The Campaign to Discredit the Torture Report

Laws Broken but Obama Administration Refuses to Prosecute

Congress Can’t Even Fix the Gas Tax

There is probably no more uncomplicated example of how useless Congress has become than its failure to raise the federal excise tax on gasoline and diesel fuel. The tax pays for the upkeep of the roads we drive on and bridges we cross. Both have fallen into disrepair for lack of money. The tax, at 18.4 cents per gallon of gasoline and 24.4 cents for diesel, was last raised in 1993. Inflation since has reduced the buying power of the gas tax to about 11 cents a gallon. On top of that we drive less. So we buy less fuel and pay less tax. The expanded population as a whole even drives less total miles than the peak in 2007. Shrinking the tax revenue even further, we drive more fuel-efficient internal combustion cars. And some are now gas-sipping electric hybrids.

All those factors combine to cause the Highway Trust Fund perpetually to teeter on the edge of insolvency. And yet Congress sits idle.

The American Society of Civil Engineers gives the nation’s infrastructure an overall grade of “D”. A report by the National Economic Council and the President’s Council of Economic Advisers rates 65% of America’s major roads in less than good condition. Their disrepair leads to 10,000 deaths a year. Once first in World Economic Forum’s international rankings, our infrastructure score has fallen to 18th. Transportation infrastructure goes beyond the convenience of driving on good roads. It is a parameter that factors into the WEF’s ratings that grade nations on their competitiveness. The ability to move goods within the country and to our air- and seaports is viewed as affecting our standing.

Other nations spend half again more on infrastructure than the U.S. as a percentage of their gross domestic product; they can afford to because the U.S. instead spends its hundreds of billions on our military, enabling allied nations to spend less..

There are 600,000 bridges in the country and one in nine — some 70,000 — is considered to be “structurally deficient”, its crumbling concrete and corroded steel in evidence. Of those, 18,000 follow a design called “fracture-critical“, where the collapse of just one of its structural elements can cause the entire bridge to fall. In August 2007 the 40-year-old Minneapolis I-35W span failed, killing 13 people and injuring 145 others. In August of this year a tractor-trailer nicked an overhead girder on the I-5 bridge near Seattle and sent two cars plunging into the river below.

The structure underneath is to catch falling concrete from the crumbling Pittsburgh bridge.

A “60 Minutes” segment showed a Pittsburgh bridge where a structure was built underneath it to catch falling concrete. Lack of money limits inspections so that fewer problems are foreseen to enable advance planning. The result is that when a structural weakness is spotted, traffic has to be halted instantly with potentially months of disruption for commuters.

Ed Rendell, the former governor of Pennsylvania, says, “the infrastructure part of the stimulus worked very, very well” in his state. “We went from 6600 structurally deficient bridges to 4500. But think of that. That’s huge progress. But we still have 4500 bridges, any one of which can collapse”. None of his experience has swayed Republicans, none of whom voted for the stimulus and reflexively speak of it as “failed”.

Keeping their jobs is the paramount criterion for the members of Congress, fearful of voters who say they want an improved transportation infrastructure — 66% said in a 2012 poll that it is either extremely important (27%) or very important (39%) — but who don’t want to pay for it. No gas tax increase said 71%, no new tolls said 64% and 58% said no to replacing the gas tax with a mileage tax.

To hear the president and congressional politicians talk, infrastructure is one of the few goals that has the support of both parties, but only if it doesn’t cost anything. Republicans are unwilling to vote the money without spending cuts elsewhere that Democrats object to. A tax overhaul put forth by now-retiring House Ways and Means Committee Chairman Dave Camp that included money for infrastructure disappeared as soon as introduced.

And yet, elements in Congress are at this moment trying to pass a $450 billion package of special interest tax breaks for business that the Wall Street Journal tells us includes perks for “Hollywood films, wind turbines, Nascar owners and race horses”.

President Obama regularly champions infrastructure restoration when he speaks around the country. A response by House Speaker John Boehner last year was, “It’s easy to go out there and be Santa Claus and talk about all these things you want to give away, but at some point, somebody’s got to pay the bill”. On another occasion he said, “Trying to find a funding source to repair the nation’s infrastructure is still a big goal of mine”, who speaks of the money as if it had been misplaced. “The hunt has been underway for the last year and a half to find that funding source. I wish I could report to you that we’ve found it, but we haven’t”. Yet in plain sight is the simple, though partial, remedy of the gas tax which seems to be unmentionable.

“Our infrastructure is on life support” said Ray LaHood, former transportation secretary, on the “60 Minutes” broadcast, the consequence of political paralysis in Washington.

Most states are no different. They have lacked the political fortitude to raise their road taxes, too. As a counter-measure, states like Texas are converting selected highways to toll roads.
European nations have long imposed heavy taxes on gasoline — $5 a gallon in Denmark! — yet our spineless politicians are fearful of raising the gas tax to 30.7 cents a gallon, which equals the 18.4 cents of 1993 adjusted for inflation. What better time for Congress to feign a little courage with gasoline nationally averaging $2.74 a gallon at this writing.

Of course, boosting the gas tax will not be nearly enough to pay for decades of neglect. To do that the American Society of Civil Engineers estimates that we need to spend $3.6 trillion in the next 8 years.

Republicans along with some Democrats are focused on the Keystone pipeline to please their oil industry sponsors, but when talking to the public they stress that the “the employment figures associated with Keystone are stunning”. That was Mitch McConnell speaking the day after the election. The party line is that it will provide over 40,000 “union” jobs. (Funny how the number keeps rising. The State Department had said 6,000 in 2011 vs. the pipeline company claim of 20,000.) But one thing’s certain: if jobs really were a major objective, a concerted plan to restore America’s infrastructure would create hundreds of thousands of well-paying jobs.

Our obsession with free-market capitalism dictates that everything must make money or die. How well is that working? It is time we re-orient our thinking and ask what kind of nation we want to have. If we agree that in this new century we do not want to live with the crumbling infrastructure of the last century, if we decide as a people that we do want safe bridges, well-maintained roads, modern airports, hi-speed rail and so forth, then we should set about it as a national plan, tally the cost, and only then uncompromisingly figure out how to raise the money to pay for it. And that would mean more than a the gas tax. Maybe we should spend less money at Black Friday doorbusters and more on a better country.

Our Questionable Democracy

Our biennial elections bring the usual lamentations about the inequities in our jury-rigged democratic system. But we chuckle over Churchill’s soothing words about democracy being the worst form of government except for all the others and move on,with no action begun to fix the serious faults that threaten this democracy.

Move on straight to the next election, that is. Even before the midterms, there seemed as much media preoccupation with 2016 as with the midterms. The country is in the grip of a perpetual campaign that has displaced governing.

Largely to blame is the Supreme Court’s string of decisions that equate money and free speech as justification for their legislating virtually unlimited contributions to political campaigns and candidates by corporations, unions and individuals. With so much money flooding the process — an estimated $4 billion poured into the midterms — candidates must raise oceans of money or risk being drowned by their opponents’ tsunamis.

Daughter of a longtime respected senator, Michelle Nunn, had a known name but was nevertheless advised at the beginning of the year to spend 80% of her time raising money; by September she could relax and back off to 70%. She lost anyway. That percentage is the standard recommendation. Incoming freshmen in 2012 were told in a presentation by the Democratic Congressional Campaign Committee they should spend four hours each day making fundraising calls. House members raised on average $2.6 million for November’s election. That’s almost $3,600 a day — weekends included and no vacations — across their two-year terms.

If the amount of money allowed to be raised and spent on a campaign were sharply curtailed, legislators would find themselves with time to spend learning about and acting on the issues that face the nation. It is unsurprising that they rely on lobbyists’ one-sided pitches to fill them in on the particulars of a bill and who suggest how they should vote.

A simple remedy is to change the term of House members from two to four years — half of the 435 each midterm. It would halve the money-grubbing drain for each, partially free them from catering to their donor base, attract better candidates now too sensible to run, result in more thought out legislation, and avoid Nancy Pelosi again saying “we have to pass the bill so that you can find out what is in it” by creating the time to actually read bills before voting on them.

constitutional bondage

But that’s not possible because we are wedded to a Constitution of which we are justifiably proud for its endurance but treat its every word as written by the hand of God. The authors viewed the House as more directly representing the people and thought that short terms would keep them more accountable to their voters, so Article I, Section 2, says the House “shall be composed of Members chosen every second Year”. But now that money buys free speech and 70% of their time is taken up with dialing for dollars, an election every two years is not working.

So why not amend the Constitution to double the term length? That’s become another problem with our democracy: we can’t vote for change. The rules of Article V make it difficult to amend for good reason but we have nevertheless managed to change the Constitution many times — 27 times. The first 10 — the Bill of Rights — were voted in all at once at the end of 1791, and you might argue that two no longer count — probation erased by its repeal — but the remaining 15 were adopted with some frequency — 5 amendments in just the 20 years of 1951 to 1971. Except for a minor tweak about congressional pay in 1992, nothing since.

With the Great Partisan Divide, it is hard to imagine our politicians agreeing to anything, much less two-thirds of both houses of Congress or two-thirds of the states voting to propose a new amendment and three quarters of the states then ratifying, as Article V requires. We’re stuck.

the busted scale

The founders failed to imagine by how much states would become larger than other states, so they thought it equitable that each state have equal say in one of the legislative bodies by having an equal number of senators. But because of runaway population differences, that each state has two, no matter its size, has become a gross distortion of the “one man, one vote” premise. On the one hand we do not want raw majority rule whereby small states effectively have no say. But what has
resulted is that California, with a population of over 38 million, has two votes in the Senate, but so does Wyoming with less than 600,000. Or compare Texas with Rhode Island, or New York with the Dakotas. The 25 least-populated states have half the Senate’s votes but only 17% of the nation’s population. We’re stuck with that too.

rigging the vote

As children of monarchies, perhaps some portion of America’s early citizens weren’t entirely persuaded of the democratic ideal. Right off they corrupting it by engineering voting districts so as to rig elections. No less than Patrick Henry gave himself the liberty of drawing a Virginia district’s boundaries in such way as to keep James Madison out of the House. The practice, which tries to corral a maximum of voters inclined to one party into a district and rid them from the surrounding districts to give supremacy to the opposing party, acquired the named “gerrymandering” when Massachusetts governor Elbridge Gerry twisted a district into a shape that reminded people of a salamander (did salamanders look like dragons then?).

The 1812 cartoon in the Boston
Gazette mocking the shape of one of
Gov. Gerry’s contrivances.

The word and the practice have been in use ever since. The Supreme Court just heard a case brought against Alabama for packing a district with black voters to bleach surrounding districts white.

Every ten years after the census, the 435 House seats are reapportioned among the states according to their changing populations. Those who gain or lose a seat must redraw their districts (and nothing prevents the unaffected from redrawing theirs as well). Save for seven states which to varying degrees have given the assignment to nonpartisan commissions, the party that has won control of the state typically redraws so as to gerrymander the opposing party’s voters into as few districts as possible, so as to minimize the opposing party’s House representatives and maximize its own.

This often results in absurdly contorted shapes that make obvious the anti-democratic intent. It goes far to explain why candidates in 69 of the House’s 435 districts faced no opponent in the midterms and why only 5% of the districts could be called truly competitive. With the winning political party already decided for a district through gerrymandering or other manipulation, it is in the primaries — in which fewer than 20% vote — that the controlling party decides who goes to the House. The rest of the voters stay home, there being no point.

Gerrymandering is a reprehensible practice that the Supreme Court has never acted against. In 1986 they held it violates the equal protection clause of the 14th Amendment but they could not arrive at a standard against which to test claims of partisan gerrymandering.

Why not? We can. The law requires each district to have approximately the same population. Population densities vary across a map, rivers and lakes intrude, highways bisect, so dividing a state into the number of districts that matches the number of congressional representatives that its population allows, with each district having the same number of people, is more than a doodle on a napkin.

But software companies have obligingly taken redistricting to extremes by creating the tools to assist states in gerrymandering opposing parties virtually out of existence.

But those same software algorithms can be redirected to agnostic apportionment. Handed census data, software code would begin by dividing a state into the nearest to equal size shapes that irregular borders and waterways permit, then iteratively adjust the shape and size of each — with no regard whatever to political parties and ethnic groups — until optimally equal populations occupy each district. Were that method to become law, it would rid us for good of a practice that so corrupts our democracy

hindrances to voting

It was Congress that set Tuesday as the date for presidential and congressional elections, not the Constitution. It is often suggested that the day be moved to the weekend rather than Tuesday, so that people need not leave work. But there is never any movement to make that change because those who have problems leaving work are more likely to be in the lower economic echelons that typically favor Democrats.

In the last few years, states mostly controlled by Republican governors and legislatures have joined a party strategy to limit voting by groups that mostly vote Democratic, particularly blacks, Latinos and students. ALEC, the American Legislative Exchange Council, funded by major corporations, has taught them how and even written model laws for states to pass. Early voting is shortened, Sunday and same-day registration is eliminated, etc., but the first priority has been the requirement of a photo-ID, which can be difficult and even costly to acquire. The professed reason is to combat voter fraud, a meme that was skillfully implanted on a public that never reflected on how minuscule, risky and impractical voting fraud is.

But the propaganda kept coming. The Wall Street Journal gave space to an op-ed just days before November 4th that cited an election for a Pennsylvania town council, a Hattiesburg Mississippi mayoral race, a woman buying votes in Polk County Tennessee — all to prove that that voter fraud does indeed exist. But to pretend that the Republican Party’s motive for mounting a national campaign to reconstruct voting laws in state after state was only to safeguard elections for local zoning or school boards — in a year when takeover of the Senate was the motivating prize — well that’s risible. It was an education to see how successfully propaganda can work even in a country where information flows freely. (We covered this in depth in The Republican Campaign that Kept Democrats from the Polls).

Voter turnout for the midterms was the lowest since 1942, a year which had the excuse that so many were elsewhere fighting a world war. An anemic democracy indeed. It raises the question of whether we should follow the lead of Australia and some other nations that have made voting mandatory, but good luck talking libertarians into that. By how much the new laws caused only 36.3% of eligible voters to show up at the polls this November is now being analyzed. It is too soon to say but not too soon to express contempt for a campaign by any party that seeks the effective disenfranchisement of legitimate voters in what we like to think of as a democracy.

2016

Comes the presidential election and new obstacles to a true democracy arise, most notable among them the layer of the Electoral College, a bizarre artifice worth a treatise on its own. It is the “Electors” vote, not ours, that decides who shall be president and vice president — and the 12th Amendment, itself an 1804 replacement of a section of the original Constitution — did not even require the Electors to mirror the popular vote.

While few stray from the pledge to do so, the worst defect in America’s so-called democracy kicks in when they do vote. Only two states apportion their electoral votes according to how many in the state voted for each candidate. All of the remaining 48 cast all of their ballots for the candidate who wins the popular vote in that state. What this means is that, if you voted for the losing candidate, your vote and those of hundreds of thousands of like voters in your state (millions in the largest states) are completely ignored. They don’t count for anything. They show up in the national popular vote tally, but that tally is just an interesting fact for newscasters to tell us. And so, we saw in this pretend democracy, that Al Gore won more votes than his opponent but George W. Bush was made president — and by the Supreme Court when it stepped in to halt the ballot recount in Florida and decide, exercising its 5-4 partisan split, who should be our president.

It would seem that before we proselytize democracy to other countries and even go to war to force it upon them, we should first repair our own.

The Supreme Court Is Gunning for Obamacare

Republicans finally found the equalizer to Mitt Romney’s disdain for the other 47% in a video clip in which we hear MIT economics professor Jonathan Gruber counting With the Court hearing the case today, March 4th, we bring back this analysis from last December.
    

on the “stupidity of the American voter” being “really, really critical” to get Obamacare passed into law.

He was speaking of the mandate that the healthier young buy insurance to pay for the care of older people who are less so. The loyal opposition feigned horror at what they called a deception as if it had been discovered only now. Never a secret, it had long been a hotly debated media topic from before Obamacare was signed into law. And, of course, it’s how insurance works. Yet we heard an agitated Jeff Sessions, Republican senator from Alabama, say this “strategy…to hide the truth from the American people” is nothing less than “a threat to the American republic”.

If stupid is Gruber’s opinion of the American public, so what. Republicans (and plenty of Democrats) think of college professors as elitist and arrogant so why the surprise when a bit of confirmation comes along? (The real scandal ought to be how much the government paid him for consulting — $393,000 apparently — considering that as an amply paid academic he might have donated his expertise to the country.)

squeeze play

It is what else Gruber said that’s of greater concern. The videos were unearthed by an investment adviser from outside Philadelphia acting as a citizen journalist by scouring the Internet for whatever he could find to undermine the Affordable Care Act. Additional to the “stupidity” video clip, he found an hour-long talk Gruber had given explaining the mechanics of the law at a Virginia think tank in 2012 (found here) where he said:

“In the law it says that if the states don’t provide the [exchanges] then the federal backstop will. The federal government has been sort of slow in putting up a backstop I think partly because they want to put a squeeze [on] the states to do it because …what’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits”.

For states unwilling to mount their own exchange, the Affordable Care Act provides for the federal government to establish and manage an exchange in their behalf. It then says that subsidies are to be granted to low-income people who sign up for insurance “through an Exchange established by the State”. Missing is any explicit wording that says the federal government is also authorized to pay subsidies to persons who sign up on the federally run exchanges.

A slip of the pen, a typo, say those who insist the mission is the same no matter who administers the exchanges. The obvious intent is for all Americans to be treated equally. But Gruber’s comments say that the missing language was deliberate. He has since said he spoke “inappropriately”. Irrespective of his second thoughts, his quote went straight into the brief of the petitioners trying to cripple the Act in King v. Burwell, the case now before the Supreme Court that says the 36 federally operated exchanges have been paying subsidies to insurance buyers illegally.

Prof. Gruber is slated to testify before Congress on December 9th. If present at its creation, he might under oath have to say that it was indeed the intention from the outset to play tough with the states, denying subsidies to citizens of a state that left the burden of operating its exchange with the federal government. Or he might contend that he had read the law after it passed and his remarks at a talk two years later were simply his interpretation of what he had read.

There’s some validity to the latter. Gruber’s own computer models of the behavior of Obamacare always assumed federal subsidy payments.

Elsewhere in the Act there is indication that drafters of the law did not have a squeeze play in mind. There are sections with titles such as “State Flexibility Relating to Exchanges” that offer states the option to create their own exchanges or hand off the job to the federal government with no mention of penalty.

they asked for it

It was both highly unusual and suspect that the Supreme Court stepped in to take over King v. Burwell — the case in which the 4th Circuit Court of Appeals in Virginia had approved federal payment of subsidies — when there were no split rulings at the circuit level. There had been. In a second challenge to the federal subsidies, Halbig v. Burwell, a three-judge panel of the D.C. Circuit Court of Appeals had reached the opposite decision, ruling that the federal-run exchanges could not pay subsidies. But that court had vacated its own ruling, deciding that the case should be heard en banc, that is, before all the judges of that court. That left King as the only ruling out there when the Supreme Court jumped the line, aborting the review of Halbig by the D.C. court, possibly wary that seven of its eleven judges were appointed by Democratic presidents and might be disposed to rule in favor of the subsidies. Yale law professor Abbe Gluck believes that heading that off means “this case is going to be decided as a matter of politics and not as a matter of law. And that’s extremely problematic”. The Supreme Court has disrupted “what the whole circuit process is for, to let arguments percolate either way on a case”.

The High Court’s peremptory action reminds us of a similar moment when the justices reached well beyond a complaint about a corporate-funded political movie brought by the conservative advocacy organization Citizens United in order to advance a political agenda of unlimited campaign spending by corporations and unions. It’s hard not to suspect that the conservative justices have again reached for a case because they don’t want to miss the opportunity to send the Affordable Care Act into the “death spiral” that would ensue if the federal exchange subsidies were taken away. Faced with paying full rate, citizens now needing subsidies would drop out.

The 4th Circuit had approved the federal government paying subsidies, calling the text of the law ambiguous. Were it to overturn that ruling, the Supreme Court would additionally upset the common practice when a law is unclear of deferring to the interpretation of the agency that administers it, which is what the 4th Circuit did. It is the IRS that awards the subsidies — they take the form of tax credits — and in King the court deferred to that agency’s conclusion that federal subsidies were the intent if not the letter of the statute.

internal references

The government will argue that the Affordable Care Act must be taken as a whole and will point to the several instances in the law where the wording assumes that the federal government will be paying subsidies. Section 1321 clearly prescribes that if a state does not establish an exchange under Section 1311, the Department of Health and Human Services “shall . . . establish and operate such Exchange within the State”. That wording treats the federal exchanges not as federal but as surrogate state exchanges.

Other sections concerning state exchanges make no separate mention of parallel federal exchanges, which means that the Act considers them to be one and the same — and that subsidies are therefore intended for both.

Prof. Gluck would probably fault us for saying in an earlier article that the challenges to Obamacare are a “clear case of the letter of the law versus its intent”. She says there is no need to go outside the law to argue “vague notions” of intent. The Act’s own references to itself make clear that federal subsidies are intended. As one of several examples she offers, Section 36B(f)(3) requires “[e]ach Exchange … under section 1311(f)(3) or 1321(c)” to report the subsidies it has doled out. Section 1321 is the federal exchange provision, so this section makes no sense if the federal exchanges are to issue no subsidies.

She also cites the Section 1312(f) stipulation that only a person who “resides in the State that established the Exchange” can purchase on an exchange. If a federal exchange established for a state is not considered a state exchange, then it can have no customers. Clearly, all such exchanges are considered by the Act as state exchanges and therefore eligible for subsidies. Three times in the Act, “Exchange” is defined as being a state exchange, the point being that there is no federal exchange, only subsidy-eligible state exchanges run by the federal government.

But will the Court pay any attention to this? In what appears to be their avidity to challenge the Act, will they take a blinkered view and focus only on a few missing words?

texting

In a post on SCOTUSblog, Ms Gluck says the “textualists” on the Court like Antonin Scalia “have spent three decades convincing judges of all political stripes” to adopt holistic readings of the law, giving priority to the full text. The interpretation of a law should do “least violence to the text”, Scalia has written, emphasizing that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.”

Liberals fear that Chief Justice John Roberts may welcome the opportunity to reverse his apostasy of breaking ranks with conservatives when he allowed the insurance purchase mandate — and therefore Obamacare itself — to go forward in the Court’s 2012 decision. His return to the “gang of four” would normally leave Justice Anthony Kennedy as the swing vote, but Kennedy voted with the conservatives against the mandate, the other way Obamacare could have been crippled. That portends 5-to-4 against the subsidies.

Gluck also delves into that case. In the dissent by Justices Scalia, Kennedy, Thomas and Alito she finds them acknowledging that the subsidies are essential, that the incentive to buy insurance “collapses if the federal subsidies are invalidated…With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all”. But that doesn’t preclude their engineering that collapse by disallowing federal subsidies in their King v. Burwell decision. It would, however, defy another textualist principle, that Congress does not write statutes designed to fail, whereas a cramped interpretation of just seven words in a 906-page law would be an argument that Congress did craft the Affordable Care Act to self-destruct. That is effectively the case King is trying to make.

So how will he and those on the Court persuaded of the textual approach justify a vote against the subsidies on such narrow grounds as authorized only for an “Exchange established by the State” when several places elsewhere in the text establish a federally-managed exchange as a state exchange. We can expect the conservatives on the Court to come up with a convoluted rationale and probably view the prize of destroying Obamacare as worth a few moments of embarrassment confined to legal circles about reversing field on “textualism”.

fallout

The most recent Gallup poll has only 37% in favor of Obamacare with 53% against, which conservative commentators have leapt on as validation. Not mentioned is that 74% of those who bought insurance on the exchanges are very satisfied. A good guess is that the difference is found in those with employer-paid insurance who are content with their untaxed insurance benefit but against insurance for others on ideological grounds that oppose the mandate or social programs in general.

What opponents — and that includes those on the Supreme Court — do not seem to foresee is the explosive backlash once the effects of a destroyed Obamacare sink in. Republicans will first hear from the insurance companies, who have come to appreciate the millions of new customers they would now lose. Then there are the estimated 4.3 million who are newly insured because of subsides but who would drop out because the full charge for insurance will be too expensive. Those paying at any cost will tend to be those with health problems, meaning the insurers will need to spiral premium costs upward to pay for their care, and that will drive still more into the uninsured column. Pleading runaway costs, will the insurers then buy congressional votes to repeal the Obamacare proscriptions against turning away pre-existing conditions and canceling policies after sickness and yearly and lifetime caps?

The case will probably be heard around March with a ruling at the end of June.