Sunday, July 31, 2011

On the Air Again With Tim Corrimal and Friends – Episode 177

Episode 177 of The Tim Corrimal Show has now been posted, and this week Tim and I were joined by returning favorite Vent of The Cultured State (@vcthree on Twitter) and new favorite Jill E. Bond (@JillEBond on Twitter) for another great show. If I do say so myself.

On this week’s episode, after our Twitter Friends of the Week (and do check out mine, @HowieChicago), we moved on to our weekly Republican 2012 Clown Car Update, featuring a runner-up for Blandest Potential GOP Nominee, former New York Gov. George Pataki (although, in fairness, Pataki might be No. 3 on the GOP Blandness Scale behind Tim Pawlenty and Thaddeus McCotter); Michele Bachmann’s Government-Sponsored Mortgage Hypocrisy (video); and Newt Gingrich (who?) with his not-so-Made-In-The-U.S.A. campaign t-shirts (ditto) … the real question being, who knew Newt Gingrich was back from vacation?

In any event, we then turned (inevitably) to the debt ceiling crisis, with Tim playing a clip of yesterday’s comments by the President on the need to compromise for the good of the nation … which comments, for better or worse, are now moot given that the President announced tonight that a deal was reached to avert default:

Washington (CNN) -- Two days before the deadline for a possible U.S. government default, President Barack Obama and congressional leaders reached agreement Sunday on a legislative package that would extend the federal debt ceiling while cutting spending and guaranteeing further deficit-reduction steps.

The proposed $3 trillion deal, which still requires congressional approval, brought some immediate relief to global markets closely watching the situation play out and a nation filled with anger and frustration over partisan political wrangling that threatened further economic harm to an already struggling recovery.

However, there was no guarantee the plan will win enough support to pass both chambers of Congress.


Well, anyway, let me reiterate some questions I raised on the show today. I suspect that whatever the final details are, no one on the left (myself included) will be happy with the deal. We all know that the budget deficit should never have been tied to hiking the debt ceiling in the first place. Raising the debt ceiling is nothing more or less than a mechanism to allow the government to pay debts it’s already obligated to pay, and so it has exactly nothing to do with the deficit itself. I won’t repeat the statistics we all know by now, but Congress has raised the debt ceiling countless times to avoid default since the debt ceiling’s inception in 1917, in almost every instance without controversy. It should have happened that way again.

But the budget deficit was tied to raising the debt ceiling this time, and before we get to assessing blame for what is likely to be a lousy deal, we should take a hard look at how we got here. The conventional wisdom on the left seems to be that it’s the President’s fault for agreeing to negotiate both budget cuts and raising the debt ceiling in the same deal, but I’d like to know what other path he could have chosen. This is not about exculpating the President; it’s about trying to find out what went wrong and whether it could have gone differently. So here’s the question. If from the outset the President had “insisted” on a clean bill raising the debt ceiling, as the President’s liberal critics say he should have done, what would have happened when the GOP just said: “No”?

Raising the debt ceiling required legislative action, and the GOP controls the House and has enough votes to filibuster in the Senate. So no matter what the President “insisted” on, the GOP was free to introduce any legislation it wanted to in the House, including the bill Speaker Boehner ultimately offered last week. As despicable as that bill was, why does anyone think the GOP would have offered a better bill just because the President demanded a “clean” debt ceiling bill from the outset?

And we all know what happened to Sen. Reid’s less odious bill once it reached the GOP-controlled House: It died an untimely death. So, even if the Democratic controlled Senate offered (and the GOP failed to filibuster) a “clean” debt ceiling bill, why would any one think that that would have passed the House?

Therein lies the problem. Republicans, especially in the House, were never going to agree to a clean debt ceiling bill. So, the only arrow left in the President’s quiver, legislation-wise, was to threaten to veto any bill other than an increase of the debt ceiling with no strings attached. But that wouldn’t have solved the problem. It would have sent the parties back to the drawing board to try again. And since it appears, as the Washington Post’s Ezra Klein suggested earlier today, that “[p]lenty of Republicans [we]re prepared to blow through the [debt ceiling] deadline” and to live with the consequences … the simple fact is, they wouldn’t have come back with a clean bill anyway.

So it’s hard to see how we would have ended up in any different position than we’re in now, no matter what the President “insisted” on.

That, at least, is how it appears to me. If I’m wrong, please – please – show me where I’m wrong. Tell me how the President could have forced a majority of the House of Representatives to accept a bill that did nothing more than raise the debt ceiling. I’m tired of platitudes; tell me how it could have happened. Because so far, no one has been able to articulate, specifically, what the President should have done.

Of course, all of the foregoing turns on one key assumption: That the debt ceiling crisis had to be resolved through legislation. There is, of course, the famous (or infamous) “Fourteenth Amendment Solution” that I wrote about last week, and that brings me to this week’s “Legal Corner” segment. To review, the concept is this: Section 4 of the Fourteenth Amendment provides, in relevant part, “The validity of the public debt of the United States … shall not be questioned”; and the legislative history suggests that the rationale for that provision was, in the words of Ohio Sen. Benjamin Wade, that “the national debt [should be] withdrawn from the power of a Congress to repudiate it.”

So, the theory goes, in order to comply with the Fourteenth Amendment, the President could simply ignore the debt ceiling, “invoke” Section 4, and direct the Treasury to continue to pay the nation’s bills even after the debt ceiling was reached.

There are, however, two major problems with the Fourteenth Amendment solution. First, the Amendment itself doesn’t affirmatively grant any power to the President. It doesn’t say that if Congress fails to prevent a default, the President has the power to keep paying the nation’s bills anyway. In fact, Section 5 of the Fourteenth Amendment explicitly gives Congress, and not the President, the power to enforce all of the provisions of the Amendment itself, including Section 4:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The second major problem with the Fourteenth Amendment solution, as I detailed in my post last week, is that in the event Pres. Obama were to “invoke” Section 4 and ignore the debt ceiling, there’s a very real chance that Republicans in the House of Representatives would commence impeachment proceedings.

But so that leads me to the real point of my “Legal Corner” discussion this week: The debt ceiling has to go. The law, which began as part of the Second Liberty Bond Act in 1917, is in all likelihood unconstitutional, and it’s horrific as a matter of policy. Even if a law placing a limit on the amount of debt the federal government can incur is constitutional on its face, it’s unconstitutional in its application – as current events clearly show. If the Fourteenth Amendment requires the federal government to honor its debts and the debt ceiling law prevents that from happening unless its amended to raise the debt ceiling, the law, as applied, continually threatens to force the government to violate the Constitution. How can that possibly be constitutional? The answer is, it can’t be.

More to the point, the very purpose of Section 4 was to remove the issue of paying our debts from the political arena altogether. Again, quoting Sen. Wade of Ohio at the time Section 4 was being discussed:

I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.

(Emphasis supplied.) In other words, the situation we find ourselves in today – this policy nightmare where certain members of Congress use the debt ceiling as a means to extort items off their political wish list – is exactly what Section 4 was designed to avoid.

And so the only grown up way to avoid these problems going forward, and the only way to ensure we pay our debts as the Constitution requires, is to repeal the debt ceiling once and for all.

© 2011 David P. von Ebers. All rights reserved.

Friday, July 29, 2011

Your Friday Clash Song: What Do We Have For Entertainment?

With a special hat-tip to Al D’Amario (@aldamario on Twitter) who recommended this last week, a live version of “The Magnificent Seven,” originally from Sandinista! (1980). There’s a very similar version on Live: From Here to Eternity (1999), which has been the go-to playlist on my iPod lately. Live Clash might be the best music ever to run to. But I say that about a lot of music.

Anyway, I’ve often pointed out how versatile the Clash were for a punk band, and this song really showcases that versatility: It’s hip hop, fer Chrissakes, recorded before most white folks even knew what hip hop was. According to Antonio D’Ambrosio:

[Joe] Strummer’s unique partnership with Mick Jones, his main collaborator and lead guitarist in the Clash, brought a revolutionary sense of excitement to modern music. Strummer and Jones quickly recognized the power of rap music that was just emerging from New York City’s underground in the late seventies. “When we came to the U.S., Mick stumbled upon a music shop in Brooklyn that carried the music of Grand Master Flash and the Furious Five, the Sugar Hill Gang…these groups were radically changing music and they changed everything for us.”

With typical Clash inventiveness, they became one of the first white groups to incorporate rap into their music. As a tribute to the path-breaking Sugar Hill Gang, the Clash recorded The Magnificent Seven, one of their best-known and most important singles. In another example that marked the Clash’s commitment to challenging social conventions, they enlisted several New York City rap groups to join their huge Clash on Broadway tour. At the time, this was extremely controversial since it was widely believed that combining the two disparate audiences and musical genres would result in racial mayhem.

Reflecting on the group’s influence, I suggested to Strummer that hip-hop has replaced punk rock as the dominant political pop cultural force in spirit, vitality, and creativity. He responded, “No doubt about it, particularly in respect to addressing the ills of capitalism and providing a smart class analysis, underground hip-hop, not the pop-culture stuff, picked up where punk left off and ran full steam ahead.”

In retrospect, the evolution of political music from punk (and reggae) to hip hop seems perfectly logical, as logical as the evolution from blues to rock ’n roll was; but at the time pop music was (and this is a complete understatement) pretty well segregated along racial lines. I suppose it still is, which is sad, but the Clash certainly did their part to bridge that gap.

And even though Joe Strummer wrote the lyrics to “The Magnificent Seven” off the cuff in the studio, the song’s dystopian feeling seems to fit the current political mood:

Ring! Ring! It’s 7:00 a.m.

Move y’self to go again

Cold water in the face

Brings you back to this awful place

Knuckle merchants and you bankers too

Must get up an’ learn those rules …

Yeah, well, maybe on Friday it’s best not to think about the alarm clock going off again …

So, anyway, here’s another version, recorded live on The Tomorrow Show with Tom Snyder when Snyder was desperately trying to remain relevant (he also had U2 and Elvis Costello on around that same time):

And the original studio version:

You lot! What?

Don’t stop! Huh?

So there you go. Your Friday Clash song: “The Magnificent Seven.”

Turn. It. Up.

© 2011 David P. von Ebers. All rights reserved.

Thursday, July 28, 2011

So, The Old Man Would Be 90 Today …

And in is honor, a scene from one of his favorite movies: A Thousand Clowns (1965), starring Jason Robards. We grew up with this movie, but it was only many years later I discovered (as I’ve mentioned before) that Jason Robards’ character was loosely based on radio/television personality Jean Shepherd, who’s most famous these days for having written and narrated A Christmas Story (1983) … and therein lies an odd coincidence: It turns out that Jean Shepard was born July 26, 1921, just two days before my father, and right here in Chicago. As if to complete the circle, it also turns out Jason Robards was born July 26, 1922, just a year later … and also in Chicago.

In any event, I think there was something about this movie that appealed to men of my father’s generation; men who were, I think, disillusioned by the capitalist rat race they found themselves in in post-World War II America. The opening sequence kind of nails it:

Murray Burns: Nick, you are about to see a horrible, horrible thing thing.

Nick: What’s that, Murray?

Murray Burns: People going to work …

I suspect my father often shared that sentiment, although he never let on. Not to me, at least. In fact, my dad was a pretty solid citizen in most respects: World War II combat veteran, college professor, involved in the local Catholic parish, served on the local school board and the village Human Relations Commission … Maybe it was despite the attitude embodied in A Thousand Clowns, maybe it was because of it, but he was the kind of guy who got involved in things – in his case, the local civil rights and open housing movement, local politics, and so on – maybe because he wanted subsequent generations to live in a more humane world. I think Murray Burns would have appreciated that, although Murray Burns himself would have lacked the gumption to get it done.

In fact, (as I’ve also mentioned before) roughly forty years ago, in December 1971 when my dad was 50, he drafted a “Proposed Policy on Human Dignity” for our local public schools, governing everything from integrating the schools to teaching the value of diversity to hiring teachers and administrators of color. The following year, our local school district became one of the first in the nation to adopt a policy like that, which is not a small thing, if you ask me. I think about that frequently these days, because I’ll be turning 50 next year … and I think, what’ll I say that I did by the time I was 50 to change the world? Well, um, I’ve got this blog thing, and, uh, …

Anyway, here’s another clip that my dad liked:

C’mon, old man, where’s your professional attitude?


Well, it’s too bad the old man isn’t around any more. So, happy birthday, dad, wherever you are.

© 2011 David P. von Ebers. All rights reserved.

Wednesday, July 27, 2011

A Song for Bukko

An acoustic version of “Beds Are Burning” by Midnight Oil, for my favorite expatriate Australian living in Canada, Bukko Canukko, who’s long been a part of the motley crew of regulars over at Jesus’ General’s blog, and who occasionally graces this blog with his comments, which, agree them or not, are in a class by themselves. When I refer to Bukko as a friend, I mean it, and it’s not a term I use loosely. The group of us who’ve hung (not hanged, mind you; that’s used to refer to someone who’s doing the, er, Spandau ballet, if you will) out at the General’s place since at least 2004 or so are genuine compatriots. We’ve known each other and interacted on a fairly regular basis for many years now, and many of us have communicated (and commiserated) with one another in our real lives, outside of blogs and social media, via e-mail and snail mail and the occasional telephone conversation. I consider these folks to be my first on-line “family,” so to speak, and I’ll stand by every last one of them.

Even an expat Australian who’s living in Canada.

But I digress. Yesterday, Bukko left a comment here on a post entitled “Why I’m Not Thrilled With the Fourteenth Amendment Solution,” and I thought it was worthy of a special mention for a couple of reasons. First, Bukko pointed out something I should have included in the original post, as lengthy as it was, which was this:

I’ll tell you another reason I don’t like the “14th Amendment Solution”: it’s one more step toward making the president into a king. If Obama is given the power to unilaterally decide “I don't care how Congress limits my ability to spend money; I’m going to do it anyway” then it becomes a precedent for future presidents.

Um, exactly right. One of the rather disturbing trends on the left – among both Pres. Obama’s supporters (of which I am one, by and large) and his liberal critics – is our apparent inability to understand the role of the president in our tripartite federal government. And it’s particularly sad that we don’t seem to get that, because we rightly pilloried George W. Bush for his usurpation of Congressional authority and his expansion of the powers of the presidency. When Bush asserted that he could set up the prison camp at Guantánamo Bay, hold prisoners indefinitely, redefine torture to suit his whims, disregard the Geneva Conventions and the Uniform Code of Military Justice – all despite the fact that Congress and Congress alone has the power to “[t]o declare War … and make Rules concerning Captures on Land and Water” (U.S. Const. Art. I, § 8) – we said he was disregarding the constitutional separation of powers, and we were right.

So we ought to be very careful indeed to suggest that Pres. Obama should simply disregard federal law – in this case, the debt ceiling – even if there is an argument that that law is unconstitutional. We don’t want Pres. Obama to be the final arbiter of the constitutionality of federal laws any more than we wanted George W. Bush to be, right? So the Fourteenth Amendment solution to the debt ceiling crisis is, as Bukko pointed out, problematic for that reason too.

Of course, I could point out that Pres. Obama’s liberal critics often make the same mistake when they assume he can force laws through Congress despite the fact that the votes just aren’t there to get those laws passed, but I digress yet again.

Anyway, the second noteworthy point in Bukko’s comment yesterday, and the reason I chose the song at the top of this post in his honor, was this:

I’m one of those lefties who doesn’t like Obama because I see him as an old-fashioned Republican (who’s to the right of Eisenhower.)

Now, as I said above, Bukko’s a friend of mine, and since this is my blog, I elect not to take on the substance of that comment (other than to note that I do, in fact, disagree). I will, however, use that comment as an opportunity to make a more general observation about the nature of political leadership, and it begins with that Midnight Oil song, “Beds Are Burning” … or, more to the point, the guy who sings that song: Peter Garrett, a former lawyer and one of the earliest members of the group. From Wikipedia:

Midnight Oil (also known informally as The Oils to fans), was an Australian rock band from Sydney originally performing as Farm from 1972 with drummer Rob Hirst, bass guitarist Andrew James and keyboard player/lead guitarist Jim Moginie. While vocalist Peter Garrett was studying at Australian National University in Canberra, he answered an advertisement for a spot in Farm, and by 1975 the band was touring the east coast. By late 1976, Garrett moved to Sydney to complete his law degree, and Farm changed its name to Midnight Oil by drawing the name out of a hat.

(Footnotes omitted.)

Garrett was one of the co-writers of “Beds Are Burning,” and it’s one of the more radically leftist songs by a group known for its radical-left-type songs. It’s a song about how European settlers abused the indigenous peoples of Australia, and it advocates giving the country back to them:

The time has come

To say fair’s fair

To pay the rent now

To pay our share

The time has come

A fact’s a fact

It belongs to them

Let’s give it back …

So, a guy who’d write and sing lyrics like that has to be a bona fide, genuine leftist hero, right?

Well, apparently not. See Garrett, not altogether unlike a certain other former idealist with a law degree, went into politics and is now a Labour Member of Australia’s Parliament and its Minister for School Education, Early Childhood and Youth. And since he entered national politics in Australia in 2004, he’s repeatedly been chastised for “selling out” and becoming a mainstream Labour Party politician (see, e.g., here, here and here).

In fact, I believe it was Bukko who first told me that liberals in Australia were bitterly disappointed in Garrett …

But that gets me thinking. Did Garrett really “sell out,” as some accuse Pres. Obama of doing, or did he, like so many idealistic people who get into politics, find out it’s easier to come up with political slogans (and catchy lyrics) than it is to actually govern? Because it seems to me that if a guy like Peter Garrett can’t sustain that perfect liberal persona once he enters politics, maybe nobody can. If idealist after idealist after idealist enters into the political arena and is eventually perceived to be a “sell-out,” I wonder if it’s really even possible to be an idealist and yet do the business of government.

Which doesn’t mean liberals should give up their own idealism. Not at all. But maybe we should recognize that there is no such thing as a perfect liberal. Or, at least, no such thing as a perfect liberal politician.

© 2011 David P. von Ebers. All rights reserved.

Tuesday, July 26, 2011

Why I’m Not Thrilled With the Fourteenth Amendment Solution

We’ve heard a lot of talk lately about the “Fourteenth Amendment solution” to the debt ceiling crisis, but I’m not convinced and I’ll tell you why.

First, what is the “Fourteenth Amendment solution”? Well, the argument seems to be that Section 4 of the Fourteenth Amendment gives Pres. Obama the power to continue to pay the nation’s bills even if the federal government’s spending passes the statutory debt ceiling, which the Administration predicts will occur on August 2. More precisely, the argument really asserts that the debt ceiling itself is unconstitutional under Section 4 of the Fourteenth Amendment, which says:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Obviously, the purpose of the first sentence of Section 4 was to prevent the federal government from reneging on war bonds issued to finance the Civil War. Recall that once all of the rebelling states were re-admitted to the Union, they would retain their seats Congress (and in particular, in the Senate, where the Southern states had a much larger percentage of seats than they do today); and those states would, of course, have Electors who could play a significant role in electing future presidents. So, the first sentence of Section 4 ensured that no matter who controlled the federal government in the future, the government could not escape its obligation to pay its Civil War debts.

But the first sentence of Section 4 isn’t limited to Civil War debts, or to debts incurred up to and including the adoption of the Fourteenth Amendment. It says, quite clearly: “The validity of the public debt of the United States … shall not be questioned.”

That has led a number of commentators, including Karoli at Crooks and Liars and Jack Balkin at Balkinization – both of whom, I admit, are smarter than I am – to suggest that Pres. Obama may well be able disregard the debt ceiling under the express terms of Section 4. Balkin, in particular, goes beyond the language of Section 4 to explain its history:

The original purpose of Section Four, which is reflected in its text, was to prevent political disruption and party wrangling over the public debt following the Civil War. However, the language of the Amendment went beyond this particular historical concern. It was stated in broad terms in order to prevent future majorities in Congress from repudiating the federal debt to gain political advantage, to seek political revenge, or to try to disavow previous financial obligations because of changed policy priorities.

As Balkin points out, the proponents of the Fourteenth Amendment were particularly keen on ensuring that the United States would not be held accountable for the debts of the former Confederacy; but that wasn’t the only concern that motivated Section 4:

Senator Benjamin Wade of Ohio was a leader of the Radical Republicans and the President pro tempore of the Senate. … [Wade argued] [i]t was also necessary to guarantee the Union debt, because former rebels or rebel sympathizers who returned to Congress after the war might, out of selfish or malicious motives, seek to prevent Union soliders and their widows from being compensated. Moreover, there was no guarantee of what a later Congress, motivated by different priorities, might do. Shifting majorities in a future Congress might be willing to sacrifice the public debt or the interests of pensioners in the name of political expediency. Thus, it was as important to guarantee the Union debt as it was to repudiate the Confederate debt.

So Wade proposed language that would have provided: “The public debt of the United States, including all debts or obligations which have been or may hereafter be incurred in suppressing the insurrection or in carrying on war in defense of the Union, or for payment of bounties or pensions incident to such war and provided for by law, shall be inviolable,” which is, of course, very similar to the final language of Section 4. In support of his proposal, Wade said:

I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.

Balkin goes on to provide quite a bit more detail from the legislative history of Section 4, but Wade’s comments – particularly his statement that “the national debt [should be] withdrawn from the power of a Congress to repudiate it – give considerable support to the proponents of the “Fourteenth Amendment solution” today. If the purpose of Section 4 was to prevent Congress from repudiating the national debt forever into the future, then it follows logically that Congress should not be able to put an artificial ceiling on the national debt and thereby force the government into default.

So, why, then, am I unimpressed? It’s not because Balkin (or my friend Karoli) is wrong; it’s because there’s no clear-cut way to test the theory other than to do it and see what happens. Let’s assume that Pres. Obama decides he’s not going to allow the government to default on its debts and further decides that there are no acceptable legislative proposals on the table to increase the debt ceiling. So, he vetoes any bill passed by Congress (or, perhaps, Congress simply fails to act before the government reaches the debt ceiling), and he orders the federal government to keep paying its debts.

Then what?

Clearly, members of Congress (or, at least Republicans in Congress) believe the debt ceiling legislation is constitutional and the President is therefore legally bound by it. In other words, once the debt ceiling is passed, the President can no longer spend money, and if he does so he’s violating the law. In theory, Congress could sue the President to stop him writing checks off of the federal treasury, but it is unlikely any court would seriously entertain the case. Courts generally do not want to weigh in on political disputes between the Congress and the Executive Branch, as the Supreme Court explained in Baker v. Carr, 369 U.S. 186, 201 (1962) (a case that did not, in fact, involve such a dispute):

We have said that “In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Coleman v. Miller, 307 U.S. 433, 454 -455. The nonjusticiability of a political question is primarily a function of the separation of powers.

Which is not to say the courts would, in fact, refuse to consider a challenge to the President’s reliance on Section 4 to ignore the debt ceiling, but to say that the “political question” doctrine gives the courts an easy out – an out I think the courts would likely avail themselves of.

So, therein lies the problem. If the courts say that any dispute between Congress and the President over the debt ceiling and the meaning of Section 4 of the Fourteenth Amendment is a non-justiciable political dispute, that doesn’t end the dispute. It just means Congress has to look elsewhere for a resolution. And you know what that means.


I have little doubt that this Congress would try, at least, to do just that. Absurd, you say? Yes, it is. It’s patently absurd. But as Gerald Ford once observed: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history … .” And who holds the majority of seats in the House of Representatives today? A Republican Party that’s being led around by the nose by the Tea Party. Don’t think they wouldn’t jump at the chance to begin impeachment proceedings.

So as of now, here are our really unpalatable choices: Allow the country to go into default, or rely on an untested provision in Section 4 of the Fourteenth Amendment and all but guarantee impeachment hearings in the next few months.

Or, as odious as it may seem, negotiate a settlement of the dispute.

© 2011 David P. von Ebers. All rights reserved.

Monday, July 25, 2011

On the Air Again With Tim Corrimal and Friends – Episode 176

Episode 176 of The Tim Corrimal Show is now up, and it’s a very special show, indeed. Of course, they’re all special, but this week Tim and I were joined by the inimitable Lizz Winstead, co-creator of The Daily Show (@lizzwinstead on Twitter) and all-around decent human being and fantastic comedian; my good friend John V. Moore of Windy City Watch (@johnvmoore and @windycitywatch on Twitter); and Sheila Friend (@slfriend79 on Twitter), who hasn’t joined us for awhile but is always great to have on the show.

After Lizz updated us on her current tour in support of Planned Parenthood, we introduced our “Twitter Friends of the Week” – and I have to give another special mention to mine: ex-pat Chicagoan Allen McDuffee of the Think Tanked Blog (@allen_mcduffee and @ThinkTankedWaPo on Twitter), which is now a part of the Washington Post. Congratulations, again, to Allen for his move to WaPo. They’re lucky to have you.

So, anyway, after our Twitter Friends we moved on to our weekly Republican 2012 Clown Car update, which now includes former Louisiana Governor (and Democrat-turned-Republican) Buddy Roemer, the guy who’s most famous for losing to Edwin Edwards, who went on to narrowly defeat former (but not really former) Klansman David Duke in the 1991 gubernatorial race. Tim also played the audio of this clip: the infamous Gay Barbarians In Need Of Discipline glitter-bombing Marcus Bachmann’s office. Poor Marcus Bachmann. I’m afraid he’s secured his place as the punch line to every other joke that’s been told, or will be told, about the 2012 presidential race …

After that levity, we turned our attention to the most confounding story of the past few weeks: The federal government’s rapidly approaching debt ceiling and the Republicans’ intransigence despite the Democrats’ willingness to put everything on the negotiating table. Tim played a clip of Rep. Debbie Wasserman-Schultz (D-Fla) on CNN’s The Situation Room with Wolf Blizter in which Rep. Wasserman-Schultz reiterated the President’s position that both sides should be willing to discuss all available options to solve both the debt ceiling issue and the federal budget deficit, but that Republicans have essentially refused even to consider tax increases (or, for that matter, simply closing existing tax loopholes).

That clip lead to a frank discussion of where we are on the debt ceiling issue (of course, we recorded the show yesterday, before Pres. Obama addressed the nation this evening), and I think it’s safe to say we all feel more than a little uneasy with the prospect of considering any sort of adjustments to key programs like Social Security or Medicare – programs that are not in any sense a part of the country’s debt problem – in conjunction with negotiations over raising the debt ceiling. However, John made a very important point that’s worth reiterating here: None of us was actually in the room when these negotiations were taking place, and most of us have little appreciation for how these kinds of negotiations typically proceed. What’s different today is that with the internet and social media, much more of the legislative sausage-making process is aired in public; so that those of us without the experience of having been in those types of negotiations are seeing more glimpses of the process than we’ve ever seen before. That means that we have more bits and pieces of information, but we don’t necessarily have any better idea what to make of those bits and pieces. And so it’s probably not wise to overreact or to panic at this stage … even though none of us likes to hear that anyone, least of all a Democrat, is considering any cuts to essential programs in this context.

So, after that discussion we turned to my new “Legal Corner” segment, this week focusing primarily on the curious machinations the repeal of “Don’t Ask, Don’t Tell” has gone through lately. First, the good news: Last week, President Obama and the Joint Chiefs of Staff signed a certification to Congress – as required by the Don’t Ask, Don’t tell repeal bill passed last December – to the effect that the military is now prepared for the repeal and that “implementation of the necessary policies and regulations … is consistent with military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.” (You can download a .pdf image of the certification here.) Consequently, DADT officially ends on September 20, 2012.

But that wasn’t the only development on the DADT front this past week. Because although the repeal act provides that DADT remains in full force and effect until sixty days after that certification is signed, you may recall that there is a pending case in California, now on appeal before the U.S. Court of Appeals for the Ninth Circuit, challenging the constitutionality of DADT. In that case, Log Cabin Republicans v. United States, Nos. 10-56634 and 10-56813, the U.S. District Court for the Central District of California initially ruled that DADT was unconstitutional and entered a world-wide injunction prohibiting the military from enforcing the policy. The Obama Administration, believing it was duty-bound to defend acts of Congress against court challenges, appealed the District Court’s decision, and on November 10, 2010, the Court of Appeals entered an order staying enforcement of the District Court’s ruling.

However, on July 6, 2011, the Ninth Circuit lifted the stay of the world-wide injunction against enforcement of DADT, believing that the certification required by the repeal act was imminent. The Administration then objected to the lifting of the stay, and after the parties were afforded an opportunity to brief the issue the Court of Appeals issued a revised Order on July 22, 2011 (the same date the certification was signed by the President), reinstituting the stay of the District Court’s injunction except to the extent the injunction prohibited “investigating, penalizing, or discharging” existing military personnel. You can read or download the court’s July 22, 2012 Order here. So, from now till September 20, the military is prohibited from investigating, penalizing or discharging” service members under DADT, but the law otherwise remains in effect.

As we discussed on this week’s show, although it seems inconsistent for the Administration to certify that the military is ready to go ahead with repeal of DADT, on the one hand, yet argue that the injunction prohibiting enforcement of DADT should continue to be stayed while the Log Cabin Republicans appeal remains pending, on the other, those dueling positions are consistent with the view the President has always expressed: That the way to get rid of DADT is through the legislative process, given that Article I, Section 8 of the Constitution specifically gives Congress the authority “[t]o make Rules for the Government and Regulation of the land and naval Forces.” I also agree with Tim that the President is proceeding extremely cautiously in areas like this so as not to give Congressional Republicans any cause to stir up (bogus) impeachment proceedings, and that’s probably a wise move.

In any event, this much we do know for certain: DADT is on its way out, most likely permanently, and the country is better for it.

So there you go. Enjoy the show!

© 2011 David P. von Ebers. All rights reserved.

Friday, July 22, 2011

Your Friday Clash Song: Every Dragging Hand Clap Over Every Dragging Beat …

Another NSFW tune, “Death Or Glory,” from London Calling (1979):

Apologies for the harsh words about nuns, but it’s a metaphor. And the Clash were incorrigible, after all; this is why you love them. Plus, being part Irish we have some nuns in the family (of course we do), and I can tell you they’ve got a lot more spine than you might think.

Anyway, it’s another great song about the music biz, which nobody riffed on like the Clash:

From every dingy basement on every dingy street

Every dragging hand clap over every dragging beat

It’s just the beat of time, the beat that must go on

If you’ve been trying for years, we’ve already heard your song …

Yeah, I know it’s a bit ironic that I love this song while obsessing over a band that broke up more than a quarter century ago, but nobody – I mean nobody – ever critiqued the state of modern music as deftly as the Clash. They got it when nobody else did, from their first record to their last.

So, in other words, they weren’t “trying for years.” They got it right the first time.

Here’s a live performance of “Death Or Glory” from 1983, when the bad was on the wane but still could stir things up:

And this is a really nicely constructed video for the song, but, unfortunately, embedding is verboten.

Finally, there’s this: A cover of “Death or Glory” by Social Distortion:

(Um, the last two-and-a-half, three minutes are just dead air, which is weird; but it’s a great cover.)

Why did no one tell me Social D did this song? I feel like you’ve all been keeping this from me, which isn’t nice. One quibble, though: The second verse goes, “Every gimmick-hungry yob,” not “Every gimmick hungry slob”; but I can forgive them for that slip because, well, they kick all kinds of … you know.

Social Distortion: Most tattoos per capita of any band going, way back when. Good lord, they were great. Not Clash great, but great just the same.

So, anyway, there it is: “Death or Glory.”

Turn. It. Up.

© 2011 David P. von Ebers. All rights reserved.

Thursday, July 21, 2011

Pundit Fatigue, Take Two

So, here’s something else I don’t really care about: Cenk Uygur left MSNBC, apparently to be replaced by Rev. Al Sharpton in the 6:00 p.m. Eastern time slot.

Having watched entirely too much television over the years (by which I mean any television at all), it seems to me TV hosts come and go all the time. Especially when their corporate overlords determine that some other host will bring in more viewers and make their advertisers happy. Because, as it turns out, television networks are not eleemosynary institutions – they are for-profit corporations.

So, it looks like that’s just what happened to Cenk. According to Variety:

Earlier this week, rumors that Al Sharpton would replace Uygur began to circulate after Sharpton’s two-week guest-hosting stint gave the show a ratings bump over rival CNN. A spokeswoman for Sharpton told Politico that there had been “no formal discussions” between Sharpton and MSNBC, but in the realm of TV news negotiations, that can often mean “he’s considering it.”

(Via John V. Moore at Windy City Watch.)

Gothamist goes a step further, saying today that:

Sharpton looks he’ll be like the newest member of MSNBC’s left-leaning talk show crew. Last week, TV Newser reported that Sharpton, filling in for usual 6 p.m. host Cenk Uygur, had higher ratings in a key demographic and now the NY Times says, “Mr. Sharpton’s imminent hiring, which was acknowledged by three people at the channel on condition of anonymity because the contract had not been signed, is significant in part because MSNBC and other news channels have been criticized for a paucity of minority hosts in prominent time slots.”

So there you go. Cenk is being replaced by a host who’s done better than he has “in a key demographic,” and because MSNBC is becoming increasingly sensitive to the fact nearly all of its hosts are white men.

None of that is altogether shocking in the world of television – except, perhaps, that MSNBC recognized it could stand to have a little more diversity – but that didn’t keep Cenk from using the incident to burnish his credentials as the left’s newest sacrificial lamb. Mediaite reports that on his web-based show, The Young Turks, Cenk rambled on for about ten minutes, explaining that it really wasn’t about the ratings after all:

[MSNBC] [m]anagement took him aside in April, he explains, and told him to “tone it down” because “people in Washington are concerned about your tone.” He did the exact opposite.

Uygur then launches into an extensive analysis of his ratings to prove that he was doing just fine, highlighting the fact that he was doing far better when he decided to do it “my style” than when he was more tame. He used a comment from a viewer to explain how he felt– “watching Cenk on The Young Turks is like watching a tiger in the wild; watching him on MSNBC is like watching a tiger in a cage.”

He concluded succinctly that “I didn’t want to work in a place that wouldn’t let me do my kind of show, that wasn’t interested in my kind of show, that didn’t wnat to challenge power.” Noting that he had been “railing against” a media “desperate to get access” and spoiled with perks, taking the job seemed to him a sort of personal corruption.

Yes. Cenk actually referred to himself as a “tiger” (more than once, actually), although he credits that description to a loyal viewer. You can draw your own conclusions about the size of his ego after watching the video.

But all of that is really beside the point. Let’s assume that there’s some truth to both parts of the story – that MSNBC preferred Sharpton because he had better ratings and it wanted more diversity; and that MSNBC had, in fact, asked Cenk to tone it down and he refused, which led to the falling out. So what? Is it really that big of a deal that the corporate honchos of a corporate news organization wanted a less controversial (or maybe just less shrill) voice on their airwaves? Actually, no. It’s not.

Not unless you place entirely too much importance on a guy going on television and saying things you already know.

Look, it’s not that I have anything against Cenk or any other talking head on television. I don’t doubt that he believes passionately in the things he says, and I suppose he does a better than average job advocating liberal causes. And since I tend to be fairly sympathetic to those same causes, I’m not inclined to judge him too harshly – even if he is a tad over the top. But as I’ve said before, none of these people is more important than the causes themselves, and so Cenk’s departure from MSNBC is something I don’t plan to lose any sleep over.

© 2011 David P. von Ebers. All rights reserved.

Wednesday, July 20, 2011

Free Speech and Unhinged Obama Hatred

Well, the First Amendment wouldn’t be any fun at all if it didn’t give us utterly confounding situations like this, the kind of situations that make us question – and maybe reaffirm – our undying devotion to freedom of speech even in the most troubling cases. From yesterday’s Los Angeles Times:

A La Mesa man who posted racial epithets and a call to “shoot” Barack Obama on an Internet chat site was engaging in constitutionally protected free speech, a federal appeals court ruled Tuesday in overturning his criminal conviction.

Walter Bagdasarian was found guilty two years ago of making threats against a major presidential candidate in comments he posted on a financial website after 1 a.m. on Oct. 22, 2008, as Obama’s impending victory in the race for the White House was becoming apparent. Bagdasarian told investigators he was drunk at the time.

A divided panel of the U.S. 9th Circuit Court of Appeals overturned that conviction Tuesday, saying Bagdasarian’s comments were “particularly repugnant” because they endorsed violence but that a reasonable person wouldn't have taken them as a genuine threat.

The case is captioned United States of America v. Walter Edward Bagdasarian, No. 09-50529 (9th Cir. July 11, 2011), and you can read it in its entirety or download a .pdf version of the opinion here.

It’s a disturbing case, but that’s not to say the Court of Appeals reached the wrong conclusion. The basic facts are these (and I apologize for quoting Bagdasarian’s language as it appears in the court’s opinion):

On October 22, 2008, when Barack Obama’s election was looking more and more likely, Bagdasarian, under the username “californiaradial,” joined a “Yahoo! Finance — American International Group” message board, on which members of the public posted messages concerning financial matters, AIG, and other topics. At 1:15 am on the day that he joined, Bagdasarian posted the following statement on the message board: “Re: Obama fk the niggar, he will have a 50 cal in the head soon.” About twenty minutes later, he posted another statement on the same message board: “shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos.” Bagdasarian also posted statements on the same message board that he had been extremely intoxicated at the time that he made the two earlier statements. He repeated at trial that he had been drinking heavily on October 22. Another participant on the message board, John Base, a retired Air Force officer, reported Bagdasarian’s second statement regarding Obama to the Los Angeles Field Office of the United States Secret Service that same morning.

U.S. v. Bagdasarian, slip op. at 9803-04 (footnote omitted). The Secret Service then tracked Bagdasarian down, interviewed him, and subsequently obtained and executed a search warrant, discovering that he owned “six firearms, including a Remington model 700ML .50 caliber muzzle-loading rifle, as well as .50 caliber ammunition.” Id. at 9804. Moreover:

The agents also searched the hard drive of Bagdasarian’s home computer and recovered an email sent on Election Day with the subject, “Re: And so it begins.” The email’s text stated, “Pistol??? Dude, Josh needs to get us one of these, just shoot the nigga’s car and POOF!” The email provided a link to a webpage advertising a large caliber rifle. Another email that Bagdasarian sent the same day with the same subject heading stated, “Pistol . . . plink plink plink Now when you use a 50 cal on a nigga car you get this.” It included a link to a video of a propane tank, a pile of debris, and two junked cars being blown up. These email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian’s own malignant nature. Unlike in the case of his first two message board statements two weeks earlier, this time he did not attempt to excuse his inexcusable conduct on the ground that he was intoxicated.

Id. at 9805.

As troubling as all of this is, it’s important to note that Bagdasarian was charged with making a threat against a presidential candidate, not inciting others to do harm to a presidential candidate, and that proved to be a key factor in the court’s decision. Specifically, Bagdasarian was charged under 18 U.S.C. § 879(a)(3), which provides:

(a) Whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon –

(3) a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate;

shall be fined under this title or imprisoned not more than 5 years, or both.

Noting that 18 U.S.C. § 879 punishes “pure speech” (slip op. at 9805), and reviewing controlling Supreme Court precedent under the First Amendment, and in particular the Court’s decision in Virginia v. Black, 538 U.S. 343 (2003), the Ninth Circuit concluded that Bagdasarian’s conviction could only be upheld if his words constituted a “true threat,” which, in turn, requires both an objective and a subjective inquiry:

Two elements must be met for a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective. The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President. The second is that the defendant intended that the statement be understood as a threat. Because Bagdasarian’s conviction under § 879 can be upheld only if both the objective and subjective requirements are met, neither standard is the obvious starting point for our analysis, and our resolution of either issue may serve as an alternate holding.

Slip op. at 9809.

The problem, the Court of Appeals found, was that neither of the two statements upon which Bagdasarian’s conviction was based – i.e., the statement that Candidate Obama “will have a 50 cal in the head soon” and the “shoot the nig” statement – amounted to an actual threat that Bagdasarian himself would do anything to Mr. Obama:

The “Obama fk the niggar” statement is a prediction that Obama “will have a 50 cal in thehead soon.” It conveys no explicit or implicit threat on the part of Bagdasarian that he himself will kill or injure Obama. Nor does the second statement impart a threat. “[S]hoot the nig” is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President.

Slip op. at 9810. As to that latter point – that 18 U.S.C. § 879 applies only to threats that the speaker intends to do violence, not that incite others to do violence – the Bagdasarian court recognized that the Fourth Circuit, in United States v. Patillo, 438 F.2d 13, 16 (4th Cir. 1971) (en banc), suggested otherwise, but “[n]o other circuit has concluded that incitement can be punished under a threat statute” like Section 879. Id. at 9810-11 n. 18.

Obviously, there are several disturbing things about the Bagdasarian case – not the least of which are the racist and violent language the defendant employed, his subsequent e-mails discussing specific means of attacking the President, and the fact that he owned six weapons including a fifty caliber rifle, the weapon he specifically mentioned in one of the challenged statements and the two subsequent e-mails – but the Ninth Circuit’s ruling has to be read in the context of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials … .” Slip op. at 9812, quoting Watts v. United States, 394 U.S. 705, 708 (1969) (internal quotation marks removed). Whether it was rightly or wrongly decided, the Bagdasarian case serves as a reminder of just how dearly we hold free speech to be in our country, and that there are few, if any, places on earth where it’s taken as seriously as it is in the United States.

© 2011 David P. von Ebers. All rights reserved.