destabilize the region or necessitate another unnecessary $trillon military adventure.
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1. The editorial claims, "So why was the Petraeus plan rejected? According to the Times, Mr. Petraeus and Ms. Clinton were rebuffed when they presented the plan to the White House. At the time, Mr. Obama was in the midst of an reelection campaign in which he frequently assured voters that “the tide of war is receding."

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.

That's Quite the Last Name You've Got There....

From the Washington Post, probably soon to be corrected,

Rob bb8279be-2d2d-11e2-a99d-5c4203af7b7a is executive director of FairVote, a nonpartisan organization based in Takoma Park.

Believe it or not, that's pronounced "Richie".

How the Media Plays Out its Role in Our Risible Economic Debate

After a couple of opening paragraphs of pure snark, the Washington Post's editorial board criticizes the President for failing to clearly articulate why he is running for a second term. I've previously called for the President to do exactly that, but unlike the Post's editorial board I'm not going feign outrage if the President sets different priorities than I would prefer.

After attempting to trivialize the President's stated second term agenda by pointing to his plan to help states hire more math and science teachers, and his proposal to end certain tax subsidies for the energy industry,

He wants to take away $4 billion in tax breaks from oil companies. (The deficit in the fiscal year that just ended was $1.1 trillion.)

Why am I reminded of Robert Samuelson's notion of what constitutes "pocket change". Have we truly entered an era in which $4 billion in waste is not worthy of consideration, and in which a proposal for its elimination is mocked? If your concern truly is to balance the budget, why not respond, "One $4 billion item of waste down, 224 to go"? If you read the Post you know the answer - that's not the type of government expenditure that concerns its editorial board.

From there the Post gets to the meat of the President's tax proposal,

And he wants to increase tax rates for the wealthy. That would put a serious dent in the deficit, but it wouldn’t solve the fiscal problem, which unaddressed will “lead to a level of federal debt that would be unsustainable from both a budgetary and an economic perspective,” the Congressional Budget Office recently said.

First the problem is the deficit, and cutting waste isn't enough. Next it's, "The President has a clearly stated proposal that will cut the deficit" but, after a bit of sleight of hand, the deficit is no longer the issue.

So now that we're no longer talking about deficits, but are talking about the "level of federal debt", what does the Post have to say?

A solution can come only from restraining spending, especially growth in Medicare and Medicaid, and raising revenue, and not just from the rich.

Let's back up for a moment. The leading reasons we have a significant deficit at the moment are the Bush tax cuts, the Bush Administration's unfunded wars, and the economic downturn. As I recall, the Post supported all of the above. Yes, we would have a substantial deficit right now even without those factors, but principally attributable to revenue reduction from a profound recession and spending measures meant to help us pull out of the recession and to soften its blow on families. The point being, as we pull out of the recession and return to more normal levels of employment, more people will have income and tax revenues will rise.

And yet, when it comes to figuring out how to raise more revenue, creating more jobs, reducing unemployment, reinvigorating a middle class and improving its wages, none of that occurs to the Post's editorial board. It's "Why aren't you cutting entitlements." It's not that they're unaware that growing the economy will raise tax money - it's that they aren't being candid about their own agenda. If the Post's editorial board has a proposal by which tax revenues can be raised without impairing the economy, above and beyond as a result of growth or the proposed modest rollback of the Bush tax cuts, it's high time they shared it. After all, they found the time to chide Mitt Romney for not sharing the details of his secret plan to make revenue neutral his proposed massive tax cuts, so why keep their own secret plan so close to the vest?

You have to love this part. Remember how "A solution can come only from restraining spending... and raising revenue, and not just from the rich"? Seriously, this is the next sentence of the editorial:

Yet Mr. Obama has put forward no plan to curtail entitlement costs, while Mr. Romney at least is willing to say that benefits for wealthy Medicare recipients will have to be cut back.

That is, immediately after acknowledging that the President proposed a tax increase that will significantly reduce the deficit, and poo-pooing that it's not enough because it isn't sufficiently broad-based, they're praising Romney for making an economically meaningless pledge about trimming Medicare benefits for the wealthy. Even if he keeps that promise, the revenue savings will be trivial. So why is it bad for the President to take a serious, effective measure to close the deficit, but laudatory for Romney to make a cynical, hollow gesture? The most obvious inference is that the Post's concern is not with deficits but is instead with entitlements.

The editorial board next returns to its prior snarkiness,

Why the reticence? Maybe, after promising so explicitly four years ago that he would make hard choices and refrain from kicking the can down the road, he’s reluctant to make the same promises again. Maybe the usual Democratic “Mediscare” campaign is so useful he does not want to muddy the waters — or, more accurately, un-muddy them — with budgetary honesty.

You would think that at least one member of the editorial board would remember the Affordable Care Act, including its serious effort to find cost savings in Medicare. You would think that they would remember that the Republicans immediatedly engaged in demagoguery about the ACA, screaming at the top of their lungs about "death panels" and "cuts to the Medicare benefits you paid for." They claim to have watched the debates, so it's difficult to believe that they could have missed the demagoguery from Romney and Ryan about "cuts" to Medicare. Which side is engaged in budgetary dishonesty and is resorting in "Medicare" tactics, again?

Funny, also, how the Post is suddenly unconcerned about Social Security. Which candidate explicitly addressed Social Security and what it would take to make it fiscally sound over the long term? If you need the reminder, it was President Obama. Does the editorial board have the grace our courtesy to say, "At least he has promises to fix this other thing we've been harping about?" Nope. As with discussion of the ACA, any such honesty would undermine the two points they are trying to make, that the President has made no proposals to prevent entitlement costs from spiraling out of control, and that the only possible solution is massive cuts in those programs.

It seems fair at this juncture to ask, how does the editorial board believe that the federal government can cut Medicaid spending? We're not talking in that context about a population with a lot of resources to spare. To the contrary, if you have significant resources you don't qualify for Medicaid. If you cut Medicaid you cut the provision of medical care to that population.

You can, of course, use ACA-type measures to try to identify waste, to evaluate which treatments are the most cost-effective. But in case they missed it, the Supreme Court recently ruled that Medicaid is such a large program, contributing so much money to state coffers, that states must be given the right to opt out of any significantly revised program and be allowed to continue with the status quo. Seriously, does the Post have even one idea it can share? Romney at least came up with PBS and Sesame Street - and the repeal of the cost-saving measures for Medicare that the board wants to pretend Obama didn't sign into law.

As for Medicare, even if they assume Romney is sincere, they know that savings from his proposal to trim benefits for the wealthy would be trivial. They know that his pledge to repeal Obamacare will increase the cost of the program. They know that a promise to do something a decade from now, even if it's something they would applaud (i.e., turning Medicare into a voucher program) is nothing more that irresponsible buck-passing. Within that context, they want the President to promise additional cuts to Medicare - above and beyond the cuts that Romney and Ryan are suggesting will devastate seniors' ability to obtain care?

The Post is right about this: It would be nice if we could have an adult discussion about these issues and how we might mitigate, if not solve them. If the editorial board spent any appreciable amount of time reflecting on the subject, though, they would realize that unless they break with their longstanding tradition they aren't part of that solution. They're not even making an effort.

The Truth From Robert Samuelson

“The Washington Post didn’t hire me to tell you what they wanted you to hear. The Washington Post elected me to tell you the truth.”

- Robert Samuelson at the... Okay, he never said it.

Today, Robert Samuelson plays the game that "If only the presidential campaigns told the truth, they would agree with me on everything" game. He asks, "Is anyone in America gullible enough to believe this?" Assuming he's speaking of his spin, I expect that he believes so. Let's revisit the words he puts into the candidate's mouths, recognizing both that they're Samuelson's words and that, for all of his talk of truth serum, Samuelson could use a dose of his own medicine.

"Fellow Americans. For years, your beltway pundits — including me — have misled you. We insist that your government has made more promises than it can keep, even if the economy returns to full employment. We then tell you that even if your taxes go up, your public services are going down.

"As you know, the great driver here is that we live in a bubble in which septuagenarians can tap out two columns a week and make a six to seven figure annual income, with gold-plated employer sponsored health insurance. We are likely to complain that between 2011 and 2025, the number of retirees on Social Security will grow by nearly 50 percent to 66 million people; Medicare experiences a similar rise. We insist that resulting spending surge will perpetuates huge budget deficits. We tell you that the Congressional Budget Office estimates that if nothing changes, the budget picture will only get worse.

"I have no credible plan to control Medicare and Social Security spending. That is to say, there is a credible plan to control Medicare costs, but my biggest fear is that it will be implemented and I will no longer be able to advocate an end to Medicare. I'm a smart man, I know how things work in the rest of the world, and I know that the people of every other developed nation pay far less money for health care with similar, sometimes better, outcomes. I know that even if all we did was adopt one of those programs to replace our current government-sponsored insurance plans, or even better if we took the best elements and combined them into a new, American plan, we would see an immediate, massive reduction in healthcare expenditures.

"If we reduced our per capita health care spending to levels similar to those of Canada, Japan, or the better health plans of Europe, we could save more than a trillion dollars per year. You heard that correctly. It would not all come in the form of reduced government spending, it would also benefit businesses that provide insurance to employees and individuals who purchase their own insurance coverage. But I would rather waste that trillion dollars every year than endorse a system that contradicts my personal philosophy that our society owes its members no duty to ensure access to adequate medical care, and that the government should simply defer to market forces.

"You have probably noticed that I always speak of Medicare and Social Security. In fact, if you read nothing but my columns you might believe that I'm talking about a single program called 'Medicare and Social Security', even 'MedicareAndSocialSecurity', rather than two distinct programs. The reason for this is simple: healthcare inflation in this nation ensures that, absent reforms, Medicare spending is likely to continue to grow at an unsustainable rate. On the other hand, it would take modest adjustments to Social Security to have it be fully funded for another seventy-five years or century, even with conservative estimates of economic growth. I address the two issues together, as I want to use the budget projections for an unreformed Medicare program to take out Social Security, and I'm deliberately trying to confuse you about the relative financial stability of the Social Security retirement program.

"By cutting programs I oppose, I can ensure that there will always be money for programs and government ventures I support. You hear people complain about corporate welfare? Excessive military spending? The high cost of wars of choice? Pocket change, I tell you. And it's my firm belief the government should pick that change out of your pockets so that the programs and military adventures that I support can continue unabated.

"Also, frankly, I can keep tapping out two columns a week until the day I die, so I don't understand why everybody else can't do the same thing, even if they're manual laborers. I mean, typing is manual, so in a sense I'm a manual laborer, right? Ask any of my friends: Work isn't hard and as far as we're concerned people don't need to retire.

"You can disagree with me if you would like, but I will never cede an inch.

"I have also misled by suggesting that a modest, progressive tax increase to a level that history tells us won't impede economic growth represents some form of class warfare against millionaires and billionaires pay their fair share will solve much of the problem. It isn’t. I complain that modest tax increases on the nation's wealthiest earners, such as the President's plan, is estimated to only raise $440 billion over a decade. I complain that a modest increase in the capital gains tax, a tax Republicans used to argue should be taxed at the same rate as wages, will 'only' raise $236 billion over a decade. Now if we were achieving that type of boos from cutting Medicare or Social Security, I would be all over it. But we're not picking your pocket here - we're picking mine.

"I have repeatedly attempted to mislead you by pretending that we're not in a recession, and that the only possible source of new government revenue over the next decade would be that modest tax increase. I don't mention a return to a healthier economy and lower unemployment, because I want to complain that taxes on people like me won't be sufficient, in and of themselves, to balance the deficit and thus should not be imposed. I expect you not to notice that if we can save $70 billion per year by cutting Medicare benefits, no cut is too small. When I complain that 'projected deficits total $10 trillion' I expect you not to figure out that I'm talking about less than we could save right now by transitioning to what would still be a high quality national health insurance plan.

"You may have noticed that my argument isn't based in much of anything other than not wanting to have my tax bill go up. I offer no reason why I can't pay more. If I tried, you would probably start laughing. So instead I'll insist that even if we substantially raise taxes on the rich we still won't balance the budget, and hope that you don't notice that I'm still begging the question.

"I argue that we should reduce benefits for healthier retirees, hoping that you won't pay attention to the fact that retirees are more likely to maintain their health when they have access to quality health care. I argue that we should reduce benefits for wealthier retirees because I expect that once people of my class are getting less it will be easier to convince them to cut benefits for everybody else. And as we're keeping our pocket change - and trust me, we have a lot more than you - and often have gold-plated supplemental health insurance policies to cover the difference, none of us will have go to without. The point being, I'll argue that I want to minimize deficits, but my primary goals are to avoid other program cuts and tax increases."

Next we can revisit Samuelson's "President Romney" speech....

"Fellow Americans. The budget outlook is not as bad as I like to claim. Here's the truth: I want to cut programs that benefit you, because I don't need them. I'm rich, I'm well insured, I have a phenomenal income for a job I can easily perform for many years to come, and I thus simply don't care about programs like Medicare or Social Security. Yet if we preserve those programs without adopting the cost-saving measures taken by every other developed nation, even if my taxes go up a few percent, something I find unacceptable, we cannot balance the deficit without cutting programs that I believe to be important programs — military spending, including the ability to spend hundreds of billions or trillions of dollars on wars of choice in the Middle East and South Asia, and... I'll list a few programs that I would prefer not to cut and pretend that they're my real focus: the FBI, highways, the Centers for Disease Control and Prevention, the Border Patrol and others. The cost of cutting spending that I like the would be too great, whereas it's no skin of my nose to cut the programs you like but I don't care about. You've figured me out: I talk a lot about having to make 'tough choices,' while quietly chucking to myself, 'tough for you.'

"Did I forget to include education in that list of programs that I don't want to cut? The EPA? Nope. I'm perfectly happy to cut them. If I complain about school funding, you can expect that my argument is against teachers' unions or how to shift spending from state-run schools to the private sector where my peers - and my employer - can extract profits. My peer group loves to talk about the failure of public schools, but for the most part we send our kids to private school. Sure, we want some basic level of environmental protection, but we don't much care if coal mines destroy landscapes or pollute remote parts of the country we'll never visit, if brownfields in the inner city remain toxic, or even if the planet warms. We do genuinely care about global competitiveness, but we don't like to admit that where you see pollution we see a potential expense that could lower profits - and thus lower share prices and dividends. When we balance your interests against ours, we want to maximize the growth of our portfolios and profits.

"For the past 40 years, federal spending has averaged 21 percent of GDP, so I'll pretend that the world is static and that we can arbitrarily cap government spending at a slightly lower level than that average without examining what government actually does. And by imposing that arbitrary cap, I have grounds to arbitrarily cut other programs that have a low-priority for me, such as Amtrak. Unfortunately it's not enough to cut small programs that don't benefit me, as those savings will be more than offset by an aging population and health costs.

"As you know, I roll Social Security and Medicare into what sounds like a single program so I can pretend that they both must be slashed. For example, I make comments like, 'From 1972 to 2011, Social Security and major federal health programs averaged 7 percent of GDP; in 2020, they’re estimated at 12 percent of GDP.' I use that as the foundation for making hyperbolic statements like, 'Unless we control these programs, they will strangle the rest of government.' Truth is, I oppose reforms of Medicare and health insurance that could save our nation a trillion dollars a year on ideological grounds, and I know that some modest tweaks will leave Social Security solvent for the indefinite future, but I don't want to fix these programs - I want to slash them and, ideally, burn them.

"I will tell you that you should forget tax cuts, but don't let that fool you: I want the so-called 'Bush tax cuts' extended, so that I don't have to pay more taxes. I may demagogue that the scheduled expiration of that temporary tax cut represents a tax increase, imply that it's 'soak the rich' class warfare, or that the amount of money it would raise is insufficient to justify the burden on me, but don't get distracted. It's your tax cut I don't care about. I care very much about mine, and I intend to keep it.

I will argue that it is obvious that we should try to simplify the system and spur economic growth by cutting top rates and ending tax breaks, because that sounds good even though I can't make the case that it would work. Frankly, the biggest problem with my wish to cut taxes on people like me is that would require cutting tax breaks that provide a significant benefit to people like you, such as the mortgage interest deduction — and you'll probably object. But to balance the budget, we’ll still need to raise more, not less, tax revenue from the income tax or other taxes and, as the saying goes, better you than me. Since 1972, tax revenue has averaged only 18 percent of GDP and I should have been more honest with you over my tenure as a columnist that I want you to feel the pain of the tax increases and benefits cuts necessary to bring the budget into balance because the unacceptable alternative would be that I and my wealthy, insulated peer group feel some of that pain.”

A revision to Samuelson's closing:

As long as their remains a chasm between my Op/Ed rhetoric and governing realities I will do my utmost to haunt whoever wins. My traditional positions highlight a dilemma of democracy. People want their opinion leaders to tell the truth, but they are often misled by carefully crafted, deliberately misleading rhetoric. Somebody who is truly interested in helping our government form good policy might escape this trap by persuading public opinion to acknowledge distasteful problems. For example, it's much easier to demagogue against 'socialized medicine' and complain that Medicare - or should I say MedicareAndSocialSecurity - are going to bankrupt the country, but the truth is that adopting a quality program of national health insurance could bring the budget to near balance while giving us many more years, even decades, to work on ways to tame healthcare inflation. I'm not arguing that a national health insurance plan, even one that utilizes private insurance companies, private hospitals, and privately employed physicians, is an ideal solution, but I am going to abandon my lie by omission - those programs do exist and they represent a real solution we could implement right now.

"Alas, in my line of work, that level of candor in commentary is rare. Most pursue self-interest over truth even if this deepens long-term public mistrust. Sure, if you work hard for the people and point out the truth behind my brand of 'tough choices' sensationalism, you can be the big man on campus, and I literally mean on campus. But some of us didn't work hard enough to get Ph.D.s, let alone write textbooks or win Nobel prizes. You won't normally hear it from us, but there's a lot of luck in getting a nationally syndicated column, most of us don't actually have special qualifications that make us any better at analyzing these issues than you are. And once you have this job, if you play your cards right you'll be topping up your 'six figures for two columns a week' salary with five to six figure speaking fees, promises that your next book will be purchased in bulk or distributed through partisan book clubs such that you can command massive retainers and royalties, and you can rub shoulders with the most powerful political and business leaders in America.

"If I appear to favor Wall Street over Main Street, and Main Street over you, that's in part because that's the culture in which I'm immersed - that's actually the way my friends and I think. But when my values and priorities conflict with the wealthy and powerful interests whose favor I seek or want to keep, I'm going to be on their side. And that, pretty clearly, is why I'll tell you that we 'must' slash programs that benefit you, in order to preserve tax cuts and programs that benefit us, and won't mention alternatives that would work to your advantage and advance my stated goals but really, truly antagonize the people who keep columnists like me afloat on a giant sea of cash.

"You've surely noticed that my arguments on what government should do focus on dollars and deficits, not how we should evaluate and weigh competing priorities, certainly not on the human cost of the type of spending cuts I favor. Honestly, it's easier to get you to swallow this type of argument when I leave that stuff out, and my argument tends to fall apart when I have to start defending my priorities in concrete terms." If I scare you it's on purpose, because if you start thinking you're going to start seeing the holes in my arguments.

Update: Roger Cohen's latest column reminds me of a combination of what Ignatius was saying a year ago, combined with the comments Frum referenced. I criticized Cohen a few weeks ago for what I believed to be an unfair criticism of Obama; this column seems a bit soft on Obama. I want to be fair, myself, but it really is time for our nation to form and articulate a coherent policy on the Middle East and South Asia, as well as moving our formalized relationship with Europe out of the cold war era.

The Washington Post Offers Romney an "Out"

In another unsigned editorial, Fred Hiatt and his editorial board complain to Mitt Romney, "One year's tax return just isn't enough."

What will get the fiery breath of Fred Hiatt off of Mitt Romney's back? Twelve years, like George Romney offered? Don't be ridiculous.

He does not need to go as far as his father, who made public 12 years of tax returns when he was running for president in 1968....

How far does he have to go?

...but more than two years would be informative. The last Republican presidential nominee, Sen. John McCain (R-Ariz.), made public only two years of his tax returns before the election; others have provided many more.

So it would seem three would be nice, but release two years like John McCain and Hiatt will call it a day.

Why Won't Romney Defend Outsourcing?

Under the guise of balance, Fred Hiatt's editorial board has produced an unsigned editorial that basically accuses President Obama of being a meany-pants to Mitt Romney, right down to the cheap tactic I commented on the other day, taking the most extreme comment by a low-level campaign staffer, and pretending that it's representative. Not that we should be surprised, because that tactic was employed by one of Hiatt's own columnists. Hiatt and his board complain,

According to the Obama campaign, Mr. Romney’s claim of non-involvement in the fateful three years can’t be squared with some sworn documents he signed that describe him as Bain’s chief after 1999.

You might think that their next move would be to explain the consistency - to explain why Romney's claim that he departed Bain in 1999 can be squared with the SEC filings he signed stating that he continued to serve as CEO, President and sole shareholder. Alas, no, you instead get the predictable resort to the staffer - a resort to ridicule - followed by huffing that the issue is not "serious" because the matter has not been referred to the Justice Department. I guess that's consistent with Hiatt's apparent view on everything from how the nation ends up at war to torture and indefinite imprisonment to the financial industry debacle - unless somebody goes to jail, it can't possibly be serious.

Hiatt's crew uses the term "squabbling", which isn't at all accurate. A squabble is an argument. There's no argument here. What we are instead seeing is the Obama campaign goading Mitt Romney, and Romney reacting in a manner that serves primarily to draw attention to the fact that he's not being honest. No, I don't mean that Romney's refusal to speak candidly about his exact ties with Bain means that he was in fact actively managing his company, nor that his refusal to disclose his tax returns means that he has engaged in financial misconduct. But it's reasonable to infer that a person who says "I have nothing to hide", who then refuses to document his claims, is in fact hiding something. Hiatt's crew is simply giving him cover.

It is reasonable to note that many of the columnists who work for the Post are right-wing partisans, serving up one hackish attack after another on the President. The fact that Hiatt doesn't mind the fact that the editorial and op/ed pages of his paper, print and electronic, are consistently full of childish attacks on the President from the likes of Jennifer Rubin, William Kristol, David Gerson, Kathleen Parker, Charles Krauthammer, George Will, Mark Thiessen, Ed Rogers... well, it's pretty clear that his paper isn't actually concerned about attacks that are hyperbolic, "derivative" or unfair. How many column inches of unsigned editorial space has the editorial board devoted to pushing back against right-wing depictions of the President as a socialist - an accusation presently being pushed by some of its aforementioned columnists? How many inches to pushing back against Romney's absurd accusation that Obama went on an "apology tour"? Would that be... none? How about individually? Any?

One response Hiatt might give is that not enough people buy into those arguments. That despite their being pervasively pushed by the right, notions of Obama as a socialist, Mitt Romney's fabricated "apology tour", birtherism, and the like don't matter because nobody who is informed or knowledgeable will fall for them. Never mind that if the proponents of those attacks agreed they would find some other nonsense to push. But that suggests an editorial board less concerned with truth than with rushing to the defense of a candidate who they see as flailing, and it would seem like a pretty thin rationalization for not taking similarly strong positions against the many false accusations raised against the President. Must a candidate be visibly drowning before he gets this type of lifeline?

The Board then attempts to do what Romney is unwilling to do: it attempts to make a case for the upside of outsourcing and offshoring. First they claim that international outsourcing (offshoring) creates as many jobs as it destroys, omitting the caveats that some of the people displaced by outsourcing will not find work in the same sector (i.e., will need to retrain and will likely never again achieve their former level of income) and that the study begins in 2000 ends in 2007 a very limited window that largely corresponds with the housing bubble and ends before the "great recession". They also argue that as corporations invest in foreign enterprises, they also invest in their domestic operations (albeit at a much lower level).

Are you seeing the problem here? The Post does, offering a small amount of sympathy followed by a large dose of condescension for displaced workers:

Of course, such studies are cold comfort to people who lose jobs, even temporarily. American workers’ anxiety is understandable, and an inclination to seek scapegoats in the executive suite, or overseas, is not surprising.

The condescension continues,

It is unsettling to realize that we are vulnerable to the same vicissitudes of international commerce with which other peoples have been coping for decades.

Is the editorial board seriously suggesting that Romney make that argument? It would be awkward enough for Romney to argue that outsourcing is a necessary evil in the global marketplace, helping to keep companies competitive both domestically and internationally, sometimes discretionary but in today's world often necessary, with the unfortunate effect that some workers will be displaced and blue collar wages will be significantly and permanently reduced. First, the populations of displaced workers who cannot find jobs or whose earning capacity has been permanently reduced are not going to buy into the conceit of "You win some, you lose some" or "It may be that the executives of your company got richer than ever while firing you and shipping your job to Asia, but don't go scapegoating them." Second, displaced workers are not going to respond well to the argument that "People in the developing world have suffered from low wages and job insecurity for many years, and they cope - why can't you?"

The editorial board lectures,

The president knows that the globalization of markets, including the market for labor, is irreversible, which is why he hasn’t proposed policies even remotely commensurate with his campaign’s alarmism. Rather, he’s for boosting education and infrastructure and tweaking the taxation of multinational firms’ foreign profits. If anyone has sounded protectionist, it’s Mr. Romney, who has promised to risk a trade conflict with China by labeling that country a currency manipulator.

What alarmism? His campaign has challenged Romney to explain how his record at Bain qualifies him to be President, and Romney has not been able to do so. His campaign challenged Romney to explain Bain's role in outsourcing jobs, and rather than explaining the economics of outsourcing or how it helped Bain's investments he's been whining, "That wasn't me, that was some other guy." That's pretty much it.

Meanwhile, no, Romney is not about to start a trade war with China. Even if they're unaware of the underlying facts, or don't care to point them out to Romney, I doubt that there's a person on the editorial board who doesn't recognize Romney's demagoguery for what it is.

You know what Romney could do? He could say, "You know what? The President and I are in agreement on outsourcing. We both know that it's a reality, there are sound economic reasons for outsourcing, and that it brings some genuine good to our society along with the bad. The President and I agree that we should help workers who are displaced by outsourcing and try to find ways to rebuild and maintain a strong middle class." But... he won't.

At the end, I'm reminded of my reaction to Washington Post columnist Robert Samuelson - that the board is feigning disdain at a "squabble", oblivious to the fact that their part of the problem. But who knows - perhaps they're reveling in that fact. As their roster of right-wing columnists attests, they're not concerned with fairness and objectivity, and are happy to publish below-the-belt attacks. After all, if it sells papers, columns and page views, they make money.

In an ideal world, the president and his challenger would acknowledge that “creative destruction” is part of what helps an economy grow, while discussing the most cost-effective means of limiting and healing workers’ short-run pain. Alas, we don’t live in that world.

"Alas," says the paper that's part of the problem.

How Dare the President Contradict Right-Wing Talking Points!

Michael Gerson is in full-scale stenographer mode today, serving up one right-wing talking point after another. Sometimes you have to wonder.... Leaving aside for the moment that Gerson is feigning apoplexy over the fact that the President is spinning the latest job numbers in, well, exactly the manner you would expect, some of Gerson's arguments are just plain absurd:

While the jobs number for June was bad, it was probably not bad enough to result in another round of quantitative easing when the Federal Reserve meets late this month. So Obama is left with a series of recycled State of the Union proposals — maintaining existing middle-class tax breaks, spending on infrastructure, funding some jobs for teachers — that no self-respecting Keynesian economist would judge sufficient.

In other words, as the President has no remedies he can administer without action by Congress, all he can do is urge Congress to act. Which it won't, because the House is controlled by Gerson's party and wants to harm the President's chance of being reelected. Gerson sputters that this means the President suffers from "ideological exhaustion" and "seems incapable of producing an economic agenda equal to his political challenge". Well, no, not if you look at the facts. It would be fair to say that the President, like most people, underestimated the severity of the recession and the probability for robust recovery when he took office, but for the past couple of years it has been the policy of the Republican Party to obstruct anything that might materially aid the recovery.

Gerson tells us the crucial question:

The relevant question: Has Obama accelerated or slowed the recovery?

And as Gerson knows, the overwhelming consensus is that, yes, Obama's policies, quantitative easing and stimulus spending have accelerated the recovery. So Gerson predictably resorts to a single fellow alumnus of the G.W. Bush Administration, a guy who consistently posts screeds against the Obama Administration, who says,

“Government, measured by federal spending, is this year about 15 percent bigger than the historical average, measured relative to the economy. . . . This drains resources from private firms and individuals and means slower productivity growth.”

You'll note first that this is a non sequitur. The quoted passage does not contradict the consensus view that Obama's policies have accelerated the recovery. Instead it's a canard - a conclusory statement that this year's public spending is causing reduced private investment. Never mind the facts. Corporations are floating on a sea of cash. When somebody purports that corporations have been drained of cash by the President's economic policies it raises that age-old question - fools or frauds?

Gerson carries on,

Obama’s major regulatory initiatives, particularly Obamacare and the Dodd-Frank financial reform, have added to economic uncertainty. Businesses are waiting for the implications of these laws to become clear, and federal rules to be written, before making investment choices.

Okay... first lets look at "the Dodd-Frank financial reform". That reform became law on July 21, 2010. Why does Gerson believe that, almost two years later, businesses have not figured out what it requires? Now I'll grant, the Republicans have done everything they can to complicate its implementation, to hobble and delay the creation of the Consumer Financial Protection Board, and various lawsuits have been filed, but that's not the President's doing.

The "Obamacare" story is similar. The Republican Party did everything it could to obstruct the development and passage of the Affordable Care Act and, when unsuccessful, spent two years litigating the constitutionality of the ACA, culminating in its being upheld by the Supreme Court. The Republican Party has since encouraged Republican governors to be as obstructionist as possible when it comes to implementing the ACA.

In short, to the extent that confusion and uncertainty remain problems, it's not because of the President. It's because Gerson's own party has gone out of its way to create an unstable, uncertain environment. If Gerson believes that disqualifies his party from holding office, I see no reason to argue.

Gerson next resorts to platitudes, "the Obama administration has failed to make tough calls and secure legislative compromises on a variety of issues — the federal debt, future tax rates, the Keystone XL pipeline — that might remove sources of economic uncertainty". Gerson is apparently not familiar with separation of powers, and believes that the President is in fact a Prime Minister - able to introduce legislation and vote on it in the House of Representatives.

If Gerson double-checks, I am confident that he will discover that the President is in the Executive branch of government, and cannot "secure legislative compromises" unless the legislature is willing to compromise. While it's not even slightly surprising that Gerson blames the President for his party's rebuffing the President's attempt to negotiate a long-term budget deal, it is not the President's fault that Speaker Boehner developed wobbly knees when confronted with the need for a tax increase, nor is it his fault that Boehner has not since pushed his party to work with the President on budget issues.

Gerson is apparently asleep at the switch on "future tax rates", as if he reads his own paper he will see that the President is again proposing a deal on future tax rates. It is anticipated that the Republican Party will again refuse to negotiate, and perhaps again throw the country into turmoil through "hostage taking" tactics over the debt ceiling. You want to talk uncertainty? The Republican Party is its leading author.

The fact that Gerson is not even attempting to be serious - that he's coughing out one Republican talking point after another, facts be damned, is illustrated by his reference to the Keystone XL pipeline. The economic benefit of the pipeline, once approved, looks to be minimal, and contrary to Gerson's suggestion there are valid financial arguments about the project - both in terms of exaggerated job creation (permanent jobs will be somewhere between 20 and a few hundred, probably at the lower end) and financial risk. What uncertainty does Gerson imagine has been created by the delay, and how many fingers do I need to use to count the number of businesses affected buy that supposed uncertainty?

Gerson has faith in Romney - that he's soon going to pupate and emerge as, well, probably not a butterfly but perhaps as a reasonably attractive moth?

A humanizing Romney convention speech, some reassuring debate performances, a few innovative policy proposals appealing to Latinos or suburban women — and Romney becomes a more broadly imaginable president.

You will note that when it comes to a Republican all Gerson asks for is a "humanizing" speech (compassionate conservatism?), debate performances that aren't too embarrassing, and some pandering to "Latinos or suburban women". Policy proposals? Get real. Those are for the other side.

Justice Roberts, Apostate!

David Frum knows a little bit about apostasy. His abrupt termination by the AEI¹ was reportedly triggered by his "Waterloo" argument, that by choosing to fight healthcare reform rather than participate in the process the Republican Party missed the opportunity to potentially help craft a more conservative bill.

Since his termination, Frum has been attempting to reinvent himself as a different sort of Republican, a sensible Republican who longs for the good old days of bipartisanship (i.e., 5 Democrats joining a Republican bill) and who complains about partisanship, the unseemliness of right-wing radio hosts, and the like. His quest to reinvent himself has not found him a new home in the Republican Party, nor has his retreat from his own past excesses been forgotten by those who might be his allies but for his past attacks. But if Jeb Bush's apparent gamble on the Republican Party's return to moderation is credible, perhaps he'll seem like less of a Cassandra and more of an opinion leader.

Back in his AEI glory days, Frum appeared to be participating in what I jokingly suggested might be a contest between himself and two of his former Bush Administration speechwriting buddies, his ex-boss Michael Gerson and his fellow backbiter Marc Thiessen. The contest appeared to be, who could make the dumbest possible statement about an issue of public controversy and still be taken seriously. The AEI termination led to Frum's gradual, overall withdrawal from the contest - a choice he may regret, given that the apparent prize for the winner(s) is a sinecure on the Washington Post Op/Ed page.

I alluded to Gerson's commentary on the Supreme Court's decision upholding the ACA while poking fun at the ridiculous Peggy Noonan, but that wasn't entirely fair to Frum. Although he does see the Court's decision as contradicting the Republican Agenda, his criticism was directed not at Roberts but at the Republican Party. Once it was Waterloo, now it's a 100 Years War.

On the whole, Marc Thiessen is the clear contest winner - the guy whose arguments are usually devoid of fact or reason, with no apparent consequence to his standing as a conservative commentator. Michael Gerson's columns have gradually faded into mediocrity. It's if he can barely muster the energy to gather the kindling, leaving poor Marc not only to collect the firewood, but also to identify the heretics who must be burned.

When I saw Thiessen's piece today, titled Why is Fred Hiatt So Awful at Picking Op/Ed Columnists Why are Republicans so awful at picking Supreme Court justices, it seemed lucky for Frum that he had thrown in the towel. Thiessen lectures us that,

Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions.

If you actually follow the court, you will recall Justice Stevens' observations that his "transformation" from "conservative" to "liberal" did not actually involve his changing any of his opinions - it resulted from the court's dramatic shift to the right. Reagan's policies and politics would be far too liberal for the modern Republican Party. He appointed his nominees before the individual health insurance mandate was created and advocated by conservatives and the Republican Party, so it shouldn't be particularly surprising that his nominees represented a different brand of conservatism.

Thiessen also forgets that the task of nominating candidates for the Supreme Court belongs to the President, not to the party. Prior to G.W.'s presidency it was difficult to imagine that the Republicans would turn on a president's nominee in the manner in which they turned on Harriet Miers. Thiessen complains that Supreme Court justices don't share his preferred political agenda, and aren't consistently trying to advance his preferred agenda through their service on the Court? Maybe that's because Presidents Reagan and George H.W. Bush didn't share Thiessen's agenda, and thus didn't apply his litmus tests when selecting candidates. Perhaps also, Supreme Court Justices don't see their job quite the same way Thiessen does.

And that's before we get to the silliness of Thiessen's suggestion that the justices appointed by Democratic Presidents always vote against Thiessen's agenda "on critical decisions". As they say, it all depends on whose ox is getting gored.

Thiessen prattles on with the notion that "Conservatives are pariahs if they vote against the left on certain issues. But if they cross over vote with the left, they are hailed as statesmen." Hardly. Kennedy, generally regarded as the "swing vote" of the current court, is not hailed as a statesman. He's often characterized as having a weak and inconsistent approach to the Constitution, and of tending to patronize women. Who does he imagine he's talking about? Rehnquist? Scalia? Thomas? Alito? Because one example from one case, with cherry-picked quotes from a handful of sources, does not constitute a pattern - even if we ignore the fact that "pre-emptive" attacks are irrelevant to his argument and that it's conservatives like himself who are engaged in the behavior he supposedly deplores.

Thiessen's on a roll,

Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy.

A statement that leaves me with the firm impression that Thiessen has never read a Supreme Court opinion - majority, concurring or dissent - by any of the Justices he's attacking. If you read a typical Scalia or Thomas opinion and are left scratching your head, "Is he a conservative? It's so... cryptic", all you've established is that you're a dolt.

Thiessen whines,

But legislate from the bench is exactly what Roberts did last week. The law’s proponents consistently rejected the notion that the individual mandate was a tax. But Roberts effectively redrafted the statute, making the mandate a tax in order to declare it constitutional....

That is the kind of sophistry we expect from liberals. The left sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it. That is what Roberts did last week. He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.

Talk about turning history on its head. Two years ago when the bill passed, conservative commentators regarded it as all-but-certain to pass muster with the Supreme Court. Then, months later, a right-wing law professor invented the "activity/inactivity" distinction that became the centerpiece of the legal attack on the ACA. And it almost worked. As Thiessen knows, Roberts endorsed that newly fabricated "magic bullet" argument - the one that was supposed to take down the ACA (or at least its key elements.

Had the four dissenters joined Roberts in overturning only the mandate and the associated community rating / preexisting condition provisions of the ACA, I think Roberts would have joined with them and that hacks like Thiessen would be praising his brilliance. But Roberts had just one vote to cast. With four Justices voting to uphold the bulk of the ACA, four hungering to overturn the entire Act - including provisions that are already in effect and have absolutely no relation to the mandate - Roberts chose the more judicially conservative approach. Thiessen should perhaps address his anger at the dissenters who, as a result of their eagerness to throw the baby out with the bathwater, ended up preserving both.

No, there's no real intellectual satisfaction to "We'll call it a tax and, voila, constitutional," but that was the avenue that allowed Roberts to join with the dissenters on issues that a better legal analysis would have required him to reject. The better approach would have been either to apply a traditional Commerce Clause analysis, applying existing precedent and discussing the proposed "activity/inactivity" distinction within that framework. Although there's some debate over whether it constitutes dicta or holding, Roberts attempted to articulate a new framework - but in order to avoid a form of activism that would take center stage in Constitutional Law textbooks for decades to come, he found an alternative path to upholding the ACA.

Thiessen sees only two reasons why Roberts would have changed his vote, "[that] he was suddenly convinced by his liberal colleagues, or simply had a failure of nerve". Thiessen apparently cannot contemplate the possibility that given a forced choice between (virtually) all or nothing, Roberts chose the conservative approach - eschewing the activism that hacks like Thiessen claim to detest but, as evidenced by his poisonous diatribe, actually desire. Thiessen falls victim to self-parody,

We need jurists who not only have a philosophy of judicial restraint, but the intestinal fortitude not to be swayed by pressure from the New York Times, the Georgetown cocktail circuit and the legal academy.

Which columnists do you suppose you're more likely to find at a Georgetown cocktail party - those of the New York Times, or those of the Washington Post? Which paper does Thiessen, who is explicitly trying to punish, diminish and marginalize Roberts for voting "the wrong way" on a case, work for, again? What's the point of Thiessen's vitriol, or of his long history of seeking out heretics and calling for their destruction, if not to influence them and others - to try to intimidate them into toeing the party line? And the legal academy? Which justices adhered to precedent and two centuries of Commerce Clause jurisprudence, again? And which glommed onto a less than two-year-old theory concocted by a law professor, then championed by others, as a means of defeating the ACA? Thiessen is entitled to his own opinion column, but not to his own facts.

I was going to declare Thiessen the hands-down winner, but before I had a chance to write anything Gerson came up with a late entry. Another "facts be damned" whine about how conservatives justicescare too much about the institution of the Court to simply aren't able to ram through the Republican agenda.

Perhaps channeling his inner David Brooks, king of the false dichotomy, Gerson pontificates that there are "two varieties of judicial conservatism — institutionalism and constitutionalism".

In [an institutionalist's] view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

[Constitutionalists focus] on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it.

So within the context of this decision, in which five Justices - the dissenters and Roberts - looked at the following Constitutional language:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

And concluded that the text includes an absolute prohibition on the regulation of what the Court determines to be the regulation of inactivity - imposing a penalty on a person who chooses not to engage in a specific form of commerce - no matter what the facts or how compelling the circumstances. The fundamental "reasoning" for the prohibition is that, although states have long imposed mandates without controversy or excess, to allow even the most modest of mandate in even the most compelling of circumstances would inevitably lead to the government forcing people to buy broccoli. That argument is neither textual nor logical.

Meanwhile it is possible to be a close adherent of the text of the Constitution while also believing that the Court needs to protect its credibility as an institution. Gerson defends the judicial activism of the justices he purports to be constitutionalists, suggesting that they're pushing back against "liberal activism", but that's a self-serving, political argument. In the present case, the concurring opinion represents both the better textual interpretation and (as Gerson concedes) the "institutional conservatism" that Gerson would have us believe is somehow solely the province of Roberts. (Sorry, Michael - Roberts has only one vote - he needed to join with four others for that vote to count for anything.)

Gerson shares, and perhaps parrots, Thiessen's complaint that Roberts turned to Congress's power to tax as his basis for upholding the law. He then presents an addle, social science argument that the mandate might work as a "mandate" but by revealing to people the supposed secret that they could actually choose not to buy insurance and pay a penalty, Roberts has made it more likely that people will regard their choice in economic terms and now be more likely to pick the penalty if they think they'll save money. Seriously? One hardly dares tell Gerson that such "reasoning" has no place in the constitutional analysis of a statute.

Gerson opened his column by casting aspersions on Earl Warren, and closes by cautioning Justice Roberts, in effect, that if he doesn't shape up and start doing what the Republican Party wants him to do, he can expect hacks like Gerson to argue that he's the "new Earl Warren".

On the whole, Gerson seems to be parroting arguments raised by others, perhaps including Thiessen, so I think Thiessen takes the round.
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1. For somebody who cherishes intellectual rigor and honest debate, being fired by the AEI would be a badge of honor... but I presuppose that such a person could get hired by the AEI.