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Mitt Romney's Problem Isn't Being Rich. It's Being Mean.

Ah, the "Bain Story". It's the campaign narrative that simply refuses to die, no matter how Republicans try to wish it away. Mitt Romney's experience as the head of Bain Capital are both his attempt to prove his business savvy, and his opponents' attempt to paint him as the evil example of the 1%.

I'm not sure a lot of people - even the people who are trying to use Mitt's Bain experience as a cudgel against him - entirely understand why the attacks are working. And working they are. As much as "pro-business" types would like to turn Romney's business acumen into a net plus, as much as some private sector types want to paint Obama as an anti-Capitalist at least (or "socialist" at worst)... the protestations about "demonizing Mitt Romney" tend to underline that the attacks are working and something is sticking, though no one, exactly, can seem to say what it is.

One obvious point is that criticism of Romney, or of Bain more generally, is not, by itself, anti-business. One investment firm's choices are not some stand-in for the entire field private equity, and if there are aspects of the private equity world that trouble people... well, that's probably an ancillary benefit - possibly the only good thing - to come out of this debate. Private equity could stand more scrutiny, and certain practices deserve more consideration, both from a business perspective, and a more human one.

 

It's that "human perspective" that's probably the real story here, and why these stories of Bain's business practices are resonating with the voting public. It's not that Bain's key stakeholders made millions that really gets people down (bringing me back to an old, and apparently upsetting point for others that being rich and making money, by themselves, ae not bad things, necessarily), but it's the practices they employed to get that money. Specifically, what I think is resonating about these stories is simple and human.... it's the part about the layoffs. And the fact that laying people off seems mean.

One of Mitt Romney's main flaws as a candidate - and there are, after all, so many - is that he seems intent on a cerebral, logical argument for his election. He seems awkward and uncomfortable with direct emotional appeals to voters; he comes off, often, as cold. I'm not even sure these perceptions are accurate, yet they do seem to prevail.

And really, Romeny would be in worse shape if President Obama himself had a real strength in emotional appeal, but really, he lkind of doesn't. As we've all observed on the left... he's no Bill Clinton, in ways good and bad. And one of the bad is that, unlike Clinton, he doesn't establish the kind of immediate emotional connection that Clinton still does, almost effortlessly. 

I don't think elections should be won or lost on emotional appeals... but these are difficult, emotional times, filled with uncertainty. Appealing to people's logic and clear thinking isprobably a waste of time. Across Europe, across North Africa and into the Middle East (the "Arab Spring"), it's clear that emotions are driving a lot of people's political judgments. Out with the old. Out with the insensitive. And out with the people who insist we have to think practically, above all else.

 

Bain's business decisions may, in the B-School sense, make perfectly logical sense. And I don't think "capitalism" is under any threat as a result of ads against Mitt Romney about Bain. Lots of people, even lower level workers, understand that business leaders make hard decisions when it comes to growing and sustaining a business. In practical terms, what's best "for the business" at a particular moment may include retrenchment, closings, firings. But on a personal level, those deciions are, almost always, painful ones. People will be hurt. Lives will be up-ended. There will be pain and suffering.

Mitt Romney isn't suffering bad perceptions about his work at Bain Capital because he seems like a bad businessman or not smart; rather, he's been hurt by these ads because he seems mean, unconcerned with the real-life consequences of firings and reversals and how they affect ordinary workers. And he's lousy at expressing empathy; he continues to talk about life changes and reversals with the distance of abstraction, and the cavalier superiority of someone who has, most likely, never known one. President Obama, no, doesn't do mcuh better; but when the focus is on Bain and Romney's business decisions, the quesiton isn't whether Obama can empathize more. It's whether Mitt Romney can empathize at all.

Conservatives are lousy with this stuff; they see Democrats and liberals as little more than sensitive wet rags, crying for trees, yelling about the poor, hugging the downtrodden and disdaining those who are normal, successful. Conservatives look to emotional appeals as a last resort, and even then, the emotions thay appeal to tend to be anger and superiority. You're better than they are. Be a winner. Let people in need learn to take care of themselves.

Liberalism, too, could probably stand to learn to be tougher, and rely less on these soggy emotional appeals. But by keeping the "Bain story" focused on the sense of bewilderment and loss, the suggestion that we can't turn our government over to someone so incapable of understanding the actual, practical impacts of layoffs and bottom line thinking... Democrats are on to something. It's something that can win this election. The problem of course is... once they win, there's no indication that these Democrats, however sensitive, will be any more help than those useless, cold business types.

Articles We Never Finished Reading: The Myth Of Mr. Nice Guy

From the beginning, the president's reelection campaign has taken a brutal, no-holds-barred approach that's sharply at odds with the conciliatory image that was the central predicate of Obama's entire pre-presidential political career. Whether or not the specific issue of Bain Capital ought to be off limits -- Booker has taken pains to clarify he doesn't think it should be -- there's no denying that Obama's 2012 campaign has seized every opportunity to turn the campaign toward sharply personal attacks of a type that the 2008-vintage Obama would surely have recoiled from. From Romney's treatment of his onetime pet dog to his high-school pranks to his income-tax rate, from the "war on women" to the "war on caterpillars," from "I like being able to fire people" to "I'm not concerned about the very poor," no potential controversy has been too petty, too rhetorically overblown or too out-of-context to be exploited to the hilt.

None of this is shocking -- it's how the game is played. But Obama once ostentatiously refused to play it. In June 2007, for example, when Obama's primary campaign distributed a memo titled "Hillary Clinton (D-Punjab)" detailing Clinton's connections to India, Obama publicly upbraided his staff, calling it "a dumb mistake" and "unnecessarily caustic." As the New York Times put it at the time, "The memo...raised quesitons about Obama's claims that he is above attack politics, which are epitomized by secretly distributing opposition research about a rival."

 - Molly Ball "The New, Nasty Obama Campaign," at The Atlantic Online.

It may be nasty... but there's nothing "new" about the Obama campaign running vigorously against its opponents. If anything, Democrats are a bit relieved that a primary challenge never materialized, and that Mitt Romney is rising to every expectation of being the lousy campaigner we knew him to be.

This notion of that "hope and change" meant "nice and kind" is a fantasy that played mostly in the heads of Obama's most youthful, or most ardent, believers in 2008. The "can't we all just get along" arguments, the "he's the only one that can bring us together" notes of the pro-Obama hymn, were pretty (and about an inch deep), but they belied the reality that the Obama campaign's approach to beating Hillary Clinton was often brutal and desperate. And while his supporters moutheed words of Kumbayah and World Peace, privately they tended to gripe that Obama should be even rougher and tougher... hardly the notion of gentle niceness that was meant to be projected.

The "India memo" cited above (which is news to me, all these years later), is really more of a prime example of the hamhandedness and neophyte campaign mistakes of the Obama team, lessons they only seem to have partially learned and dealt with since. There is still the inordinate faith in his speeches, still the part where they get caught flat footed when news breaks that's out of their control, and still a kind of amateur quality to their attempts to go hard and mean against opponents. It's not that Mitt Romney's "Bain problem" should be off liits, it's that the message of that Bain problem needs to be spelled out correctly. As far as I can tell, the Obama people get it about half right (and then seem skittish when suggestions arise that they "go too far"). Still, they suffer from the liberal anxiety of being seen as actually believing the things they claim to find important.

The President would be in much rougher shape if Republicans had fielded a candidate - arguably Rick Santorum was closest - who actually appealed to a wide swath of voters who are actually indifferent to the President's record thus far. These are largely the sorts of people who found Hillary Clinton interesting as well - working class people, often white, but also many of color, as well as other distinct minorities, like gay men and lesbians. Instead, because he and Romney are fighting over a fairly narrow percentage of a small part of the overall electorate - educated, but non partisan voters in the middle and iupper middle class - things are bound to be ugly, and charges thrown around. 

It's worth remembering that the 2008 campaign, against McCain had an undercurrent of ugliness that never entirely went away; it's mainly that it was so clear, early in October, that McCain was doomed that the Obama team was much better positioned to stay on the high road, and did so most of the time. It's clear that many conservatives, still, think that they lost because McCain didn't go harder and uglier; but at the same time, they are also the ones who complain, still, that Sarah Palin was subjected to all kinds of ugliness, from the press and from the Obama team. True or not, both ideas miss the point that McCain failed mainly because he was a lousy candidate, and Sarah Palin's selection was Example A (or possibly B after McCain flopped on the economic meltdown in the fall of 2008) of the kind of bad decision making that did him in. The obama didn't so much "play nice" as they simply ignored him, for close to a month. And this year, they may indeed get a similarly luxury option towards the middle of October as well. That won't be a win for "niceness", merely an expression of the reality that Republicans remain in spectacular disarray. There's nothing "new" about the Obama team's "meanness"; and still, nastiness may not define his presidential victories. Either of them.

Articles We Never Finished Reading: Survey Says... Misogyny Is Bad (Thank Goddess)

"There was one description of the president that truly seized me:

'The metrosexual black Abe Lincoln has emerged as a hyper-partisan, hyper-liberal, elitist politician with more than a bit of the trimmer in him.'

This sentence is just so deliciously ridiculous, insulting and incendiary — perfect Republican fodder.

Let’s dissect it, shall we? Scalpel!

First, there is the word metrosexual. It is usually defined as a man keenly interested in grooming and preening. Despite the sexual root, the term isn’t rooted in sexuality. In its truest sense, President Obama of mom jeans infamy — as he told the 'Today Show' in 2009, 'I’m a little frumpy' — is far less metrosexual than Mitt Romney of the perfect hair, copper tan and Gap skinny jeans.

But this term is rarely appropriately applied. On the contrary, it’s often delivered with a snicker to question sexuality and feminize the subject, and femininity in a misogynistic culture is the greatest of sins. Metrosexual has become a roundabout homophobic taunt."

 - Charles Blow, "Dirty Racial Politics" in today's New York Times.

I give Blow credit for identifying a "misogynistic culture" that makes feminization of men an insult; I'm a little more perplexed that Blow seems to suggest that this insult is, well, really insulting. If we're trying to end a misogynistic culture, rather than just admit its existence (powerlessness... there's another good issue to discuss), then it doesn't help to just identify emasculation and then complain about it. That, it strikes me, is just giving the tactic all the more credence. Making a man seem woman-like wouldn't be an insult if we stopped treating being a woman as insulting.

"Metrosexual" is a dopey word and its use in the Ricketts material was, obviously, telling; in the context of that extreme sentence, a volume of assumptions and dislikes of the President certainly were made clear, and who wouldn't expect an Obama cheerleader like Blow (who later admits that Obama is a "moderate left centrist" who can anger "devout liberals", as if liberal ideas were religious dogma) to defend him? Blow is meant to represent a fresher, younger approach to opinion writing, and it's things like identifying anti-woman biases that add to that formulation; but Blow is, in most ways, more of the same on the NYT Op Eds - a supportive Democrat who wants the simplicity of two party distinctions and shows his contrariness by blaming Lefties who Go Too Far.

In general, I never really finish Blow's pieces - his hook is to accompany his pieces with some element of recent survey data, data that invariably shows him to be absolutely riight about his conclusions, which in turn our usually that some Democratic friendly idea, proposal, or candidate is good or right (or both). His opening paragraphs are lively enough (that "scalpel!" reference, however trite, is bracing), but he devolves into boilerplate and statsical citings pretty quickly, and it's prety much downhill from there.

I'd be more impressed if Blow was braver, if his opinion on a particular subject wasn't so obviously telegraphed by whatever graph accompanies his column, or at least if he'd question the whole reliance on poll driven opinionating a lot more than he does. Being more adventurous - which he seems readily capable of - would lift his op-ed writing out of the ordinary, and beyond partisan boilerplate. Or is it too girly of me to point that out?

Articles We - Still - Never Finished Reading: Knowing Is All

[The President]...acknowledges no rules. This past week, one of his campaign websites posted an item entitled "Behind the curtain: A brief history of Romney's donors." In the post, the Obama campaign named and shamed eight private citizens who had donated to his opponent. Describing the givers as all having "less-than-reputable records," the post went on to make the extraordinary accusations that "quite a few" have also been "on the wrong side of the law" and profiting at "the expense of so many Americans."

These are people like Paul Schorr and Sam and Jeffrey Fox, investors who the site outed for the crime of having "outsourced" jobs. T. Martin Fiorentino is scored for his work for a firm that forecloses on homes. Louis Bacon (a hedge-fund manager), Kent Burton (a "lobbyist") and Thomas O'Malley (an energy CEO) stand accused of profiting from oil. Frank VanderSloot, the CEO of a home-products firm, is slimed as a "bitter foe of the gay rights movement."

These are wealthy individuals, to be sure, but private citizens nonetheless. Not one holds elected office. Not one is a criminal. Not one has the barest fraction of the position or the power of the U.S. leader who is publicly assaulting them.

- Kim Strassel "The President Has A List", Potomac Watch on the WSJ Opinions page, today.

... And disclosure, despite Strassel's heavy breathing, does not equal initimidation. Political donations are public, the names and amounts a matter of record; what gets attached to those records - like, say, one's history in business or one's other political interests - is what we do with the First Amendment. We say stuff. And it gets heard.

Strassel's dark mutterings about vast Presidential conspiracies is probably most hilarious for the Nixonian referencing, given that Nixon's darkest political tactics - the searches for scandal and the rummaging in people's pasts are hardly things the Republicans have disavowed or left to the past. This, after all, from the contingent that still tries to trump up "Bill Ayers" and birth certificates and suspicions of Islamism into painting the President as monster. But hey, all's fair... until you ask just who's giving money and why.

Strassel's being mostly incoherent here, arguing for a kind of secrecy or some sort of "hands off" approach to donors she can't dcodify or describe in a straightforward way... mostly because it doesn't exist. And for me, this morning, this made a nice companion to pointing out the general pointlessness of Frank Rich's "eek, money!" complaints on the opposite end. Strassel's companion point form the right is just as silly: if people plan to give enormous sums of money to try andunseat the sitting President, knowing who they are and what their agendas might be is hardly the "abuse of power" Strassel is trying to claim. It's mostly one, small shred of valuing openness and information over secrecy and hiding. And like many conservative commentators who seem to find investigative reporting somehow not just beyond their skills but somehow beyond the pale, Strassel seems to be arguing against the very paper she works for.

Knowing is good. It's just that knowing alone isn't going to stop the stream of milionaire donations, anymore than vague threats of reprisals (which the President, one could note, really didn't make.) But hey... why let that stop a good column?

Articles We - Yup - Never Finished Reading: Rich Man's Burden

If you want to appreciate what Barack Obama is up against in 2012, forget about the front man who is his nominal opponent and look instead at the Republican billionaires buying the ammunition for the battles ahead. A representative example is Harold Simmons, an 80-year-old Texan who dumped some $15 million into the campaign before primary season had ended. Reminiscing about 2008, when he bankrolled an ad blitz to tar the Democrats with the former radical Bill Ayers, Simmons told The Wall Street Journal, “If we had run more ads, we could have killed Obama.” It is not a mistake he intends to make a second time. The $15 million Simmons had spent by late February dwarfs the $2.8 million he allotted to the Ayers takedown and the $3 million he contributed to the Swift Boat Veterans demolition of John Kerry four years before that. Imagine the cash that will flow now that the GOP sideshows are over and the president is firmly in Simmons’s crosshairs.

 

- Frank Rich "Sugar Daddies," New York Magazine Apr 22

 

...Except that, if you check out the informative graphic attached as a sidebar to Rich's article, Simmons is hardly "representative": His 15.4 million in contributions is second only to Sheldon Adelson's 20 million plus, and the tqo of them are 10-15 times ahead of far more "representative" contributions that range from about 1-2 million, generally. That's not a huge discrepancy (though the dollar figures ought to count for something), but it's indicative Rich's generally bombastic approach to the whole topic. There are prefectly good reasons to be concerned about the role of a small, but significant, number of wealthy contributors to both political parties, but Rich's fashionable hair-raised (or as Lucianne used to put it "dress up over head") screed is more about repeating familiar tropes with little real insight, overstating both the rxtent of the problem and properly identifying its more troubling aspects.

Rich does concede that a number of donors to Crossroads and Crossroads GPS, the Karl Rove "Super PAC" that most liberals fixate on most, are secret and that, in part, there are another couple of "anonymous" $10 million donors yet to be identified. Fair enough; but even then, the number of truly "enoromous donors" over five million seems to number roughly less than ten. Moreover, Simmons is also a pretty "representative" example of throwing enormous amounts of money at a problem without seeing much in the way in the way of results. Simmons acknowledges having dumped similarly large sums into the 2008 election, to no particularly good end, and there's no real indication (despite Rich's panting and pointing) that his largesse this year will have any more effect; that doesn't make him "dangerous," that makes him a "patsy" to what I woud call some "unscrupulous" operators promising the moon and delivering a lot less. In just a few sentences, Rich goes a long way towards making Simmons seem like an old man frittering his fortune rather than a political genius - which is not exactly strengenthing Rich's point about fearing these people.

The thing which deserves far more examination than we've made in our society, is that, while "money equals speech" may be the Supreme Court's greatest error, it's not clear that "money equals success" in elections. The 2008 election - along with the two previous ones - are noted for the enormous sums raised, but the outcomes of the last few elections seem less determined by funds than by other factors about when to vote for change and when to affirm the status quo. John Kerry didn't just lose in 2004 over money issues; his failure to inspire voters, even (especially) those in his own party played an enormous role in his loss. Similarly, Obama's fundraising abilities were in many ways a subset of the real qualities that pushed him into the White House: charisma, personal appeal, and the promise of a fresh start. John McCain could have spent a small fortune - and in fact noth he and the GOP did - and still have lost as drmatically as he did.

A lot of this has to do with assumptions about the power of advertising that rarely get properly questioned, challenged or examined in more than a surface way. In a culture where we are bombarded by marketing messages from morning to night, we rarely consider what advertising really moves us to do, why, and how to realistically asses ts reach. We assume, because it is asserted repeatedly, that "negative" advertising on politicians will "ruin" candidates' electoral chances, even when, privately, many of us admit that we find these ads less than useful, often ignore tham, and seek out other, more useful information to make a choice. Yes, that's what separates "informed" voters from a group that probably is more easily swayed; even so, it's hard to know that the enormous sums spent by Crossroads is really buying any kind of real success for conservative ideas or candidates - the successes of 2010 for the GOP, surely, are a lot more about a national mood than a lot of negative ads, however Rove wants to dress up his power as a "mood alterer". Mostly, the millions backing Rove's organization seem meant, mostly, to prop up Rove as a political celebrity whose "power" as a broker is more assumed than proven (a role, I've observed, that traces back to his supposed "genius" in supporting George W. Bush, a similarly dubious proposition).

None of this is to dismiss legitimate concerns about the power of enormous wealth to buy political access, influence electoral outcomes, or suggest that I think "money equals speech" or support the current role of "Super PACs"... but I do think that a lot of the noise about the terror of "all this money" from the left is, well, just noise, mosty meant to try and lmit the actual success of the spending of conservatives, and try and ignore the large spending by groups (say, unions, anyone?) supporting the left. And, as always, I feel compelled to point out that many of these critics ought to clarify their arguments - if this is about simply being personally wealthy (and Rich is not one for distinctions), that's a different issue than the politics of spending said wealth. And as I keep trying to gently say... I think it's probably a waste of time to hate wealth. That's not going to go away. The political ads, hopefully, will.

(Also, much like "Worst Song Ever," I think I may need Ground Rules. But really, I don't hate all of Frank Rich's writing.)

On Hookers And Secret Services

Okay... so where were we?

I've been sort of chomping at the bit to comment on various stories - Ann Romney, George Zimmerman, you name it - but nothing is quite as captivating as the scandalous non-scandal of The Secret Service in Cartagena, now, is it? (And really... Cartagena? Other than Romancing The Stone... who's ever cared about Cartagena?)

My raction to the Secret Service story hasn't changed much since it broke: so... apparently after work the agents like to drink, carouse a bit, and maybe pick up a local resident for some R&R. And that's bad... why?

I'm not trying to excuse hooking, but in my own curiously twisted thinking on sex and sexuality, it's not people paying for sex that bothers me. What bothered me, say, about the Elliot Spitzer scandal, and made it scandalous, was both the outrageous prices he paid (which was simply foolish) and the fact that being Attorney General means enforcing the laws he was breaking at that time. That's hypocrisy, and that, it strikes me, is scandalous.

(Also, going to prostitutes while married strikes me as tacky and poor moral character, but that's a separate issue.)

So here's my thing: if the Secret Service agents were, say, using counterfeit money to pay hookers... then maybe we'd have a similar case; but  drinking in bars and bringing someone home for sex doesn't strike, entirely, as a firing offense. Again, tacky, perhaps; but not quite the federal crime it's being made out to be. Indeed, I'll be curious to see if some of these attempts to discipline Secret Service employees stand up as proper for a federal employer. Is off hour behavior really fair game for the government as an employer?

In any case, there's been a lot of huffing and puffing to try and dress up what is basically a salacious exercise in peeking behind other people's bedroom curtains as somehow a major breach of national security. You can almost see the visible relief of many media organizations reporting today's triumph "hooker may have been in President's hotel!" That's, you know, serious. It's almost like, you know, she was in the President's room. Except, you know, she wasn't.

All the heavy breathing doesn't amount to much, and can't really make the agent's behavior seem much more than what it is - tawdry, mostly, with a side order of tasteless. The idea that patronizing hookers might "lead to blackmail" is an old saw that was always meant to comment more on sexual behavior than any actual threat - it's the same nonsense that was trotted out about gays during the Red Scare years, and just as dopey. It's a suggestion that sex is dirty, embarrassing, and rather than be humiliated for a peccadillo, most people would, I don't know, pay thousands and reveal state secrets. Evidence of this actually happening isn't just mostly scarce... it's basically nonexistent. It's the stuff of movie plots and bad novels one buys in airports.

More to the point, these ideas of salacious blackmail seem especially absurd in this era where people's nude photos wind up on internet websites. Shocking? Embarrassing? Does anyone even know what these words mean anymore? The small number of people actually "shocked" to discover that Secret Service agents hire hookers lead especially sheltered lives and are, in general, awfully naive (almost as naive as the people who seem to think this only happened, once, in Cartagena). There's nothing especially shocking, or possibly even embarrassing about the President's guards getting randy after hours in a foreign country. The trope that this "could lead to national security breaches" is pretty much nonsense, and most sensible people, I suspect, get that, even if they hate to admit it. Because once you admit it... then we also have to admit that this story is getting way more play than it ever deserved.

I don't think, as Americans, we'll ever get over our nosiness, our voyeuristic tendencies, or our confused notions about sex generally. That's our culture, and that's how we define who we are - simultaneously wildly open and free, and puritanical and judge-y, all at once. By all means, go overseas and go wild with the foreigners. Just don't get caught. Or we'll really be mad. And if it helps us to pretend that somehow this is crucial to our "national interests", it's just a reminder of the lengths we go to when we need to justify our prejudices. Mostly, I suspect, the excessive interest in this story is about envy. And that's never pretty. And we're lousy at hiding it.

 

ACA, Meet The Supremes

I haven't written much about politics, and even less on healthcare in a long while, and I wouldn't necessarily see a reason to start now, even with the Supreme Court arguments this week... but I think there's a few points that bear repeating. 

Which is to say: I feel like much of this "health care debate" is old news and the point's been made, but let's try again, just for giggles.

First, I tend to think the Supreme Court case is premature, but at this point, it was unavoidable. Once three Appellate Divisions had ruled, 2-1 in favor of it, there was pretty much no way for the Supreme Court not to take up this case. That's why the Supreme Court exists, to resolve disputes among the different Circuits. Still, I think the Court will regret taking this up too soon and in an election year, when the decision can't help but be all politics, and little in the way of good law.

Second, even though I think the case should have been left aside, I think the arguments that came out this week were fascinating reminders of why we're having this dispute. As someone with a lot of understanding about the issues of healthcare and health insurance in America, I still tend to forget how few people can see the bigger picture, or have thought deeply about the system of insurance and payments that we have. That, I think, has been a big driver of the "mandate is unconstitutional" side, and a lot of their naivete was on display in the Court recordings. Paul Clement's attempts, for instance, to separate health insurance as a market from healthcare services was almost laughable (and for everyone so sure of the outcomes... it was also telling that the most skeptical voice on this separation was John Roberts). Why people buy health insurance, how people use health insurance, what healthcare costs for people who don't have it, what kind of care people without health insurance can get... these are basic questions for understanding the health care problems we have, and the displays of lack of comprehension of these topics within the Supreme Court debate was deeply revealing... and deeply depressing.

Third, I think it was pretty clear that the mandate is constitutional, if unpopular. Healthcare is, virtually by definition, interstate commerce. Even separated from health service, health insurance is interstate commerce (all that takes is one company that operates in more tha one state, buying health insurance for its workers). Devising a system where people show proof of insurance or pay a penalty is a "necessary and proper" function of the tax code. This isn't hard. There might be a narrow argument that the government can't "compel" economic activity... but compulsion seems like a vague, hard to define standard (if passports require a photo... why can the government compel you to get one?). 

Fourth, the mandate isn't nearly what its opponents try to make it out to be. No one is "forced" to do anything, or buy anything, under the regulation. It says, basically, either you have health insurance or you pay a fee. The fee is comparatively small (indeed, it may be small enough that it, too, creates a perverse incentive to not buy insurance until one is absolutely desperate). Most people already have health insurance - again, more than 85% of the population, most workers through their employers, and the elderly through Medicare, just for starters. Those percentages have probably shifted somewhat since the economic downturn, but the vast majority of Americans are, still, insured. That makes the fee a dead issue for almost everyone, and the point of the healthcare legislation is that, with the mandate and other incentives, business and insurers will work harder to make sure more workers are insured, and for others, there will be increased access to programs like Medicaid, or the new health insurance exchanges.

This is not a great, or an elegant, or a nearly perfect solution to our healthcare problems; the solutions do nothing about health care cost, and they codify our employment based system of insurance in ways that probably make things worse. But that brings us back to the yearlong debate about the ACA tyo begin with - yes, there are other solutions... but most of them require enormous leaps in our healthcare systems that we're just not prepared to make as a nation. Broadening the availability of insurance is a reasonable, workable workaround. And doing it probably buys some time to craft other solutions without leaving millions with few healthcare options.

Finally, to go back to the beginning, the real mistake here may be the first one the Court made: as they debated on the first day... this case probably should be punted until the penalty fee actually goes into effect (this is the argument over the "Anti-Injunction Act" which says that you can't sue the government over a tax the government hasn't yet collected). Until the government has to start collecting the fee, we won't know how many people have to pay it. And the better case against the fee is actually probably by people who have no way to get insurance... a prospect which is much more likely to be the case if the Federal government and the States can't work out differences over Medicaid, if the health exchanges don't come together successfully, or if eocnomic conditions get worse. Even Massachusetts had to reexamine the timing and structure of their mandate fee, and the avilability of low cost insurance, as it became clear that the fee made more sense for many uninsured people when affordable insurance was unavailable. That may well be a signpost for a similar outcome, on a much larger scale, when the penalty fee goes into effect.

I'm not trying to play Mary Sunshine here - of course the Sipreme Court's conservative majority could overturn the whole thing; proof that this is far more a political choice than anything about the laws involved, more a way to score points for conservatism generally. But conservatives have, really, still no answers for the various problems our healthcare systems create, only a "fend for yourselves" approach that's disastrous not just for some, but for most of us. The Affordable Care Act is unpopular... but more to the point, it is still not really understood. And that may be reason enough to do away with it. But it's not a good reason... just like this case, really, is not a good case.

Yet More Articles We Never Finished Reading: Supreme Obliviousness

As the Supreme Court lawyer Tom Goldstein puts it, “Paul has turned the health-care fight from kind of a conservative dream that’s untied to reality into a very serious threat to undo the president’s signature accomplishment.” This alone would be a landmark achievement—and, for most lawyers, would have required their complete attention. But health care is just one of seven cases that Clement will be arguing in front of the Supreme Court this term, a caseload previously unheard of for a private attorney. In fact, since leaving the position of solicitor general under Bush, he has become, in the Obama age, a sort of anti–solicitor general—the go-to lawyer for some of the Republican Party’s most significant, and polarizing, legal causes....

At the age of 45, Clement, who has thinning brown hair and the faintest trace of a midwestern accent left over from his Wisconsin childhood, is already in the upper echelon of the Supreme Court bar. It’s an elite group of lawyers who, much like the justices they routinely argue cases before, conceive of themselves as being Olympian in their detachment from politics. Almost all of them graduated from Harvard or Yale or Stanford law school; clerked for a Supreme Court justice; or worked in the solicitor general’s office. (In Clement’s case, he did all three.) Now, in their private practices, they pride themselves on handling only serious cases brought by serious people in a serious manner; even if their client doesn’t prevail—or, worse, turns out to be on the wrong side of history—that stigma doesn’t fall on the lawyer. John W. Davis, who argued the losing side in Brown v. Board of Education, is still held up as an exemplary Supreme Court advocate.

Nevertheless, despite these lawyers’ contention that they aren’t political animals, they are, of course—and their extrajudicial activities often reflect as much. Ted Olson, the man Clement has supplanted as the top conservative Supreme Court lawyer, was an outspoken critic of Bill Clinton, served on the board of directors of The American Spectator, and helped found the Federalist Society. His legal cases were always assumed to reflect his ideological convictions. (Even now that he is seeking to overturn Prop 8, Olson’s personal support for gay marriage is a major story line in the legal fight.) The unusual thing about Clement is that, while he’s undoubtedly a conservative and a Republican, he has managed to avoid this fate. His persona is rarely conflated with the case he’s arguing.

                Jason Zengerle, "The Paul Clement Court", also in New York's current issue.

Clement's political persona is "rarely conflated with the case he's arguing"... except, of course, that he's arguing the opposing side of Obamacare, the repeal of DOMA, arguing against race-based redistricting in Texas and defending South Carolina's attempt to impose voter ID. Clement is defending such a laundry list of right wing cases that Zengerle can barely keep a prose-bound straight face as he attempts to sell the notion that Clement represents a non-partisan ideal in Supreme Court advocacy. It's not the examination of Clement I object to, or the attempt to do a "let's see it from his side" presentation of Clement's views (that, at least, is moderately interesting). But seriously - the man is the former Solicitor General for George W Bush, currently serving as the go-to Supreme Court lawyer for Republican state Attorneys General. If that alone isn't a clear indication of the man's politics... then what, exactly, do political labels mean? It's not as if Clement can be mistaken as a Democrat, or that we can even find a liberal who'd take the depth and breadth of conservative causes on Clement's plate (and the example that proves that observation is Ted Olsen, the most noteworthy example in recent years of a lawyer crossing his usual political expectations to argue in favor of gay marriage rights). It would just be more honest, and more accurate to paint Clement as the kind of Republican that's all too hard to find these days: pleasant, respectful, willing to respect the rule of law, whatever the outcome, after making a well thought, full throated argument for his side. That's admirable enough, without pretending he's somehow nonpartisan.

This American Lie

Maybe it's just a matter of timing - I didn't see it until late Friday afternoon, and the paid blogosphere does seem to cut out before Happy Hour on Fridays - but I'm surprised that the exposure of Mike Daisey as something of a fraud isn't resonating more on the right.

That may sound odd, but bear with me.

The discrediting of NPR has been an odd hobbyhorse of the right's most ardent screechers, something about the confluence of soothing voices, liberal boilerplate, and perceived objectivity, from what I can tell (roll that all up in a ball and you get... Nina Totenberg). James O'Keefe, in one of his more amusing sideshows, helped take out the head of fundraising at NPR with a tape of a conversation with a fake Middle Eastern investor, which led to a stunning series of off-point comments from senior officials at NPR that mostly made matters worse. NPR was also at the center of the Juan Williams "scandal", in which Williams was dropped as a commentator after telling Bill O'Reilly that he harbored suspicions that Muslims on his flights were possibly terrorists. 

Given all that, surely someone on the right will spend the weekend chortling as This American Life, one of NPR's most popular shows, has had to retract its most popular podcast, an episode recorded with Mike Daisey about Apple's dubious record manufacturing iPads and iPhones in China. Adapted from his monologue "The Agony and the Ecstasy of Steve Jobs", "Mr. Daisey and the Apple Factory" garnered a lot of attention, and started a string of modestly bad press for Apple, which has tried to minimize the fallout while trying to beef up standards at its plants (and I say "modestly bad" because none of it has really hurt Apple's sales or profits). 

Daisey's claims - that Apple's plants were rife with child workers and exposure to dangerous chemicals, among other horrendous practices - had been questioned by knowledgable reporters (though the practices were also confirmed by their reporting), but it wasn't until this week that Marketplace, PRI's business show (also on NPR), found Daisey's chinese translator who was with him on that trip, who said much of what Daisey claimed to witness - speaking to child workers, or observing workers injured from chemical exposure - never happened. Daisey calls it "dramatic license", now, and TAL is red faced.

But this isn't really just about This American Life; the New York Times has already had to issue its own correction to an online op-ed Daisey wrote making similar claims, and the Associated Press is looking at retracting coverage they did of Daisey on the topic as well. Others will surely follow. Even New York's Public Theater, where Daisey's show has been running, had to issue a statement generally supporting Daisey, but admitting that the show is not exactly entirely accurate (and that's okay, cause that's how drama works. Or something).

Perhaps you can see where I'm going with this - this is a "Mainstream Media" disaster of large proportions, undermining a popular storyline (corporate malfeasance! Cheap Chinese manufacturing practices! Labor rights!) that the right already can't stand. And this, really, is a classic unforced error: no James O'Keefe fakery needed, no dicey ideologue like Juan Williams to make the scapegoat. This was, as Ira Glass admitted, simply shoddy journalism that tends to undermine the credibility of a show like This American Life - failing to ask basic questions, check primary sources, or to make sure that information was fully confirmed. It doesn't help that TAL often comes off as smug, slightly sanctimonious, and hipper than thou on most topics it covers; this was hubris waiting for a fall.

Conservatives may shy away form this because it is, after all, Apple; on the one hand, an emblem of exactly the kind of capitalism they want to enshrine, while at the same time, a do-gooder sort of firm that liberals love to shop because it seems hip and cool and socially conscious. Embracing the discrediting of Daisey, when Apple still faces unpleasant questions about its corporate actions and conditions in factories, could easily be a two-edged sword, and it may just be that conservatives miss the connections: all that raling against MSM and bad journalism is less potent when there's no obvious political payoff.

On the other hand, it's the very clean spin of the Daisey case that I think should give lefty defenders of NPR through the previous scandals some pause: it's one thing to have been pranked by O'Keefe and his ilk, it's no fun having to defend the notion that Juan Williams didn't deserve all of what he got... but the through-line here is much like the unraveling of the NYT after Jayson Blair: lying to your editors shouldn't be this easy, and it's just arrogance to have missed the signs that this report was seriously flawed. Many lefties will, no doubt, want to take the line that Daisey's real disaster is undermining the efforts to investigate Chinese factories. But this, really, amounts to "he may have stretched the truth, but he wasn't wrong" and that's not true. This wasn't stretching, it was fabrication and falsehoods. Journalism can't let that stand. And NPR, as a whole and not just on one program, probably needs to reexamine its mission and how that mission is pursued. 

Most imortantly, though, is that listeners probably need to also ak more questions, and take less reporting at face value. That's the reality of our current American Lives.

Let's Talk About Sex, Baby

Rush Limbaugh beat me to it.

There I was, trying to explain to my Mom last weekend about the sense that the "insured contraception mandate" discussion was not, as Republicans claimed, about religion, but indeed about contraception, I also said, as a follow-on, that I thought the subtext of the "debate" - and the reason Republicans got some traction on it - was because the real issue was sex, and Americans are uncomfortable with talking about that.

And then Rush Limbaugh took the subtext and made it text.

If there's something heartening about the latest Rush furor, I think it may be that feminism finally had a clear example of "slut shaming" that made an often abstract discussion very literal. Slut Shaming is trying to marginalize voices, especially women's voices, in political discussions by calling people things like sluts and whores, implications that are negative, sexual, and promiscuous. Sandra Fluke, a law student at Georgetown, was offering a reasonable, thoughtful take one the issues of contraceptive cost and availability, and there was Rush, to call her a slut and a whore.

Unfortunately, I suspect that raising awareness about Slut Shaming is about as good as it gets; what's really problematic here is that conservatives will continue to get truck out of the contraceptive debate because liberals, even as they defended and praised Sandra Fluke, tended to run away from the uncomfortable aspect of the contraception debate that is  the reality of our American cuture: that is, that we are nation at once obsessed about sex and deeply conflicted about the issues around it. And the idea of people having sex, especially a great deal of it, tends to raise flags about morality that cloud reasonable policy discussions.

Which is to say... it's fine if you want contraception, ladies... just don't be all sexed up about it.