Friday, June 29, 2012


The Supremes let the health care act survive

By another 5 to 4 decision the Supreme Court has made a decision that affects almost everybody - except those of us who are wealthy enough to pay for any possible medical treatment we might ever need.  Actually those of us on Medicare aren't affected much by this decision.

The decision dealt with the question of the mandate: either buy health insurance or pay a fee.  Was this requirement a mandate or was it a tax?  A scholar belonging to the "original intent" school of constitutional law could argue either way.  If it's a requirement that citizens must buy something, like broccoli, it's unconstitutional.  If it's a tax, then it's constitutional.  Congress chose to label it a mandate.  The court said, no, call it a tax and it's constitutional.  I won't argue whether it ought to be called a tax or not.  I am interested in the one conservative justice who joined the liberal group in this close 5 to 4 decision.  Usually the deviant conservative is Justice Kennedy.  This time it is Justice Roberts.  He is reviled by conservative spokesmen as a turncoat.  It certainly represents a big change in Mr. Roberts' thinking, and that is my question: What was he thinking?

It's clear to me that, conservative or not, a person who follows the "original intent" theory of constitutional law could decide this matter either way.  If the requirement to buy insurance is a mandate, it's unconstitutional.  If it's a tax, it's constitutional.  It's clear to me that Mr. Roberts was thinking of the result of the decision.  He has stated that he doesn't like close decisions because they reflect badly on the Court.  He realized, as did everyone, that a decision to void the law would cause much turmoil and bitterness in the government and the people.  The negative effect on the court would be greater than that of the "Citizens United" decision.  He could argue in favor of the law on respectably conservative grounds.  The constitution gives Congress the power to levy taxes.  Case settled.

We must wait for other decisions to see whether this case represents a change in Mr. Roberts' thinking, or whether it's just a fluke.  I'm hoping for a change.

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Sunday, June 24, 2012


The Power of Money

I'm learning more and more about the recent election in Wisconsin to recall the Governor.  Recently it was reported that a large sum of money was spent to air a television ad in Wisconsin to convince voters that using the recall procedure in the Wisconsin Constitution was not an appropriate tool to use against a Governor with which you had merely a political difference of opinion.  The ad featured actors who said, "I didn't vote for Mr. Walker but I don't think the recall is the right thing to do."

Before I learned about the ad I learned that poll takers had found an opinion among a few Wisconsin voters that the recall was not the right thing to do just because of a political difference.  Apparently the ad had a small but sufficient effect on the voters to enable Governor Walker to beat the recall.

I would like very much to talk with one of these Wisconsin voters who thought the recall was not an appropriate way to get rid of a governor who makes bad decisions, or at least decisions that the voter strongly disagrees with.  I would ask this voter two questions:  (1) What is the purpose of the recall provision?  (2) How should one go about getting rid of such a governor?

It seems to me that the voters who thought the recall inappropriate were confusing the recall of a public official in a State or local jurisdiction with the impeachment of a President.  A President can be impeached for high crimes and misdemeanors.  We do not impeach a President simply because we disagree with him.  The purpose of the recall is different.  If a governor is accused of high crimes and misdemeanors he is arrested, put in jail, and tried, just like any ordinary crook.  The neighbor State of Illinois provided examples of that procedure with its treatment of two recent Governors.  Recall is a political tool, just like the referendum and initiative which provide means of enacting or rescinding unpopular laws.  The recall is a tool for getting rid of an unpopular official during his normal term of office.

The moral of this fable is that enough money spent in the right way can fool enough people to influence an election.  A subsidiary moral is that the voters of Wisconsin should take a refresher course in High School civics and learn again the purpose of the direct election procedures we borrowed a century ago from Europe: the initiative, the referendum, and the recall.  According to my recollection they were borrowed from Switzerland.

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Thursday, June 07, 2012


About Term Limits for Legislators and other Elected Officials

If you read my previous blog, dated May 17 of this year, you know that I don't like term limits, especially life time term limits for elected officials.  I have read the arguments of the people who propose and advocate such term limits.  Their stated goal is to discourage the formation of a political class, a class of persons who spend their entire active life in political activity, particularly enacting new laws.  A popular saying is that after a person has served some time in a legislature, let him or her then return home and live under these new laws.  An unstated belief is that political life corrupts.  Elected office is a source of power.  After a while the legislator or other elected official forgets why he or she wanted the office and enjoys the power that comes with it.  The way to prevent this, according to the term limits people, is to place an absolute limit on the time an individual can serve in any elected office.

Another argument in favor of life time term limits is that an important benefit of the power of an elected office is the personal gain that an individual may achieve by virtue of occupying the office for many years.  We all disapprove of elected officials who become rich in office.  The office should not be a source of wealth but a trust granted by the voters to provide honest and fair governance.  Therefore, the term of the office should not be long enough for the occupant to acquire great wealth.  At the very least, if the office does provide wealth for the occupant, it should be passed around so that others can share in the bounty.

I reject these arguments.  I reject the notion that there is inherently something shameful and dishonest about being a politician.  A politician is one who knows how to get things done by making compromises with other politicians.  We have seen in recent years the folly of trying to enact a law or begin a program with the support of only one party.  Bipartisan support is essential in crafting any new important law or starting any new and beneficial program.  Getting support from members of the other party is what expert politicians are good at.  We need them.  If they are termed out of office for life, we lose their valuable services.

During my time in California one of the most useful members of the Legislature was Frank Lanterman.  He is not remembered for any important legislation that he authored.  He is remembered for being an expert at making compromises that members of both political parties could agree to, even if reluctantly.  It happened that he was a Republican, but that made no difference.  He was not a "small government" ideologue.  He was a believer in getting things done.  Who in the California legislature today can fill the shoes of this man?

Although I feel strongly that imposing life time term limits on elected officials, particularly legislators, is a mistake, I am willing to accept a limit on consecutive terms.  Let us suppose that a legislator has a limit of eight years at a time.  After eight years in, say, the Assembly, he can not be immediately reelected to that body.  He can run for a position in the Senate.  After eight years in the Senate, he can then return to the Assembly.  Alternatively, he can take a two-year vacation and then be elected again to the Assembly for another eight years.  In this way we can keep the expertise of the good compromisers (successors of Frank Lanterman) and at the same time have an opportunity to break up the careers of those who simply want to serve as a legislator for the power that accrues after a long and continuous time in office.

What should I call term limits that do not last a life time but merely limit the number of consecutive terms a person can serve at a time?  Are these interim limit, consecutive limits, or what?  Please write.

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