Enabling the Crazy: Republicans and the right wing need to be held accountable for their dishonesty

Until Republicans police their own and use honest arguments, they cannot be trusted.

Over the last forty years, Republicans have developed some very bad habits. False equivalencies, out and out lying (such as claiming that Saddam had weapons of mass destruction), hypocritical stances (such as denying Merrick Garland a hearing for a position on the Supreme Court), accepting of lies for political expediency, and accusing the opposition of the very sins they commit are only some of the tactics that Republican base has grown to accept through networks such as Fox News and numerous zany online hysteria sites.

After a Berkman study found study (among many others) demonstrated that right wing media does not hold itself to account, and that Facebook is far more right wing than Twitter, Facebook began to take steps to address false reports. This led to criticism of social networks by President Trump, and a business opportunity for other purveyors of falsehoods. That is because Republicans can no longer survive without the falsehoods. A few people have noticed this danger, one of them being the founder of the founding online editor of the Washington Examiner and NewsBusters, Matthew Sheffield. In his own words:

I eventually realized that most people who run right-dominated media outlets see it as their DUTY to be unfair and to favor Republicans because doing so would some how counteract perceived liberal bias.
While I was enmeshed in the conservative media tradition, I viewed lefty media thinkers like @jayrosen_nyu as arguing that journalism was supposed to be liberally biased. I was wrong. I realized later that I didn’t understand that journalism is supposed to portray reality.

Mr. Sheffield wasn’t the only one to notice this problem. Last week Charles Koch put it quite simply: “Boy, did we screw up!” He did so by funding the Tea Party that fed on propaganda, not journalism.

The news echo chamber in which right wing people live live is not a threat to democracy, but is a threat to good, sound government, and to the health and welfare of the public. Donald Trump’s lies about the Corona Virus are merely the logical conclusion of a concerted attack that began with Rush Limbaugh in the 1980s, intensified with Fox News, and has led to such hate sites as InfoWars. Although Senator McConnell is smart enough not to peddle conspiracies, he has no problem profiting from them. He therefore does nothing to correct them, putting party before country. And so what do we get? Failure to recognize the risks of climate change, improper preparation for what became a pandemic that has led to economic destruction and chaos, and breeding of bigotry and violence.

Moral equivalences to justify some of Donald Trump’s more egregious acts seem to be a favorite. Previously we heard how, because cages were built under the Obama administration to house children for periods of up to 72 hours when they had no other place to go, it was therefore okay for the Trump administration to target migrant families for separation.

The latest claim from my friends on the right, led by people such as Representative Steve Scalise, has been that Donald Trump has the same right to use the courts to make whatever challenges he will, just as Al Gore did when he lost to George Bush in 2001. It is true that Al Gore did use the courts to attempt require a recount in certain districts. In that case, Gore and his legal team made very specific claims, and had evidence to advance them. They were these:

(1) The rejection of 215 net votes for Gore identified in a manual count by the Palm Beach Canvassing Board as reflecting the clear intent of the voters;
(2) The rejection of 168 net votes for Gore, identified in the partial recount by the Miami-Dade County Canvassing Board.
(3) The receipt and certification after Thanksgiving of the election night returns from Nassau County, instead of the statutorily mandated machine recount tabulation, in violation of section 102.14, Florida Statutes, resulting in an additional 51 net votes for Bush.
(4) The rejection of an additional 3300 votes in Palm Beach County, most of which Democrat observers identified as votes for Gore but which were not included in the Canvassing Board’s certified results; and
(5) The refusal to review approximately 9000 Miami-Dade ballots, which the counting machine registered as non-votes and which have never been manually reviewed.
Gore v. Harris, Florida Supreme Court, SC00-2431, December, 2000.

Each of these claims were specific, backed up by facts that were not in dispute, and raised substantial questions of procedure, as demonstrated by the ruling of the Florida Supreme Court. The point here is not to re-litigate an election that took place 20 years ago, but rather to highlight how Mr. Gore used the courts in good faith, even if he lost in the end.

In this case, the Trump campaign has put forward wild claims that have not been backed by evidence or law. While President Trump and his cronies have whined about fraud to the press and to the American people, when they have gone to court, their tune has been very different.

In Pennsylvania, Arizona, Michigan, and Nevada, when asked if they were arguing that fraud had occurred, the answer was “No”. In Michigan or Wisconsin, where the best they could come up with were what they called statistical irregularities. In 2016, those same “irregularities” occurred in districts Trump won, and yet there was no complaint at the time. That’s because there was no actual evidence or testimony of any wrong doing. Mr. Trump is a sore loser. He has thrown spaghetti at a wall to see what would stick. He and his clown, Rudolph Giuliani, have wasted the time of the courts, and have attempted to undermine the very institutions he swore to uphold. In computing we would call this a Denial of Service (DoS) attack, in which the resources of courts and opponents are wasted by suits filed in bad faith. In Williamsport, Pennsylvania, US District Judge Matthew W. Brann, a lifelong Republican, castigated Mr. Giuliani for his buffoonish arguments, writing:

… this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.

In Georgia, Trump and his fellow loons have attacked the Republican Secretary of State for having followed the law and performed his duties. One of his loons, Russell J. Ramsland Jr., filed an affidavit that raised concerns about alleged incidents that didn’t even take place in the state. They have attacked various government officials in Nevada as well.

In the meantime, Republican senators and governors largely sat silent, allowing this travesty to continue. With one exception, the only people who dared to stand up to Mr. Trump were those who were retiring, or those who had just been reelected. That required no courage or leadership whatsoever. These people have been swayed by Trump’s media madness, worrying that they might not get re-elected, or thinking they might develop a political advantage when Biden is sworn in. Winning, not their oaths to their country, is all that matters to them.

Some will say that Democrats are no better, that Democrats obstructed Mr. Trump from the moment he came into office. Maybe there is some truth to this, but at least in the Democrat’s case, they used legal means and the stark truth to support their positions. Not so with the Right Republicans in Congress, and enablers such as Senator Collins.

There can be no reconciliation, nor can their be trust in their role in government, until Republicans police their own, starting with taking responsibility for not having stood up to a liar and bully, who harmed a great many people.

Senators’ letter to Iran was reckless, but probably not illegal

The senator’s letter to Iran probably wasn’t illegal, but it was foolish.

A lot of buzz went on in the past week over a letter that Senator Tom Cotton of Arkansas wrote and 46 Republican senators signed. Some have called the letter a violation of the Logan Act. There are essentially three questions to ask:

Did the Senators violate the Logan Act?
Did they violate their oath to the Constitution?
Was their letter a good idea?

CNN’s Jeremy Diamond has provided an excellent analysis of whether the Logan Act was violated. In a nutshell, senators receive the same protection from the 1st Amendment of the Constitution that the rest of of receive. As an inherently political act, the letter would receive the highest level of protection from any court. CNN points out that in the over 200 years the Logan Act has existed there has been a grand total of one indictment and no actual prosecutions. In short the the Logan Act is a paper tiger, and rightfully so.

The Act itself reads as follows:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

One gets the feel that when President John Adams affixed his signature he was thinking in the same way that led him to believe that the title of the head of the new republic should be king and not president. People every day talk with representatives of foreign governments, to provide them their perspectives. Indeed successive administrations, including this one, have encouraged those dialogs, because they advance American values.

Some might argue that the senators who signed the letter had in some way violated their oath to uphold the Constitution, as if somehow they did that by conducting foreign policy. The Constitution itself is mostly quiet about that. Article II Section 6 does state that it is the job of the president to conclude treaties with other nations, on the advice and consent of other countries. But it doesn’t say that others in government can’t speak to other governments.

And so we are left with the question as to whether it was a good idea to send any such letter to Ayatollah Khamenei. Here the senators erred in two ways. First, the Cotton letter itself advises the Iranians that any deal President Obama makes on nuclear development with the Ayatollah could be overturned with the stroke of a pen of the next president, because it doesn’t have the force of a treaty. As it happens, most treaties can be abrogated with the same stroke of a pen by a future president, and so their argument that such an agreement should be brought before the Senate is largely moot.

But beyond that and more importantly, the senators have failed to understand it will not be the United states that enforces of any agreement in economic terms, but rather a coalition of countries, largely in Europe, who will decide to either buy Iran’s oil or not. The fact is that oil is a commodity, and it will be sold at market prices, and Iran doesn’t care where the money comes from, so long as it comes. Thus whether the next president backs out of an agreement with Iran matters only in as much as the Europeans also back out of the deal. They will not tolerate intransigence or extremism, either by Iran or the United States, either in advance of an agreement or later. If they believe that negotiations have been scuttled for other than security reasons, they may either make a separate deal on nuclear development with Iran, or simply let the sanctions they have in place lapse. If they believe a president has backed out of an agreement other than for cause, the Europeans will not follow suit.

In addition, it would send a horrible message to the rest of the world if the next president did back out of an agreement without strong justification, because it would it would call into question the word of every succeeding U.S. president. That’s very bad for America.

Therefore we have to ask why the senators sent the letter in the first place. The only convenient answer is that all politics is local, and that they wanted to show that they were “tough”. Certainly that is the image that Senator Cotton likes to project, and it certainly plays well with some parts of the population. But that doesn’t make the letter the smart thing to have done from a diplomatic perspective. We are at this point with a relatively moderate President Rouhani at the table because of effective economic – not military – measures. Certainly we have to be wary of future versions of Mahmoud Ahmadinejad, but we should also be aware that much of the distrust between countries can give way to better understanding and an end to hostile behavior only when each nation recognizes that the other is not filled with crazy people.

House Republicans Read the Constitution

That’s right. On day 2 of their rule in the House, the AP reports that House Republicans will read the U.S. Constitution. Better late than never, I suppose. Of course I would like a reading comprehension test to follow. Let’s hope that they don’t read the Constitution off an iPod/iPhone app. When President Obama did his recess appointments last week, I wanted to review Article II (Powers of the President), and it was at that point I thought I should carry a pocket version. I’ll leave out the names of the guilty, but one free version had truncated each of the articles, and another free version omitted Article II entirely. That’s probably the version Congress would enjoy. Fortunately the National Constitution Center in Philadelphia has done a very nice job on theirs. Funnily enough, however, the Constitution is not accessible from their home page. Here’s a link to Cornell that I like.

On States Suing over a National Healthcare Plan

I had a guest here this weekend who told me of one theory of why states might sue the federal government over portions of the Obama Healthcare Plan that requires individuals to buy insurance. The theory goes that the federal government is not authorized by any clause in the Constitution to force individuals to pay for healthcare. A plain and superficial reading of the Constitution would seem to support that. This leads to three questions:

Is ObamaCare constitutional?
If not, can it be made constitutional?
Who is doing the suing and why?

First, a caveat: I am not a lawyer. All lawyers: please chime in.

Is ObamaCare Constitutional?

Next, some Constitutional basics. The way our form of government works, each and every law that Congress passes must find some authorizing basis from within the Constitution, because the 10th Amendment of the Constitution clearly states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, Congress has to find a basis for the law from within the Constitution. For the better part of three centuries, however, Congress has largely been able to get around this restriction through what has become known as the Interstate Commerce Clause (Article I, §8 Cl. 3):

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

“Commerce among the several states” has been interpreted to mean, for instance, the ability of someone in New York to charge for access to its waterways. That was what Gibbons v. Ogden (22 US 1) in 1824. It’s largely the basis of how drug laws are authorized today by the federal government. Some people might say that this is a stretch of the clause, and that in fact requiring expenditures from individuals on health insurance would be even more of a stretch.

So what’s the logic in favor of the law? That has its basis in the theory of insurance. Here I will say that I am not an insurance expert, by the way. This much I know: a risk pool requires that everyone not make a claim at the same time, and the lower the likely percentage of claims over some period of time, the need for less money by the insurance companies to satisfy claims.

In the context of health care, if only old and sick people buy insurance, because they make up for the bulk of claims, the money required to pay out claims would require very high premiums, thus reducing any benefit to having insurance. On the other hand, if only healthy people bought into the system, since there would be very few claims, there would be no need for high premiums. Indeed, healthy people might not buy insurance at all, or very limited policies. In short, insurers can only sell health insurance to sick and old people if they have a group of otherwise healthy and young to reduce costs.

Does the decision of someone to not buy insurance in one state impact consumers in and companies in other states? If there exist risk pools that cross state boundaries, then the answer would appear to be yes. Otherwise it would seem the answer is no.

If ObamaCare is not constitutional, can it be made so?

Supposing the Supreme Court found mandatory premiums unconstitutional, what could the Congress and administration do to get around it? The tax system offers us one possibility. The 16th Amendment authorized Congress to tax us:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

One way the Congress could get around this would be to impose a tax that is the amount of a minimum premium, and then allow for a credit based on the costs expended on that premium. Loophole? Perhaps. But not the first.

Coming back to the Commerce Clause, the Congress probably could not have imposed a national speed limit without relying on highway funding. They probably could not themselves have prosecuted individuals for traveling over 55 or 65 mph. Instead they required the states to pass laws or face losing highway funding.

Who is doing the suing and why?

Ultimately if we look at the states that have filed suit, I’m sure we’ll see a distinctly Republican red tinge to them. For one thing, the strategy of Republicans has been to obstruct any Democrat initiative, no matter the harm that obstruction causes to individuals. Here, what possible benefit could individuals who are uninsured gain from not having health insurance? Today 45 million Americans don’t have a choice because they cannot take part in a well balanced risk pool, and hence cannot afford any coverage. Tomorrow even if they don’t have a choice on insurance, at least they’ll have some coverage.

Summary

In short, while considering the constitutional elements is interesting at an academic level, the officials doing the suing are harming the very people they are supposed to be serving. Perhaps voters should remember that.

More lies from the lying liars who tell them

Some time ago, now Senator Al Franken wrote a book called Lies and the Lying Liars Who Tell Them. I read the book, and found it to be a lousy read as petty, spiteful, and true. You may not agree with his politics or his style, but the one thing you can say about Senator Franken is that he has always valued the truth. On the other hand, I don’t know why anyone actually believes Fox News at all. Because they and their chief liar Bill O’Reilly are at it again! This time, it’s a railroad job against Senator Coburn, who had the audacity to call my Congresswoman, Nancy Pelosi, a nice lady, and who said, when talking abut the insane notion of putting people in prison for buying insurance, that “The intention is not to put anybody in jail. That makes for good TV news on FOX but that isn’t the intention.”

Bill O’Reilly can’t have that, so he claimed, “We researched on Fox News if anybody had ever said you’re going to jail if you don’t buy health insurance. Nobody’s ever said it.” Guess what? The New York Times did some investigating and found at least six instances where someone on Fox News did say it.

When reporter at the New York Times was caught some months ago for plagiarizing, he was forced to resign and the entire newspaper was shamed. Not so for Fox when they just make stuff up, as apparently they have no shame! And so I think they deserve a new name: The Republican Liars Network (RCN). Not all Republicans are liars, and not all liars are Republicans, but those who choose to believe what they know to be lies, aren’t much better than the liars themselves, especially when they act on that information in the voting booth.

All I can ask is please, Senator Franken, don’t update your book. There’s just too much material.