Friday, September 30, 2011

What We Think We Know

-- Posted by Neil H. Buchanan

I did not plan it this way, but my last two Verdict columns (here and here), and their associated Dorf on Law posts (here and here), had a common theme: challenging the conventional wisdom about certain facts. When John Kenneth Galbraith coined the term "conventional wisdom," he was mostly talking about commonly held beliefs about broad policy questions, not about basic facts. For example, it became the conventional wisdom in the late 1980s that "Reagan ended inflation." That is a highly debatable proposition, but it is not falsifiable in the sense that a simple factual assertion can be checked or falsified. Did the sun rise in the South this morning? Who won last night's game?

Then there are policy-relevant beliefs about facts. What is most interesting is when the evidence simply does not line up with our widely-held beliefs about what the evidence says -- or what it "must certainly" say. Consider four recent examples (starting with the two that I discussed in my columns this month):

(1) Do tax increases harm the economy?

There is a factual inquiry wrapped inside this larger theoretical/empirical question. That is, we will never know with anything close to scientific certainty how various taxes affect economic activity, because of the insurmountable limitations of economic theory and statistical inference. Still, some questions in economics have yielded more reliable answers than others. For example, increases in real GDP seem to increase business investment, especially when the economy is weak. On the other hand, the evidence regarding the effects of immigration on wages is all over the map (in part because our data on immigration are so poor).

On the other hand, we can say as a matter of fact what the state of empirical knowledge is about a given subject, even if that knowledge is unclear. Calling it clear or unclear is itself a statement asserting a fact. That is what I wrote two weeks ago about the effects of taxes on the economy. Whatever the underlying truth of the matter, the evidence supporting the affirmative assertion that moderate tax increases (especially those on the wealthy) harm investment and the economy is "muddled, at best." If the default position is that we should respond to evdience and not supposition, then there is no good reason to believe that the tax increases currently being contemplated should be rejected on the basis of the available evidence.

Of course, one can always take the position that further inquiry will prove what one believes as a prior matter, which is the usual position taken by anti-tax people (when they acknowledge the evidence at all). Erring on the side of caution has its place, but it is still important to know the facts.

When it comes to tax, the fact is that we really do not know very much at all. To listen to much of the political debate, however, one could be forgiven for thinking that the evidence all says that taxes harm the economy, and the only question remaining is where we should fall on the efficiency/equity continuum. In other words, large numbers of people claim that we know something that we do not, in fact, know.

(2) Is Europe suffering from decades of stagnation because of their large governments?

Again, the deep question here is one that will always be contestable, with ever-shifting evidence and new methods of interpretation being offered on a regular basis. That is a good thing, reflecting a healthy academic and scholarly environment. (We can put a pin in the question of just how much a healthy intellectual environment requires funding from non-commercial sources, especially governments.)

We can, however, at least confront a factual presumption that underlies the debate: Are Europe's economies really chronically weak, compared to "free market" economies? Many people seem to think that the answer is unquestionably yes. On one of the listservs that I read, participants debated this question a few months ago. Even the scholarly crowd on that listserv included a lot of people who simply took it as a given that Europe's economies are stagnant and have failed to keep up with the "dynamic" economies elsewhere. The evidence simply does not support that presumption. (I am, of course, setting aside the current euro crisis, which has nothing to do with the discussion here.)

As I wrote on Dorf on Law yesterday, that factual error does not mean that the anti-government crowd is necessarily wrong. They can still claim that Europe's improvement since the seventies was due to the spread of Thatcherism, or that Europe's economies would be stronger still if they would only finish the job of killing off their welfare states. Those arguments strike me as quite weak, given the other evidence that is available, but they are not implausible claims.

The relevant points for today's discussion, however, are that there is a "fact" about the competitiveness of European economies, and that that fact is contrary to most people's presumptions.

(3) Are sunbelt states more economically competitive than Rust Belt states?

Like the debate about Europe's political economy, the argument in the U.S. about regional differences ultimately boils down to a question of the role of government. Those who believe that unions, consumer protections, environmental regulations, income taxes, and so forth are economically harmful like to point to the small-government, right-to-work states as proof that small government is better for the economy.

While this question, too, cannot be finally resolved by social scientists, one fundamental factual presumption has long guided the debate. Southern and western states grow quickly (but remain relatively poor), and midwestern and eastern states are stagnant. Earlier this week, we received news that this is no longer so. Whereas it had been true for several decades that people were chasing the jobs and the weather (and, in the process, reinforcing the job growth), that is no longer true: "Unemployment in the South is now higher than it is in the Northeast and the Midwest, which include Rust Belt states that were struggling even before the recession." Michigan no longer has the highest unemployment rate (behind Nevada and California), and six of the ten other states with the highest unemployment rates are in the south.

Again, this big new fact does not resolve any debates. Those who wish to shrink government will point out that California is, in terms of governance, more like a northeastern state than a sunbelt state. Even so, the new fact is highly relevant. Still, I am willing to predict that this new fact will not penetrate the national consciousness at all. In part, this is a matter of rejecting dissonant evidence. There is also a lot of money lined up to convince people that the evidence points in the anti-government direction (which also helps to explain why the evidence in #1 and #2 above are not widely known).

(4) Is America's obesity problem caused by cheap fast food?

Mark Bittman, the food columnist for The New York Times, wrote a column last Sunday debunking the idea that it is cheaper to eat out at fast food chains than it is to eat at home. This is extremely important evidence, because the conventional wisdom about obesity in America is that poor people have no choice but to eat high-fat, high-calorie diets at fast food chains. The image is of suburban types unloading their organic groceries from their minivans after a trip to Whole Foods, while their poor counterparts settle for Big Macs and supersize sodas.

The underlying story here is an important one. It is apparently true that many poorer communities are not served by the major supermarket chains, and that the fruits and vegetables available in poorer neighborhoods are of low quality. Bitmann reports that "the Department of Agriculture says that more than two million Americans in low-income rural areas live 10 miles or more from a supermarket, and more than five million households without access to cars live more than a half mile from a supermarket." Addressing that issue is important on its own terms.

Still, Bitmann's evidence shatters the myth that poor people eat poorly because they cannot afford to do otherwise. Letters to the editor in response to Bitmann's column pointed out (as Bitmann himself recognized) that "expensive" need not be limited to mere dollars, with travel and preparation (and clean-up) time being precious for those who are lucky enough to have jobs. Even that, however, points to different solutions, which include educating people about how to make good food at home quickly, and making healthy choices easier to prepare.

This might look like a "new fact," but there is no reason to believe that Bitmann happened to gather his facts shortly after a change in the relative prices of store food and fast food. Instead, it appears that people (certainly including me) have simply felt comfortable believing something that is just not true.

One thing I have learned from several years of blogging is that it often seems oddly necessary to say obvious things like "evidence matters." What is interesting about these four examples, I think, is not that "facts are stubborn things" but that "people are stubborn about what they think are facts, even when the facts are falsehoods." And to state something even more obvious: When we make decisions based on incorrect evidence, we just might make mistakes.

Thursday, September 29, 2011

Europe, Welfare States, and Blame for Economic Woes

-- Posted by Neil H. Buchanan

My latest Verdict column, published today, is mostly a response to a snarky comment by Mitt Romney in a recent debate. (Yes, I realize that the adjective "snarky" is now redundant when describing anything Romney says.) Accusing President Obama of being like European "socialist democrats" in pushing for (slightly) more progressive taxes, Romney said: "Guess what? Europe isn’t working in Europe. It’s not going to work here."

Romney and his colleagues have been saying so many outlandish and utterly false statements at these debates that it was tempting to leave this one alone. This claim, however, was at least a deviation from the usual run of climate change denial, "let 'em die" health care absolutism, and immigrant bashing, so that it was worth taking the time to sort through a few responses. The bottom line was quite obvious: The blame runs in the opposite direction, from the U.S. to Europe. The economic troubles in the U.S. would not be worsened if we tried to imitate Europe, whereas Europe is in trouble now because it imitated us.

Specifically, I argue that Europe's recent troubles have been the result of: (1) Collateral damage from the U.S.-initiated global financial collapse, (2) Copycat financial deregulation, especially in countries like Ireland and Britain, that exposed those countries to especially vicious downturns, (3) Unwise attempts to adopt the neoliberal policies advocated by a U.S.-centered academic and policy elite, and (4) Even more foolish commitments (especially by the Germans) to impose short-term fiscal austerity of the type that the Romneys of the world adore.

In writing that column, it was especially difficult to describe briefly the last twenty years or so of European economic experience. Prior to the onset of the Great Recession, many (if not most) European governments had actually adopted policies along the lines of the "Washington Consensus," reducing tax rates and partially rolling back their welfare states. This was in response to the conventional wisdom that "eurosclerosis" -- long-term economic stagnation -- had been caused by bloated government.

What most people do not realize is that Europe's economies had generally shaken off their 1970's-era doldrums by the 1990's and 2000's, with unemployment and growth rates at levels that were very competitive with the U.S. (and certainly better than some regions of the U.S.). Of course, this could be used as an advertisement for neoliberalism, at least in a post hoc ergo propter hoc sense: The rollback of the welfare states was followed by prosperity. Under that view, we are not supposed to notice that the welfare states that remain in Europe are still far beyond anything that would be tolerated in the current U.S. political climate (or even in the political climate here in early 2009).

And, to be clear, some pruning of those welfare states was undoubtedly appropriate. The New York Times ran an article a couple of weeks ago about some public sector jobs in southern Italy that look an awful lot like pure waste. Similarly, my argument in a Verdict column two weeks ago about the non-effect of taxes on economic activity is based on empirical evidence, which can be quite different when we are talking about tax rates in the 80% range rather than the 30% range.

Still, the current reality in Europe is still very "socialist democrat," as Romney would put it. For example, Sweden's welfare state and tax rates are not where they were forty years ago, but it still has a tax-and-transfer system that results in a very egalitarian society. Moreover, Sweden has performed surprisingly well of late, with one analyst referring to it as "the rock star of the recovery." Although that analyst noted that Sweden had been running a budget surplus prior to 2008, every other aspect of the story is a brief against neoliberalism: fiscal deficits during a recession, aggressive monetary policies, flexible exchange rates, and careful financial regulation.

Meanwhile, the countries that have most aggressively adopted a U.S.-style austerity approach are either in terrible shape (Britain, which took the austerity route voluntarily, as well as the countries on whom austerity is now being forced), or are in decent shape only because they refused to roll back other social protections (especially Germany, which has actually been doing worse than us in terms of economic growth, but which has no rioting in the streets because labor protections have kept unemployment low).

I am not, of course, holding up any particular country as a model. There have been policy mistakes everywhere. Romney's comment, however, captured two assumptions that are simply wrong: (1) Europe is still, as a long-run matter, weaker than the U.S. because of excessively-generous welfare states, and (2) Europe's current, short-run troubles are caused by their welfare states and redistributive policies. The evidence supports neither assumption.

Wednesday, September 28, 2011

Prison or Church

By Mike Dorf

Here's an interesting story about a small town in Alabama (Bay Minette) that will offer mandatory church attendance as an alternative to incarceration or a fine for non-violent offenders.  The story quotes an ACLU official condemning the policy as "blatantly unconstitutional" because "government can't force participation in religious activity."  Yet getting to that result is not so easy under the existing Supreme Court precedents.

The story quotes the town police chief  as follows: "You show me somebody who falls in love with Jesus, and I'll show you a person who won't be a problem to society."  Now, insofar as that statement shows that the program aims to advance Christianity in particular, it renders the program infirm under the Establishment Clause.  But maybe we can gloss the statement a bit.  Perhaps, if pressed, the police chief would say "and not just Jesus; you show me someone who falls in love with the teachings of any religious tradition or even a non-religious ethical tradition, and I'll show you a person who won't be a problem to society."  Is that what the police chief actually thinks?  I doubt it, but I also doubt he's given much thought to how his church alternative would work for non-Christians.  And his subjective intentions may not matter.

Some scholars and policy makers have argued that at least some faith-based delivery of social services can be justified by the fact that for some people, they are more effective than their counterparts.  Suppose that were true or at least plausible.  That still would not justify church as an alternative to jail or a fine unless church were simply one alternative, along with other religious and secular options.  The news story says Bay Minette will permit offenders to attend worship services in any faith they choose, but it also notes that there are no mosques or synagogues in the vicinity.

Does that doom the program?  Not necessarily.  Consider that in Zelman v. Simmons-Harris, the Supreme Court upheld Cleveland's school-voucher program despite the fact that 96% of the schoolchildren who used vouchers attended religious schools.  What was critically important to the Court was the fact that parents rather than the state determined whether to redeem the vouchers at religious or non-religious schools and if the former, at what religious schools.

That still leaves the Bay Minette program open to question on its face for not even formally including a secular option, but this seems easy to remedy.  One could imagine giving convicts the choice of weekly attendance at some sort of secular alternative to religious services, such as volunteering at a soup kitchen or taking yoga classes, assuming that such things exist in or around Bay Minette, Alabama.  If they do not, that might doom the program, but let's assume they do.  Is there still an argument that a sentence of attending religious worship services or jail coerces religious practice?

Sure, but that's true of conditional sentencing more generally. Some conditions of supervised release would be unconstitutional if imposed directly. For example, prohibitions on associating with certain former criminals could be considered violations of the right to association, but they may be imposed as alternatives to incarceration.  It's at least possible to reach the same conclusion for religious services--again, assuming there are a range of alternatives, including secular ones.

Perhaps the best argument for the unconstitutionality of the Bay Minette program is that it violates the "entanglement" prong of the Establishment Clause: A state judge must monitor church (or other religious service) attendance in order to determine whether a convict is complying with the terms of his sentence.  That is formally a problem, but the entanglement limit may be moribund: After all, state officials must monitor attendance at religiously-affiliated programs for drug treatment, education, and other faith-based services; yet current law largely accepts these.

Surprising Bottom Line: If structured carefully, Bay Minette's program could be held constitutional under the existing case law.

Tuesday, September 27, 2011

The Comparative Value of Health Care

By Mike Dorf

In my latest Verdict column, I argue that the legal battle over the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act raises a relatively unimportant constitutional question: Whether or not Congress has the authority, either under the taxing power or the commerce power, to mandate that individuals purchase a service (or good) from a private actor, Congress will remain nearly omnipotent.  As I explain in the column, even if the Court invalidates the mandate, Congress could accomplish essentially the same thing using other powers.

Of course, I also explain, Congress won't, because of the politics.  I then go on to lament that result as a matter of policy.  The large-n studies by health economists show that being within the "flat of the curve," i.e., having health insurance at all, makes a substantial difference relative to not having health insurance, but having different kinds of health insurance doesn't make a noticeable difference.  This result is generally thought to support two policy prescriptions: 1) we should try to lower overall health care costs for people who have health insurance because the additional fancy care for which we're paying doesn't seem to do any good; and 2) we should insure everybody.  As a first approximation, that's pretty much what the PPACA attempts to do, which makes it beneficial.

Here I want to see if I can quantify the expanded-coverage benefits and put them in a little bit of perspective.  This is incredibly tricky because the data we have are often non-comparable.  Moreover, the medical literature contains all sorts of stupid errors.  For example, it is not uncommon to see claims that early detection of cancer leads to higher survival rates.  That might be true, if early detection led to effective early intervention, but it also could just mean that survival is defined as 5-year or 10-year survival, and by detecting cancer earlier, doctors start the survival clock ticking earlier.  E.g., someone who lives 2 years after detection of a stage-3 cancer or 5 years after a stage-1 cancer detected three years earlier.  The early detection isn't leading to a longer survival.

What would be really useful then is some number that cancels out all the noise. Life expectancy should be adequate to the task.  To be sure, it's hardly perfect.  Effective medical care could greatly improve quality of life without affecting life expectancy.  E.g., a successful drug treatment for Alzheimer's might have that profile.  Still, if one is measuring broad inputs, life expectancy will correlate positively with overall health.

So, what is the impact on an average American's life expectancy from going from a state of no health insurance to having health insurance? Searching large databases, I couldn't find anything definitive, but my overall sense is that it's something on the order of a year, probably less.  It's hard to isolate the effect because health and longevity correlate strongly with socioeconomic status, which also correlates strongly with health insurance.

A year of longevity is nothing to sneeze at. Indeed, even something much smaller is substantial.  Suppose that the average longevity benefit of going from no health insurance to health insurance is only a quarter of a year.  Still, getting the roughly 50 million uninsured Americans a quarter of a year each would mean an extra 12.5 million person-years.  Or, dividing by life expectancy, that comes to a savings of over 150,000 human lifetimes (over the course of a human lifetime)--which is an enormous difference.

That's still well short of the per person benefit from quitting, or better yet, not starting smoking, which is about 6 years of life expectancy.  Or obesity, which appears to reduce life expectancy by about 2 years.  These numbers are contested and highly dependent on the specific study, but I'm pretty confident that I have the relative shape right: Smoking is worse for longevity than obesity, which is in turn worse than not having health insurance.

What that all says is that government policy that aimed at promoting longevity could be very effective at low cost if it reduced smoking and eliminated agricultural subsidies for commodity crops (mostly grown for animal feed), which artificially lowers price of, and thus increases demand for, unhealthy foods.  Those are worth doing regardless of the long-term fate of the PPACA.

Monday, September 26, 2011

Where Did Judge Kozinski's Libertarian Streak Go in the Redondo Beach Case?

By Mike Dorf

A little over a week ago, an en banc 9th Circuit court invalidated a Redondo Beach, CA ordinance banning “stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business, or contributions from an occupant of any motor vehicle."  The law was ostensibly meant to address congestion arising out of congregating day laborers seeking work, but as in other communities in which this issue has arisen, such legitimate concerns become mixed with anti-immigrant sentiment.

The en banc majority found that the law was facially invalid as overbroad.  Streets are, in the Supreme Court's category, a "traditional public forum," and while reasonable time, place, and manner regulations of speech are permissible in such a forum, the Redondo Beach ordinance, in banning an entire category of speech, was not such a regulation.  Chief Judge Kozinski disagreed strongly.  He wrote: "If I could dissent twice, I would."  Some of his rhetoric could be used by anti-immigrant demagogues.  He stated: "As might be expected when large groups of men gather at a single location, they litter, vandalize, urinate, block the sidewalk, harass females and damage property."  That's not exactly stereotyped language itself, but one might think of it as the velvet glove that encases the iron fist of such language or worse.

Chief Judge Kozinski is a libertarian on both speech and business, leading one to think that he ought to be extremely solicitous of commercial speech of the sort at issue here.  He is also an immigrant himself, and knowing him personally, I have every reason to think he would not want to encourage anti-immigrant sentiment.  So, what is going on here?

I'm going to venture an unproveable hypothesis: The best explanation for the case is that for Judge Kozinski, as for many other southern Californians, cars are different.

Consider an analogous pair of cases.  In Young v. NYC Transit Authority, in 1990, the U.S. Court of Appeals for the Second Circuit upheld a ban on begging in the subways.  Three years later, in Loper v. New York City Police Dep't, the same court invalidated a blanket ban on begging.  Although there is some tension between the two opinions, the results of the two cases are easy to reconcile: People on subway platforms and subway cars are a captive audience, such that begging in these spaces is inherently coercive; begging above ground is different because it's much easier just to walk away.

My hypothesis is this: Chief Judge Kozinski, as a longtime resident of Southern California, regards a car as a private space in which people need protection from intrusion, in much the way that a New Yorker needs protection on the subway.

Now, I'll freely admit that there are two big problems with this hypothesis.  The first is that other Californians in the Redondo Beach case came out the other way.  But so what?  To say that a factor influences one judge is not to say the same factor will influence all similarly situated judges in the same way.

The second problem is that CJ Kozinski's dissent did not actually focus on the intrusion on the repose of drivers, but concentrated instead on the harms to shopowners and pedestrians from day laborers congregating on the sidewalks.  Still, judges often write opinions that express reasons aimed at justifying the results they believe correct, even when other factors played a more important causal role in their reaching those results.

Bottom Line: The "cars are different" hypothesis could explain what is otherwise a puzzling dissent.

Friday, September 23, 2011

Free Public Education for a Fee?

-- Posted by Neil H. Buchanan

This past Spring, I wrote three Dorf on Law posts (here, here, and here) discussing issues that arose during my appearance before the House Ways and Means Committee. After the hearing, I received a "Question for the Record" (QFR), which is a means by which committee members can ask witnesses questions outside of the time limits of the hearing, but still have the responses entered into the Congressional Record. The question was from Rep. Bill Pascrell (D-NJ), who wanted me to comment specifically on how we might better support families as they try to save money for future education expenses.

The pertinent part of my response is copied below. As readers will see, the budget crises affecting states and cities for the past several years have had the surprising and perverse effect of making public K-12 education look more and more like fee-based education. This has serious implications for families who wish to save for higher education, which generates important policy concerns.

My response is necessarily quite preliminary, and in some ways it simply amounts to a promise to try to help formulate a specific plan at some point soon. I (along with a former research assistant, John Katsos, who is now a professor at the American University of Dubai) am now beginning the process of trying to develop some initial ideas and turn them into proto-legislation. As we develop our ideas, I hope to post interim reports to Dorf on Law. Comments and suggestions are most welcome.

Dear Mr. Pascrell:

I share your conviction that the core concern of American families as they save for the future is the education of their children. Other concerns, such as a secure retirement and access to medical care, are also matters of increasing uncertainty for all but the wealthiest Americans, as you well know. Still, there is nothing more important for our country and for future generations than to guarantee that all young Americans have fair access to a sound, high quality education

If we fail to provide such an education to all Americans, all of our other problems will only become more difficult to solve. The emergence of the United States as a great power in the 20th Century was driven in large part by our commitment to universal pre-college education, and by our development of an unrivaled system of higher education. Even before the onset of our current economic difficulties, we have failed to maintain the system that our parents and grandparents bequeathed to us. If we continue on this path, we will surely see America fade as an economic power. Fortunately, there is still time to avoid that fate.

In your letter, you point out the current Internal Revenue Code includes a number of programs that past Congresses have created to, at least, stem the tide of reduced expenditures on education. These programs reflect the shift in the responsibility of providing education from society as a whole – even though we all gain when Americans are better educated – onto the people who make individual decisions about whether to advance their educations.

It is important to remember that we could still reverse course, shifting the responsibility for funding education back to the states and the federal government and restoring the funding necessary to allow our schools, colleges, and universities to provide education at affordable prices to all. The tax programs that currently exist are a distant second-best, compared to a system in which the federal government assists the states in making the investments necessary to return our educational system to greatness. Still, in the current political environment, half a loaf is better than none. If it is currently not possible to expand direct funding for public education (at the primary, secondary, or post-secondary levels), then the least the government can do is to assist people through the tax code.

Your letter notes that the current set of tax incentives available to fund education is “overly complicated and overlapping.” I completely agree. It is, therefore, a good idea to discuss ways to combine and simplify those programs. I would recommend revamping our approach to providing education incentives by combining all of the current provisions into one simple program. Although no current program is perfect, a starting point would be the so-called 529 Plans, which allow tax-free distributions from savings accounts to pay for qualified tuition and other education-related expenses.

Your letter also asks how to make these accounts accessible to middle-income Americans. This problem bedevils all savings-related accounts, as middle-income Americans are finding it ever more difficult to set aside any money at all for savings. Household budgets are simply so tight that many people cannot find the money to put into even the most generous tax-favored savings accounts. The strain on household budgets is, moreover, only becoming more intense as the economy continues to struggle.

This suggests that even expanded 529-like plans would need to include an income-based formula to supplement any saving that a household is able to set aside. For example, if a middle-income household were able to set aside $1000 in a year for higher education – which is not an easy target to reach, for many Americans – the government could match that contribution, either dollar-for-dollar, or on a sliding scale. Lower-income savers could receive higher matching contributions, which could be phased out as incomes rise.

I have been working on some ideas to create this kind of tax-based education incentive program, and I have been in contact with your staff to discuss some of these issues. I would be happy to work with you and your staff to develop legislation that would meet the goals that we both share. For the purposes of this letter, however, I will simply emphasize that it is important to develop a simplified program that is responsive to differences in people’s incomes, to allow the resulting program to be both cost-effective and to help those who most need help.

To summarize my views on your central question, I would say that our legislative priorities should be as follows: (1) Expand direct funding to public education at all levels, (2) If we cannot make education affordable again through direct funding, then we should use the tax code to reduce the net cost of education, and (3) If we are going to use the tax code to reduce education costs, we must supplement middle-income families’ education savings with matching funds from the government.

There is, however, a further problem hiding behind the issues that I have discussed above. One surprising development in American education is the increasing cost of public K-12 education. While most American’s think of public schools as “free” (that is, carrying no specific costs beyond the taxes that people pay each year to support their schools), the fact is that public education has become an increasingly fee-based enterprise.

A May 25, 2011 article in The Wall Street Journal (“Public Schools Charge Kids for Basics, Frills”) describes the array of fees that have become part of the landscape of American primary and secondary public education. As the article points out, even though teachers’ salaries have failed to keep up with inflation, school districts across the country are facing increasing costs and decreasing support from taxes and state funding. The new fees can add up to thousands of dollars per family. Notably, while some of the fees are charged for arguably “non-essential” educational services, such as extracurricular activities (although I urge you to reject the view that such activities are not an essential part of educating our children), many school districts are now charging fees simply for students even to enroll in school, and for such basics as copier paper, and even imposing “graduation fees.”

The emergence of these expenses for pre-college education, of course, makes it that much harder for middle-income families to save to send their children to college. No matter what we do to 529 plans, or any other aspect of our current set of programs to help people pay for higher education, the increased costs of public pre-college education are reducing people’s ability to pay for college.

This suggests that Congress’s highest priority should be to support parents whose children are not yet in college. Doing so will not only help families today, but it will increase the likelihood that they will be able to afford college later. We should, therefore, consider expanding flexible savings accounts, to allow parents to use tax-free funds to pay for these education expenses that have been increasingly shifted onto parents. Again, the first-best choice would be to give direct support to states and school districts, making it unnecessary for schools to resort to these harmful fees. If we cannot directly increase funding for education, however, we can at least allow parents to use pre-tax dollars to pay for their children’s pre-college expenses. (Also, I would urge you to think seriously about a structure to subsidize these costs for people of more modest means. Without a subsidy, even an FSA-style approach only reduces the net costs for a middle-income family by 25 percent.)

If you have any further questions, please do not hesitate to contact me.

Neil H. Buchanan

Thursday, September 22, 2011

Obama's New Populism: Will Nothing Make Me Happy?

-- Posted by Neil H. Buchanan

Last Friday, I commented on the possibility that President Obama will be the beneficiary of lowered expectations, with even fierce left-of-center critics like Paul Krugman giving him too much credit for proposals that are clearly inadequate to the problems we face. I closed the post by repeating my frequent observation that Obama's timid measures, in addition to being economically weak, are political losers that undermine any excitement one might have about a second term.

I am, of course, hardly the only person to have made that latter point. Apparently in response to the growing calls for the President actually to stand for something, the White House earlier this week unveiled an aggressive strategy to take a stand for economic populism. In his announcement of a new economic policy strategy (couched, inevitably, in the form of a long-term debt reduction plan), the President used strong, liberal language to defend the notion of taxing the rich and using government to fight social ills. Social Security cuts are now apparently off the table, and changes to Medicare and Medicaid are tied directly to increased taxes on the wealthy.

It thus appeared on Monday that Obama had opted for what I have called the "last two weeks strategy," sounding like a progressive Democrat in the way that all Democrats (no matter how centrist, and no matter how suspicious of the party's liberal constituency, they might be) begin to do with about two weeks left in any general election campaign. The indications are that Obama plans to maintain this strategy through November 6, 2012.

For someone like me, this should be good news. Certainly, it is a good sign that the White House has concluded that they are getting nowhere by having Obama stand above the fray. It is also very promising that Obama's move has changed the political agenda, and that his Republican opponents and their media echo chamber have once again gone apoplectic about "class warfare." We are again being treated to the usual litany of nonsensical arguments against progressive taxation, along with especially strained attempts to twist statistics and deny the facts.

It is even, in a perverse way, good news that Bill Clinton has galumphed back onto the stage, undercutting Obama's calls to (slightly) increase taxes on corporations and the rich. Maybe people like Maureen Dowd will stop treating the male Clinton as if he is some kind of political god. Certainly, there is plenty in Clinton's record to justify deep skepticism about claims that he is a friend to progressives.

All good news. Regular readers of this blog will, however, not be surprised to learn that I am unimpressed with Obama's new stance. In part, this is a matter of bitter experience. On July 1, for example, I wrote about an apparent change in Obama's tactics, commenting on a press conference in which Obama had seemed to turn the page on his weak-willed past. Within weeks, however, he had capitulated on the debt limit and agreed to a very bad spending-reduction bill. The track record of this White House in standing firm is not promising.

The specifics of Obama's comments also offer reason for skepticism. His proposal is a mix of 40% tax increases and 60% spending cuts. Why begin with a 40/60 split? This is, moreover, in the wake of the August budget deal, which was 100% spending cuts. Citizens for Tax Justice correctly pointed out several weeks ago (link not currently available) that a " balanced mix" of tax increases and spending cuts can now be achieved only by making the next bill heavy on tax increases. Instead, the White House accepts the regressive framing that leads to this definition of "balance" -- and then offers a proposal that begins on the wrong side of that balance.

When he tied Medicare cuts to tax increases on the wealthy, moreover, Obama did not even bother to commit to anything specific. He merely said that he would not agree to spending cuts to Medicare and Medicaid unless there were "significant" increases in taxes on the wealthy. One need not have gone to law school to recognize so obvious a wiggle word. Similarly, there was no promise to keep Social Security off the table going forward.

All of this is, of course, a matter of reading intentions and strategies from the tea leaves. As worrisome as some of the specific signals may be, the broader problem is that Obama's big announcement this week was billed and reported as a statement of the President's principles and aspirations. Having finally recognized the Republicans' intransigence, he is free to stop unilaterally disarming (which was, by the way, Bill Clinton's favorite move as well) and recognize that anything he proposes will not be adopted by this Congress. Liberated from his self-imposed prison of post-partisanship, Obama was supposed to be telling us what he really believes are the important battles that must be fought.

Why, then, the refusal to make specific commitments? Even his call for "the Buffett Rule," which is the new term for increased taxes on millionaires and multi-millionaires, was stated in the most vague terms possible, with Congress left to decide its legislative form. That strategy failed miserably in the health care debate.

The most worrisome tea leaf, to me, was that Obama could not even bring himself to make an aspirational statement that actually called for progressive taxation. As the editors of The New York Times put it, Obama "called for Congress to rewrite the tax code to ensure that the rich pay the same effective tax rate on their income as the middle class." The same rate?! Is this our newfound commitment to fairness in taxation: Billionaires paying the same effective rate as people making $50,000 per year?

One could, I suppose, defend Obama's low aspirations as merely a first step. With large numbers of high-income people currently paying a lower rate than most middle-income people, it would surely be a progressive step to move from regressivity to proportionality. Later, maybe, we could shoot for actual progressivity. Politics is the art of the possible.

That, however, completely ignores the context of Obama's announcement. It is the last two weeks of the campaign, and he is not talking about proposals that could pass Congress. He is laying out his principles and telling us what he really believes. If, in that setting, President Obama is not capable of issuing a full-throated call for actual progressivity in the tax code -- a commitment that has been a bedrock of American politics for decades, and which is still highly popular with the American public -- then what reason does anyone have to think that he cares about progressive taxation or would fight for it?

In what was billed as his moment to stake out the high ground, Obama stumbled again. He is, of course, still far better than any of his potential opponents in 2012. If this is his version of seeing the light, however, then things are worse than they seemed.

Wednesday, September 21, 2011

Do Unheard Invasions of Privacy Make A Sound?

Post by Sherry Colb

In my column for this week, I write about the Supreme Court's upcoming case, United States v. Jones, in which it will decide whether attaching a GPS device to a car and thereby monitoring the car's whereabouts for an extended period of time constitutes a "search" for purposes of the Fourth Amendment, requiring a warrant based on probable cause.  Because I have written about the GPS tracking issue before, my column discusses the nearly-indistinguishable invasion of having police track the location of people's cell phones, an intrusion that may fall outside the definition of Fourth Amendment "search" no matter how the Court decides Jones.

In this post, I want to address a different issue that is, at least implicitly, raised by police tracking of people's movements:  Is there an invasion of privacy if the target never finds out about it?  This question arises because the sorts of surveillance involved with a GPS often occur without the targets being any the wiser.  Unlike being followed by a police car -- an experience that is not governed by the Fourth Amendment, by the way -- being monitored by GPS is not going to "feel" different to the person monitored than not being monitored would feel.

From a legal perspective, the answer to my question is almost certainly yes.  Whether the police have invaded a person's privacy has never turned on whether the target in question knew about the search.  It is true, of course, that people who have successfully challenged the legality of a search did learn about the search at some point and were only thereby able to bring a suppression motion or a lawsuit.  Interestingly, in when the ACLU and others challenged clandestine NSA surveillance programs, the case was dismissed for lack of standing because the people challenging the program could not prove that they had been targets of  surveillance.  Though their lack of knowledge was fatal to their claim, the ruling did not truly stand for the proposition that a lack of knowledge vitiates an otherwise unconstitutional invasion of privacy.  In a Catch-22 of sorts, the plaintiffs' ignorance of who was being monitored (a component of their objection to the surveillance) ended the lawsuit by making it impossible for them to prove they had a personal stake in the case.  Knowledge that one's privacy is invaded, in other words, is not substantively necessary but is procedurally required for a successful cause of action against the surveillance.

Though I believe the Supreme Court would say that knowledge is not necessary to experiencing a Fourth Amendment harm, the question is nonetheless a vexing one.  If you are being watched, your emails read, and your phone calls recorded, but you never even suspect any of it, in what sense are you truly harmed?  One easy response is that people who watch and listen to your private moments can now abuse what they learn.  They can blackmail you or expose you to public ridicule, or they can steal your identity and get you into trouble.  This is all admittedly true, but what if they do not do any of that?  What if they simply watch, listen, and absorb your private information but do nothing that will concretely alter your life in any other way?  And what if you never learn of their spying?

The 1993 movie Sliver (and presumably the book as well, though I have not read it), starring Sharon Stone and William Baldwin, considers these issues.  A landlord has wired an entire apartment building so he can watch everything that goes on in the apartments.  The tenants, however, do not know about the surveillance.  There's more to it (a romance, murders, etc.), but one of the questions posed by the movie is whether the landlord's monitoring alone -- assuming he does nothing harmful with the information -- invades the privacy of the monitored people.  If you do not in any way suffer from the invasion of your privacy, then perhaps you have not really suffered an invasion of privacy at all.

Eventually, as it turns out, at least one person (the character played by Sharon Stone) learns of the invasion of her privacy, and when she does, she  unequivocally experiences a privacy harm because of it.  And maybe this helps provide an answer to my question.  If the government can spy on people without any basis (and without people having the power to find out whether they are the targets of surveillance), then two things will  occur:  first, there will inevitably be those people -- like Stone's character -- who find out about the surveillance, and they will suffer privacy harms; second, large numbers of people will learn that such spying happens, and many (including more than just the people subject to it) will suspect that they are being watched.  Ironically, then, where there is not adequate protection for privacy, the harms that accompany invasions of privacy -- self-consciousness, anxiety, a chilling of spontaneity and free expression -- may well come to pass for people who have not in fact been monitored at all.  When monitoring is both pervasive and clandestine, everyone eventually becomes a victim of unreasonable searches.  Whether you are truly harmed by an unknown invasion of your privacy may thus prove to be purely an academic question.

Tuesday, September 20, 2011

What's Too Much Information for Students? Guest Post by Lisa McElroy

Last week, reading Mike and Neil’s posts about their memories of 9/11, I thought a lot about whether I should blog about my own. At first, I decided not to, because the official story, the one my students know about how I experienced that day, is likely quite similar to the stories of many other law professors – and frankly not all that interesting.

I had to tell my students that the attacks on the World Trade Center and the Pentagon had occurred.  I was in my car when I heard, driving the eighty miles from my home north of Boston to my job at Roger Williams Law School in southern Rhode Island, listening to NPR and drinking my coffee.  I was about half an hour from school when the news of the first plane hit the airwaves; I was just pulling into the parking lot when the anchor announced that America was under attack, as evidenced by the impact of the second plane.  I walked into school through the basement cafeteria and stopped to watch the television footage on the large flat screen on the wall.  It was crowded.  People were crying.

But then I had to get to my 10:00 class.  And, as is the way for so many young adults, several of my students showed up a few minutes before I was scheduled to begin going over IRAC, having just rolled out of bed.  They hadn’t turned on the news, and many of them still didn’t have cell phones at the beginning of 2001.  It was my job to tell them what had happened.  We never got to IRAC. 

But that night, I went home to my family.  And that was when my real 9/11 story began.

I missed several days of work nine weeks later, in mid-November, just before my students’ memos were due and I was scheduled to be conferencing with them.  I told my students that I was ill, that I had been in the emergency room and was now on doctor-ordered bed rest, but I didn’t tell them what had happened.  Perhaps unsurprisingly, I got emails from several of them asking whether there was any chance we could have our conference anyway, telling me that they were too anxious about the memo to reschedule.  And also unsurprisingly, I was pretty upset when I got these emails – I viewed these students as insensitive and self-centered.  But, looking back, I wonder if my feelings were justified; after all, I hadn’t told them the full story. 

Five years after the 9/11 attacks, I wrote about my “real” 9/11 story in Parenting magazine (a mainstream print publication aimed at mothers of young children), but I had several reasons for choosing not to share the difficulties I experienced that day and that fall with my students.  

The biggest reason?  I didn’t tell my students what was going on with me during that fall of 2001 because I thought I shouldn’t, because I thought that professionalism required me to maintain some kind of boundaries, because I thought that my personal life wasn’t relevant to my students’ legal education.  It wasn’t that I felt I needed privacy; it was that I felt that it would be inappropriate to burden my students with my problems. 

As the years have passed, I’ve reflected a lot on the events that occurred in my family’s life around 9/11, but I’ve also had a lot of opportunity to reflect on my teaching style, as well as on commonly held views about what makes for good teaching.  And so this post isn’t really about what happened to me in the weeks following 9/11, but about how I should have processed and communicated my feelings about those events.

At least one legal scholar has offered her own thoughts, at least in considering the relationship between clinical professors and students.  Kathleen Sullivan (the late Yale Law School clinician, not the former Dean of Stanford Law School of the same name) commented in an article almost twenty years ago, “Perhaps it is because of the simultaneous need for distance in teacher-student interaction, that defining the parameters of [non-sexual] intimacy clinical teacher[s] and students may share is such a complicated task.  For example, self-disclosure can be an important pedagogical tool for the clinical teacher, but so is withholding disclosure.  There are times when the teacher should not share her experience, but listen for that of the student.”[1] 

For the professor making the decision about what to disclose, law school hierarchy matters.  Part of my confusion about what to disclose to students about my own life stems from the fact that they are adults, not children.  While psychologists have studied undergraduates’ opinions about professors who self-disclose (as the literature calls it), few, if any, have looked at how adult learners like law students perceive the issue.  On the one hand, our students are not kids; they know that bad things happen to everyone, including their teachers.  On the other hand, as Sullivan notes in her article, we professors are still steering the ship, even if we do not endorse the “sage on the stage” approach to teaching.  Does that power dynamic dictate some sort of professional distance?

Context matters, too.  Psychologists have looked at (and Sullivan commented on) how and when disclosures take place.  As Sullivan noted, sharing baby pictures with her clinical students over coffee is probably different from passing them around a large lecture class.  One-on-one meetings with students might be more “intimate” (as Sullivan uses the word) than class settings. 

And, of course, content matters.  Among the professor friends I’ve asked, those who share about their personal lives don’t tell students about the big personal stuff, or at least not the big stuff that’s happening now.  But one professor I know tells her 1L  class each October or November that she hopes they have good support systems and encourages them to seek professional help if they need it, as so many law students find they do – she should know, she explains, because she was diagnosed with depression in law school.  Another professor frequently uses photos of her kids in PowerPoints to illustrate legal concepts.  Still another draws on her interest in fitness and adventure racing to inspire her students to “work out” their minds.  And these three professors are some of the most dynamic (and most respected by students) I know.

Me?  I tend to straddle the line.  As a young woman who’s balancing career and family, I choose to be pretty transparent about the I Don’t Know How She Does It nature of my life (and that of any law professor who’s trying to parent and publish).  If I have to reschedule a class so I can take a kid with the chicken pox into the pediatrician, I tell my students.  Last year, when three colleagues and I went to a Lady Gaga concert, I shared.  When I lost 30 pounds one summer on Weight Watchers, I let that information drop (in the context of “Boy, do I know what it’s like to do something really hard.”).  I have no issue telling students that I cheer for the Red Sox and follow the Supreme Court religiously.

But I’ve never told my students when I’ve had a fight with my husband or when my daughters have experienced conflict relating to the joys of entering adolescence.  I didn’t mention the unbecoming-to-a-law-professor miniskirt and sequined top I wore to the Lady Gaga concert.  And, no, I didn’t tell the students that the reason I had postponed their conferences was because I had a miscarriage and needed emergency surgery.  Should I have?  According to Sullivan, no.  At least in 1993, she thought, “[A]ssuming the value of self-disclosure as a pedagogical tool, there are limits on the kinds of information that one shares with one’s students.  One does not, for example, tell one’s students about one’s miscarriages . . .”[2]

What’s the right level of self-revelation for law professors?  Where do we draw the line?  When do we help students bond – and therefore learn – when we share information about ourselves?  And when do we hamper learning and become – let’s just say it – annoying and unprofessional?  I’m interested in hearing your thoughts. 

[1] Kathleen A. Sullivan, Self-Disclosure, Separation, and Students:  Intimacy in the Clinical Relationship, 27 Ind. L. Rev. 115, 127 (1993) (emphasis added).
[2] Id.

Monday, September 19, 2011

Romney's Federalism Tightrope

By Mike Dorf

During last week's Republican Presidential debate, Mitt Romney tried to pin Rick Perry down on Social Security.  Because Perry had written in his book that Social Security was (in his view) constitutionally dubious, Romney argued that Perry must want to eliminate Social Security.  Perry parried Romney's thrust with a the following Texas two-step:

1) Social Security has been on the books for 70 years so it's a fait accompli (a "slam dunk" in the non-Frenchified world of Perry-speak) that won't be taken away from current recipients and those nearing retirement; but 2) For the long term, we ought to rethink Social Security, and one way to do so would be to take responsibility for old-age public pensions away from the federal government, and handing it over to the States.

At that point, Romney announced that he thought it would be better to leave Social Security as a federal program.

As I noted in my blog post on the Romney-Perry exchange last week, I thought that Perry did better atmospherically.  I assume that typical Republican primary voters (like voters more generally) were not following the details of the argument but were instead seeing who seemed more personable and who connected better with their values.  Certainly for the Tea Party audience, that was Perry.  Post-debate pontificators have argued that Romney's argument will play better with the more moderate general electorate.  I don't doubt that, but I do want to take this opportunity to ask whether Romney has a consistency problem.

Romney's website advocates repeal of the federal Patient Protection and Affordable Care Act and its replacement with a system of block grants to states to engage in experimentation with respect to funding health care for the poor and the uninsured.  That's obviously the right move for Romney politically.  Having signed the Massachusetts law on which the federal PPACA is pretty closely modeled, Romney has to argue that he's not being an opportunist in now opposing the latter.  Rather, health care is a state responsibility, he says, so that the Massachusetts approach may work for Massachusetts but it shouldn't be imposed on other states.

But how does Romney reconcile his view that Social Security should be a federal program with his view that Medicaid and providing for the uninsured should be state programs?  One possibility might be that Social Security is simply a matter of collecting money and paying out checks, which can be accomplished with a one-size-fits-all federal program, but that health care is a much more complex good, for which one needs more state-by-state variation.  That's at least a prima facie plausible claim, but it has one enormous problem: Romney does not in fact advocate converting all federal health insurance programs into state programs.

In particular, Romney appears perfectly comfortable leaving Medicare a federal responsibility, as it is now.  The word "Medicare" does not appear at all on the health care section of his website.  Romney's website does discuss Medicare under the heading of "fiscal responsibility," where he advocates unspecified "reforms" of entitlements, including Medicare, while assuring voters that these reforms "should not reduce benefits for current seniors."

Accordingly, it is nearly impossible to resist the conclusion that Romney's opposition to the PPACA is in fact purely opportunistic. Romney's embrace of states' rights includes a rule-swallowing exception for the gigantic federal programs that are popular among seniors and the middle-class.

Whether Romney's lack of principle on these issues will harm him politically remains to be seen.  Voters generally do not place a lot of weight on principled federalism. If they support a position, they tend to support it at the federal and state level, and if they oppose it, they tend to oppose it everywhere.  So perhaps Romney will be able to walk this tightrope after all.

Friday, September 16, 2011

Lowered Expectations: The Way Back for Obama?

-- Posted by Neil H. Buchanan

[Note: In response to a comment on my post last Thursday, I promised to write something today about the cross-national evidence that supposedly supports the idea of "expansionary austerity," i.e., economic growth following cuts in government spending. I have decided to put off that discussion for another day in the near future.]

The standard pattern in presidential elections during the last thirty years or so has been for the Democratic nominee to distance himself from liberal positions and groups, especially labor unions, until the last two weeks of the campaign, at which point he starts to sound like the love child of Walter Reuther and Michael Moore. I know that some people would characterize this as a matter of rallying the base after (dishonestly) trying to sound like a centrist, but it is difficult to characterize any of the Democratic nominees post-McGovern (with the possible exception of Mondale, although I think even that is a stretch) as comfortable with the liberal wing of the party.

For example, when Michael Dukakis suddenly rediscovered liberal populism in the waning weeks of his ill-fated campaign in 1988, he started to surge in the polls; but he had squandered a 17-point post-convention lead essentially by refusing to defend any liberal position -- much less to call himself a liberal. (Remember his non-response to "the L-word"?) That goes far beyond strategic distancing.

It is now clear that President Obama's chances of re-election are becoming more daunting by the day. The burning question is whether there is a way for him to regain any momentum at all, or if he has so badly botched his presidency that there is nothing left for him to do. With the Republican field showing no signs of becoming any more sane -- or even coherent -- many Democrats apparently are hoping that Obama can win as "the candidate who is not certifiable." It is obvious, however, that a chronically weak economy has made all too many voters open to nearly anything that sounds different and angry. Obama needs an affirmative case for his re-election.

The most recent blip of hope among Democrats was based on Obama's speech last week, in which he announced his new plan to expand employment, the American Jobs Act. Commentators in the center and on the left immediately praised the speech, saying that Obama seemed to have found his fire once again. Even the praise, however, was somewhat muted, as nearly everyone seemed to be saying, "Yes, but is this just another false start, to be followed by more capitulation and passivity?" (I have to admit that I did not even watch the speech, because I refuse to get back on that roller coaster.)

The comedian Andy Borowitz perfectly captured the disaffection with Obama, writing in "The Borowitz Report" earlier this week that the Republicans had agreed to allow Obama to create one part-time job, with Obama calling their proposal "an example of what can be accomplished when we put aside partisan differences." Borowitz added that "[i]n order to secure funding for the part-time job, Mr. Obama had to cave to a series of Republican demands, including tax breaks for second homes and third wives."

The narrative is now unmistakable: Obama has no spine, and even when he acts as if he is going to grow one, no one believes that it will happen. That narrative was already gelling as the summer began, but Obama's complete bungling of the debt-limit fiasco set that negative assessment in stone. I wrote over the summer that it would have been a huge (but worthwhile) risk for Obama to invoke "the constitutional option" during the debt-limit standoff, but we now see in hindsight that the self-imposed damage from his spinelessness was much worse than any of us ever could have imagined.

One possible response would be for Obama to take the "last two weeks" strategy of recent Democratic nominees as his strategy for the next fourteen months. If the Republicans say government can and should do nothing, Obama could take his own rhetoric from Thursday night seriously, and propose concerted government action to turn the economy around. Nothing he proposes will pass anyway, so the choice is between continuing to propose things that sound centrist and reasonable (a strategy that has failed utterly so far), or moving toward an affirmative liberal agenda that can be defended on the merits. It doe not really matter that Obama has no apparent affinity for a strong liberal program, because none of the recent Democratic nominees did, either. He needs votes, and frankly, it is becoming clear that standing for something -- even "big government" -- is a more promising route to votes than standing for more compromise with implacable foes.

One could argue, however, that I have missed the headlines. Obama's jobs plan, we are hearing, was just the kind of bold plan that people like me have been awaiting, if only I would sit up and take notice. The editorial page of The New York Times is very impressed with the plan, having written two very strong editorials this week (here and here) extolling its virtues. They point to estimates that the plan could, if it were somehow passed, increase employment by 1.3 to 1.9 million jobs next year.

That many jobs are not to be dismissed, but a little perspective is in order. We are talking about a country with a labor force of more than 150 million people, meaning that the unemployment rate might go down by a little more than (or a little less than) 1% if the Obama plan were adopted. Eight percent unemployment is surely better than 9%, but that is hardly a strategy for electoral success. And given that we are talking about proposals that will never be enacted, why not propose something that could be defended as big enough for the task at hand?

Why, then, are the editors of the Times so excited? Even Paul Krugman, one of Obama's fiercest critics, wrote that the proposal is "much bolder and better than I expected. President Obama’s hair may not be on fire, but it’s definitely smoking" -- this, even after Krugman had detailed the weakness and lack of ambition of Obama's proposal.

If Krugman had merely said that the bill was "better than the worthless nonsense I've come to expect from these guys" (phrasing that is hardly beyond Krugman's level of bluntness), that would be one thing. Yet he actually went on to say that, "clearly and gratifyingly, [Obama] does grasp how desperate the jobs situation is." Having just told us that the proposal is far too small and includes tax cut proposals that are of questionable expansionary value, at best, it is difficult to see how Krugman reached that conclusion.

We thus have a new variation on the expectations game in politics. Normally, spin-meisters try to manipulate expectations (before a debate, for example), to try to lower expectations and thus make their candidate's ultimate performance look good. Here, even liberal and left-leaning commentators have become willing to adjust their expectations radically downward. The editors of the Times even denied that Obama had followed his usual pattern of "trimming his ideas to what he thinks he might possibly get," expressing their "relief to see him demanding that Congress do what the country really needs."

The late, under-appreciated comedy show "MadTV" had a series of skits called "Lowered Expectations" (one example here), about a dating service for people who were willing to settle for losers. Apparently, the new move for Obama supporters is simply to lower their expectations. It is one thing, however, to lower one's expectations about what is achievable in politics, but it is another thing entirely to convince oneself that Obama is bold and visionary, even while he continues to propose much-less-than-half-measures. Unfortunately, what Obama is willing to propose is unlikely to reignite support among voters. And even if he does somehow win next year, are we really willing to let the bar be set so low?