Relevant and even prescient commentary on news, politics and the economy.

Where do libertarians stand on race? Glad you asked.

Almost all Americans agree that the government should not actively discriminate against blacks and other racial groups, and most believe that private race discrimination should be prohibited as well.  Many people would go further and support efforts to reduce the large racial disparities that persist in America despite formal legal injunctions against discrimination.  Some believe that schools and employers have a responsibility to eradicate subtle forms of discrimination and to create environments in which black students and employees can reach their potential.  Some believe that individuals should “call out” specific acts that are racially insensitive or biased.  Many believe that government policy should be sensitive to the unequal burdens that facially neutral policies and institutions – such as the criminal justice system – impose on blacks and other historically disfavored groups.  Others think that government decision makers should focus on disparate burdens so that they are aware of situations, such as COVID, where blacks (and other groups) need tailored assistance.  Some believe in affirmative action.  Some advocate for reparations for slavery, while others favor race-neutral, income-based policies that help all disadvantaged people.

Recently, Donald Boudreaux posted this:

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Libertarians and Trump, one last chance for redemption

Progressive websites and even the mainstream media have been surprisingly blunt in their reporting on Trump’s attempt to steal the 2020 election.  Many reporters and commentators have rejected bothsidesism and said openly that Biden has won and Trump is trying to steal the election.  Quite a few have gone further and emphasized that his behavior is a threat to the survival of American democracy.

One group that has not been so outspoken?  Libertarian economists.  Of course, it is difficult to prove a negative, but I follow several libertarian thinkers, and so far, it’s been nothing but crickets.  My observation is consistent with the discussion of conservative economists by Saldin and Teles in their book Never Trump.

What accounts for the silence of the libertarian economists?  I can think of two possible explanations; they are not mutually exclusive.

The first explanation is that libertarians genuinely do not believe that Trump poses a threat to American democracy.

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How much should we trust the polls?

Matthew Yglesias has a good discussion of why the poll-based models that give Biden a high probability of winning are probably right, despite the well-known polling errors in 2016.  Nonetheless, it seems reasonable to believe that the poll based models (538, The Economist) are overstating Biden’s chances, for several reasons.

Turnout this year will be unusually difficult to predict.  How will the surge in mail in balloting affect turn out?  Will it lead to a large increase in voting, likely favoring Democrats, or are many voters likely to leave their ballots on the dining room table, or mail them in too late to be counted?  Will weather effects on voting have a partisan slant (in either direction, potentially), given that Republicans are more likely to vote in person?  How will COVID affect in person turn out?  Any increase in uncertainty favors Trump, given that he is behind in projections.

We don’t know how effective voter suppression efforts will be.  How will long lines affect turnout?  How widespread and effective will outright intimidation be?  Will efforts to intimidate backfire and increase Democratic turnout?  Voter suppression tactics have changed enormously in the past few years due to Shelby County, so the current state of affairs may not be reflected in data from prior elections.

Finally, we don’t know what the Courts will do, and how their rulings will affect the vote.  The biggest uncertainty is probably what happens to late mail in ballots, but other issues will arise.

As Andrew Gelman (creator of The Economist model) says, poll-based models are of “vote intentions, not of votes as counted.”

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A shot across the Court’s bow

From Mark Tushnet:

Here’s a thought in the event that there is a Biden appointed commission on court reform.  What about a Joint Resolution on Judicial Power: “No court shall hold a federal statute unconstitutional unless it concludes that the statute is manifestly unconstitutional.”

Tushnet discusses this suggestion and some limitations here.

I am somewhat sympathetic to this idea.  I certainly agree with the substantive idea that underlies it; we have way too much judicial review of social and economic legislation in this country.  Tushnet’s proposal is not at all a cure for conservative judicial activism by the Roberts Court, but it sends the right message:  “We’re on to you.  We know what you’re doing:  using specious legal reasoning to reach results you favor on ideological grounds.  Knock it off.”  It’s not a substitute for enlarging the Court – nothing is – but it is a useful shot across the Court’s bow.

Similar tactics could be used to pressure the Court in other ways.  For example “When addressing statutory ambiguity and potential drafting errors, the Court shall interpret statutes to achieve their public regarding purposes.  Rulings that force Congress to rewrite existing legislation shall be strongly disfavored.”  The Administrative Procedure Act could be amended to formalize Chevron deference.

Congress should also tell (or remind) the Court that it must defer to Congressional findings of fact unless they are clearly erroneous or there is reason to suspect an illegitimate (racist, sexist, etc.) motivation.  In Shelby County, Roberts opined that the preclearance provisions of the Voting Rights Act were no longer necessary to prevent racially motivated election law “reforms”.  His arrogant personal fact finding was contradicted by the Congressional record and immediately exposed as nonsense when the decision was handed down.  Congress could explicitly call out Roberts for substitution of his “factual” judgment for that of Congress when it attempts to reinstate the Voting Rights Act.

While potentially useful, these examples also illustrate why Court enlargement is the only reliable method for reining in the Roberts Court.  As Tushnet notes, his proposal would probably be declared unconstitutional by the Court, a problem that plagues almost all reform proposals other than enlarging the Court (term limits, panel systems, jurisdiction stripping).  More fundamentally, these examples illustrate that legal reasoning about the constitution, the administrative state, and complex legislation is way too open-ended and discretionary to be substantially hemmed in with words.  There is no substitute for good motives, but motives cannot be legislated.  We need better Justices.

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Yes, there is a Republican ideology. That is the problem . . .

From the NYT editorial board:

Of all the things President Trump has destroyed, the Republican Party is among the most dismaying.

“Destroyed” is perhaps too simplistic, though. It would be more precise to say that Mr. Trump accelerated his party’s demise, exposing the rot that has been eating at its core for decades and leaving it a hollowed-out shell devoid of ideas, values or integrity, committed solely to preserving its own power even at the expense of democratic norms, institutions and ideals.

Tomato, tomahto. However you characterize it, the Republican Party’s dissolution under Mr. Trump is bad for American democracy.

A healthy political system needs robust, competing parties to give citizens a choice of ideological, governing and policy visions. More specifically, center-right parties have long been crucial to the health of modern liberal democracies, according to the Harvard political scientist Daniel Ziblatt’s study of the emergence of democracy in Western Europe. Among other benefits, a strong center right can co-opt more palatable aspects of the far right, isolating and draining energy from the more radical elements that threaten to destabilize the system.

Today’s G.O.P. does not come close to serving this function. It has instead allowed itself to be co-opted and radicalized by Trumpism. Its ideology has been reduced to a slurry of paranoia, white grievance and authoritarian populism. Its governing vision is reactionary, a cross between obstructionism and owning the libs. Its policy agenda, as defined by the party platform, is whatever President Trump wants — which might not be so pathetic if Mr. Trump’s interests went beyond “Build a wall!”

The editorial rightly criticizes Trump’s corruption and contempt for the rule of law, and it criticizes the knowing complicity of his Republican enablers in Congress.  But the claim that the Republican party has no ideology or policy agenda is completely wrong.

The policy agenda of the GOP is to cut taxes on the rich and to dismantle regulation and social insurance programs.  This agenda is driven by the libertarianism of the party’s plutocratic donor class.  The two major legislative initiatives of the Trump presidency were 1) a large, regressive cut in corporate taxes (which passed) and 2) the repeal of the ACA without replacement (which failed).  These extreme and highly unpopular priorities did not reflect a lack of ideas or values or an ideology, they reflect the capture of the party by a wealthy libertarian elite.  And the libertarian ideology of the Republican party is not due to Trump; it preceded him and will quite likely continue to animate the party when he leaves the scene.

It is the extremism of the Republican economic vision that threatens our democracy.  It is their economic extremism that forces Republicans to stoke racism and xenophobia to win votes.  It is their economic extremism that leads Republicans to reject the legitimacy of Democratic governance and to undermine free and fair elections.  Reasonable people can and will disagree about exactly how much to spend on social insurance or the best way to tackle climate change.  But Republicans reject the premises of these debates.  Given their uncompromising moral beliefs – that regulation is misguided and overbearing, that taxation is theft, and that most Americans are “takers” – what ground is there for reasonable differences of opinion that can be resolved through elections?

It is a serious problem that so many people – including, evidently, the New York Times editorial board – do not understand what is driving the extreme and anti-democratic behavior of the Republican party.  The sickness that afflicts our body politic is all too real, and curing the illness will be much more difficult without an accurate diagnosis.

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Let’s make a coronavirus deal?

Latest on the relief negotiations is here.  Short version, Pelosi and Mnuchin are still negotiating over a $1.9 trillion bill; McConnell is floating the idea of a $500 billion dollar bill, but it is far from clear he can or even wants to pass anything.

If Pelosi can get to a deal with Mnuchin, that’s great.  I still think that the House should pass a bill with or without sign off from Mnuchin and challenge Trump and Senate Republicans to pass it.

But I would add now that the House should consider passing a $500 billion bill and calling McConnell’s bluff.  Part of the impetus for hanging tough on a big bill was to limit the ability of Senate Republicans to sabotage a Biden presidency by withholding any further relief (which they would surely do).  But it looks increasingly likely that the Democrats will take the Senate and be able to pass their own bill in January.  Of course this is not guaranteed, but we need to play the probabilities.  If the polling holds up on the Senate, the main aim should be to get through the next 3 months without too much human suffering and economic damage.  $500 billion is not enough, but properly targeted it would be a lot better than nothing.  Passing an inadequate bill would not help the Republicans politically, and it might help the Democrats drive home how intransigent and destructive Republicans are being on coronavirus relief.

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Christie, never forget

Chris Christie:

“I believed when I entered the White House grounds, that I had entered a safe zone, due to the testing that I and many others underwent every day,” Mr. Christie said in the statement. “I was wrong. I was wrong not to wear a mask at the Amy Coney Barrett announcement and I was wrong not to wear a mask at my multiple debate prep sessions with the president and the rest of the team.”

So, what should we make of this?  Is it a genuine change of heart after a brush with death, or a convenient time to scurry like a rat off a sinking ship?  And how could Christie believe that safe zone crap?  Did he wear a mask at the grocery store?

Regardless, anyone public figure who failed to oppose Trump should never be trusted or forgiven.  They betrayed us, they betrayed our country, they betrayed the immigrant children separated from their parents, the victims of covid, the people who depend on the ACA for health insurance, black, brown, gay, trans people, Jews and Muslims . . .  It was a choice.

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The stimulus negotiations

A good discussion of the current state of play is here.  The short version is Speaker Pelosi and Treasury Secretary Mnuchin are negotiating over a package of $2 trillion or so, McConnell plans to introduce a very limited $500 billion package that he may or may not actually have votes to pass (he may just be giving his members up for re-election a messaging opportunity), and Trump has declared that he wants Pelosi and Mnuchin to go bigger.

My take is that it is time for Pelosi to call Trump’s bluff.  She should pass a $2 trillion or so package, with or without final sign off from Mnuchin, making a nominal concession or two to Trump, and tell the truth:  “Everyone knows what is going on here.  The Democrats have been trying to get more relief to the American people and the Republicans in the Senate have been obstructing.  President Trump is the leader of the Republican Party.  He says he wants more stimulus.  He needs to show he is a leader and not just a television personality and get this bill through the Senate.”

The only possible downside here is political – passing the bill might benefit Trump and the Republicans.  But the election is the Democrats’ last leverage point until Biden takes office (assuming he does).  That’s a long time to wait, both in terms of individual suffering and aggregate macroeconomic damage.  And if Democrats don’t capture the Senate, there may never be another stimulus bill of any kind.  And it’s not even clear the bill would benefit Trump and the Republicans.  I say do it.

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Whitehouse on the Court

The clip by Senator Whitehouse that Daniel Becker posted here is excellent.  For those of you who prefer reading, this issue brief he wrote is also very good:

It turns out that Republican appointees to the Supreme Court have, with remarkable consistency, delivered rulings that advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party. Several of these decisions have been particularly flagrant and notorious: Citizens United v. FECShelby County v. Holder, and Janus v. AFCME. But there are many. Under Chief Justice Roberts’ tenure through the end of October Term 2017-2018, Republican appointees have delivered partisan rulings not three or four times, not even a dozen or two dozen times, but 73 times. Seventy-three decisions favored Republican interests, with no Democratic appointee joining the majority. On the way to this judicial romp, the “Roberts Five” were stunningly cavalier with any doctrine, precedent, or congressional finding that got in their way. . .

I then looked at the 78 cases to see which ones implicated interests associated with the Republican Party. These interests fall into four categories: (1) controlling the political process to benefit conservative candidates and policies; (2) protecting corporations from liability and letting polluters pollute; (3) restricting civil rights and condoning discrimination; and (4) advancing a far-right social agenda. Let’s review these.

First, political control: conservative interests seek to control the political process by giving their corporate, and often secret, big-money benefactors more freedom to spend on elections. This, in turn, helps them drown out opposing voices, manipulate political outcomes and set the agenda in Congress. For proof of this dynamic, look no further than how the Court’s decision in Citizens United proved the death knell for climate change legislation in Congress. Before that fateful decision, which lifted restrictions on corporate spending in candidate elections, Congress had held regular, bipartisan hearings and even votes on legislation to limit the carbon emissions causing climate change. But Citizens United allowed the fossil fuel industry to use its massive money advantage to strike at this bipartisan progress, and it struck hard. The fossil fuel industry set its political forces instantly to work, targeting pro-climate-action candidates, particularly Republicans. Outside spending in 2010’s congressional races increased by more than $200 million over the previous midterm’s levels—a nearly 450 percent increase.[7] Bipartisanship stopped dead.

Second, protection from courts and regulatory oversight: powerful corporate special interests can become accustomed to disproportionate sway in Congress, where they enjoy outsized influence through political spending and lobbying. With government regulators and in federal courtrooms, this type of influence should make no difference. Some regulators are not captured by the industries they oversee and use the power Congress has given them to protect public health and safety. In courtrooms, corporations may find themselves having to turn over documents that reveal corporate malfeasance. They may find themselves having to tell the truth. And they lose their influence advantage; they may even find themselves being treated equally with real people. In response to this corporate frustration, the Roberts Five have made it harder and harder for regulators and juries to hold corporations accountable.

Third, the Roberts Five are making it harder for people to protect their individual rights and civil liberties. In this group of cases, the conservatives reflect an elitist world view that corporations know best; that courts have no business remedying historical discrimination; that views and experiences outside the typically white, typically male, and typically Christian “mainstream” are not worthy of legal protection. Over and over, the Roberts Five have found ways to make it harder to fight age, gender, and race discrimination.

Finally, there are the “base” issues—abortion, guns, religion—that Republicans use to animate their voters. Republicans promise a Supreme Court that will undo reasonable restrictions on gun ownership and protections for women’s reproductive health, and they use this promise to drive turnout in elections. In this group of cases, the Roberts Five have invalidated federal and state laws, acting as a super-legislature to achieve by judicial fiat what Republicans cannot accomplish through the legislative process.

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The SCOTUS hearings

Democrats so far have focused on the risk that Amy Coney Barrett poses to the Affordable Care Act.  This is completely understandable as electioneering.  The ACA was one of their best issues in 2018, and it will be again this year.  But . . .

By focusing narrowly on the ACA, the Democrats are missing an opportunity to educate the public more broadly on the role of the Court and the danger posed by a highly conservative and partisan set of Justices.  The Court is a threat to all of the Democrats top legislative priorities and to voting and election reform.  In addition, the ACA challenge the Justices will hear in November is probably not going to succeed, in part because it is extraordinarily weak, and in part because preserving the ACA will defuse any momentum for a political challenge to the conservative majority on the Court, and the Justices know this.

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