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What Bernie Sanders is doing to help Hillary Clinton [UPDATED]

One charge against Sanders by the likes of Paul Krugman that I just could not abide—there were others, but this post is about this one—was that while Clinton was actively soliciting campaign funds for the Democratic Party to use for down-ballot candidates, Sanders was not.  In a post here about that a couple of weeks ago I pointed out that Sanders and his campaign will be playing a large role both in soliciting campaign funds from ordinary individuals for down-ballot campaigns—especially congressional campaigns—simply through ActBlue.com’s huge database of Sanders donors, and that in fact those solicitations already had begun.  ActBlue.com is the organization that Sanders donors use to make their donations.

I also said that Sanders will play a large part in garnering support for Senate and House candidates simply by noting as he campaigns with candidates that he remains a senator and he, Elizabeth Warren and the other few real progressives in Congress need a Democratic-controlled Congress for their policy proposals to get heard in Congress.

Today I received this email message:

Beverly —

As Democrats, we believe that no one who works hard every day should have to live in poverty because they’re paid a minimum wage that’s too low. We know that climate change is a challenge we must confront. We believe no young person should have to spend so much on a college education that they end up shackled by years of debt.

And we know that we can never, never allow Donald Trump to become President of the United States.

Will you donate $3 or more today to help keep that from happening and to elect Democrats who will fight for everything we believe in?

If you’ve saved your payment information, your donation will go through immediately.

QUICK DONATE: $3

QUICK DONATE: $10

QUICK DONATE: $25

QUICK DONATE: $50

QUICK DONATE: $100

Or donate another amount.
Any Republican president would put President Obama’s progress on economic security in danger, make moves to repeal health care reform that millions of Americans are now relying on, and try to move backwards on the steps we’ve taken these past seven years to make our country more equal and more fair.

But it’s clear that Trump — with his repugnant attitude toward women, immigrants, Muslim-Americans, and pretty much anyone he comes across — is the worst of the bunch.

We’re going to be going up against him this fall. So right now, I’m asking you to pitch in $3 or whatever you can so that we can stop Donald Trump and his fellow Republicans:

https://my.democrats.org/Stop-Donald-Trump

Thank you,

Hillary

­­­____

Paid for by the Democratic National Committee, 430 South Capitol Street SE, Washington DC 20003 and not authorized by any candidate or candidate’s committee. Contributions or gifts to the Democratic National Committee are not tax deductible.

There is, I believe, no way that the Clinton campaign would have my email address—that ActBlue would forward it to the Clinton campaign—unless the Sanders campaign agreed at the Clinton campaign’s request to allow it.

Me?  I’m delighted.  I’m with him.  But I’m also now with her.  There’s no conflict there; she will be the nominee, and he will play a large role in policy matters, during the campaign and during the Clinton administration.

As for the message itself, I think the tone was pretty near perfect at this stage, as an opener.

I think Clinton has made some serious blunders in the last few days.  I have no idea why, for example, she thinks she needs to do anything affirmative to gain the votes of moderate Republicans, least of all by rehashing what everyone already knows about Trump.  Just as I don’t know why she thinks women who place a great deal of importance on electing a woman as president need to reminded that she is one and if elected will be the first.  I don’t share her fondness for highlighting the obvious or the already-very-well-known.

And her decision to court, in personal phone solicitations, no less, Republican donors, as the NYT reported two or three days ago—Wall Street ones and others—is stupefying.  Money for TV ads and the like will be far less important than handing Trump, who apparently now expects to be mostly self-funding his campaign because there aren’t all that many Republican donors who want him elected, such tangible campaign arguments to make in his own TV commercials and at his rallies and in interviews.  Trump is a New Yorker; he probably reads the New York Times.  (Well, okay, Paul Manafort probably reads the New York Times.)

Like ordinary voters—actually, even more so, probably—these donors will decide to support Clinton, or not, based not on Clinton but on Trump.  But that is less likely to be so for many Sanders supporters than for most other voters.  Her campaign priorities are skewed here, illustrating yet again her lack of agility in recognizing the differences between this campaign year and, well, others.  Jeb Bush had record amounts of money.

But this post is about Bernie Sanders and his campaign.  And I’m happy that he and it took the step they took.

And I’ll offer this tip to Clinton now that I’m WithHer: A key to beating Trump is to point out that on fiscal and other domestic policy at least, the election contest will not be to determine whether there will be another President Clinton or instead a President Trump.  There will be either a new President Clinton or a President Manafort.

Every time Trump tries to hint at the beginning of a back-away from Conservative Movement fiscal and other domestic policy, and toward some genuine economic-populist fiscal and anti-Chamber of Commerce regulatory policy, Edgar Bergen, er, Paul Manafort, quickly aborts it.

This will be a source of amusement for me going forward, although less so if Clinton fails to note this early and often, whether for fear of losing campaign donations or otherwise.  And less so still if she appears to be running as President Manafort Light.

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UPDATE:  Yikes.  Yves Smith posted this comment at Naked Capitalism:

What Bernie Sanders is doing to help Hillary Clinton Beverly Mann, Angry Bear. I am posting this only because I am just about certain this is wrong. Mann is almost certainly correct on her opening point, Sanders will help on downticket Democratic party races, but I assume he will help only ideologically aligned Dems, not the remaining Blue Dogs. But if these Congresscritters are to the left of Clinton, they could serve to keep her honest (or more accurately, less dishonest) rather than “help” her. But I am certain she is wrong about her getting an anti-Trump DNC message via Bernie sharing his list with her. First, I am told by someone in the Sanders operation that Sanders will not do that (although there is the risk that his list is hacked or stolen). Second, I have given to Sanders via ActBlue and have gotten no such message. Third, as a blogger, I have gotten DNC propaganda upon occasion, including solicitations, before I gave to Sanders (and I haven’t given to anyone save a couple of locals via check since I gave a mere $20 to Obama as a result of seeing Palin’s acceptance speech). Every time I unsubscribe. Mann has written often about Clinton and Sanders, so I suspect she got added to the list that way.

Sooo … I was wrong in my assumption about the underlying source of that DNC email to me.

Meanwhile, reader EMichael linked in the Comments thread to this article today by Matthew Yglesias at Vox.  I responded to EMichael’s comment:

Nice article. Thanks for linking to it. I don’t read Vox; I don’t care much for it. So I probably wouldn’t have known of the article otherwise.

I’m really glad to see someone with a high profile say what I, a low-profile type, have been saying here at AB for weeks now.

The Yglesias article is titled “The real reason Bernie Sanders will enthusiastically back Hillary Clinton in November.”

So I guess the bottom line is that Sanders indeed is helping Clinton, just not directly.  Not yet.

Added 5/10 at 12:14 p.m.

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Jeb Bush discovers a hypothetical he’s willing to address—and assures us that he, unlike Obama, would have ensured a second Great Depression. Jeb for President!

Questioned by a voter inside a sports bar about whether there is “space” between himself and his older brother on any issues, Bush offered a clear critique.

“Are there differences? Yeah, I mean, sure,” Bush said. “I think that in Washington during my brother’s time, Republicans spent too much money. I think he could have used the veto power — he didn’t have line-item veto power, but he could have brought budget discipline to Washington, D.C. That seems kind of quaint right now given the fact that after he left, budget deficits and spending just like lit up astronomically. But having constraints on spending across the board during his time would have been a good thing.”

—  Jeb Bush: George W. spent too much money, Eli Stokols, Politico, yesterday

Okay, so Bush has now found a hypothetical that he wants to discuss.  Two hypotheticals, actually: (1) what his fiscal policies would have been between Jan. 2001 and Jan. 2009; and (2) what his fiscal policies would have been between Jan. 2009 and, oh—at what point did the federal budget deficit decline dramatically?  2013? And … what is the deficit now, as compared with the Bush years?  And what role did the Bush tax cuts play in that?

But really, since these are to separate hypotheticals, we—well, the people who actually can ask and maybe get an answer (i.e., the news media; Hillary Clinton)—should ask two sets of questions.

First, we (they) should ask what spending, specifically, Jeb Bush would not have authorized during his brother’s presidency that his brother authorized.  The military spending for the wars in Afghanistan and Iraq?  The massive spending on increased security after 9/11?  The Medicare Part D prescription-drug law?  The frantic stopgap finance-industry bailout that George Bush’s Treasury secretary, Henry Paulson, put together in the fall of 2008 in order to try to fend off a near-complete collapse of the banking system?

Or maybe the initial part of the auto-industry bailout, without which George Bush said the unemployment rate would have jumped to about 20%?

So, would Jeb Bush—knowing then what we know now, about the near-collapse of the banking system, and of the economy, late in his brother’s presidency, and the fact that the Iraq war went on and on and on—have supported his brother’s two massive tax cuts, mostly for the wealthy, during his first term?

Just askin’.  Although I’d bet that’s a hypothetical that he’d take even longer to answer than the five days it took him to answer the infamous Iraq one.  Maybe even as long as 18 months.

Then, of course, there’s that second hypothetical that Bush answered yesterday—the one in which he said the budget deficits at the end of his brother’s term seem “kind of quaint right now given the fact that after he left, budget deficits and spending just like lit up astronomically,” indicating that he (Jeb) thinks Obama, in the face of the collapsing economy and banking system, should have … what, exactly?

Cut funding for unemployment compensation, or capped it at its 2007 level?  Refused to allow extensions of it?  Cut funding for food stamp access, or capped it at its 2007 level?

Ended the financial industry bailout begun under his brother?

Let Detroit go bankrupt?  (That wasn’t such a winning tack for Mitt Romney.  But, I mean, ya never know. …)

Ah. Maybe he means the stimulus bill, which provided funding for job training and college for hundreds of thousands of people, especially in states hardest hit by the collapse of the economy.  States like Michigan, Ohio, Nevada, Florida.  And the direct spending from that bill, on infrastructure projects and such.  Y’know, the stuff that virtually all mainstream economists now say helped keep the unemployment rate from reaching Great Depression levels and helped start the recovery.

It’s not surprising, I suppose, that the political media played up Bush’s comments yesterday–at least in headlines and soundbites if not in the actual reportage itself by reporters who wrote full articles about the comments (see, e.g. the quote at the opening of this post, and the title given the article)–as Bush Brother v. Bush Brother.  Because of course it’s the family saga, not the specifics of the policies, that matter, right?*

And some mainstream political reporters, including a couple of them from Politico, where (unrelatedly) the above quotes were originally published, couldn’t analyze their way out of a paper bag.  And Clinton herself pretty clearly has settled on a campaign of mindless clichés, Republican soundbites about federal regulation, and cutesy gimmicks.  Does she really not understand that most small business red tape has nothing at all to do with federal regulations? Or does she just think that most people don’t know the difference between private-bank business-loan operations and federal regulation, and between state and local business regulations—a.k.a., red tape—and federal regulations?  And that no one will ask her what regulations, exactly, she thinks are holding back small-business owners and aspiring small-business owners?

On that last point, she may be right, since she has almost no direct contact with the press and no contact at all with everyday Americans who haven’t been prescreened as props.

So maybe Bernie Sanders or Martin O’Malley—or Elizabeth Warren—will question the specifics of Jeb Bush’s answers to those hypotheticals.  And the specifics of Clinton’s claim that federal regulations are hindering small business.  Like, which federal regulations, specifically?  And maybe, at least regarding Bush’s, a Dem SuperPAC that is not coordinating with Clinton and her silly campaign, will run web ads or TV ads eventually that do that.

And maybe Sanders, O’Malley, Warren, or a progressive Democratic SuperPAC will point out that the biggest hindrance to small business loan availability, by far, is not federal regulation, or even state or local regulation, but instead federal deregulation—of the banking system.  Specifically, the disastrous repeal of the Glass-Steagall Act.  And mention the incessant Republican push to repeal the Dodd-Frank bank-regulation law, and their fight against instituting the Volker Rule.

Clinton is right that “[t]oo many regulatory and licensing requirements are uneven and uncertain” and that “[i]t should not take longer to start a business in the U.S. than it does in Canada, Korea, or France.” But small-business regulation is mostly, and licensing is entirely, state and local, not federal.  So maybe she’ll get around to pointing that out and detailing what she, as president, would propose as a national fix.  In any event she should not further the Republican misrepresentation that small-business regulation and licensing is done by the federal government. With the exception of federal tax laws, including FICA tax laws, and environmental laws and worker-safety laws, “cutting the red tape that holds back small businesses and entrepreneurs” means tackling state and local, not federal, red tape.

As for my earlier dismay at Clinton’s senior policy adviser Jake Sullivan’s Fox News-ish claim that Democrats support obstacles for small businesses, and are against small businesses having easy access to loans—we don’t want them to compete with Walmart, see—I now get it.  Sadly. Blame imagined Democratic anti-small-business sentiment, and big federal gummint, rather than the deregulated banking industry, for the labyrinthine high-hurdle event that is the small-business loan situation now.

Clinton speaks of her father’s success in opening and running a very profitable small business. His business loans, though, weren’t from banks competing for profits with multinational hedge funds masquerading as JPMorgan Chase Bank, Citibank and Bank of America.

But, as for Jeb Bush, at least he’s honest.  He’s told us now that had he, instead of Obama, been president in the aftermath of his brother’s presidency, he’d have ensured a complete collapse of the economy.  Vote for Jeb!

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Oh, Stop, Matthew Yglesias. And COUNTLESS Pundits Like you.

That’s an enormous lowering of expectations, and a reminder to liberals about the formidable barriers to further expansion of the welfare state. The public has long been skeptical of the political system’s practical ability to do the things progressives say they want to do. A health care website that comes in months late, over budget, and still lacking full functionality confirms all those fears when it was initially meant to debunk them. And that’s true whether or not it in some sense “works.”

— Matthew Yglesias, Healthcare.gov Has Already Failed: Website problems won’t stop Obamacare, but they’ve already wrecked progressives’ ambitions. Slate, today

Yglesias was discussing the Obama administration’s statement yesterday that healthcare.gov is now working reasonable well in its capacity to handle log-ons.  The update, Yglesias said, tacitly acknowledged  that “‘t]he government, according to the people who run the government, shouldn’t be expected to do things well.”

That’s right, Matt.  What liberals have always wanted was a healthcare insurance website that works the way Amazon’s does.  They never really much cared whether healthcare insurance, and healthcare itself, was available to people who have a preexisting medical condition and don’t have an employer that provides group insurance, or who just plain can’t afford huge premiums. They just used that as a pretext to get the Amazon-like website, or to try to.

The government shouldn’t be expected to do things well.  If, by “things,” you mean websites.

Just wondering whether I’m the only one who is really, really tired of the punditry’s asinine conflation of means and ends–or, more specifically, of a website’s operations and access to medical insurance and medical care.  I doubt that I am.  I think it’s just that big-name pundits tend to conflate form and substance, because, well, that’s what big-name pundits do.

What a dumb blog post.  Yglesias’s, on Slate; not mine, here.

 

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#RoryCooperLogic: Rory Cooper (whoever HE is) announced on Twitter that he and his wife have decided to pay off their mortgage and pay their own or their kids’ entire college debt, NOW!*

I have no idea who Rory Cooper is.  But in light of Matthew Yglesias’s quoting of three Twitter comments by Cooper today, I can sort of guess:

Rory Cooper @rorycooper

You don’t want to reduce the debt just for the sake of reducing the debt. #WhiteHouseLogic

Rory Cooper @rorycooper

You don’t want to balance your checkbook just for the sake of balancing your checkbook.

Rory Cooper @rorycooper

WH advisor @pfieffer this morning: “You don’t want to balance the budget for the purposes of simply balancing the budget.”  Um…

No, what you do want is to take the word “balance” and pretend that as long as you use that word twice in sentences purporting to draw an analogy, you can fool at least some of the people all the time, however patent the idiocy of the claim.  If you’re a Republican, that is.

An imperfect, but at least more factually accurate, analogy to balancing the federal budget is balancing your (or your family’s) overall finances.  Balancing your checkbook?  What does balancing your checkbook even have to DO with ANYTHING other than making sure you have enough money into your CHECKING ACCOUNT to cover the purchases and bills you’re CURRENTLY using that checking account to pay?

So I have a suggestion for the White House, and specifically for @pfeiffer: Why not ask @rorycooper whether he thinks paying his entire mortgage, any car loans he has, and any college-loan debt he and his wife have, NOW?  Or maybe, whether his kids should refrain from taking out college loans and forgo college unless their mom and dad can pay their college expenses, NOW?  Or unless their job at McDonalds takes care of it.

Pay up NOW, kids! Or parents! And pay off that mortgage now, Mr. and Mrs. Cooper!  
And, yes, you do want to balance your checkbook, but not just for the sake of balancing your checkbook. More like, for the sake of not having to pay a late payment on your mortgage or car loan, and not having your utilities cut off. What this has to do with balancing the federal budget, I wouldn’t know.  

But next time the congressional Republicans refuse to agree to a debt ceiling hike, which in fact is like overdrafting on your checking account, Rory Cooper will surely tweet about the analogy. 

Check in then at @rorycooper. The hashtag will be #RoryCooperLogic.

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*Post and title edited for typos and clarity , 4/4.

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The Republican Senate Campaign Committee’s Surefire Way to Defeat Ed Markey

The National Republican Senate Committee put out a blast email today mocking Ed Markey as the next Al Gore—aka a politician whose opponents will lie about him in order to try to block him from claiming deserved credit for his legislative initiatives:*
In case you missed it, Out of Touch Ed Markey — who has been sitting in Washington since 1976 — has channeled his inner Al Gore during a couple of his recent campaign appearances.
Earlier this month, Congressman Ed Markey claimed that he invented the satellite dish, low-cost mobile phone calls, and the ability for cable companies to provide long distance service.
Now, Markey tells us that he’s actually the hero we have to think for Google, Hulu, YouTube, Facebook and Twitter. Who knew?!
Perhaps Markey can use the technology he invented to call, tweet, or message his friend Al Gore, inventor of the internet.
Ed Markey Passed Some Good Laws In The 1990s, Matthew Yglesias, Slate, Mar. 28
Yglesias goes on to say that–surprise!–Markey said nothing of the kind, and that the Republican Senate Campaign Committee was referencing comments by Markey in which he was discussing legislation that he had championed in the 1990s–the 1996 Telecommunications Act and the 1992 Cable Act–that restructured laws regulating telecommunications and cable companies.  Markey says that these laws were instrumental in advancing development and competition in the telecom industry. Yglesias explains:
What is true is that, as Markey said, he was a leader in pushing the provision of the 1992 Cable Act that made it possible for commercially viable direct-broadcast satellite companies (Direct TV, etc.) to compete with cable companies. The specific issue is that cable companies had vertically integrated with cable stations. The same firm might own a cable infrastructure company and also own HBO. Then the integrated cable firms would agree to license their channel to other cable companies in other geographical areas, but not to competitors. So the technology existed to do satellite TV, but the content wasn’t there. Markey’s provision forced cable companies to license content to satellite companies on non-prejudicial terms, thus injecting some much-needed competition into the market.
At the second link, Markey is saying that he took a leading role in the 1996 Telecommunications Act and is arguing, plausibly, that the act led to a surge of business investment in digital technology.
Yglesias updated his post to report:
I’ve had some email exchange on this subject with RSCC spokesman Brad Dayspring who doesn’t dispute that the 1996 Telecommunications Act was a good law or that the 1992 Cable Act was a good law or that Al Gore never claimed to have invented the Internet, but explains that the point of attacking Markey in this dishonest way was to underscore the idea that Markey sometimes exaggerates the extent of his accomplishments. What the point of attacking Gore was, I couldn’t quite say.
Soooo … a good way to underscore a false point that Markey sometimes exaggerates the extent of his accomplishments is to falsely claim that Markey said things that it’s, y’know, extremely easy to prove he didn’t say.  It’s also a terrific way to demonstrate that Republicans apparently deny the connection between federal legislation and the advancement of technological invention and progress.
Not even to mention how good a way it is to illustrate that Repubs can’t distinguish between comments about engineering and computer science–or science, at all–and legislation about, and investment in, engineering, computer science, science, or much of anything else.
These tactics worked well for Mitt Romney, so I can understand why the RSCC thinks they are the ticket to victory for their Senate candidates next year.
Go for it, Republican Senate Campaign Committee!

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*Indentation format corrected after initial posting.

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Paul Ryan Is the Joe McCarthy of Our Era. Maybe the Mainstream Media Finally Will Recognize That. Then Again, Maybe It Won’t.

Paul Ryan is, in effect, the Joe McCarthy of our era.  He consistently spews outlandishly false statements of fact, never offers actual evidence in support of them and never refutes factual challenges using actual and full facts, and tries as a matter of routine to obfuscate his specific and broader objectives and therefore to trick the public.  

He is a serious nutcase.  And yet he has garnered mainstream media attention as though what he puts out is credible.  We have a mainstream media that treats this nutjob as though he were a legitimate policy wonk. And that acts as though facts are legitimately in the eye of the beholder.  

If only Obama were more like Ike. And if only there were an Edward R. Murrow around now, although a Walter Cronkite would do, too. If only.  

Broadcast news, of course, no longer has nearly the power and audience it once had, but we now have the veritable reverse of what this country once had in its highest-profile journalists. and we have a president who cowers in the face of whatever media juggernaut is currently saying “boo.”  

True, Ike was buoyed, not hindered, by the mainstream press when he helped end the McCarthy stranglehold. And McCarthy and Eisenhower were, technically anyway, members of the same political party, so there was no insistence that Eisenhower humor McCarthy in the name of bipartisanship. But there’s also no law that requires the president, this one or any other, to mindlessly do the mainstream media’s bidding if that bidding is in the name of bipartisanship. At least not when bipartisanship means delegating fiscal policy to a rightwing faction of a minority party that a majority of voters recently pretty-darned-clearly rejected.

This is getting really, really scary.  

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The links are to two Matthew Yglesias posts in Slate this morning.

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THREAT-LEVEL-GATE©: Bob Woodward’s Awful Hope-Y’All-Won’t-Notice-Ryan-Lizza’s-Report Ploy

Bob Woodward, the legendary Watergate reporter turned reliable chronicler of insider accounts of political events, has made a series of bizarre assertions over the past week.
— Matthew Yglesias, Bob Woodward Trolls the World, Slate, today

Yglesias then summarizes last weekend’s exciting Woodward-related events, and then updates us:

Things moved into the absurd Wednesday night when it was revealed that National Economic Council director Gene Sperling had concluded an email disagreement with Woodward with the observation that in Sperling’s view Woodward would come to regret clinging so tenaciously to an untenable position.
As if determined to prove Sperling right, Woodward chose to start talking around town about how Sperling had threatened him—a ridiculous interpretation that the ridiculous conservative media has been running with—rather than sticking with the obvious interpretation that Woodward’s reputation among journalists is going to suffer from flagrant wrongness. It would be interesting to see Woodward try to hash this out with, say, fellow Post-ie Ezra Klein, but instead he’s going the full wingnut and will be appearing on Sean Hannity’s show Thursday night to advance the agitprop agenda. In retrospect, this whole affair was foreshadowed by the release of Woodward’s latest book last fall. It made much less of a splash than many other Woodward books. Most well-informed observers agreed with Noam Scheiber that it was marred by anti-Obama bias, but under the circumstances of the time, it didn’t get the right geared up either. By essentially doubling down on the worst qualities of that book, Woodward has managed to make himself the center of attention again.

Surprisingly, though, Yglesias doesn’t mention that earlier this week, New Yorker writer Ryan Lizza published a journalistic scoop that undermined the thing about Woodward being a reliable chronicler of insider accounts of political events.  Lizza quoted none other than Eric Cantor, who conceded that Boehner, at Cantor’s urging, reneged on the 2011 grand bargain deal at the last minute, for political reasons.  

Uh-oh.   

So, do you think Woodward might have decided to ratchet up the off-the-rails stuff a-few-fold yesterday because yesterday (or maybe the day before) was the day when Ryan Lizza’s New Yorker story broke?  Yeah?  You think?

Yes, that’s right.  Bob Woodward, the legendary Watergate reporter had turned a reliable chronicler of insider accounts of political events, and has now been exposed as a reliable and gullible tool of Republican insiders.  But he hopes no one will notice that.

What I find interesting about this is that apparently the Washington Post has pulled the plug on Woodward’s unfettered use of it as a forum in which to spread false statements of fact. Thus he was relegated to seeking out Politico as his venue for the “breaking news” this time.

Progress.

I can’t help wondering, though, whether Sperling was right that Woodward might come to regret his flagrantly false reporting on what the sequester agreement is.  He hasn’t yet, though. He’s still cowering with fear from that threat, but determined to press on nonetheless.

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By the way, you really, really need to see Alexandra Petri’s threat-level piece on this. Seriously.  (Just be sure you’re not eating anything you might choke on when you do.)

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FOLLOW-UP to, “Do ‘Right to work’ Laws Violate the Constitution’s Contracts Clause?”

Last night, in a comment to my post from Tuesday, “Do‘Right to Work’ Laws Violate the Constitution Contracts Clause?”, reader PJR wrote:

To a non-lawyer, it kinda looks like SCOTUS rejected the contracts argument in 1949, so unions would have to find someway to get the court(s) to reconsider–or is this wrong? If wrong, why the heck haven’t unions tried this? ( http://supreme.justia.com/cases/federal/us/335/525/case.html)

I began writing a response that I planned to post in the Comments section, but then realized that the post would be too long (wayyy too long) for that, and that the issue was important enough to post directly as a blog post, in follow-up to the initial post.  So, here’s the follow-up in response to PJS’s comment:

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Hmm.  The opinion PJS links to, Lincoln Union v. Northwestern Co., from 1949, says that the Court earlier decided that the ‘right to work’ laws at issue in that case don’t violate the Contracts clause, but the opinion doesn’t elaborate except to cite, without comment, to a 1934 opinion, Home Building & Loan Assn. v. Blaisdell.  

But Home Building & Loan Assn. had nothing to do with labor contracts.  In that case, the Court upheld the constitutionality of a Minnesota law that required mortgage holders to grant homeowners longer periods of time to begin again to repay their mortgages after missing payments, before the mortgage company could foreclose on the house.  The Court said this didn’t violate the Contracts clause because states must be allowed to address severe emergencies by requiring an altered “remedy” for completion of the contract—in that case, a longer time in which to repay the mortgage—as long as the legislation didn’t alter the ultimate amount owed. 

The opinion recites the economic devastation of the Depression, and says that the Contracts clause must be interpreted to allow states some leeway to protect the state’s residents as long as the leeway wasn’t so great as to deprive the mortgage holder permanently of a property right—the right to eventual full payment of the mortgage. Then, after discussing two 1870s Supreme Court opinion that interpret the Contracts clause as absolute, the opinion says that it really is not, as long as the change is just temporary and in response to a real emergency.  (This is apart from the state’s right to permanently bar contracts or provisions in contracts that violate criminal or civil law—a separate “public policy” exemption that has existed since the founding; people (including corporate people) can’t simply contract away the criminal law or certain types of civil law.  Although lately the Supreme Court, in a series of 5-4 opinions, does pretty much allow corporate people to do exactly that.)  

Yet, in Home Building & Loan Assoc., the Court interpreted Lincoln Union as allowing states to declare exempt from the Contracts clause pretty much anything it wants, simply by declaring it public policy in the interest of the state’s citizens.  Here’s the extent of what that opinion says about the Contract clause issue:

Second. There is a suggestion though not elaborated in briefs that these state laws conflict with Art. I, 10, of the United States Constitution, insofar as they impair the obligation of contracts made prior to their enactment. That this contention is without merit is now too clearly established to require discussion. See Home Bldg. & Loan Ass’n v. Blaisdell290 U.S. 398, 436 -439, 239, 240, 88 A.L.R. 1481, and cases [335 U.S. 525 , 532]   there cited. And also Veix v. Sixth Ward Building & Loan Ass’n310 U.S. 32, 38 , 794; East New York Savings Bank v. Hahn, 326 U.S. 230, 232 , 70, 160 A.L.R. 1279.

After “seeing” Home Building, I can say that that conclusory statement is clearly a deeply distorted interpretation of Lincoln Union.  Read Home Building.  You be the justice, er, the judge, about what it says.

Ditto, and then some, for the other two referenced opinions.  Veix v. Sixth Ward Building & Loan Assoc., decided in 1940, begins:

In 1928 and 1929 appellant purchased prepaid shares of the appellee, a New Jersey building and loan association, paying the pay value of $200 per share. At that time the applicable New Jersey statutes provided that shares in such an association could be withdrawn by giving such written notice as the constitution or by-laws of the association provided, not to exceed 30 days; that withdrawals should be paid in the order in which notices were received, with not more than one-half of the receipts of any month being required to be used for payment of withdrawals, without the consent of the board of directors, until the oldest unpaid claim of withdrawal had been on file for six months; that no payment should be postponed for longer than six months from the date of notice; and that any member who had given notice could sue and recover the withdrawal value if it was not paid within six months of the notice.  

On April 22, 1932, these statutes were amended in four respects: (1) ‘total receipts’ of an association, one-half of which were required to be used for the payment of withdrawals and which had not been previously defined, were defined as income on authorized investments, dues on shares of the association which were pledged with it to secure loans, and repayments from loans; (2) if in any one month the funds required to be payable for withdrawals were insufficient to pay all requested withdrawals, withdrawing members were to receive $500 each in the order of priority until the fund for withdrawals was exhausted; (3) no withdrawals were to be paid if the funds available for payment of matured shares were insufficient to pay all matured shares, the payment of which had been requested within thirty days after maturity; (4) so long as the funds of an association were applied as required by the amendment, no member who had filed his withdrawal notice should have a right to sue for the withdrawal value of his shares.   In 1935 another amendment was passed providing that one-third of the ‘net receipts’ of an association were to be payable for withdrawals, with ‘net receipts’ defined as monies, other than borrowed monies, received by the association less operating expenses, payments on creditor obligations, payments for protecting the property of the association and reserves for any of these purposes. At the same time payments of withdrawals in the order in which notices had been received was continued but the payments were limited to $50 per member.

And here’s its holding, and the explanation for it:

In Home Building & Loan Association v. Blaisdell  10 this Court considered the authority retained by the state over contracts ‘to safeguard the vital interests of its people.’ The rule that all contracts are made subject to this paramount authority was there reiterated. Such authority is not limited to health, morals and safety. 11  It extends to economic needs as well. 12 Utility rate contracts give way to this power,  13  as do contractual arrangements between landlords and tenants. 14  
The cases cited in the preceding paragraph make repeated reference to the emergency existing at the time of the enactment of the questioned statutes. Many of the enactments were temporary in character. We are here considering a permanent piece of legislation. So far as the contract clause is concerned, is this significant? We think not. ‘Emergency does not create (constitutional) power, emergency may furnish the occasion for the exercise of power.’ 15 We think of emergencies as suddenly arising and quickly passing. The emergency of the depression may have caused the 1932 legislation, but the weakness in the financial system brought to light by that emergency remains. If the legislature could enact the legislation as to withdrawals to protect the associations in that emergency, we see no reason why the new status should not continue. When the 1932 act was passed commercial and savings banks, insurance companies and building and loan associations were suffering heavy withdrawals. The liquid portion of their assets were being rapidly drained off by their customers, leaving the long term investments and depreciated assets as an inadequate source for payment of the remaining liabilities. An acceleration or a continuance of this tendency to withdraw available funds threatened a quick end to the ability of the institutions to meet even normal demands. Such threatened insolvency demands legislation for its control in the same way that liquidation after insolvency does. Such legislation may be classed as emergency in one sense but it need not be temporary. 16  

And East New York Savings Bank v. Hahn, issued in 1945, pretty much sums it up:

Since Home Bldg. & L. Ass’n v. Blaisdell290 U.S. 398 , 54 S.Ct. 231, 88 A.L.R. 1481, there are left hardly any open spaces of controversy concerning the constitutional restrictions of the Contract Clause upon moratory legislation referable to the depression. The comprehensive opinion of Mr. Chief Justice Hughes in that case cut beneath the skin of words to the core of meaning. After a full review of the whole course of decisions expounding the Contract Clause-covering almost the life of this Court-the Chief Justice, drawing on the early insight of Mr. Justice Johnson2 in Ogden v. Saunders, 12 Wheat. 213, 286, as reinforced by later decisions cast in more modern terms, e.g., Manigault v. Springs199 U.S. 473, 480 , 26 S.Ct. 127, 130; Marcus Brown Co. v. Feldman256 U.S. 170, 198 , 41 S.Ct. 465, 466, put the Clause in its proper perspective in our constitutional framework. The Blaisdell case and decisions rendered since (e.g., Honeyman v. Jacobs, 306 U.S. 539 , 59 S.Ct. 702; Veix v. Sixth Ward Ass’n310 U.S. 32 , 60 S.Ct. 792; Gelfert v. National City Bank313 U.S. 221 , 61 S.Ct. 898, 133 A.L.R. 1467; Faitoute Co. v. Asbury Park316 U.S. 502 , 62 S.Ct. 1129), yield this governing constitutional principle: when a widely diffused public interest has become enmeshed in a network of multitudinous private arrangements, the authority of the State ‘to safeguard the vital interests of its people,’ 290 U.S. at page 434, 54 S. Ct. at page 239, 88 A.L.R. 1481, is not to be gainsaid by abstracting one such arrangement from its public context and treating it as though it were an isolated private contract constitutionally immune from impairment.

The formal mode of reasoning by means of which this ‘protective power of the state,’ 290 U.S. at page 440, 54 S.Ct. at page 241, 88 A.L.R. 1481, is acknowledged is of little moment. It may be treated as an implied condition of every contract and, as such, as much part of the contract as though it were written into it, whereby the State’s exercise of its power enforces, and does not impair, a contract. A more candid statement is to recognize, as was said in Manigault v. Springs, supra, that the power ‘which, in its various ramifications, is known as the police power, is an exercise of the sovereign right of the government to protect the … general welfare of the people, and is paramount to any rights under contracts  between individuals.’ 199 U.S. at page 480, 26 S.Ct. at page 130. Once we are in this domain of the reserve power of a State we must respect the ‘wide discretion on the part of the legislature in determining what is and what is not necessary.’ Id. So far as the constitutional issue is concerned, ‘the power of the State when otherwise justified,’ Marcus Brown Co. v. Feldman256 U.S. 170, 198 , 41 S.Ct. 465, 466, is not diminished because a private contract may be affected.

In other words, a state can use what is in essence its police power to limit the state the absolute right to freely contract, but only “to safeguard the vital interests of its people.”  Suffice it to say that none of those three opinions gave any indication, much less outright held, that a vital interest of the people of any state was to be able to avoid payment of union dues, much less to avoid payment of lower union-administration fees, as a union-beneficiary employee in a union shop. 

In any event, Lincoln Union, in pretending that Home Building and the other two New Deal era opinions say things contrary to what they actually say, dealt only with compulsory union membership, not with required non-union-member administrative fees paid to unions.  That case was decided two years after passage of the Taft-Hartley Act.  And Taft-Hartley itself bars required union membership, while also requiring that unions negotiate compensation and working conditions on behalf of all the employees within unionized categories, irrespective of whether the employee has chosen to join the union., and also requires the union to represent those employees in controversies between the individual employee and the employer other just as they do for union members in other words, to provide all the union benefits even to employees who opted out of union membership.

In return, that law does allow the non-union employees to be required as a provision of the collective-bargaining agreement to pay union-administration fees.

I don’t think the administrative-fee requirement is “materially” (a legalese term of art) the same as the pre-Taft-Hartley contractual agreements that barred employers from hiring people who will refuse to join the union. And, certainly, it does not involve addressing severe long-term emergency that even remotely brings it within the reach of the Home Building & Loan Assoc. public-policy exemption from a narrow Contracts Clause interpretation. So, best as I can tell—and I am NOT an expert in labor law—the Supreme Court has never actually held that state ‘right to work’ laws do not violate the Contracts Clause.

That said, although the rightwing justices normally are all for upholding the right of contract, when the shoe is on the pro-Democratic Party foot rather than the pro-Republican one (or is it the reverse? I’m not sure), they probably would not uphold that right in this circumstance.  These people are the ultimate hypocrites.  And stunningly, unabashedly so.  And they hold a bare majority on the Court.  
For now.

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COOL UPDATE, here.  H/T Matthew Yglesias.

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Do ‘Right to Work’ Laws Violate the Constitution’s Article I Contracts Clause? [Updated]*

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

— Article I, Section 10, Constitution of the United States

No, I didn’t post this to highlight the prohibition against states’ granting any title of nobility.  I posted it to highlight the prohibition against states’ enacting a law impairing the obligation of contracts—which the Supreme Court has interpreted as a guarantee of the right to freely enter into contracts.  
That guarantee does have exceptions, of course, none of which includes the type of contract that state so-called ‘right to work’ laws bar.  Including the ones passed today by the Michigan legislature, after springing out of nowhere last week.  (Although maybe the proponents of these laws think these statutes come within this exception created by the current Supreme Court’s majority: any law that helps corporations is constitutional.  It’s a corollary to the majority’s maxim that any federal statute, such as ones concerning compelled contractual arbitration, or labor unions, or federal-court jurisdiction, be distorted beyond plausible recognition of the statute’s actual language, if necessary, to favor corporations.  This is known by them as “originalism” and “textualism.”  And known by others, not all of whom are justices, as cute, pick-and-choose gimmickry.)

But as Slate’s Matthew Yglesias points out today, what these bills do is use the force of law—state law—to interfere with the right of contract between two private parties: labor unions and private employers.  In Michigan, the legislature actually passed two separate laws today: one pertaining to labor contracts between labor unions and private employers, the other pertaining to contracts between labor unions and public employers (i.e., state and local governments).  But as a constitutional matter, this doesn’t matter.

Yglesias points out what does matter, although he argues it only as a matter of hypocrisy, not as a possible violation of constitutional law.  After saying that the concrete economic impact of these statutes is murky—something that Paul Krugman and most Angry Bears would dispute (and have disputed)—he hits the nail on the head about the actual nature of these laws:

[What is] not murky is the absurd hypocrisy that has to go into making the case for right-to-work legislation.

The way this works is that if there’s a labor union at a given business establishment that’s bargaining for some higher pay or benefits or better work-rules or whatever it’s rapidly going to find that there’s a free rider problem. Everyone in the relevant class of workers gets the benefits whether or not they join the union. So something the union is often going to want to bargain for is some kind of rule stating that everyone hired in the relevant class has to join the union, or has to pay dues to the union, or something else along those lines.

Now naturally an employer’s not going to want to agree to that. But he’s not going to want to agree to higher pay or more vacation days either. That’s why it’s a negotiation. A right-to-work law is a law banning employers from making that concession.

The impact, obviously, is to make it hard to form strong unions in a given jurisdiction and thus make it a more business-friendly jurisdiction. But note that this same trick works across the board. You could just ban pay raises in general. Any one firm, after all, faces a dilemma. On the one hand it would be more profitable to pay people less. On the other hand, it’s also unprofitable to have everyone quit to go work for some other higher-paying company. So a law against pay raises would make everyone more profitable, spurring crazy business investment and job creation. Except nobody does that because it would be (a) insane and (b) obviously unfair. And yet the proponents of right-to-work laws are generally exactly the people most inclined to stand up for freedom of contract under other circumstances.

And yet the proponents of right-to-work laws are generally exactly the people most inclined to stand up for freedom of contract under other circumstances, indeed.  They do this standing up in legislatures, think tanks, and lobbying firms.  And in court, including the Supreme one.  Some of them doing this standing from the black-robes-wearing, comfortable-leather-chair-sitting side of the courtroom bench.

Now that the gauntlet has been thrown, labor should pick it up and take it to court.  There is, I think, little doubt that these laws impair the obligation of current labor contracts and also impinge upon the right to freely enter into contracts.  The proponents of these laws will defend them on the ground that state laws impairing the obligation of this particular type of contract isn’t what the framers had in mind.  And undoubtedly they’re right; it’s a historical fact that the Washington, Madison, and the others considered union organizing right up there with sodomy and murder as unprotected by the Fourteenth Amendment, which they foresaw would be added to the Constitution a few decades later, or by the clause in Article 1, Section 10, prohibiting states from impairing the obligation of contracts. 

But labor unions still should challenge the constitutionality of these laws, even if they have to try to convince the courts, and eventually the Court, that the laws are Letters of Marque and Reprisal. 

Which, at least regarding the Reprisal part, sounds about right. 

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UPDATE: Excellent, thorough article by Rick Ungar in Forbes today, titled “Right-to-Work’ Laws Explained, Debunked & Demystified.” Don’t miss it.

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*I just posted a lengthy follow-up post, here.

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