Friday, August 31, 2012

Who Is This 'We' That You Speak Of?

-- Posted by Neil H. Buchanan

Today, I offer a simple observation: One of the themes at the Republican convention this week -- "We Built It" -- is (almost surely unintentionally) deeply self-revealing.

For those of you who might somehow have missed it, the right-wing universe went nuts a few weeks ago when President Obama said the following: "If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you've got a business -- you didn't build that. Somebody else made that happen. The Internet didn't get invented on its own. Government research created the Internet so that all the companies could make money off the Internet. The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together." (There is actually additional pertinent material in that part of the speech, but this selection does the broader point justice.)

Four words, "you didn't build that," led to the usual echo-chamber denunciations, claiming (again) that Obama hates capitalism and all that is right with America. More than being just a one-week talking point, however, the manufactured outrage over Obama's comments has actually become the focal point of the Republican convention. This is because, apparently, it is simply unacceptable to tell American businesspeople -- I'm sorry, the "job creators" -- that they are not the independent heroes that they evidently think they are. Pointing out that "when we succeed, we succeed because of our individual initiative, but also because we do things together," is now the equivalent of imposing 5-year plans on collective farms. I mean, he did not even forget to credit "our individual initiative" -- and he put it first, to boot!

In an otherwise excellent column in the Times yesterday, Nicholas Kristof argued that Obama had made the point "inelegantly," and he pointed to a more forceful version of the argument from Elizabeth Warren. Yet there was nothing inelegant about what Obama said. One could have added the fifth word "alone," I suppose, but that was abundantly clear from the context. One of the defenses of Obama (from, among others, Paul Krugman) has been that he was supposedly referring to his previous sentence, meaning that he was only saying that businesspeople did not build roads and bridges. This strikes me as a wholly unnecessary narrowing of Obama's point. He was not just talking about roads and bridges. He was talking about, as he put it in the previous sentence, "this unbelievable American system that we have that allowed you to thrive." Where is the hating America part?

What is especially odd about this is that the basic point -- that this is a society, not anarchy -- is so unremarkable. Obama was referring to nothing more than the fundamental fact that because economic transactions are predicated on a legal system to enforce contracts and all that, which requires a government, the government is a necessary condition for a modern (or even, except in the extreme case, a pre-modern) economy to exist.

Yet this is evidently shocking news to right-wingers. A conservative journalist, writing for The Atlantic, recently became tied up in knots trying to explain why Obama's statement was ... just ... so ... awful. His confusion is almost endearing, and readers with time on their hands might enjoy trying to unravel his many errors. Even so, the author actually stumbles into stating the basic point correctly, saying: "Obama believes that government is the pre-existing condition for the creation of prosperity." What he cannot get his head around is that this is not just something that Barack Obama believes, but that it is a fact about the world. Of course government is the precondition. Without it, you cannot have economic prosperity. (You can have, at most, some gang-like enforcement of rudimentary trades. But without government, nothing remotely resembling prosperity is possible.) There are, as Obama also acknowledged, other necessary conditions, but the precondition of economic prosperity is the rule of law, and therefore government (and other people).

Perhaps it is not so shocking that there was a Republican freak-out about this innocuous statement. When Obama is accused by his opponent in this election (not, that is, by some Republican back-bencher, or some no-name blogger) of "apologizing for America," without any evidence that he has ever done so, we know that we are living in a world where there need not be any connection between facts and outrage.

As a friend pointed out to me recently, however, the particular wording of the Republicans' emphatic (and endlessly repeated) response contradicts their own outrage. "We built it" is exactly, after all, what Obama said. "We built them" could at least be defended as collectively taking credit for creating all of the businesses in the country, while still implying that each business was built by that business's owner and by nobody else. But we built it? Again, that is what Obama said. More than one person contributed to the success of every business, and we Americans should be happy that we have a government and society that makes such prosperity possible.

There is, however, at least one other possible way to interpret the Republicans' new slogan: They are finally admitting who they are, and whom they represent. When they say "We built it," they mean specifically to exclude everyone else whom President Obama included as deserving part of the group credit for the success of American capitalism. Workers? Forget it. Teachers? Are you kidding? Police officers? Not any more. Courts (and thus lawyers)? Horrors! If the collective "we" is meant to exclude all of the people who are part of the modern economy, who is included? The backers of the modern Republican Party, of course.

In other words, the 2012 Republican convention marks the time when Republicans simply admitted that "We are the 1%" -- nothing more, although probably a lot less. We wealthy people did it, and the rest of you can go cry about it. Not exactly a strategy for winning elections. Luckily for them, they can buy a lot of advertising to describe how well they prevented the enactment of any policies to help the economy recover.

Thursday, August 30, 2012

A Fish Called Ryan

James Laurie/

-- Posted by Neil H. Buchanan
In the classic comedy film "A Fish Called Wanda," a character named Otto (played perfectly by Kevin Kline) ostentatiously reads books and makes a very big deal about his knowledge of philosophy. He is, however, actually a dimwit, and quite defensive about it. At one point, Otto says to Wanda (Jamie Lee Curtis): "Don't call me stupid."

Wanda: "Oh, right! To call you stupid would be an insult to stupid people! I've known sheep that could outwit you. I've worn dresses with higher IQs. But you think you're an intellectual, don't you, ape?"

Otto: "Apes don't read philosophy."

Wanda: "Yes, they do, Otto. They just don't understand it."

Paul Ryan is no ape. He seems to understand (at least at a basic level) the limited amount of philosophy that he has actually read, and he has spent his political career -- which is to say, his entire adult life -- trying to figure out how to implement policies consistent with his understanding of what he has read (or, at least, the parts that he likes. Ayn Rand's views on abortion? Not interested.)

In my new Verdict column, published today, I take some pains to point out that Ryan is not a stupid man. Making the obvious comparisons to Sarah Palin and Dan Quayle, I note that Ryan is clearly their intellectual superior, that he "is someone who knows the language of Washington policy discussions, and that he does not embarrass himself by trying to discuss actual policy questions."  [Note that my wording in the Verdict column was imprecise.  I should have written "that he does not embarrass himself when he tries to discuss actual policy questions," which would have made it clearer that he does try to do so -- in fact, that is his stock in trade -- and that doing so does not end up making him look like a fool.]

Why damn Ryan so completely with such faint praise? Because the bar has been moved so low in Beltway discussions about Republican politicians that it is necessary to distinguish between the genuine fools and merely those middle-weights with unsupportable pretensions to intellectualism. In today's column, therefore, I compare the Ryan Bubble with Newt Gingrich's run as the DC commentariat's "ideas guy." Long-time readers of Dorf on Law know that I have long been fascinated by the Cult of Newt. (See my most recent post on that subject here, the first paragraph of which contains links to previous posts.)

Neither Ryan nor Gingrich is a fool. In part, they set themselves up for ridicule simply by puffing themselves up to be something that they are not. They are like merely competent college quarterbacks who think they are Joe Montana and Tom Brady.

The problem, however, goes beyond that simple matter of not living up to the hype. Not only do they not have any new, innovative, or deep ideas, but the ideas of others that they do espouse are awful -- based on nothing more than encrusted ideology (government bad, business good), guaranteed to make the economic situation worse, and directly aimed at harming everyone but the most comfortable people in our society.

The bulk of my Verdict column is not, however, devoted to explaining what is wrong with Ryan's policies. (That was the subject of my previous Verdict column.) Today's column said, in essence: "Given that Ryan doesn't deserve his reputation as an honest, idea-driven, brilliant policy analyst on a quest to reduce deficits, where did that mythology come from?" My basic answer came in two parts. The first was that the deficit-obsessed triangulators in the Democratic Party (including, of course, President Obama) wanted to have a Republican budget-cutter to use in their own quest to satisfy the demands of fiscal orthodoxy.

My second hypothesis was that there is an asymmetry in how "smart guys" are anointed in the Beltway press, an asymmetry that mirrors the key difference in the two major parties: Republicans have a unified ideology, and Democrats do not. The punditocracy, however, conflates the recitation of ideological cant as "having ideas," whereas genuinely centrist pragmatism of the sort practiced by all Democrats and liberals in this country cannot easily be grouped into something that sounds grand and pretentious. (As I noted earlier this year, when Paul Krugman and Joseph Stiglitz are "the left" in one's universe -- to say nothing of Elizabeth Warren or, for that matter, academics like me -- then you are in a very right-oriented universe.)

If this hypothesis is true, that would mean that the press treats even the smartest Democrats as non-intellectuals simply because they are not ideologues. It apparently sounds smart to invoke grand-sounding philosophical absolutes, even if the speaker is merely reciting a partial version of the Cliff's Notes, whereas the Washington press corps is unimpressed when someone says, "There are no absolutes. Here are some ways to think about the real world of incomplete knowledge and uncertain outcomes."

Yet another possibility, which I did not mention in my column today, is that reporters and pundits are simply working from the presumption that Democrats are smarter than Republicans -- a presumption that makes it remarkable when Republicans seem to be smart, and that makes it necessary to be "balanced" by celebrating even middling minds like Ryan's.

Where would such a background presumption come from? I recall the annual skit show when I was a first-year graduate student in economics, where a group of guys performed cover versions of Beatles songs (with painfully bad econ-oriented lyrics substituted for the real thing). When they introduced themselves, the guy portraying George Harrison said, "I'm the intellectual, so I guess that makes me a Marxist." In a room filled with very smart, centrist people who had aggressively marginalized the only actual post-Marxist in their ranks, this line still drew a big laugh. Why? Because of the deeply-held presumption that the real intellectuals have always been revolutionaries, whereas the people who support the status quo are lesser lights currying favor with the rich and powerful.

Without a real Left in the U.S., the very centrist Democrats (who only do the bidding of "the 1%" two-thirds of the time) are then thought to be the anti-establishment intellectuals. The Republicans' constant attacks on colleges and universities reinforce this notion, with even natural scientists now strongly supporting Democrats over Republicans (quite understandably, given the Republicans' increasing rejection of science).

This is all also a bit paradoxical, because the label "smart guy" is thought to be good when applied to Republicans like Ryan and Gingrich, but equivalent to "out-of-touch intellectual" when applied to Democrats. The Democrats end up running away from whatever intellectual claims they might have, while even the biggest poseurs among Republicans get a free pass.

One final point. In my column, I wrote that "Mr. Ryan is turning out to be an unprincipled politician who is willing to shade his positions opportunistically." I considered providing links to articles demonstrating the all-too-obvious truth of that statement, but I decided that there were just too many examples from which to choose. (His speech at the Republican convention last night, of course, removed all doubt.) After the column was put to bed, however, Paul Krugman's blog linked to a column by a pundit who had initially embraced Ryan but who had just written "Dear Paul: Why I'm breaking up with Paul Ryan" in Slate.

As a statement of disillusionment with Ryan -- admitting that the author had believed the hype, but that he now sees that Ryan is a fraud -- the column was a bill of particulars beyond compare. In only two weeks, it had become clear to the author that the received wisdom on Ryan was nonsense.

Beyond the satisfaction of seeing a believer in "fiscal responsibility" who would like to see "a movement of young people to control runaway spending" lose faith in his idol, however, I found the column deeply depressing. This guy is, after all, part of the DC commentariat that the Democrats have been trying so assiduously to win over. And why is he disillusioned with Ryan? Because he "didn’t like your vote against the Simpson-Bowles debt reduction plan." Uh oh. There is much more, but his peroration really captures what is wrong with the conversation in Washington: "I still see promise in you, Paul. I love it when you challenge the rhetoric of public 'investment.' I admire your fixation on the Grim Reaper of debt. I’m sympathetic to your argument that student loans and insurance subsidies distort markets. I swoon when you crusade against the generational greed and fiscally hollow promises of the entitlement state."

Could there be a clearer example of the kind of arrogant ignorance that counts for fiscal insight among DC pundits? Scare quotes around the word investment, when it is engaged in by the government? Why notice things like education, highways, the internet, or basic scientific research when you just know that government is bad? Student loans distort markets? Wow. I did not know that anyone believed that there are no positive externalities to higher education. Apparently, the market for higher education would be efficient if only so many people did not have access to it. And let us not even get into the whole "generational greed" thing again.

My point is that this is one of the guys who contributes to the "serious conversation" in Washington. There are dozens, if not hundreds, of people like him, working from a set of presumptions that simply reject the idea that anything the government does can be good. They make The New York Times's Thomas Friedman look deep. And this is who Obama and the Democrats are trying to please (or at least mollify). Trying to please those who can never be pleased is a sure path to disaster. It is a fool's errand, and Obama must break out of this trap.

Wednesday, August 29, 2012

Ann Romney's Speech: Not Enough Anecdotes!

By Mike Dorf

Ann Romney's speech last night at the Republican National Convention was widely expected to be an effort to "humanize" her husband.  Although it was a well-crafted speech in some ways, I do not think it succeeded in that task.

The speech was pretty good as a statement of the case for the Republican ticket.  The argument in the speech went like this: 1) These are tough times; 2) Mitt Romney's success in the private sector and as governor of Massachusetts show that he can successfully lead the country; and 3) The way to do so is by unleashing the power of the private sector.  That's it.  I don't agree with propositions 2) and 3), but the argument for the Republican ticket isn't meant to appeal to the likes of me.  It's meant to appeal to swing voters.

Okay, but what about the humanizing part?  To begin, you know that you are playing catch-up when your candidate needs humanizing.  And despite the recent efforts of the Romney campaign to argue that the reason Romney has the negatives he does is that he has been the object of negative ads, the problem is obviously deeper.  As numerous commentators have pointed out, the case for Romney relies chiefly on things he can't talk about.  He can invoke his experience at Bain only in the vaguest terms because close examination of that experience shows him, at best to be making a ton of money by making companies leaner and at worst, to be making a ton of money by bleeding those companies and their workers dry.  Likewise, he can only invoke his tenure as Mass governor vaguely because his actual record as a moderate would alienate his party's base.  And the most logical way to show him not to be a pitiless capitalist would be to emphasize the charitable good works he has undertaken on behalf of his church, but because his campaign fears anti-Mormon prejudice, that too must be glossed over.

So what could Ann Romney say?  Here's what she did say: 1) Mitt has been a compassionate husband and good father, whom she still loves; 2) Mitt worked really really hard at his job; 3) Although Mitt and Ann are fabulously wealthy now, they have had struggles in the past and so they empathize with people facing tough circumstances; and 4) Ann Romney understands that tough times hit women especially hard and so Mitt, who is regarded as a good guy by Ann, must understand that too, and thus he is pro-women.

That's not a bad humanizing narrative, except for one gigantic omission: There were virtually no concrete stories in it.  We learned that Mitt was nervous when he first met Ann and that he was nice to her parents.  Great.  That probably shows that he's not a sociopath.  But Ann needed to do more.

Here is the closest she came to providing details of how Mitt is a really decent person.  She said:
He has tried to live his life with a set of values centered on family, faith, and love of one's fellow man. From the time we were first married, I've seen him spend countless hours helping others. I've seen him drop everything to help a friend in trouble, and been there when late-night calls of panic came from a member of our church whose child had been taken to the hospital.
I believe Ann Romney was telling the truth.  But "a friend in trouble"?  A "child" who "had been taken to the hospital"?  Let's assume that Ann didn't want to betray any confidences.  Still, she could have given some more details.  Tell us the kind of trouble the friend was in.  Had he fallen behind in his mortgage payment.  Did Mitt lend him money, or help him draw up a new budget?  Was the child in a car accident?  Did Mitt drive one of the older Romney boys over to the house of the child's parents to babysit for a sibling so the parents could stay over at the hospital?  Again, I am not in any way doubting that Ann Romney was alluding to real events.  But in order for them to have emotional content, there needs to be something about the events that makes them feel real.  A story needs details.  They teach my daughters that much in elementary school!

In the end, the parts of Ann Romney's speech that seemed aimed at humanizing Mitt relied to a great extent on a personal appeal.  "I know and love Mitt," she effectively said, "so you should just trust me."  The difficulty with this appeal is that most Americans don't know much of anything about Ann Romney, so why should they trust her?  Listening to the speech, they will have gleaned that she has MS and had breast cancer, which certainly makes them/us sympathetic to her.  But prior to the speech, I'll bet that the best known facts about Ann Romney relate to her possessions, which include two Cadillacs and an Olympic dressage horse.

So, with Ann Romney having failed to humanize Mitt, will he lose the election?  Not necessarily.  Al Gore was never really humanized for the electorate in 2000 (except through his embrace of Tipper, which mostly creeped viewers out), and yet he won the popular vote.  But it is something of a mystery to me that Ann Romney's speech did not include a whole lot more charming anecdotes aimed at showing that Mitt is--to use the cliche--the kind of guy that voters might want to have a beer with (albeit a non-alcoholic beer for Mitt).

Tuesday, August 28, 2012

Do Republicans Think Capital Gains Are Like Growing Potatoes?

By Mike Dorf

With the Republican Convention postponed by a day, this may be a good time to consider one of the main  divisions between Republicans and Democrats over the last generation: views about the appropriate size of the capital gains tax.  Republicans favor keeping the capital gains tax rate low or lowering it still further--in some proposals, to zero.  Democrats, by contrast, typically favor taxing capital gains at the same rates as ordinary income is taxed.  Here I want to explore one of the claims sometimes made in favor of a low or zero capital gains tax rate: That people whose gains are being taxed already paid tax on the income that formed the basis for the original investment that now has experienced a capital gain, and so it is unfair or "double taxation" to tax them on capital gains.

This claim is pretty clearly nonsense, as explained very nicely here.  I can illustrate relatively simply.  Suppose Smith is an accountant who earns $100,000 in 2012.  Let's suppose further that he manages to save $10,000 of that money.  That savings is "after tax."  Now let's imagine two things he might do with it:

1) He could invest the $10,000 in the stock market.  When he sells the stock shares, he will be taxed on any gain over the original investment.

2) He could put the $10,000 in an interest-bearing account at a bank.  He will then be taxed each year on the interest the bank pays.

Under current law, the interest is taxed as ordinary income, whereas the stock investment will be taxed at the (typically) lower capital gains rate.  (I say "typically" lower because the marginal tax rate on Smith's interest income will depend on his other income, his deductions, and so forth, but earning around $100k/year, his highest marginal tax rate on ordinary income will likely be higher than the 15% maximum rate for capital gains.)  That makes the stocks a better investment along three dimensions: lower tax rate; ability to time realization; and compounding of gains before tax rather than after tax.  To be sure, the stock investment carries risk, whereas the bank deposit is guaranteed by the FDIC.  But there's no evidence that the advantages for capital gains are calibrated to compensate for the risk.  Nor does it seem that the tax advantages for taking on the risks of capital investment make sense from a social perspective.  Why would the government be encouraging riskier rather than safer investments by individuals?  We might think it's good for there to be investment, but we get that anyway when the bank invests or loans out the money that Smith deposits under scenario 2.

In any event, put aside whether the particulars are justified or not.  The larger point is that in both scenario 1 and scenario 2, Smith is investing post-tax income, so that the claim that he has paid already is not in any way limited to capital gains.

Indeed, the claim is not even limited to investment income in any conventional sense.  Suppose that instead of investing the $10,000, Smith pays $10,000 for a series of classes to enable him to become a better accountant.  As a result of the class, Smith earns $120,000 in 2013, up from 2012's $100,000.  Is Smith able to deduct the $10,000 for the class as a business expense?  Sure.  But Smith cannot say that he shouldn't have to pay tax on the additional $10,000 bonus income on the ground that he "already paid" taxes on the money that enabled him to take the class that enabled him to earn the extra money.  He hasn't yet paid a dime of tax on the second $10,000--just as in scenarios 1 and 2, Smith hasn't already paid any tax on the gain he makes in the stock market or from the interest on his savings account.

So the "already paid" idea is essentially fraudulent.  And surely the likes of Mitt Romney and Paul Ryan must realize this, right?  So why do they and their right-wing backers keep peddling it?

One likely answer is that it benefits the plutocrats who bankroll the Republican Party to keep capital gains taxes low and so they'll say whatever sounds like a justification to the average voter.  And because the average voter will find the details of the foregoing argument too difficult or boring to follow, the already-paid/double-taxation line works.

But that's at best an incomplete explanation.  After all, under the logic I've just expounded, the Republican capital gains rate slashers could and would say just about anything.  They could say that taxing capital gains at ordinary income rates is triple taxation, or that it violates the constitutional requirement that taxes be apportioned, or that it's socialism.  Why the particular claim of already-paid/double-taxation?

The closest I can come to answering that question is the following hypothesis: The Wall Street wing of the Republican Party believes that capital gains are, in some Platonic sense, not income.  Sure, they understand that the Internal Revenue Code regards capital gains as income, but they don't.

Here's an analogy that may be helpful, or at least colorful.  Suppose that Jones plants a small seed potato and then three weeks later digs up a much larger potato.  Has Jones gained potatoes?  Well, in one sense, no.  He had one little potato.  Now he has one big potato.  So he still has only one potato.  But in another sense, well, yes, of course Jones has experienced a potato gain.  He now has much more potato-stuff than he did before.  I believe that the ideological opponents of the capital gains tax (like Paul Ryan) take the first view--and think of capital investments as similar to potatoes.  This view makes (some) sense of the already-paid/double-taxation idea.  Ryan et al think: "A capital gain doesn't add anything to what I had before.  It's just that what I had before but just grown bigger.  I had a thousand shares of Exxon/Mobil before and that's still what I have, even if it's worth more."

Now notice that I haven't said that thinking of stock certificates as like potatoes is sensible.  Why not think of them as more like apple trees?  You plant a seed; you grow a tree; you get more apples, not just more apple-stuff.  But judging by the apparent sincerity with which Republicans spout the capital gains line, it strikes me that they actually believe what they are saying, and the potato analogy is the closest I have been able to come to figuring out how that could possibly be.

Hence, if I were moderating one of the Presidential or Vice Presidential debates, I'd begin by asking the Republican candidate why he thinks that a share of stock is more like a potato than an apple.  And that is reason number 749 why I won't be moderating any of the debates.

Monday, August 27, 2012

Is the War on Women Any More Real than the War on Christmas?

By Mike Dorf

My latest Verdict column enters the fray over Rep. Todd Akin's comments about rape and abortion.  After briefly delving into the science of traumatic insemination--including links to a picture of a duck penis and a Daily Show segment on bedbug sex--I explain that Akin's comments may be most significant because they undermine a claim that the pro-life movement has been making in various forms for a number of years now: that pro-life = pro-woman.  Although I do not use the term "war on women," other commentators have, as have Democratic politicians, seizing on Akin's comments to reinforce a view of the Republican Party as hostile to the interests of women.

Here I want to interrogate the metaphor of a "war on women," using as my point of comparison the claim by FoxNews and other conservative pundits that liberals have been engaged in a "war on Christmas."

We can begin by dividing "war on" usages into two categories: those that have some literal truth and those that are meant purely metaphorically.  Both the "war on drugs" and the "war on terror" fall into the former category.  The "war on drugs" has used increasingly militarized armed force as a means of attempting (mostly without success) to disrupt the supply of illegal drugs.  The "war on terror" is barely a metaphor at all, as it has been used to denote actual military force, albeit supplemented by the curtailment of civil liberties far from any battlefield.  The wars on Christmas and women, by contrast, are like the "war on poverty."  They are meant entirely as metaphors.

Some metaphors are more apt than others.  In the past, I have noted that while I think the notion of a war on Christmas is undoubtedly silly, it reflects real anxiety on the part of religious people that secular types want the religious folk to keep their religion in the closet, as it were.  What makes the metaphor inapt, in my view, is its extremity. There is, at most, an insensitivity to the inadvertent hurt caused by justifiable insistence on secularity as a means of promoting equal liberty among citizens.

No doubt social conservatives could argue that the "war on women" is a similarly misguided metaphor.  They are not hostile to women, they will say; they simply favor policies--anti-abortion; pro-religious-conscience; etc.--that have the collateral effect of limiting the freedom of some women to do some things they want to do.  But, the conservatives will and do say, they do this out of respect for women, or at least out of motives--such as the protection of fetal life--that infringe women's liberty only as a collateral effect.  And thus, the argument goes, if the war on Christmas is a misguided metaphor because it mistakes collateral harm for intended harm, then so is the war on women.

There is undoubtedly something right about the foregoing objection.  For my part, I dislike martial metaphors generally.  But I also think that the (hypothetical) response I have given on the part of social conservatives misses three important disanalogies between the wars on Christmas and the war on women.

First, although one can, in principle, oppose abortion or birth control without bearing any animosity towards women, it is difficult to see how anything other than hostility towards women and their interests could underwrite an effort to make it easier for women to be raped.  Perhaps the best thing that can be said in defense of this effort is that it is not an across-the-board effort to redefine down the definition of rape, but only such an effort in the context of abortion.  This "defense" would say that the people like Rep. Akin and Rep. Paul Ryan who tried to redefine rape as "forcible" rape in the context of abortion funding are simply doing so as a means of limiting abortion funding because they think abortion unjustifiable in all cases, including when a pregnancy results from rape; however, it is politically impossible to ban abortion funding without a rape exception, so they compromise by defining rape narrowly.  I suspect that is in fact what's going on, but this is nonetheless a pretty tepid defense of the claim that the narrow definition of rape is not hostile to women.

Second, religious Christians are not in any sense an oppressed minority.  They are a numerical majority of the population with enormous political influence at every level of government.  Many of the complaints about "discrimination" against religious Christians in fact complain about the loss of privilege, not disadvantage relative to those of other faiths or no faith.  (Props to my former student Caroline Corbin, whose work has noted this point.)  By contrast, women are a historically oppressed group.  Although they are also a numerical majority, measures of political influence and economic power still show them faring worse than men.  Women do live longer on average, to be sure. But it strikes me as nonetheless deeply correct that laws throughout the developed (and much of the developing) world treat discrimination against women as especially problematic.  And, to return to the main point, we have greater reason to be concerned about insensitivity to the sensibilities and interests of oppressed groups than we have to be concerned about insensitivity to the sensibilities and interests of dominant groups.

Third, just about any group can feel disrespected by policies adopted without regard to their interests or even with regard to their interests but based on the calculation that some other interest is weightier.  So it's a standard defense for the group accused of insensitivity to say something like "we have nothing against you."  That defense may or may not be genuine in any particular case, but it is especially weak when the charge is sexism, because of the nature of patriarchy.  Sexism can take the form of hatred of women but it often works through solicitude.  Or, as the California Supreme Court put the point more poetically in a 1971 case: "The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage."

So bottom line: The charge of a "war on women" is overheated political rhetoric but not as overheated as the charge of a "war on Christmas."

Friday, August 24, 2012

Medicare, the Generous Geriatrics, and the Republicans' Electoral Strategy

-- Posted by Neil H. Buchanan

[Update: Professor Dorf pointed me to an NPR story, which reported that Paul Ryan was a major architect of George W. Bush's ill-fated Social Security privatization plan, which I discuss below. No surprise that Ryan's fingerprints would be all over that failed plan. It does, however, make the political miscalculation that I describe in this post even more difficult to fathom.]

This week, a political firestorm is engulfing a veteran Republican Congressman who seems to think that women have super-smart uteruses. As the comedian Andy Borowitz imagined Todd Akin's reasoning: "It’s almost like Spider-Man’s ‘spidey sense,’ if you will, except the tingling goes on down in the lady parts." Even the national Republican Party and its funding affiliates (including Karl Rove's group) have jumped ship, leaving the party's defiant nominee for a U.S. Senate seat to fend for himself. (Amazingly -- and this tells us more than we would ever want to believe about U.S. politics in 2012 -- there is still a chance that he could win!)

This is, however, beginning to look like more than simply the political story of the week. The story is both comic gold and a potential long term public-relations disaster, making it unsurprising that the Republicans are on the run. Many commentators are starting to notice that there is no difference at all between Akin's policy views and those of the mainstream of the Republican Party (VP pick Paul Ryan prominently included). The danger for Republicans is that this is going to start to unfold like Pat Buchanan's gleeful initiation of the "culture war" back at the 1996 Republican National Convention. Swing voters might not think of themselves as being liberal on social issues. They are, however, notably leery of extremism on such issues (especially religiously-based extremism) -- but only if they notice it. The Akin affair threatens to make all of that unpopular stuff salient.

The Republicans are in an almost identical political position with respect to Medicare -- except that the party's leaders really brought the Medicare problem upon themselves, by choosing Ryan for the ticket. (I realize the Mitt Romney supposedly chose Ryan. I am hardly the only person who is not buying that one.) Ryan, after all, is the Republican who is directly identified with the most radical plan ever proposed to "end Medicare as we know it." There is even a track record showing how unpopular Ryan's plan is, because it was the House's passage of the 2011 version of his budget proposal that led to the loss of a previously-safe Republican U.S. House seat near Buffalo, in a special election last year.

After Ryan's plan passed the House last Spring, I wrote a post here on Dorf on Law, describing the doomed political strategy that the Republicans used to try to sell that plan. Even after the loss of that House seat, however, they are still pushing the same failed strategy. Specifically, Ryan and Romney (and all of their surrogates) are trying to hide behind the idea that everyone who is currently at least 55 years old will be unaffected by Ryan's proposed change to Medicare. The idea is that older voters -- who are the least supportive of President Obama -- can be bought off, happily going back to their selfish lives, safe in the knowledge that they got theirs, Jack. The heck with the kids and grandkids!

This is, of course, not only breathtakingly cynical, but also utterly at odds with the supposed concern about "our children and grandchildren" that supposedly underlies Romney/Ryan's professed concern about deficits and debt. (Never mind that their proposals would not, in fact, reduce deficits. Everyone JUST KNOWS that Ryan is an anti-deficit, anti-debt guy. And that is all that matters, apparently.) The Romney/Ryan message is now: "Hey, post-Boomers! We are going to start dismantling government programs that were created by your greedy, self-obsessed parents and grandparents. But we're not going to take any of it away from them. We're so concerned about not burdening you with debt that we're going to take things away from you. Oh, and we promise that the numbers add up."

As I discussed in my Dorf on Law column last May, however, the other puzzling aspect of this political strategy is that the "only under 55's need worry" strategy had failed before. When George W. Bush's second term began in 2005, his administration's big domestic initiative (having survived their "accountability moment," in Dick Cheney's immortal framing) was to try to partially privatize the Social Security program. Then as now, the Republicans tried to neutralize the outrage of older Americans by assuring them that the consequences of the plan would not fall on current retirees, but only on their kids and grandkids.

It did not work. Even with full control of both Houses of Congress, and a very aggressive White House, the supposedly Greedy Geezers turned out to be quite concerned about preserving a program that they like a lot, on behalf of future retirees. (In addition to the label "Generous Geriatrics," which I used in the title of today's post, I also came up with:
Considerate Codgers, Equitable Elderly, and Honorable Oldsters.) At least in retrospect, it now appears that the idea never gained any serious traction at all -- again, even though the Republicans tried to neutralize voters of a certain age.

The one thing we know, however, is that there are some very savvy political operatives at work on behalf of the Republican Party. Looking at the history of the Bush Social Security fiasco, as well as the NY special election from last summer (which was completely turned upside down by the Ryan Plan -- capital "R," capital "P"), how did they come up with the idea that running Ryan for VP was a good electoral strategy? And once they convinced themselves that it was a good idea, why did they think that the divide-and-conquer strategy would work this time?

And so far, by the way, it is not working. Today's New York Times carries a front-page article that describes dreams-come-true-for-Democrats polling numbers. Voters by a clear margin trust Obama over Romney to protect Medicare. (In a world where voters too often seem not to be paying attention, it is heartening to see that most voters are ignoring Romney/Ryan's Orwellian relabeling of "vouchers" as plans to "save" and "protect" Medicare. Whatever else one might think of Ryan's plan, it is not "Medicare" in anything but name.) Moreover, the polls show that Medicare is an extremely important issue for voters, especially in swing states.

Again, however, this was all very predictable. When Ryan was announced as the VP pick, Democrats salivated. Even when Romney quickly started claiming that he was not endorsing Ryan's plans (leading to my "Double Etch-a-Sketch" description of the Republican campaign), it seemed to be beyond wishful thinking to imagine that they could run away from Medicare as a defining issue in the campaign.

Which brings us back to the question: What were they thinking? A couple of possibilities come to mind:

(1) Republican strategists are more confident than ever that they can "work the refs" in the press, forcing them to run "balanced" discussions of policy disputes where the facts are all on one side. I discussed some aspects of this all-too-familiar false equivalence in my post last Thursday. Yesterday brought another juicy example. One of the Times's Business reporters wrote a mostly-news commentary about the inevitability of the dreaded "rationing" of health care, and the difficulty of coming up with plans to reduce long-term growth of health care costs.

The author wanted to talk about how the two political parties were both in the wrong. How to do so? Well, Romney was "
brazenly misleading" in his claim that OBama will cut medical services to the elderly. True. And Obama? "But the response of President Obama’s campaign also aimed to stoke voters’ fears. It stressed — rightly — that the plan to curb Medicare costs proposed last year by Representative Paul D. Ryan, Mr. Romney’s vice-presidential running mate, would add thousands of dollars to older Americans’ out-of-pocket expenditures. Yet it ignored Mr. Ryan’s recent efforts to soften the plan."

Are you kidding?! Obama is, by this reasoning, in the wrong because he is holding the Romney campaign to what Ryan actually wrote (and what his party actually passed in the House of Representatives), without going out of its way to note that R/R are now claiming to "soften" the plan. Of course, none of that "softening" is anything more than repetition of those Orwellian labels; but even if there were some election-year softening of the actual details of the proposal, why should the Obama team take Romney at his word that this is not an election year conversion of convenience? It is not as if Romney has a consistent record on, oh, anything.

So, one possibility is that the Romney strategists simply believe that they can get the mainstream press and commentariat to go easy on (among other things) the Ryan Plan for Medicare. What else might be at work?

(2) The process-oriented view is that the ill-fated Bush privatization plan for Social Security happened after an election, not before. This would normally have made it easier to imagine a win for Bush, with (flimsy) claims of "mandate" in hand, and with the next mid-term election as far in the future as things get. A honeymoon period could have resulted in a surprising win for privatization, one might have thought.

Romney's handlers, however, might be thinking that the problem in 2005 was that there was only one thing at stake. In an election year, maybe they can get an anti-Medicare ticket elected by virtue of the weak economy and the flurry of other issues and non-issues surrounding a Presidential election. This requires one to believe that older voters -- who are evidently not responsive to the "not over 55" dodge, and who vote in large numbers -- will not think about Medicare when they get to the voting booth.

That might still work, but it is highly risky, at best. Any other explanations?

(3) The Tea Party wanted Ryan. The curse of the Tea Party movement (from the standpoint of the Republican establishment) is that it has shown itself to be completely willing to go with purity over pragmatism. The current Senate could easily have been 50-50 -- and only one Ben Nelson defection away from Republican control -- if not for the Tea Partiers in Nevada, Colorado, and Delaware. Ryan is their guy. That he is an extremist is his appeal, in their eyes, not a problem.

It is, in other words, quite possible that -- as much as they hate President Obama -- the people who really run the show in the Republican Party these days are willing to lose this election in the name of having a man on the ticket who truly, truly believes what they believe. The attempts to make Ryan seem attractive are inevitable (if implausible), and the minimal backing off from the extreme rhetoric of his very recent past is probably annoying to the true believers.

Even so, this is a party that is willing to put everything behind a guy who is directly identified with dismantling Medicare. Their best attempt at mitigating the damage is to rely on a failed strategy of neutralizing elderly voters by buying them off. Obama might still lose this election, but he really must be thanking the heavens for opponents like these.

Thursday, August 23, 2012

Coda on Dual Service in Congress and as VP: Seth Barrett Tillman Replies

Note from Mike Dorf:  In response to the doubts I raised about his argument concerning the constitutionality of Rep. Ryan (or anyone else) simultaneously serving in the House and as VP, Seth Barrett Tillman has written the following reply.  In addition to addressing that concrete question, it nicely frames some important questions in constitutional interpretation.  Now here's Seth.


Professor Dorf and I agree on (at least) one thing. The position – that the President and Vice President are not Offices under the United States (as that expression is used in the Incompatibility Clause) – is not compelled by the text of the Constitution. The text-reliant position is strengthened by various post-1789 documents and incidents, including, among others:

(i) President Washington’s conduct in regard to accepting both the key to the Bastille from LaFayette (1790) and the Louis XVI portrait from the French Ambassador (1791);
(ii) Secretary Hamilton’s responsive correspondence to the United States Senate (1793);
(iii) Justice Chase’s letter to Chief Justice Marshall (1802);
(iv) Justice Story’s Commentaries (1833) and McKnight’s treatise on election law (1878);
(v) The absence of a continuous tradition of President’s issuing commissions to their successors in office and to Vice Presidents (1789-present); and,
(vi) Justice Miller’s opinion for the Supreme Court in United States v. Mouat (1888); etc.

The post-1789 historical case improves the textual position. Admittedly, it does not quite reach, what the British tabloids call, the stand-up-in-court-proof-of-adultery-in-the-royal-bedroom-through-photographic-evidence standard.

Because the pure text-reliant position is (arguably) insufficient, we turn to history. Historical material buttresses the text-reliant position, but it still leaves Professor Dorf (and many, many others) with fairly-held residual doubts. What then? The interpreter at that point turns to other modalities or strategies of interpretation. The modern approach is to turn to what is called constitutional structure (at least where the text is less than what is reasonably clear).

Professor Dorf writes: “there is, in my view, enough wiggle room for the text to support what may turn out to be an ahistorical view.” My problem with Michael’s position is not that he is wrong; he is not wrong. But, that his statement lacks his customary precision. His interpretive strategy – embracing structuralism absent clear text – is open to (at least) several different interpretations (independent of what he personally intended). In other words, I am responding to his prior post’s original public meaning, not his (secretly held or otherwise ambiguous) original intent.

(I) Structuralism As A Solution to Bona Fidé Ambiguity. Here the interpreter acknowledges that the key text – Office under the United States in the Incompatibility Clause – is controlling. The interpreter’s problem is that the text was ambiguous in 1789. Ambiguity here may mean either: (A) it was subject to multiple fairly held understandings in 1789; or (B) no one really thought about it in 1789, but if they had, it would have been subject to multiple fairly held understandings. Structure allows the interpreter to settle on one of those fairly held meanings by importing into the Incompatibility Clause normative principles arising in connection with related constitutional provisions. These other provisions are helpful because they (unlike the Incompatibility Clause) speak with clarity.

Michael cannot rely on this strategy in regard to the operative language here. Why? The primary reason is that ambiguity is not something that one can merely assert. It is an empirical claim which itself requires some evidence. He has not put any evidence forward that in 1789 the meaning of Office under the United States (as used in the Incompatibility Clause) was in doubt.

There is also some good reason to believe that the Framers and the People thought about this issue and this language a great deal and that a common specific meaning was widely held. Decisions taken in regard to congressional incompatibility are taken by a single house acting alone, absent presentment, absent bicameralism, and (in most cases) absent meaningful or timely judicial review. Such legislative determinations do not require supermajorities, just simple majorities: a majority of those voting, a quorum present. If the Framers had chosen ambiguous language that would have let the majority oppress and exclude the minority. In such circumstances, it stands to reason that the anti-federalists would have objected. And I might add, rightly so. But where is there a record of any such objection or anything like it?

The second reason is more cheeky. Michael throws pure textualism overboard because

To be sure, Tillman's textual argument is a good one. He uses a technique that Akhil Amar has called “intra-textualism” to glean the meaning of a term—“Office”--from how it and other terms are used in other parts of the document. If we had only the text of the Constitution, I think I would be persuaded by his reading. But the Constitution is not the perfect word of God.

What is good for the (constitutional) goose is good for the (constitutional) gander. If we cannot make use of intratextual meaning because the Constitution is not the word of “God,” if we cannot discover the meaning of the Incompatibility Clause’s Office under the United States language by investigating how the same (or similar) text was used elsewhere in the Constitution, then there is no reasonable warrant to look to the purposes of other clauses either. If usage was not consistent and coherent across the Constitution, then we lack any basis to assume strong aspirational or normative consistency across provisions either. So this strategy will not do.

(II) Stucturalism In The Service Of Other Constitutional Text. Here, Michael’s argument may be ... OK, the Incompatibility Clause does not forbid joint dual Member/VP office-holding, but such dual office-holding undermines the purpose of other constitutional provisions. Consider this hypothetical. A contested popular general election is held and no one wins an Electoral College majority. Under Amendment XII, the choice of the President falls to the House; the Vice President, the Senate. What if the two bodies were to pick the same person. (Remember Lloyd Bentsen – in 1988, he received electoral votes for both slots!) Could the same person hold both positions at the same time? The Incompatibility Clause does not preclude it. No other provision expressly forbids it. So you might say – well, yes, the same person could hold both the presidency and vice presidency. But, you might also reasonably argue that the entire or, at least, the primary purpose of the VP is to step into the shoes of the President in the event of the latter’s death, resignation, incapacity, conviction in impeachment proceedings, etc. So if the same person holds both positions, then the whole (or nearly the whole) purpose of the Constitution’s succession-related provisions has been frustrated and that is sufficient warrant to forbid what the text does not otherwise expressly forbid.

Michael cannot rely on this strategy here. Consider the Constitution’s many clauses relating to presentment and bicameralism. Was there widespread agreement in 1789 what these clause’s purposes were? Is there today? I do not think so. This popular, academic, and judicial literature here is quite contentious. (Some caused by me!) But even assuming this problem away, Ryan’s holding one seat in the House and the presiding chair in the Senate hardly undermines the whole or, even, nearly the whole purpose of these provisions. I think Michael has (at least elliptically) already acknowledged that: “[I]f [dual office-holding were permitted by a court] . . . I don’t think that would necessarily be so bad.”

So this strategy will not do either.

(III) Structuralism In The Service Of Constitutional Aspirations Or (Founding-era or Modern) Norms. Unlike strategies (I) and (II) above, this strategy is not driven by any express text. It relies on unstated assumptions or aspirations connected to the Framers’ worldview, the ideal of written constitutionalism, or our system’s federal design, etc. My own view is that this strategy is inconsistent with the rule of law, but I am (unfortunately) in the minority on this.

I will further state that this strategy – more than any other strategy – more than textualism – fairly applied – should lead the interpreter to permit dual member-VP office-holding.

Why? For the very sensible reasons explained by the Supreme Court of the United States in Powell v. McCormack (1969). In Powell, the Court held that the House’s refusal to seat Congressman-elect Powell, his exclusion based on a finding of corruption, was unconstitutional. In other words, the House can only exclude a member based on qualifications expressly stated in the Constitution: e.g., age, residency, and citizenship. Allegations of corruption, even if proven, will not do. The Court’s holding was rooted in two deep structural concerns. First, ours is a written constitution. A commitment to written constitutionalism requires the Courts, Congress, and other political actors (and, as an aspirational matter, maybe even legal academics speaking in the name of the Constitution?) to respect the Constitution’s textual limits. Congress is not free to subtract from extant express limitations, nor is it free to fashion new ones beyond the express text.

More importantly, restrictions on office-holding impinge on the freedom of the People to choose their governors: a theme which runs continuously from 1776 to 1787, and then to 1861-1865, and into the present of today and, hopefully, into our tomorrows. The People’s freedom to choose their own governors should not be limited by abstract policy-making concerns, common law decision-making, viz. structuralism.

Structuralism may have a role in other areas of constitutional law, but not here, not in regard to dual office-holding. At least, it ought not to; too much is put at risk by it. I suppose that makes me a bit of a moralist. I have tried not to be. And, as I said at the outset, I do not support text-free structuralism as a legitimate modality of interpretation (even where, as here, it supports the thrust of my position).

Professor Dorf and I agree that a further discussion of Wisconsin law as it relates to dual office-holding is too tangential for this blog. If you are still interested in the Wisconsin law aspect . . . see Michael Stern’s Point of Order blog (August 14, 2012), and CONLAWPROF (August 12 – August 17, 2012). This has been a fun party. Two blog posts are “far too short a time to spend among you – [but] this is the END. I am going. I am leaving NOW. Good-Bye!


Wednesday, August 22, 2012

Fisher and the Future of Affirmative Action

By Mike Dorf

On October 10, the Supreme Court will hear oral argument in Fisher v. University of Texas.  Judging by the volume of amicus briefs the Court has received, the case could be a blockbuster.  (For links to the amicus briefs and other documents in the case, click here.)  Or at the very least, we know that a lot of people and organizations think so.  I'm one of those people, working (pro bono) for one of those organizations.  Very ably aided by the students in the Stanford Law School Supreme Court Litigation Clinic, Pam Karlan, Jeff Fisher, Kevin Russell, Tom Goldstein, and I have written and filed a brief on behalf of the Association of American Law Schools.  (Pam and I also wrote the AALS amicus brief in Grutter v. Bollinger.)

Below, I'll set forth the core of our brief's argument, but first I want to note how, in the course of working on it, I came to see this case as much more significant than I originally comprehended.  When the Court granted cert earlier this year, I thought the case would present the relatively narrow question of whether a university that admits substantial numbers of minority students through a mechanical rule could "top off" its admissions process by adding an expressly race-based component.  As I explained in a Verdict column at the time, the University of Texas guarantees admission to all students in the state who place in the top ten percent of their respective graduating high school classes.  But because most states and private universities do not overlay their race-conscious admissions process on a percentage plan, I assumed that whatever the Court decided would have little general impact.

I now think otherwise.  Suppose the Court holds that UT was not permitted to use race-conscious measures to boost minority enrollment because of the efficacy of the ten-percent plan.  Such a holding would fit into the existing jurisprudence at the "narrow tailoring" prong of strict scrutiny.  The Court would be saying that race-neutral means are available so race-conscious ones are impermissible.  But that would entail the principle that anywhere that a percentage plan could be used to achieve some diversity, it must be used instead of race-conscious measures.

If the Court were to rule along those lines, the next battle would be over determining where percentage plans (or other mechanical rules) are feasible.  For reasons we explain in our brief, law schools should fall outside of the category of institutions required to use percentage plans, but we also argue that no institution of higher education should be required to go to a mechanical admissions system.  Among other things, such a requirement would pretty clearly be inconsistent with Justice Powell's controlling opinion in the Bakke case, which the Grutter Court (including Justice Kennedy on this point) accepted.

Here is the Summary of the Argument from our brief:
Although the University of Texas achieves some measure of racial diversity in its undergraduate student body through the nominally race-neutral means of a mechanical admissions formula, this Court should resist any temptation to announce a general rule foreclosing the use of race as one factor in a holistic admissions process.  Such a rule would be counter-productive in many settings, especially law school admissions.  In the law school context, a requirement of a mechanical admissions formula would be wildly impracticable, would not produce substantial racial diversity, and would undermine the ability of law schools to admit classes that are diverse along other dimensions.  
Typical law school class sizes are more than an order of magnitude smaller than the class size of large public universities, and law schools draw their students from a wide range of undergraduate institutions.  Guaranteeing admission to any percentage of the graduates of those institutions would result in vastly over-subscribed law school classes, even as it would exclude many better qualified applicants.  
To build excellent, diverse classes, law schools do not reduce any particular candidate to a number or a percentage.  Instead, following this Court’s guidance in  Grutter v. Bollinger, 539 U.S. 306 (2003), law schools evaluate each applicant’s record holistically, counting such academic factors as success in analytically demanding majors, intellectual curiosity and improvement over time, as well as such other factors as veteran status, work experience and hardships overcome.  A mechanical admissions process would render such criteria irrelevant. 
Moreover, a mechanical admissions process would undermine, rather than foster, racial diversity.  The Texas Ten-Percent Plan produces some measure of racial diversity because it draws students from a secondary education system that exhibits a high degree of de facto segregation.  The top ten percent of a virtually all-Latino school will be nearly all Latino.   But with law schools drawing most of their applicants from integrated undergraduate institutions, the use of a mechanical admissions procedure would lead to fewer minority admissions because of persistent racial gaps in test scores.  
Given the role law schools play in training our national, state and local leaders, a requirement that institutions of higher education use nominally raceneutral application procedures would undermine the ability of law schools to build racially diverse classes and hamstring the ability of law schools to “cultivate a set of leaders with legitimacy in the eyes of the citizenry.”  Grutter, 539 U.S. at 332. Whatever the merits of the Texas Ten-Percent Plan in the context of a large public university, restricting law schools to using mechanical admissions standards would be devastating.

Tuesday, August 21, 2012

Can the Government Require You to Lie? Sometimes

By Mike Dorf

My latest Verdict column discusses the recent en banc decision of the Eighth Circuit, which upheld a South Dakota law that requires that a woman seeking an abortion be told that suicide and suicidal ideation are a "known risk" of abortion--even though there is no evidence that abortion causes suicide (or suicidal ideation).    The court found that the warning was neither false nor misleading.  I explain in the column why this is wrong.  Here I want to ask a somewhat broader question: Is there a free speech right not to be required by the government to lie?  And I want to suggest that although the answer is yes in many circumstances, it may not always be yes.

In the Eighth Circuit en banc ruling, the court accepted that it would violate the abortion right for the government to require a doctor to provide a patient with false or misleading information about the risks of abortion.  The court inferred such a principle from the Supreme Court's abortion cases and, for reasons I explain in the column, I think that's correct.

The plaintiffs also asserted a free speech right.  The Eighth Circuit did not assess that independently, stating that to prevail on their free speech claim, the plaintiffs had to satisfy the same standard as they needed to satisfy to prevail on their abortion claim: They needed to show that the government was not requiring false or misleading statements.  And because the court found that the required disclosure was not false or misleading, it had no occasion to ponder whether there really is a freestanding First Amendment right not to be coerced by the government into making false or misleading statements.

So, is there?  In some sense, yes, of course.  After all, there is a general free speech right against compelled speech, recognized in such cases as West Virginia State Board of Education v. Barnette (upholding a right of schoolchildren not to be compelled to recite the Pledge of Allegiance) and Wooley v. Maynard (upholding a right of adults not to be punished for covering over the state motto--"Live Free or Die"--on their license plates).  A right against compelled speech includes a right against compelled false or misleading speech.

Nonetheless, there are circumstances in which people can be compelled to speak.  Banks (and their employees) can be (and are) required to disclose information about the financial products they offer; car dealers can be (and are) required to disclose information about the cars they sell; and most saliently here, doctors and pharmaceutical companies can be (and are) required to disclose information about the treatments and medicines they respectively offer.

In each of the foregoing circumstances, we imagine--or at least we hope--that the disclosures the government requires are true and non-misleading.  But suppose the compelled speech is false.  Would the compulsion therefore be unconstitutional in virtue of the fact that it is false?

We might think that, quite apart from the heightened scrutiny to which regulations of speech are ordinarily subject, a government requirement that somebody say something false lacks a rational basis and thus fails even the most minimal judicial scrutiny.  Earlier this year, the Sixth Circuit rejected a challenge by tobacco industry plaintiffs to the FDA's requirement of graphic warnings on cigarette packages and advertising.  Citing the Supreme Court's ruling in Zauderer v. Office of Disciplinary Counsel, the court held that unlike laws forbidding commercial speech, which are subject to heightened scrutiny, a law compelling speech is subject only to rational basis scrutiny--at least in the context of a facial challenge.  The court then concluded, not surprisingly, that health warnings on cigarette packages and advertisements warnings are rationally related to the government's legitimate aim of fostering public health.

But the plaintiffs in the tobacco case did not argue that the graphic warnings are false.  They argued that they cannot be made to give over so much of their own speech to the government's message.  So let us suppose a case in which the government message is demonstrably false.

Here's my hypothetical example: State A forbids medical marijuana but borders on States B, C and D, all of which permit medical marijuana.  Legislators in State A do not want citizens of A using marijuana and are worried that prohibiting it is not enough; patients seeking medical marijuana may try to buy it illegally in State A or travel to a border state to buy it legally.  So State A both forbids doctors from telling patients that they can get relief (from nausea, lack of appetite, etc) from marijuana and also mandates that, if a patient asks about marijuana, the doctor must state that it has no medical benefits.

Let's assume that the statement is false.  Is the requirement irrational?  Certainly not.  Here, the state is giving people false information in an effort to dissuade them from using marijuana--a legitimate public health objective.  After all, under ordinary principles of rational basis review, if we can imagine circumstances in which the prohibition makes sense, then the law survives.  If the state can use the criminal law to forbid marijuana use in the first place, surely it is not irrational for the government to take the lesser step of trying persuade people that they shouldn't use marijuana, even if persuasion takes the form of scare tactics.  Compelling people to lie may be immoral but it is not irrational.

However, neither Zauderer nor the Sixth Circuit tobacco case says that mere rational basis scrutiny applies to compelled false statements.  Maybe that kind of compelled statement is subject to some more intrusive scrutiny.  Intuitively, it certainly feels like a greater intrusion on the liberty of doctors (or even tobacco companies) for them to be required to disclose information that is false.

But such a principle would give rise to a dilemma of enforcement regarding the triggering condition.  Must the government know that the compelled statement is false in order for the heightened level of scrutiny to apply?  If so, then we have all of the difficulties of purpose tests.  Although the Supreme Court has not always honored the sentiment, it was after all a free speech case--United States v. O'Brien--in which  CJ Earl Warren said for the Court: "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive."  How will a plaintiff prove that government officials knew the compelled statement to be false?  Which government officials?  In my hypothetical example, we can well imagine that many of the legislators who voted to impose the obligation to tell patients that marijuana has no medical benefits sincerely believe that to be true.

So maybe we should abandon a knowledge/purpose test and simply adopt a principle that the government either can never require people to make false statements or must satisfy heightened scrutiny if it does so.  But if the triggering condition is mere falsity (rather than purposeful or knowing falsity), we risk opening the floodgates to litigation by sellers and manufacturers of sundry products subject to disclosure regimes, each claiming that the mandated disclosure is false.  Is it sensible to channel such complaints into the courts under the aegis of the First Amendment rather than into the political or administrative realm as a pre-enactment challenge to the contested legislation or regulation?  And note that when such challenges occur in the administrative realm, government agencies get substantial deference from the courts.

It's easy to sympathize with the doctor in my hypothetical example, but finding a free speech right to resist the false statement about marijuana would mean inviting backdoor litigation by pharmaceutical companies, doctors and others who lost fair and square in the ordinary channels.  Accordingly, the least-bad solution may well be to say that in the regulatory context the First Amendment subjects requirements of false or misleading disclosures to mere rational basis scrutiny.  I'm not happy with that solution but as I've said, it's at best the least bad approach, not a good approach.

Monday, August 20, 2012

How Far Do Text and Early History Take Us? A Comment on Seth Barrett Tillman's Intriguing Argument

By Mike Dorf

Seth Barrett Tillman's argument that the Constitution permits the same person to serve simultaneously in Congress and as either President or VP is elegant and seemingly airtight.  Nonetheless, I'm not persuaded by it, at least not yet.

Congressman and Vice President and President of the Senate: Can Paul Ryan hold them all at the same time? -- First in a Series of Guest Posts by Seth Barrett Tillman

Introductory note from Mike Dorf: This guest post by Seth Barrett Tillman--a Lecturer in Law at the National University of Ireland, Maynooth--builds on some of his prior academic articles on the Constitution's Incompatibility Clause (three of which you can find here, here and here).  The post is made timely by the news that Paul Ryan will be on the ballot in Wisconsin both for VP and for his House seat.  Meanwhile, because of the way my software looks, Professor Tillman's post has my name at the bottom, but that's just because it's being posted from my account.  Just after his post, I'll have a short post of my own commenting--and he'll post a reply later in the week.

Congressman and Vice President and President of the Senate: Can Paul Ryan hold them all at the same time?

by Seth Barrett Tillman

I want to thank Professor Dorf for giving me the opportunity to blog here. Some might say he is taking a big risk. Here is why. Over the next few days, I intend to put up a series of posts and I invite you to come with Alice and with me for a new Adventure in [Constitutional] Wonderland. I am going to ask you to temporarily suspend your deeply held intuitions and your disbelief. I am going to ask you to believe, not 3, not 6, but 10, 12, or 100 impossible things before breakfast, lunch, and dinner, and even while asleep. But, more than that, I am going to ask you to do something we talk about a great deal in law and law school, but often find difficult to do in practice. I am going to ask you to keep an open mind, to consider my entire argument and evidence, and then to independently make up your mind. If you have questions along the way, I will try my best to answer them in a timely fashion. It is also possible that you may know or uncover something I had overlooked. So, I will need to keep an open mind too. I promise to do my best. Hopefully, even if we disagree, we can all be civil, and, perhaps, learn something too.

The quadrennial national election is this November. The presidential electors meet and vote in December. The new congressional term will start on January 3, 2013. The new Congress will count the electors’ votes on or after Sunday, January 6, 2013. But, the new presidential/vice-presidential term will not begin until on or after Sunday, January 20, 2013. Those Sundays make everything more complex!

It has been reported that Paul Ryan will appear on the ballot for both his congressional seat and for Vice President. If he wins both, can he retain both? Wisconsin state law has something to say about dual office-holding. I hope to return to that question later. Here, I want to focus on federal constitutional law. Until January 20, 2013, there is not much of a problem – before January 20, Ryan will not be VP. He will just be vice president-elect. But after January 20, 2013?

This is just nuts. Right? Simultaneous VP-Member of Congress – that is plainly prohibited by the Constitution. And it is a horrible result to boot. And it is impractical: even if Ryan could do it, he will not. Like I said, keeping an open mind is difficult.

Assuming he could, would Ryan attempt to do it? I think not. But times and candidates change. A future candidate might do it even if Ryan will not. And if that is a bad result, much better to have the conversation now.

Is it a horrible result? Leaving your views of candidate Ryan aside, you could think it horrible because it concentrates too much power in one person. That is a legitimate policy concern. But not every good result is mandated by the Constitution, and not every bad result is precluded by it. Policy and law overlap, but they are not the same.

So that takes us back to whether dual office-holding – i.e., VP and Member of the House – is precluded by the federal Constitution. If we are looking for constitutionally based rationales for precluding a dual office-holding VP-Member, we could turn to several interpretive modalities. Here, I am going to examine the Constitution’s text. Some people call this textualism, originalism., or interpretevism. Some people (naïve perhaps) call this the rule of law, and others think this strategy is bunk. I plan (?) to start with this modality and to return to other modalities (and Wisconsin law) later on.

What does the Constitution say about dual-office holding? The exclusive provision that would seem to apply here is the Incompatibility Clause, which states: “[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” So the question comes to this … if the VP is an “Office under the United States,” then Ryan cannot hold both positions at once. And if the VP is not an “Office under the United States,” then Ryan can. Simple.

Simple, but it does not get us very far. And you might think it obvious that the President and VP are officers under the United States. Here, I am going to put forward some argument and evidence suggesting that the President and VP are neither officers of nor under the United States.

First, I look to the language’s purpose. Discussion surrounding the Incompatibility Clause at the Federal Convention and at the ratifying conventions indicated that the purpose of the clause was to keep the President from placing Members of Congress into future cabinet or other statutory positions. I have found no discussion suggesting the purpose of this clause was, in whole or in part, to keep Members of Congress out of elected positions: the presidency or vice presidency.

Second, if you look to the entirety of the Constitution of 1787, although it describes the presidency and vice presidency as an office (unmodified), and, on another occasion, it describes the VP as an officer of the Senate, it never expressly describes either the President or VP as an officer of the United States or an officer under the United States. Professor Akhil Amar has put forward the (somewhat curiously atextual) position that these two phrases are co-extensive. I think the former is a subset of the latter, but neither includes elected federal positions.

Third, the Commission Clause states: “[The President] . . . shall Commission all the Officers of the United States.” All means all. But Presidents do not self-commission; they do not commission their VPs; they do not commission successor Ps and VPs. (Remember Bush v. Gore? Did Clinton ever try to terminate the litigation – or even strengthen Gore’s hand – by granting Gore a commission? David Boies eat your heart out!) So if the President and VP are not officers of the United States, and officer of the United States is co-extensive with officer under the United States (as suggested by Akhil Amar), then the Incompatibility Clause does not apply to the Vice President. Cf. Letter from Samuel Chase to John Marshall (April 24, 1802) (“I apprehend that, no one can hold any Office under the United States, without a Commission to hold such office.”).

Just one more Just So Story. Secretary of the Treasury Alexander Hamilton was ordered by the Senate in 1792 to compile a list of “every person holding any civil office or employment under the United States” and their salaries. After nine months, he returned a 90-page list which omitted the President, Vice President, Senators, and Representatives. But it did include appointed or statutory officers in each of the three Branches. For example, he included: the Secretary of the Senate and his staff, and the Clerk of the House and his staff. For Hamilton, on this occasion at least, Office under the United States embraced only appointed or statutory officers, not the President or VP, i.e., holders of elected or constitutionally-created positions.

Text. Purpose. Hamilton. Chase. There is good warrant for concluding that the VP is not an Officer of or under the United States, and therefore the Incompatibility Clause does not apply to it, and will not apply to Ryan should he become VP.

You might ask: OK, Tillman, if the President and VP are not officers under the United States, then what are they? They are holders of public trusts under the United States. See Article VI.