Peter Should Be A Better Reader

I started to respond to this post of Peter's in the comments section, but I realized there was enough material, and the issue is important enough, to offer a separate post.

Peter criticizes (mocks?) my description of Georgia's new law requiring voters to present state-issued photo IDs by suggesting that I have misunderstood the word "disenfranchises"; maybe I have, but he hasn't explained why he thinks this, so I will leave that issue aside. More importantly, he writes that

Well, it turns out that an independent, bipartisan commission headed by Jimmy Carter and James Baker weighed in last week and recommended various measures, including -- you guessed it -- photo IDs for all voters.

Whether or not one agrees with the measure is a fair question. But the impetus for photo IDs doesn't stem from sinister motives. The sooner some people understand that, the sooner we can come to a solution that addresses all legitimate concerns.

I've been rubbing my hands together Monty-Burns style waiting for Peter to raise the Carter-Baker report so I could provide this response:

You might want to read Jimmy Carter and James Baker's op ed:

http://www.nytimes.com/2005/09/23/opinion/23carter.html

Since we presented our work to the president and Congress, some have overlooked almost all of the report to focus on a single proposal - a requirement that voters have driver's licenses or government-issued photo ID's. Worse, they have unfairly described our recommendation. [Emphasis added.]

Here's the problem we were addressing: 24 states already require that voters prove their identity at the polls - some states request driver's licenses, others accept utility bills, affidavits or other documents - and 12 others are considering it. This includes Georgia, which just started demanding that voters have a state-issued photo ID, even though obtaining one can be too costly or difficult for poor Georgians. We consider Georgia's law discriminatory. [Emphasis added.]

Our concern was that the differing requirements from state-to-state could be a source of discrimination, and so we recommended a standard for the entire country, the Real ID card, the standardized driver's licenses mandated by federal law last May. With that law, a driver's license can double as a voting card. All but three of our 21 commission members accepted the proposal, in part because the choice was no longer whether to have voter ID's, but rather what kind of ID's voters should have.

As it happens, I didn't see Peter's post early enought to get to provide that response: lerxst did, in the comments section of Peter's post (by the way, lerxst, thanks; also, Peter has told me that he doesn't often read the NYT -- can't remember if it's just the op-eds or the whole rag -- so that, rather than a terrible memory, is probably what explains his failure to cite the repudiation of his argument by the two Jimmies on whom his claims rely).

Just to reiterate, Peter: even James Baker, noted opponent of vote-counting, "consider[s] Georgia's law discriminatory".

Here are some other points demonstrating that the supposed (see, Peter, I can use that word, too!) anti-fraud basis for this law has less to do with the law than preventing certain undesirables from voting:

1. According to this Atlanta Journal-Constitution article,
   

   a lawsuit recently filed to challenge the law argues that requiring Georgians to pay for a state-issued identification card to vote constitutes a poll tax that is specifically outlawed under the 24th Amendment of the U.S. Constitution. In addition to the $20 to $35 fee for an ID card, there are also travel costs associated with getting an ID card, since only 56 of Georgia's 159 counties offer the cards at Department of Driver Services offices.

   "These costs constitute a far greater and more significant obstacle to voting than the $20 fee, and fall almost exclusively and most heavily on the poor, the infirm and the elderly and not on the more affluent individuals who own cars, have driver's licenses and/or passports," the lawsuit states.

   Unlike Peter, I'm not a lawyer, so I don't know how much validity the 24th Amendment argument has. But I will also note that I've read that if you're willing to pay $35 instead of $20, you can get a photo ID that's good for 10 years, not just for 5. If the point of this thing is just to make sure that (a) people are who they say they are, and (b) they live where they say they live, why does the same card cost more for a longer duration? And why have a 10-year duration in the first place, since more people are likely to move over a 10-year period than a five-year one? Hell, why have a period longer than the next election cycle at all? Even if there were a rational basis (law talk!) for a law requiring IDs like these, this particular law seems pretty irrational. And then of course there's the question of whether rational basis or strict scrutiny is the appropriate legal standard....but unlike Peter, I'm not a lawyer, so I don't know.
   
   
2. According to the same article, lawyers participating in this lawsuit
   

   cited testimony by Secretary of State Cathy Cox — who opposed the requirement but who is named as a defendant in the lawsuit — given during consideration of the bill that during her nine years in office that she has not documented voter fraud at the polls by people pretending to be someone they are not.

   Gee, this fact, assuming it is one, would be enough to make a guy wonder whether "people pretending to be someone they are not" is really one of those "legitimate concerns" Peter ascribes to the law's supporters. In other words, it's enough to make a guy wonder whether there's even a rational basis for a law more rational than this particular one.


3. Then there's this passage from the AJC article:

   The lawsuit also alleges that the photo ID requirement violates the Voting Rights Act of 1965 and the Civil Rights Act of 1964 by placing unnecessary obstacles to voting in person. The new law allows voters to cast an absentee ballot without showing ID, but requires voters who show up in person to show one of the forms of government-issued photo identification.

   Hard to find a rational basis for a law requiring X to achieve not-Y when that same law allows not-X when there is even more reason to worry about Y in the case when not-X is allowed (X=presentation of a photo ID, Y=event of a would-be voter's fraudulent identity claim). Gee, I am having a harder and harder time believing that Peter's "legitimate concerns" could be addressed by Georgia's law.
   
   
4. But here's the coup de grace. From the same AJC article, I see that

   Previously, voters in Georgia could show one of 17 forms of identification, including non-photo ID such as birth certificates, Social Security cards, utility bills, payroll checks and other documents showing a name and address. [Emphasis added.]
   

   So what documents allow you to prove your identity for the purposes of obtaining a Georgia photo ID? Here is what the Georgia Department of Driver Services website says:

   Applicant must furnish proof that he or she resides in Georgia and must provide a valid Georgia residence address. The following items are acceptable [emphasis added]:
   
   * Utility bill with valid Georgia residence address;
   * Bank statement with valid Georgia residence address;
   * Rental contracts and/or receipts with valid Georgia residence address;
   * Employer verification;
   * Georgia license issued to parent, guardian, or spouse.

   So if a utility bill is ok to get a photo ID, why can't it be used instead of a photo ID? Now, later on the same website, we see this text:
   

   First time applicants for a Georgia license or permit or identification card must show some acceptable form of personal identification that includes full name, month, day and year of birth. After verification of full name and date of birth, documents will be returned immediately to the licensee. The following items are acceptable but must be Original or a Certified Copy:
   * Original birth certificate (State issued) State Vital Statistics (Hospital birth certificates are not acceptable).
   * Certified copy of birth certificate (Issued from Vital Statistics with affixed seal)
   * Certificate of birth registration
   * Certified copy of court records (adoption, name changes or sex changes.)
   * Certified naturalization records
   * Immigration I.D. card Immigration and Naturalization
   * Valid Passport

To sum up: you can get a photo ID -- even if you've never had one before -- without any sort of existing photo ID, as long as you have an original or certified copy of various official documents showing your name and birthdate, and some other document -- not even an official government one -- showing your address.

The very same set of documents used to be sufficient to prove your identity for voting purposes, but now you have to bring said documents to the Department of Driver Services (or hope one of the roving buses comes to your town) in person. And once you do, you can have an ID that's good for up to 10 years. Even without proving your address remains the same.

Gee, Peter, I wonder why people like me doubt the motives of the people who enacted this law? Well:

1. It claims to solve a problem that its supporters can't show really exists
   
   
2. It involves arbitary financial costs (which can be forgiven for the "indigent", whatever that means, but not for the just "not-well-off") as well as travel costs, which are likely to be especially great for minorities, among whom car ownership rates are lower than among whites
   
   
3. It imposes no such costs on absentee voters, for whom I would think the ability to pretend to be someone else would be somewhat greater than among those who present in person
   
   
4. It allows the very same documents for issuance of a photo ID as used to be allowed for proof of identity at the polls
   

This is a discriminatory law. This is a stupid law on its own terms. This law has no business taking effect. This law very well may violate the US Constitution.

Peter, I imagine you didn't know many, if any, of these facts. I'll be interested to see if you're willing to confront them head on.

Update: Peter responds in the comments section. He says that his point was broader than the Georgia law:

It was broader because your original post suggested (to me at least) that you view those who support photo-identification in the voting context as really being interested in voter suppression....I get the impression that you think the whole idea
of photo-identification is a red herring, masking sinister motives.

Well, I didn't take any shots at Baker-Carter (though I'll concede I took a somewhat less ad hominem shot at Baker than Peter took at Carter). So I think you are arguing with a phantom. That said, here's what I wrote in my original post:

Republicans love to say they oppose easier access to voter registration and voting because they are worried about voter fraud.

That is their excuse for the new Georgia law requiring photo identification -- despite the absence of any evidence that there was substantial voter fraud in the past. Not shockingly, the poor, the elderly and blacks will be the voters most likely to be disenfranchised by this law.

Of course, it was also the excuse for the voter suppression efforts the GOP ran in Ohio during the 2004 presidential campaign.

I stand by those comments. If your concern is that I am habitually skeptical of limitations on voting eligibility enacted by Republicans, then you should be concerned. They deserve the skepticism. They have a long, sordid history of trying to suppress voting, especially by blacks, ever since they repugnantly and willingly welcomed the southern racists who quit the Democratic Party when its control was wrested away via the Civil Rights movement.

I don't think the burden of proof is on people who note the systematic assault on basic political rights by conservatives. I think the burden is on conservatives to show that their "legitimate concerns" are about more than losing elections. In two comments and a full post, Peter has yet to appeal to any such evidence. It's like he's using the Intelligent Design standard of evidence or something.

Peter then says his point was narrower in that

We should recognize that reform along the lines of photo-identification generally (i.e. not in the Georgia-specific context) has merit, and then have a discussion as to the best way to implement such a requirement.

(Personally I am confused about how a statement that suggests "reform along the lines of photo-identification generally (i.e. not in the Georgia-specific context)" constitutes narrowing, but perhaps I am just confused, and this point is not very important in any case.)

Again, maybe it does have merit. But why? What "legitimate concern" does it solve? And, if it does solve this "legitimate concern", is the cure worse than the disease?

He also says that

I get the sense that you believe that the whole issue is a non-starter -- that if one says they think we should have photo-identification, then one is really just a vote supressor.

That's certainly not my view. But again, where is the evidence that we need photo-identification? Where is the evidence that the costs have been lined up against the benefits? Convince me. I'm an empiricist.

Lastly I'd like to note that in his post today, Peter wrote that

Whether or not one agrees with the measure is a fair question. But the impetus for photo IDs doesn't stem from sinister motives.

The supposedly rampant fraud that photo IDs are purportedly meant to solve are way down the list of real election-related issues. You want to improve the US election system? Then get more machines in minority and low-income precincts so we don't have a repeat of this year's disgracefully long lines in Ohio. Get a uniform system of vote counting so we don't have the spectacle of logical inversion created by Supreme Court Justices preventing counting of legitimately cast ballots on equal protection grounds. Get a paper trail for electronic voting machines.

In other words: get real. Spend your time thinking about real problems, not excuses to avoid them. Or convince me that there is a real problem to be solved by photo IDs.

CCM Tries to Unite, Not Divide

I haven't written many posts lately. The slowdown is partly work-induced, but partly also impending wedding-induced: I'm getting married this coming Saturday (speak now or forever hold your peace, and time is tight.

To fill the, ahem, void, I've decided to add a temporary member to Team CCM: my conservative friend Peter (who comments as "bu$h ate my baby"....evidently mocking liberal opponents who blame most things on President Bush). I know that rightwingers have Fox, a lot of CNN, all of the government, and most of talk radio to make their claims. So all three of you who read CCM might be wondering why CCM should avail itself to yet more rightwing talk.

The answer is that I think it would be a good thing if honest argument backed by fact-based claims and counterclaims were more common. So why not give the right a chance here at CCM? Maybe we can build bridges (and not just to largely uninhabited Alaskan islands, and not just to the 19th century) by making respectful arguments and comments to each other.

Maybe CCM can be a uniter, not a divider.

So, I hope you'll all welcome this week's guest blogger, Peter/bu$h ate my baby. Show him respect, show him love, and---if you think it's true---show him why you think he's wrong. But show him that you believe in CCM's core mission: free speech, open minds, and honest and respectful argument.

How Much Is That War in the Window?

My friend Scott Wallsten has a new working paper (co-authored with Katrina Kosec) out in the AEI-Brookings Joint Center series. It's called "The Economic Costs of the War in Iraq".

I haven't had time to read the paper, but from the abstract, it looks like this issue may be one for John Graham:

Government policies are routinely subjected to rigorous cost analyses. Yet one of today’s most controversial and expensive policies—the ongoing war in Iraq—has not been. The $212 billion allocated by the U.S. Treasury has been widely reported. But the real, direct economic costs include more than budgetary allocations. Other costs include lives lost, injuries, and lost civilian productivity of National Guard and Reserve troops mobilized for the conflict. The conflict, however, also has generated cost savings, especially in terms of resources no longer being used to enforce UN sanctions and people no longer being killed by Saddam Hussein’s regime.

In this paper we monetize these direct costs and avoided costs of the war in Iraq, both to date and the total expected net present value of costs through 2015. Our estimates are imprecise. The data are not of high quality and every calculation requires a number of assumptions. In addition, we do not calculate indirect effects of the conflict, such as its impact on oil prices or other macroeconomic impacts, or certain intangibles, like the benefits of a stable democratically elected government in Iraq, should one emerge. Nonetheless, our best estimates suggests that the direct economic costs to the U.S. through August 2005 are about $255 billion, about $40 billion to coalition partners, and $134 billion to Iraq. These estimates suggest a global cost to date of about $428 billion. The avoided costs, meanwhile, are about $116 billion. We estimate that the expected total net present value of the direct costs through 2015 could be $604 billion to the U.S., $95 billion to coalition partners, and $306 billion to Iraq, suggesting a global total expected net present value of about $1 trillion. The net present value of total avoided costs, meanwhile, could be about $429 billion. [Emphasis added.]

Is My Blog Worse Than My Bark?

Strategery4 sent me this cartoon:
I'm wondering if I should still let him come over to watch the glorious return of Big Blue tonight....

Just kidding s4....you're still invited....but I make no promises about the shape your dallas paraphernalia will be in by the time you leave....

Katrina and the House of Delay

Hard not to snicker when you hear Tom Delay claim that there's no fat left in the federal budget. Sites like ArgMax are having a good time poking fun at our illustrious Majority Leader for this one. And it was a bit hard to believe -- here you have a guy who has dedicated his career in government to comforting the comfortable and slashing programs for the poor, and yet he's out there saying that there are no offsets in the budget for Katrina expenditures.

But an insider friend points out that many, many of the evacuees from the Gulf Coast most likely are settling in Delay's Houston district. Many of these evacuees are poor and African-American: not exactly the prototypical supporter of Mr. Delay.

As part of his intracensal redistricting scheme to add congressional seats for the GOP, Delay substantially diluted his support in his own district, and people were already characterizing next year's reelection campaign as a potentially tough one for him (having your top associates repeatedly indicted for actions they took in tandem with your own doesn't exactly help, either). Add tens of thousands of poor African-Americans who are unlikely to have started out as GOP fans and are the victims of the initial evident indifference of Republican "leaders" in Washington, and you start to see why a guy like Tom might not want to delay his embrace of a spend-at-all-costs policy.

Here are two interesting questions: by how many votes did Delay win last year, and how many evacuees have moved into his district?

On a related matter, what in the world will happen to Congressional districts in and around New Orleans for next year's midterm election? I don't think it would be constitutional to eliminate those districts before the next Census has been completed (by which time they may be largely if not fully repopulated). The big question wil be how many evacuees return to their original districts by next November. Suppose only a few do --- is William Jefferson going to be elected just like W, 5-4? (Of course, Jefferson has other problems, and he may be gone by then anyway.) I don't imagine there's any basis for contesting an election with a tiny electorate (though the House could always refuse to seat its winner, which is very hard to imagine happening).

Update: Tom Bozzo says in the comments that DeLay won by only 38,000 votes last year. Meanwhile, if I recall correctly, today's WaPo says that 2/3 of the Houston-area evacuees plan to stay there. Time to take back the House, without Delay?

Thoughts on Post-Katrina Reconstruction

Here are a couple observations about post-Katrina reconstruction:

1. First, the sarcasm: a la post-9/11 policy, I keep wondering when Bush will announce that we simply must devote tens of billions to rebuilding (fill in the blank: Crawford, New Hampshire, Michigan; wherever: the only requirement is that the source of our attention have absolutely nothing to do with New Orleans or Katrina). And maybe we can also invade Iran -- after all, Iranian religious leaders talk of God, and hurricanes are often referred to as "acts of God" -- this connection is certainly no more tenuous than the Iraq-9/11 one.
   
   
2. On a serious note, it's hard not to snarf my coffee when I read this stuff from the GOP's so-called fiscal conservatives about how we shouldn't push off the rebuilding costs on our children and grandchildren. Actually, this is exactly the sort of cost that would be reasonable to share across generations.

   Why? Because this event is very rare (ignoring the possible effects of global warming, anyway), and its timing is unforecastable (though its possibility certainly was not).

   In other words, it's just the sort of large negative shock whose costs could reasonably be expected to be smoothed over time and over a large population of people, including future generations.

   New Orleans's unique culture and history is a natural treasure. For that reason, choosing not to rebuild the city would be tragic. It's reasonable to expect more responsible future decisions about land and wetland use along the Gulf Coast, but to dump all the costs on either the people of the region or the current generation of taxpayers is to ignore the entire point of insurance.

   Yes, it is true that New Orleans is not exactly the optimal place to have a modern city given its vulnerability to natural disasters, and yes, it's also true that precious little account seems to have been taken of the environmental impact of redirecting the Mississippi, etc. Those are mistakes that must not be repeated, and my understanding is that they need not be. With that caveat in mind, I think it should be fairly obvious that smoothing these costs over time is just plain common sense: borrowing to cover lumpy, unforecastable short-term costs is the sort of thing for which financial markets are properly used (yes, it would be better to pre-fund....but then, Alan Greenspan and many opponents of directly investing SS funds in equities have told us in no uncertain termsthat the government must not have positive assets to invest).

   It is more than ironic to hear the Mike Pences of the world prattle on in this fashion:

   Katrina breaks my heart....Congress must do everything the American people expect us to do to meet the needs of families and communities affected by Katrina. But we must not let Katrina break the bank for our children and grandchildren. [Link to today's Carl Hulse NYT story]
   

   Here, for instance, are some excerpts from a March 9 article in The Hill:

   Pence, one of a handful of members mentioned as a possible successor to Speaker Dennis Hastert (R-Ill.), stressed that making the tax cuts permanent is the Republicans’ No. 1 priority after national security, “particularly in the area of death taxes.” “Death taxes” is many Republicans’ preferred term for estate taxes....

   Citing assumptions about deficit-conscious conservatives’ being unwilling to spend the money needed to transform [Social Security], the congressman added: “House conservatives are ready to borrow the money.”

There you have Mike Pence in a nutshell: protecting future generations from reasonable costs while piling unreasonable ones on them.

Steady Leadership...Oh, Never Mind.

Here's an excerpt from the speech the president will give tonight (courtesy of the WH distribution list):

The government of this nation will do its part as well. Our cities must have clear and up-to-date plans for responding to natural disasters, disease outbreaks, or terrorist attack ... for evacuating large numbers of people in an emergency ... and for providing the food, water, and security they would need. In a time of terror threats and weapons of mass destruction, the danger to our citizens reaches much wider than a fault line or a flood plain. I consider detailed emergency planning to be a national security priority.

Wasn't President Bush supposed to have been sorting all this out after 9/11? Wasn't that supposed to have been among the reasons why the WH and BC04 claimed he provided "Steady Leadership in Times of Change"?

And, what about all that "hard work" he moaned about during the first debate last October?

Call me unsteady, but I am really starting to doubt this man's credibility.

Faint Praise: Presidential Baby Steps Edition

From today's WH press availability by President Bush:

Q Mr. President, given what happened with Katrina, shouldn't Americans be concerned if their government isn't prepared to respond to another disaster or even a terrorist attack?

PRESIDENT BUSH: Katrina exposed serious problems in our response capability at all levels of government. And to the extent that the federal government didn't fully do its job right, I take responsibility. I want to know what went right and what went wrong. I want to know how to better cooperate with state and local government, to be able to answer that very question that you asked: Are we capable of dealing with a severe attack or another severe storm. And that's a very important question. And it's in our national interest that we find out exactly what went on and -- so that we can better respond.

Ah, how nice. Perhaps my fears were misplaced concerning the soft bigotry of low expectations of our President (among the media, the electorate and most certainly among Congressional Republicans).

After watching our illustrious President screw up virtually every important domestic and foreign policy issue over the last 4-5 years, I was beginning to suspect that W is inured to wholesale failure (except of course when it comes to the practice of divisive politics that comfort the wealthy and religious extremists -- these are goals he has achieved with flying colors).

Gee, the chief executive is taking rhetorical responsibility. As Walter Mondale said in his 2002 debate with Norm Coleman, how charming.

So, today we give faint praise to President Bush for acknowledging the positively obvious. Maybe now he can consider acknowledging the normatively necessary: that taking responsibility involves an independent, reality-based attempt to understand what went wrong, how to fix it, whom to fire and---most importantly---which faith-based policies to jettison.

I know, I know....Baby steps.

Thoughts On This Morning's Procedings

I heard Specter's opening questions on the radio and just watched Biden's questions. I haven't seen or heard the rest yet (never fear: I'm Tivoing the whole thing....I know, I know, freakshow....).

Here are some quick thoughts:

1. I was surprised that Roberts said as much as he did about Roe to Specter. I think Roberts is going to be in very deep trouble with the Republican base if he doesn't get religion before these hearings end. I can't even imagine what Coburn and Brownback must have been thinking. If there is any real trouble looming for Roberts, it is most certainly the interplay between those two on the right and Feinstein, Specter and the rest on Roe.

2. Joe Biden came across as a real buffoon. I'm starting to think I was wrong to respect that guy.

3. Roberts has an awfully selective view of the "Ginsburg precendent": he's honoring the memory of her hearings when he declines to answer questions she declined, and honoring it in the breach when he declines to answer questions similar to the large number of ones she answered.

Brown For The Count?

An insider I know says that the drums of unemployment are beating loudly for Mike Brown. This insider predicts that today is the day that Brownie is taken out of the oven....We'll see.....

Update: The same insider just sent me this in an email:

WASHINGTON -- Federal Emergency Management Agency Director Michael Brown
is being removed from his role managing Hurricane Katrina relief efforts,
The Associated Press has learned.

Legislatures vs. Courts: More Complicated Than I Said

Yesterday, I criticized California Gov. Schwarzenegger for mumbling about how courts should decide the issue of gay marriage in California. I pointed out that Republicans and some Democrats have criticized liberals/other Dems for relying on courts to achieve their goals. The usual line is that Dems try to get through courts what they can't get from voters. Before I start with my main point, let me point out that Gov. Schwarzenegger is apparently planning to veto the law the legislature passed to allow gay marriage.

That said, I'd forgotten about the 2000 Prop. 22 ballot initiative that passed and adds this text to the California statutes:

308.5. Only marriage between a man and a woman is valid or recognized in California.

It was my mistake to ignore this issue, which was discussed in both the NYT and WaPo articles to which I linked. The consitutionality of this law (relative to the state, not the federal, constitution) is currently being challenged in CA courts; this is the source of the governor's initial "let the courts decide" dodge.

I'm certainly no expert on California law, and there may be something special in CA about laws passed through ballot initiatives. But normally, when a law is passed, it can be overridden with new laws. I'd be very interested to hear from someone who does know about CA law concerning whether ballot initiatives can be superceded by laws passed through the normal (i.e., representative) legislative process. So let's consider two scenarios:

1. The law passed by the legislature this week would supercede the 2000 initiative. Then I stand by everything I said, unmodified. The initiative doesn't change my view.
   
   
2. This week's law would not supercede the 2000 initiative. In this case things are less cut and dried. In this case I'm less sure of the procedural merits of the legislature's law (though I'm certain of the demerits of not allowing the legislature's laws to superceded initiatives). I would note, though, that the practice of enacting laws of dubious (or downright non-) constitutionality has hardly been avoided in recent years. Consider the so-called partial birth abortion act that Congress passed recently -- despite a 2000 SCOTUS decision that struck down a very similar Nebraska law. Or lots of other restrictions on abortion around the country -- as I understand it, some states have chosen not to enforce laws that would ban abortion so that they'll be on the books the moment the SCOTUS overrules Roe, should that ever happen.
   

Either way, Schwarzenegger is either craven or a bigot -- or both -- for refusing to stand up to the nutty right on this issue. I'm tired of hearing about all the so-called moderate Republicans -- who regularly jump ship when the going gets tough on issues relating to their supposedly libertarian "principles".

Update: My conservative friend Peter takes me to task in the comments section for the next to last sentence above. He writes:

If option 2 is the case, why is Arnold either a craven or a bigot? Because other legislatures pass laws of dubious constitutionality and the respective executives did not veto the legislation? One could argue that one of the best rationales for the chief executive having the veto power is that he/she is charged with enforcing the law and if he/she believes it is unconstitutional, then he/she should veto it.

Peter has a good point. If case 2 holds (and a CA resident friend emailed to suggests that that is probably the case), then Shwarzenegger need not be craven nor a bigot simply for vetoing the bill. Peter argues later in his comment that all branches of government have a responsibility to ensure constitutionality of statutes enacted and signed into law. I take his point on this issue: I think that the widespread practice of passing and signing unconstitutional laws is a bad one, and I'm glad to hear a Republican suggest that this path is an illegitimate one.

Thus let me say that it would, in fact, be reasonable to veto this law solely on the procedural grounds Peter raises, provided, of course, that Gov. Schwarzenegger would do the same to a law whose policy result he supports when its unconstitutionality is clear. However, I still don't think that settles the issue.

First, the constitutionality of the ballot initiative -- and thus the unconstitutionality of the legislature's act -- has not yet been established. I'm not convinced the governor would be acting in bad faith if he signed the legislative act and explained that in the event that the courts strike down the ballot initiative, it will be important to have an enacted law -- and not just a court's opinion -- to buttress the legality of gay marriage in California. It seems to me that there is a real public interest in the idea that laws have both judicial and legislative support.

Second, let me say that I really do believe that, given his actions, "either way, Schwarzenegger is either craven or a bigot -- or both." Why? Because to my knowledge he has never had the guts to say "I'm for the policy underlying this act, but I feel that it is my obligation to veto the act in light of my strong belief in its unconstitutionality." That would be an act of principle (and one that would likely upset people on both sides of the issue). Refusing to take a stand on the merits of the issue because he is afraid of upsetting the extremist bigots that now anchor the Republican party and intimidate its elected officials is, in fact, craven. And if the governor is one of those who agrees with the radicals, then he is a bigot. It's really that simple in my view.

None of which is to deny the procedural point that Peter makes, of which he has convinced me.

Max Speaks, CCM Listens Again

As is often the case, Max Sawicky has it nailed:

GOVERNOR BLANCO'S ERROR

If she had sent more Louisiana National Guard to establish martial law and prevent looting, the Iraqi occupation would be successful.

Alternatively, if she had married Neil Bush she'd be the president's sister-in-law and get the good disaster assistance that Jeb got for Florida.

Pathetic Even for McClellan

From today's WH briefing....

When was the President informed, warned by the National Hurricane Center or other agencies, that Katrina was a hurricane that could overtop the levees in New Orleans?

MR. McCLELLAN: Terry, I appreciate you wanting to get into some of the factual tick-tock questions and things of that nature. I think we were keeping you updated throughout that time period, and if you remember, there were a number of people that, Monday, felt that the initial storm, which was the hurricane hitting the coast and then hitting the New Orleans area and Mississippi and Alabama and parts of Florida, that at that point, that New Orleans may be -- well, the flooding had not come at that point. And many people were talking about how --

Q You're the federal government -- if you want to get into tick-tock, the Army Corps of Engineers knew Monday morning that the 17th Street flood wall along that canal had given way. My question is different, it's about getting prepared for that.

MR. McCLELLAN: A lot of the media reports coming out --

Q When did the President know that Katrina was the kind of hurricane that could overtop the levees?

MR. McCLELLAN: A lot of the media reports that were coming out Monday, Monday night, Tuesday morning were expressing that it had missed the massive flooding that some had projected in a worst-case scenario.

Q The President of the United States was getting his information about this major disaster from the media?

MR. McCLELLAN: No, no, I'm just pointing out -- because you're trying to point out some things and I'm trying to point out, back to that time, if you'll recall, and just put that in perspective. The President was getting regular updates from people in the region and from people here in Washington, D.C.

Q But you can't tell me when he was -- was he told by Max Mayfield or others on Saturday or Sunday, Mr. President, this is the big one, this could really flood New Orleans. When did he hear that?

MR. McCLELLAN: Absolutely, Terry. He got on the phone with Governor Blanco at 9:00 a.m. -- I think it was around 9:00 a.m. on Sunday morning. And if you'll recall -- in fact, let me pull back up some of what the President said at the time, because maybe you weren't there covering him at the time, but some of your colleagues were. And the President specifically addressed this issue when he said that -- let me have one second here and I'll get it for you -- Sunday morning, in his news conference, "We cannot stress enough the danger this hurricane poses to the Gulf Coast communities. I urge all citizens to put their own safety and the safety of their families first, by moving to safe ground. Please listen carefully to instructions provided by state and local officials." At 9:00 a.m. that morning, he was on the phone with Governor Blanco. Governor Blanco even talked about it at her briefing later that day, I think it was early afternoon, and said, the President urged me to take steps to evacuate the people in New Orleans.

(LINK)

Notice that McClellan didn't even bother to pretend he was answering the question about Mayfield.

Pathetic.

Today's Don't-Blame-Us-Fest

A friend emailed me this today:

You don't even have to read the briefing transcript -- the table of
contents shows it was a bad day in the brady briefing room:

PRESS BRIEFING
BY
SCOTT McCLELLAN

Readout on progress after Hurricane Katrina.............1-4

Additional supplemental...............................4, 16

Criticism of the response effort.................4-9, 13-14

Barbara Bush's comments...................................9

When did the President know Katrina would

overflow the levees?..............................9-10

Evacuees/government benefits..........................10-11

Governor Blanco's request for federal aid................11

Active duty troops/use................................12-13

Confidence of American people in our preparedness.....13-14

Assistance from other countries.......................15-16

Leigslatures....No, Courts....

Can't help but laugh at this text from today's NYT concerning the California legislature's voting to allow gay marriage:

A spokeswoman for Mr. Schwarzenegger, Margita Thompson, said after the vote that the governor believed that the issue of same-sex marriage should be settled by the courts, not legislators, but she did not indicate whether that meant he would veto the legislation. The bill did not pass with enough votes to override a veto.

"The governor will uphold whatever the court decides," Ms. Thompson said.

For who knows how long, Republicans (and no small number of Democrats) have suggested that Democrats should be embarrassed for pursuing their goals in courts rather than legislatures. Gay marriage was Exhibit A in recent arguments on this topic.

So what happens?

• Democrats in the California legislature overcome the ugly bigotry of California Republicans who say things like

"Marriage should be between a man and a woman, end of story. Next issue," insisted Assemblyman Dennis Mountjoy (R-Monrovia). "It's not about civil rights or personal rights, it's about acceptance. They want to be accepted as normal. They are not normal." [From today's WaPo.]


• Rebuplican Governor Schwarzenegger says he wants the courts to decide the issue. And that he will "uphold whatever the court decides." What on earth does that mean? The governor has a piece of legislation on his desk. The court doesn't have anything to decide! And governors who don't plan to "uphold whatever the court decides" should be impeached anyway.

Which is it, Republicans?

The GOP and Voter Fraud

Republicans love to say they oppose easier access to voter registration and voting because they are worried about voter fraud.

That is their excuse for the new Georgia law requiring photo identification -- despite the absence of any evidence that there was substantial voter fraud in the past. Not shockingly, the poor, the elderly and blacks will be the voters most likely to be disenfranchised by this law.

Of course, it was also the excuse for the voter suppression efforts the GOP ran in Ohio during the 2004 presidential campaign.

I always wondered what justification the Republicans had for these sorts of laws, aside from racism, classism and just plain cheating, anyway.

Now I know.

They really are worried about voter fraud, and -- finally -- they really know of a real example.

Karl Rove.

That's right: according to a post from Citizens for Responsibility and Ethics in Washington,

Mr. Rove and his wife, Darby, registered to vote in Kerr County in 2003 after they sold their Austin, Texas home. County property records show that Mr. Rove and his wife have owned two tiny rental cottages in Kerr County since 1997, the largest of which is only 814 feet and is valued by the county at $25,000. In contrast, the Roves Washington, D.C. home is valued at over $1.1 million. Local residents have stated that they have never seen Rove in the area....

Texas law stipulates that one of the requirements to be considered a “qualified voter” is that the person be a resident of Texas and the county in which application for voter registration is made. The application for registration must be executed and submitted to an election officer and must include a statement that the voter satisfies the applicable residence requirements and the voter's residence address. Texas law provides that making a false statement on a voter registration form is a Class B misdemeanor.

No wonder they are so worried.

Chertoff: Not Even An Effective Liar

Hat tip to Wonkette for this presentation of front pages of DC and N.O. newspapers last Tuesday. Wonkette writes:

On Sunday, DHS chief Michael Chertoff told "Meet the Press's" Tim Russert that one reason for the delay in getting federal aid to Katrina victims was that "everyone" thought the crisis had passed when the storm left: "I remember on Tuesday morning picking up newspapers and I saw headlines, 'New Orleans Dodged The Bullet.'" We're wondering what papers the Chertoff household gets, because these are the headlines that greeted most people Tuesday morning:

It's particularly worth noting the subheadline of the Times-Picayune:

LAKEVIEW LEVEE BREACH THREATENS TO INUNDATE CITY

I guess that Chertoff's problem wasn't so much that he was reading the papers as that he wasn't.

Fire him. Now. Before he screws anything else up.

Blunt Lies

It is hard to come up with adjectives for lies like this:

Representative Roy Blunt of Missourri, the Republican whip, said it would be a mistake to abandon efforts to reduce the estate tax, arguing that was precisely what the economy needed to grow. (LINK)

For some facts, go here.

Two Simple Questions

Here are two simple questions that any MSM reporter covering the WH or the Administration can ask:

1. If Michael Brown, who couldn't even run a horseshow association, was the right man to run FEMA, who would have been a poor choice?
2. If the Administration's performance (not the results, but the performance) so far has been acceptable, what would an unacceptable performance look like?
   

DNC Press Release

Below is a press release just sent out by the DNC documenting some of the Administration's lies and ill preparation for Hurricane Katrina and its aftermath

Must Read: Bush Administration Ill-Prepared and Disdainful of the Facts

Washington, DC - As we learn more about the federal government's
delayed response to Hurricane Katrina, troubling questions have been
raised about ou r nation's preparedness and the ability of the
Administration to respond duri ng a national crisis. The Boston Herald
reported yesterday that "the federal official in charge of the bungled
New Orleans rescue was fired from his last private-sector job
overseeing horse shows." Worse yet, CNN is reporting today that the
Bush Administration is engaging in a campaign to mislead the public
about what federal officials knew before the hurricane hit and using
talking points that are simply "not true" concerning the federal
government's respon se.

CNN's Tom Forman reported today that
Homeland Security Secretary Michael C hertoff has made repeated
statements "in direct contradiction of the facts" g oing as far as
citing a deeply troubling example in which Chertoff claims the federal
government "rescued 10,000 people" while a press release from his ow n
Homeland Security department admits to having rescued "4500." The
American people deserve accountability in their federal government and
they deserve an answer from the President as to who is in charge in
this time of crisis.

CNN FACT CHECK:

Transcript (from Closed Caption)

TOM FORMAN: Homeland Security Chief Michael Chertoff continues to
say the power of Katrina could not have been predicted, even as his
department is accused of miscalculating the destruction and a
painfully slow response.

Chertoff: "It wasn't until
comparatively late, shortly before, day, day and a half before
landfall that it became clear this was going to be a catagory 4, 5
heading for the New Orleans area."

FORMAN: But, The national
hurricane center was warning of Katrina's growing danger four
days-landfall.

Weather person: A vulnerable area of coast. If
it goes in the western quadrant we talked about the nightmare
scenario.

FORMAN: Chertoff's own undersecretary, Michael Brown
of people mark discusses the storm's power and direct on the Friday
before the storm hit on Monday. &! lt;/p>

MICHAEL BROWN: The
hurricane center at its 5:00 forecast says those could be a category 4
by the end of the weekend. Tonight's Friday. All of those people
living all the way from Louisiana over to the Florida panhandle need
to think now about getting ready for what could be a very major
storm.

FORMAN: Katrina hit as a level 4 storm, dpak exactly as
brown described. But afterward, when FEMA's reliefers came under
criticism he said this --

BROWN: "I must say, this storm is
much, much bigger than anyone expected."

FORMAN: there's
more. Chertoff repeatedly talks about the hurricane and the break of
the levees in new orleans as if they are separate events, another
unpredictable one-two punch.

Chertoff: A devastating hurricane
followed by a second devastating flood.

FORMAN: flooding,
is, of course an expected result of any! hurrica ne. And=
historically has killed many more people than high winds. Chertoff
admits fema knew the levees around New Orleans might be overrun by a
category 4 hurricane however --

Chertoff: "The collapse of a
significant portion of the levee leading to the fast flooding of the
city was not envisioned."

Reporter: but fema conducted a
five-day drill last year to consider a big hurricane hitting new
orleans. They knew the levees were bill to withstand only a category 3
storm. And that floodwater flowing over a levee is a predictable cause
of a collapse.

I will tell you, that really that -- that
perfect storm of combination of catastrophes exceeded the foresight of
the planners and maybe anybody's foresight.

Reporter: not
true. For many years, many researchers weather experters and
journalists have written in! great detail about what would happen if
a major hurricane hit new orleans. Their predictions were widely known
and now have prompt to be right. And secretary chertoff has continued
with the same tact this morning he's been on talk shows saying things
which all ecan tell in many cases are in direct contradiction of the
facts saying, for example they rescued 10,000 people in these
days. His own department, people mark put on -- homeland security put
out a press release that said they rescued 4500 people in three
days. Suddenly the number has doubled. This is going on and on and on=
. Keeps saying it utterly unpredictable. When he's pressed about
whether he or his director mike brown are doing their jobs and whether
nobody should lose their jobs in the whole process he keeps saying,
no, we're doing all we can in very difficult circumstances which
everyone acknowledges. But i do know, talking to ! northernens all
over the country friends from the past, others! who = r />called in,
many people are very, very angry about this and they're saying that
maybe some heads should roll, not for political reasons but practical
reasons. Talking about a disasterer that is ongoing, will be ongoing
for weeks and months. And they're saying why on earth would peep be
kept in jobs if they can't do the jobs? That's the accusation.

Tom, thank you. Tom foreman.

******************

Boston Herald

Brown pushed from last job:
Horse group:
FEMA chief had to be 'asked to resign'

By Brett Arends

Saturday, September 3, 2005

The federal official in charge
of the bungled New Orleans rescue was fired from his last
private-sector job overseeing horse shows.

And before joining
the Federal Emergency Management Agen! cy as a deputy director in
2001, GOP activist Mike Brown had no significant experience that would
have qualified him for the position. The Oklahoman got the job through
an old college friend who at the time was heading up FEMA.

The
agency, run by Brown since 2003, is now at the center of a growing
fury over the handling of the New Orleans disaster.

"I look at
FEMA and I shake my head," said a furious Gov. Mitt Romney yesterday,
calling the response "an embarrassment."

President Bush, after
touring the Big Easy, said he was "not satisfied" with the emergency
response to Hurricane Katrina's devastation.

And
U.S. Rep. Stephen Lynch predicted there would be hearings on Capitol
Hill over the mishandled operation.

Brown - formerly an
estates and family lawyer - this week has has made several s! hocking
public admissions, including interviews where he sugge! said FEMA was unaware of the misery and desperation of refugees stranded at the New Orleans convention center.

Before joining the Bush administration in 2001, Brown spent 11 years as
the commissioner of judges and stewards for the International Arabian Horse Association, a breeders' and horse-show organization based in Colorado.

"We do disciplinary actions, certification of (show trial) judges. We hold classes to train people to become judges and stewards. And we keep records,'' explained a spokeswoman for the IAHA commissioner's office. "This was his full-time job . . . for 11 years," she added.

Brown was forced out of the position after a spate of lawsuits over alleged supervision failures.

"He was asked to resign,'' Bill Pennington, president of the IAHA at the time, confirmed last night.

Soon after, Brown was invited to join the administration by his old Oklahoma college roommate Joseph Allbaugh, the previous head of FEMA until he quit in 2003 to work for the president's re-election campaign.

The White House last night defended Brown's appointment. A spokesman noted Brown served as FEMA deputy director and general counsel before taking the top job, and that he has now overseen the response to "more than 164 declared disasters and emergencies,'' including last year's record-setting hurricane=
season.

Paid for and authorized by the Democratic National Committee. This communication is not authorized by any candidate or candidate's committee.

Extreme Gullible's Travails: WaPo Must Identify The Liar

As has been well covered elsewhere (e.g., see this post at TPM), Sunday's WaPo ran a story reporting that

As of Saturday, [Louisana Gov. Kathleen Babineaux] Blanco still had not declared a state of emergency, the senior Bush official said.

This is a bald lie.

Here is the press release that Blanco's office issued on August 26, 2005 to announce the state of emergency (the text of the declaration is part of the release). By way of TPM, here is a link to the letter Blanco sent to President Bush on August 28th, 2005, requesting that the President declare an expedited major disaster (which I believe he did do) and explaining that she had declared a state of emergency.

(Note: TPM discusses Newsweek's apparent gullibility on the same points.)

To its very minor credit, the WaPo is running a correction at the top of the article in question. In very small print, this correction reads

A Sept. 4 article on the aftermath of Hurricane Katrina incorrectly said that Louisiana Gov. Kathleen Babineaux Blanco (D) had not declared a state of emergency. She declared an emergency on Aug. 26.

How on Earth did the original lie make it into print unrebutted? Does the WaPo not have access to Google? Does it not make a practice of asking state officials for comment on a charge as incendiary as this?

I believe that the ability to promise sources anonymity is an essential part of journalists' jobs. But the promise is one side of an implicit, contingent contract: "you tell me something I want to know, and I will promise not to identify you as long as you are being truthful." This contract is violated by dishonesty, and no journalistic ethicist will or should have a problem with identifying a dishonest source.

Consider, for example, the apparently forged CBS documents concerning President Bush's TANG "service": CBS was right to identify its source once it was clear that he had misled reporters.

This administration has gotten away with anonymously lying through the media since day one (remember the supposed vandalism by departing members of the Clinton Administration? Those accusations were almost all lies -- and never mind the 2000 campaign).

It is utterly beyond me why the Post issues a correction but does not tell its readers the liar's identity.

Message to WaPo editors and writers: stop wondering why people are staying away from the MSM in droves.....You are giving them no reason to listen to you.

You can and must do better.

O'Connor Will Stay, But Who Will Replace Her?

I just watched Bush's appearance to nominate Roberts for Chief. That's what I figured would happen when I heard the news of Rehnquist's death: there were rumors that Roberts was being groomed for Chief, and the mechanics of having three confirmation hearings rather than "just" two would have been very difficult for the WH and for the Senate.

I was surprised, though, to hear Bush's precise language -- the part when he said that now he will focus on a replacement for Justice O'Connor. Bush could have framed today's choice as being to elevate Roberts to Chief even as Roberts's nomination is to replace O'Connor, and he could then have said that he would now focus on finding an Associate Justice to replace Rehnquist.

What's the difference? Well, there are two differences:

1. By converting Roberts's nomination to be a replacement for Rehnquist rather than for O'Connor, Bush most likely ensures that O'Connor will be on the Court for the coming term.
   

   I say this because her resignation letter stated that she would remain on the Court until her replacement will have been confirmed. Since there is zero chance the Senate can run two confirmation hearings in 4 weeks, no replacement will have been confirmed until after this session begins on October 3rd. My understanding is that the Court's sessions are not modular: oral arguments take place, then the Friday of the week in which these arguments happen the Court holds a conference in which preliminary votes are taken, and then opinions are drafted and circulated, with final votes (and occasionally changes in the outcome) occurring over an extended period of time. This rhythm would seem to preclude an intra-term change of personnel -- not that it can't happen, just that it would seem very disruptive.
   

   Why does it matter whether O'Connor will be on the Court for the whole term? Well, a number of cases in which O'Connor was widely considered likely to be the swing vote are scheduled for this term.

   In particular, there is Ayotte v. Planned Parenthood of Northern New England, the case involving New Hampshire's parental consent restrictions on minors' abortion rights. This case, which resulted in the law's being struck down at the appellate level, turns on what test courts should use in determining whether New Hampshire's law is too restrictive. The First Circuit applied the "undue burden" test that O'Connor first expounded in the 1992 Casey decision that preserved Roe v. Wade, while the state is arguing for a much more permissive standard on its ability to regulate abortions (see this article by Linda Greenhouse for more details).

   One problem that could occur with just 8 sitting Justices is ties. When the Court reaches a tie vote, the lower court's decision is automatically affirmed for that case and circuit, with no nationwide precedent established. So it's clear why O'Connor's staying on would be a procedurally desirable result.

   The problem for Bush and his rightwing base is that having O'Connor still on the Court makes it exceedingly likely that they will lose on Ayotte, as well as some other important cases coming down the pike. In their own terms, they'd be better off with a precedent-neutral tie.
   

2. The second difference is that now in choosing his second nominee, Bush will have to deal with a stronger version of the mantra "he should nominate a moderate like O'Connor". There'd have been some of this if he had framed his second nominee as a Rehnquist replacement, but now Democrats can say "We told you Roberts is really rightwing, and look -- now the President has proved our point by nominating him to replace the much-more-rightwing-than-O'Connor Chief Justice."
   
   Bush will face a replay of the pressures that buffeted his choice in July, only now the stakes are higher for both sides. Back then, no one knew when Rehnquist would leave the Court, and both sides could tell themselves things they wanted to hear regarding what would happen when Rehnquist did leave. Now the stakes have been doubled, and there is no room for either side's base to budge. Democrats will face enormous pressure to oppose any activist conservative to the hilt, while Bush will face equal pressure to nominate the sort of activist who could read this text

   The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state
   

   and think that "another state" means "any state" (see this post for more on the oh-so-active rightwing reading of the 11th Amendment).

Had Bush framed today's move as elevating O'Connor's replacement, John Roberts, to Chief Justice, he could have had his cake and eaten it, too: a Court without O'Connor this term, and a really rightwing replacement for Rehnquist with much less noise.

I'm a bit surprised that the WH didn't figure this out.

Update: Yale Law Prof Jack Balkin says some of the same things here and in a cross-post at TPMCafe.

Gulf Coast Disaster

I've been absolutely overwhelmed by work for the last week+, which explains my lack of regular posting. To my 17 regular readers....sorry about that.

Partly because of work obligations, I'm just now starting to catch up on the Katrina news. It's absolutely awful -- I don't even know where to begin. I hope that things in New Orleans get sorted out, and soon. It is difficult to imagine how there could be such ill preparation for a disaster the precise contours of which had been so much talked-about over the years. It really makes you shake your head in disbelief.

Let's hope that the city, state and federal governments turn around the civil disorder and emergency conditions soon. I'll probably have more to say when I've read more about it all (though not over this weekend, as I will be out of town).

Until then, my heart goes out to the people of New Orleans and the rest of the Gulf Coast hit so hard by this terrible disaster.