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“Morally And Legally, The Right Call In Arizona”: Citizens Cannot Opt Out Of Civil Rights Laws

There’s no question that Jan Brewer did the right thing yesterday. No moral question. And no legal question either. Well, let me slightly amend that: With this Supreme Court, you never know about the future. But we know about the past, and decades of civil-rights case law are squarely on Brewer’s side, and supporters of SB 1062 just have to see this clearly and squarely and accept it.

It’s not like we’ve never fought over these questions. We have, of course, and a result, there’s a history here. And that history, that body of court decisions, says clearly, like it or not, that generally speaking, citizens cannot opt out of civil rights laws.

As Harvard law professor Noah Feldman pointed out yesterday in a Bloomberg view column, segregationist business owners in the South argued after the civil rights act of 1964 that their “constitutional right to associate” as they chose should permit them not to serve black customers. (The religious-liberty right, Feldman notes, has the same “constitutional status” as the right to associate.) But courts never said that this was permissible.

We may laugh today at the idea that the racist owner of a hardware store in Natchez in 1965 could have refused to sell a black carpenter a bag of masonry nails. But it was no laughing matter then. This was real. Congress, and then the courts, put a stop to it. As Feldman told me yesterday in a follow-up exchange: “Freedom to associate and exercise religion are basic rights. Excluding customers isn’t.”

The freedom to associate that Feldman mentions is one carve-out that courts have recognized. But that’s a narrow exemption, intended in real life mostly for private or fraternal organizations that are built around some idea of ethnic cohesion—New York’s Ancient Order of Hibernians, for example, which quite famously has been allowed for years to ban gay people and groups from marching in the city’s St. Patrick’s Day Parade.

By the way, doesn’t it seem weirdly anachronistic and reactionary that the Hibernians still enforce this ban? The gay-rights position was controversial back in the early ’90s, when I was covering these things. Now, the Hibernians’ position seems like something better suited to Alabama than New York City. In any case, after Rudy Giuliani and Mike Bloomberg marched in the discriminatory parade every years, new Mayor Bill De Blasio announced that he’s boycotting it.

But, the Hibernians are allowed to do this under their right to associate. There also exists a so-called “Mrs. Murphy” exemption to the Fair Housing Act for owner-occupied rental housing of four or fewer units—that is, if little old Mrs. Murphy subdivided her big house and wants to keep out certain people, she’s probably allowed to do that. And finally, in certain narrow cases, religious institutions that serve mostly religious purposes are allowed to hire only their coreligionists.

But a business vending to the general public? No way. If these “Christians” in Arizona are permitted to deny their services to same-sex couples, then atheist small-businesses owners in Berkeley are perfectly within their rights to hang a sign: “No Christian evangelicals served.” It would be crazy for courts to open that door.

Brewer seemed to understand all this properly with the money passage of her statement yesterday: “Senate Bill 1062 does not address a specific or present concern related to religious liberty in Arizona. I have not heard one example in Arizona where a business owner’s religious liberty has been violated.” She deserves credit for saying this, dismissing this specious religious liberty talk.

The legal history is clear. The legal future, though, is still a bit up in the air. Feldman acknowledges that SB 1062 “may well be constitutional” because the law’s supporters might be able to argue successfully that their tradition of religious liberty is “in jeopardy.” Samuel Bagenstos, a former assistant attorney general for civil rights under Barack Obama who now teaches law at the University of Michigan, explains that the Arizona law and others like it around the country constitute a new and not-yet-settled legal battle front. “These laws, by singling out gays and lesbians for less protection of antidiscrimination laws, are vulnerable to a challenge under the Equal Protection Clause,” Bagenstos says. “But the law’s very much developing in this area, so we really can’t say anything with confidence.”

It’s developing, but it’s mostly developing on the side of shutting down legal discrimination. Ask the Texas judge who yesterday struck down that state’s same-sex marriage ban, writing “that state-imposed inequality can find no refuge in our United States Constitution.” Increasingly, the law is coming to understand what more and more Americans understand. Gay people are equal. Period. There is no real religious basis for thinking otherwise. Ian Millhiser of Think Progress reminded us yesterday of people who used to think the same way:

In 1901, Georgia Gov. Allen Candler defended unequal public schooling for African Americans on the grounds that “God made them negroes and we cannot by education make them white folks.” After the Supreme Court ordered public schools integrated in Brown v. Board of Education, many segregationists cited their own faith as justification for official racism. Ross Barnett won Mississippi’s governorship in a landslide in 1960 after claiming that “the good Lord was the original segregationist.” Senator Harry Byrd of Virginia relied on passages from Genesis, Leviticus and Matthew when he spoke out against the civil rights law banning employment discrimination and whites-only lunch counters on the Senate floor.

It’s painfully obvious that in a mere 10 or 15 years, that’s how these Arizona Christians will be widely seen. They really ought to ask themselves if that’s the historic company they want to keep.


By: Michael Tomasky, The Daily Beast, February 27, 2014

February 28, 2014 Posted by | Civil Rights, Discrimination | , , , , , , , , | Leave a comment

“They’ll Never Rally Behind A Single Plan”: The GOP’s Push To Replace ObamaCare Is Cynical And Doomed

On Friday, House Majority Leader Eric Cantor (R-Va.) is gathering key members of his caucus to work toward coming up with a single, official Republican alternative to the Democrats’ Affordable Care Act (ACA), or ObamaCare. Republican lawmakers have several competing bills to work with, and putting the party’s weight behind one plan or piece of legislation would be great for the country: Finally, America could have a real discussion about the best way to reform America’s health care insurance system.

But an official Republican health care plan would also be great for Democrats — which is reason No. 1 Republicans aren’t going to actually rally behind a single plan.

They will, of course, make a public effort. “GOP leaders have been clear that ahead of the 2014 elections, the conference wants to show what it is for, not simply what it is against,” says Daniel Newhauser at Roll Call. “Similarly, they want to show that they are not in favor of simply returning to the old health care system, which is viewed unfavorably by the electorate.” But any viable plan needs 218 votes from the fractured GOP caucus.

Cantor and his fellow House Republicans have at least three separate House bills to consider — from Reps. Tom Price (R-Ga.), Paul Broun (R-Ga.), and Phil Roe (R-Tenn.) — and a plan from Sens. Tom Coburn (R-Okla.), Richard Burr (R-N.C.), and Orrin Hatch (R-Utah) that was unveiled to much fanfare in January. There’s also a bill, from Rep. Todd Young (R-Ind.), that would raise ObamaCare’s definition of full-time employment to 40 hours a week, from 30. And a George W. Bush administration economist named Edward Lazear is pushing what he calls BushCare.

As they sort through these plans, what criteria will they use? If they can agree on one proposal, says Roll Call‘s Newhauser, it’s “likely to include poll-tested measures that have broad agreement in the GOP conference, including allowing the purchase of health insurance across state lines, allowing insurance portability between jobs, expanding access to health savings accounts, and limiting medical malpractice lawsuits.”

Another way of putting that: Republicans are looking for popular talking points that sound different enough from ObamaCare to win support from the more conservative factions of the GOP caucus. The problem, as The Washington Post notes, is that “there are only so many ways to preserve the patient protections that the ACA offers, which Republicans say they want to keep, while maintaining a private insurance market and assisting those who can’t afford coverage.”

Once Republicans hold up a specific plan, the Congressional Budget Office gets to issue its verdict and the public gets to weigh the proposals not just against ObamaCare but also the GOP’s attacks against ObamaCare.

The CBO analysis for Rep. Young’s bill to raise full-time employment to 40 hours, for example, found that the bill would raise the federal deficit by $74 billion while reducing the number of people getting employer-sponsored health insurance by about a million; about half of those people would go on Medicaid or other public programs, the other half would be uninsured.

It’s not clear the other Republican proposals would be popular in practice, either. Some of them, as the Washington Post editors note, would be better than ObamaCare at holding down health care costs and incentivizing people to buy private health insurance. But they are more disruptive to the status quo — especially post-ObamaCare — and almost all of them would be ripe for articles about sick people losing coverage or watching their health insurance costs skyrocket.

All of the GOP alternative plans, in other words, have their own drawbacks. Some people will lose, and some people will win. They would reduce the role of the federal government in most cases, but increase the power of insurance companies. Many of the policies are really interesting. Here are some examples of the big ideas from the GOP plans:

Cap or end employer tax breaks for providing health insurance: The idea here is that the insurance market is distorted by the tax incentives for employers to offering their workers insurance. It’s a fair point. But capping the tax breaks, as Coburn-Burr-Hatch does, or eliminating them would almost certainly cause employers to drop their plans. Almost 60 percent of Americans get their health insurance through work.

Provide tax breaks for individuals to buy their own insurance: With no employer-offered health plans, individuals and families would buy their own insurance on the open market. The Coburn-Burr-Hatch plan, for example, offers age-adjusted tax credits to people at up to 300 percent of the federal poverty line: Individuals 18 to 34 would get $1,560 a year, while those 50 to 64 would get $3,720 a year (families would get more than double those figures). Lazear’s BushCare would give all Americans with any type of health insurance $7,500 a year in tax breaks, or $15,000 for families; if people opted to buy low-cost, low-coverage insurance, they’d pocket the difference.

Allow insurance to be sold across state lines: This is a perennial GOP proposal to lower health insurance costs. The idea is that if insurers could sell the same policies to any state, regardless of that state’s own insurance regulations, it would increase market competition and drive down prices. A 2005 CBO report estimated those savings to consumers at about 5 percent overall, with the savings skewed toward the young and healthy; the old and sick would pay more. Enacting this option would require scrapping the minimum standards required for all plans under ObamaCare — a selling point for conservatives who argue we use too much health care, anyway.

“The fact that Republicans are coalescing around healthcare reform plans of their own could be very bad news for ObamaCare,” says Sally C. Pipes at Forbes. “Once voters see that the Republican alternative adds up to sensible and affordable health care, ObamaCare’s days will be numbered.”

But the opposite is almost certainly true. And House Republicans know that.

The GOP has gotten a lot of mileage out of its push to repeal ObamaCare — with a big assist, since October, from the Obama administration — but now the law is signing up real people (four million and counting) for real insurance policies. Republicans have to do better than provide plausible-sounding alternatives. They have to come up with a plan that Americans will think is much better than ObamaCare, and worth the disruption of overhauling the health care system again.

Here’s the bottom line: If reforming America’s health care system to provide near-universal affordable coverage were easy, it would have been done 60 years ago — or at any point since. Several Democratic presidents had tried and failed before President Obama. If Republicans had wanted to take their own bite at the apple, they had plenty of chances, too.

This isn’t spitballing. If Republicans want to be relevant voices in the health care debate, they have to come up with something. They should come up with a plan they can try to sell to America.

“One of the unseemly aspects of the last four-plus months is watching some on the right root for ObamaCare to fail,” says Forbes‘ Avik Roy, one of ObamaCare’s wonkiest critics. Among some conservatives, “there has been a kind of intellectual laziness, a belief that there’s no need for critics to come up with better reforms, because Obamacare will ‘collapse under its own weight,’ relieving them of that responsibility.” But it’s clear now that’s not going to happen, he adds. “And that makes the development of a credible, market-oriented health-reform agenda more urgent than ever.”

Well, don’t hold your breath.

The Affordable Care Act was written and enacted by Democrats — with a few exceptions — and that’s one of its main weaknesses: If Republicans had helped shape and pass the law, they probably wouldn’t have spent the last four years attacking and undermining it. They now have at least 10 months left to criticize the law without having to take any serious action to replace it. Don’t expect them to squander the opportunity.


By: Peter Weber, The Week, February 26, 2014

February 27, 2014 Posted by | Affordable Care Act, GOP, Health Reform | , , , , , | Leave a comment

“In Shocker, GOP Proposes Cutting Taxes For The Wealthy”: Don’t Believe The Baloney About Tax Simplification

For some time, I’ve been saying, perhaps naively, that we ought to have a real debate about tax reform, and maybe actually accompish something. Sure, Democrats and Republicans have different goals when it comes to this issue—Democrats would like to see the elimination of loopholes and greater revenue, while Republicans want to reduce taxes on the wealthy—but there may be a few things they could agree on somewhere in there. You never know.

So today, Representative Dave Camp, the chair of the House Ways and Means Committee, is releasing the latest incarnation of Republican tax reform. And it’s…exactly what you’d expect. Unfortunately.

In fact, though we’re waiting for details, it looks almost exactly like the plan Republicans released two years ago. The centerpiece is an elimination of most tax brackets, leaving only two, at 10 percent and 25 percent. In a total shocker, that means a huge tax break for the wealthy! I know—I too am amazed that Republicans would propose such a thing.

But they’ll make up the revenue, they protest. How? Well as always, Republicans say they’ll eliminate loopholes, but won’t say which ones. The reason for that is simple: everyone hates loopholes that other people benefit from, but everyone wants to keep their own loopholes. As long as you never say which loopholes you’d eliminate, nobody has reason to fight against your plan, since they don’t know whether the ox being gored is theirs or someone else’s. Furthermore, the really big loopholes are ones that lots of people love, like the mortgage interest deduction, a largely middle- and upper-class entitlement that cost the Treasury $82 billion in 2012, or the deduction for employer-provided health insurance, the largest tax expenditure at a whopping $184 billion. Think anyone’s going to eliminate those? Not on your life. But that’s where the real money is.

There is one new thing in this Republican proposal, a surtax on certain incomes over $400,000 a year, which would assumedly recover some of the money we’re losing by cutting those people’s taxes. But there are some devilish details. First, some kinds of high earners, like those in manufacturing, are excluded. And most importantly, it would only apply to wages over $400,000, and not investment income. In other words, as is usually the case with Republican proposals, they reflect a particular value: that work should be taxed at a higher rate than investments. And of course, the higher you go up the income scale, the greater the proportion of their income the wealthy get from their investments.

One final note on this. The part of the plan that will get the most attention is reducing the number of tax brackets to two. This is always offered in the name of “tax simplification,” but the truth is that the number of brackets is just about the least complicated thing about the tax code. Kevin Drum has it right:

I’m not encouraged by the fact that reducing the number of tax brackets is apparently a key feature of this “simplification” plan. That doesn’t simplify things by even an iota. The hard part of calculating your taxes, after all, is figuring out your taxable income. That takes about 99.9 percent of your time. Once that’s all done, the final step is to look up your tax rate and then multiply the rate by your taxable income. That part takes about 30 seconds.

In fact, we ought to have more tax brackets, not fewer, particularly at the high end. There’s no reason that someone making $400,000 a year should pay the same marginal rate as someone making $400 million a year.

Anyhow, the most consequential feature of this Republican tax plan, like those that came before it, is its attempt to relieve the nation’s wealthy of their burden of taxes, so terribly weighed down as they are. Maybe I’m forgetting something, but I can’t recall there ever being a Republican tax plan that didn’t propose precisely that. Ever. And they wonder why Democrats have so much success characterizing them as the party of the rich.


By: Paul Waldman, Contributing Editor, The American Prospect, February 26, 2014

February 27, 2014 Posted by | GOP, Tax Reform | , , , , , , , | Leave a comment

“Conservatism Is Too Big For Its Own Good”: The Right No Longer Understands The Difference Between The Movement And The Party

There’s a moment every year at the Conservative Political Action Conference when some eminence from the 1970s talks about the good old days at CPAC, hearkening back to the time when Ronald Reagan would show up and speak to a a small room of only about 500 activists. Things have changed. Now there are about 500 journalists who get registered to report on CPAC, which has bloated to some 10,000 participants in the fat years.

Maybe conservatism is just too big for its own good.

The conservative movement has grown large because it aspired to be something greater than a part of the Republican coalition. It wanted to become the entirety of the GOP. Instead of splitting into different interest groups, the conservative movement devises ad-hoc philosophies to integrate single-issue advocates into a larger coalition. You’re not just for low taxes or against abortion, you’re a conservative!

In this sense, the conservative movement has become a kind of parallel institution that drains resources, attention, talent, and energy from the GOP’s own electoral and governing efforts. Conservative Inc. is an enterprise with enough resources and power to be an attractive alternative to America’s official institutions of electoral power.

If you are a Republican politician and don’t have the wherewithal to become president of the United States, perhaps you have enough talent to become president of Conservatism. It’s an unofficial position, but has plenty of benefits. You won’t have the psychic pleasures of representing the electoral will of the American public, but you also won’t be burdened by any real responsibilities either.

Naturally, the idea of being a player without responsibility provides more attractions for charlatans, rabble-rousers, and opportunists.

Shades of this phenomena began in the 1990s presidential primaries. Whereas Pat Buchanan picked a principled fight with his party over issues like trade and foreign policy, candidates like Alan Keyes ran less for president than for publicity: mailing lists filled out, speaking fees increased, and radio shows picked up on more networks.

By the 2012 Republican primaries, it was obvious that there were in fact two competitions happening on the same debate stages. Herman Cain, Michele Bachmann, and even Newt Gingrich were not running for president in the same way that Mitt Romney and Rick Perry were.

This seems not to happen in the Democratic primaries. Sure, 2004 saw Howard Dean emerge as the leader of “the Democratic wing of the Democratic Party.” But there is no parallel universe called Liberalism where he and Mike Gravel could become well-paid industries unto themselves as think leaders, book hawkers, and distinguished dinner guests. Dean became chairman of the Democratic National Committee, a political job with actual responsibilities and geared toward winning elections, not just flame wars.

The composition of the Democratic coalition seems stronger precisely because it is more splintered and more issue driven. No one is afraid that Planned Parenthood or the teachers’ unions are going to impose a broad-ranging ideological revolution on the nation. The public assumes that they will simply lobby for their particular, limited interests and that the party to which they belong will have a moderating effect on them.

But the conservative movement really is large enough to exert a destabilizing gravitational force on the entire political culture. Its opponents fear that its size and strength make the GOP immoderate. And they may be right.

In any GOP presidential primary, the candidates who are running to be unofficial head of the conservative movement can do a great deal of damage to the GOP’s eventual nominee. They can pressure the eventual candidate to over-commit to the right in the primary race, essentially handing them more baggage to carry in the general election. Or they can cripple the eventual primary winner by highlighting the nominee’s deviations from the movement, dispiriting the GOP’s base of voters.

When the attendees of CPAC gather in Washington early next month and conduct their presidential straw poll with the self importance of a warning shot, it might profit them to consider whether they intend to elect a new president of their ideological ghetto or one for their nation.


By: Michael Brendan Dougherty, The Week, February 26, 2014

February 27, 2014 Posted by | Conservatives, GOP | , , , , , , , | Leave a comment

“Ohio’s War On Voting Intensifies”: The Kind Of Moves Official’s Make When They Want Fewer Voters

In advance of the 2012 elections, Ohio Secretary of State Jon Husted (R) launched an aggressive campaign against early voting, most notably targeting Sunday voting, for reasons he struggled to explain. The efforts ultimately failed, however, when federal appeals courts intervened to protect Ohioans voting rights against Husted’s policy.

Zachary Roth has been keeping a close eye on developments in the Buckeye State, where Husted is apparently picking up where he left off two years ago.

Ohio Secretary of State Jon Husted announced Tuesday he is cutting early voting on Sundays and weekday evenings, dealing another blow to the voting rights effort in the nation’s most pivotal swing state.

Husted’s change would spell doom for a voting method that’s popular among African-Americans in Ohio and elsewhere. Many churches and community groups lead “Souls to the Polls” drives after church on the Sunday before the election.

There’s little doubt that cuts to early voting target blacks disproportionately. In 2008, black voters were 56% of all weekend voters in Cuyahoga County, Ohio’s largest, even though they made up just 28% of the county’s population.

Mike Brickner, a spokesperson for the Ohio American Civil Liberties Union, told msnbc, “By completely eliminating Sundays from the early voting schedule, Secretary Husted has effectively quashed successful Souls to the Polls programs that brought voters directly from church to early voting sites.”

In the larger context, it’s worth keeping two angles in mind. First, there’s simply no reason to impose these new voting restrictions on Ohio. Second, this is only part of an even broader campaign against voting rights launched by Republican officials in the state.

On the former, those who support voting restrictions usually argue the measures are necessary to prevent “voter fraud.” The argument is a rather transparent fig leaf – the fraud scourge is generally limited to the imaginations of conservative activists – but that’s their story and they’re sticking to it.

But going after early voting is something else entirely because it has nothing to do with the fear of fraud. If an Ohioan can legally cast a ballot, it shouldn’t matter whether he or she votes on Election Day Tuesday or the Sunday before. The only reason to close the early-voting window is to discourage participation – it’s the kind of move an official makes if he or she wants fewer voters.

As for the larger “war on voting,” Ohio Republicans have kept their foot on the gas. Just last week, GOP policymakers in the state ended the so-called “Golden Week,” when Ohioans can register and vote on the same day, while at the same time, making it harder for voters to receive absentee ballots.

As we discussed last week, Ohio’s recent voting history matters. A decade ago, during the 2004 elections, the state struggled badly with long voting lines, so state policymakers decided to make things better. And in 2008, Ohio’s voting system worked quite well and voters enjoyed a much smoother process.

So smooth, in fact, that Ohio Republicans have worked in recent years to reverse the progress.

A month ago, President Obama’s non-partisan commission on voting issued a detailed report, urging state and local election officials to make it easier for Americans to access their own democracy.

Perhaps Ohio Republicans missed the message?


By: Steve Benen, the Maddow Blog, February 26, 2014

February 27, 2014 Posted by | Voting Rights | , , , , , , , | 1 Comment

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