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February 14, 2016
POLITICS/LAW: Scalia and South Carolina

Justice Scalia, Political Philosopher and Political Football

New Hampshire Primary By The Numbers

Take A RedState Presidential Electability Poll!

Posted by Baseball Crank at 12:31 PM | Law 2009-16 • | Politics 2016 • | Poll Analysis | Comments (0)
February 9, 2016
POLITICS: New Hampshire Primary 2016

The Expectations Game, New Hampshire Primary Edition

Posted by Baseball Crank at 12:30 PM | Politics 2016 • | Poll Analysis | Comments (0)
February 8, 2016
POLITICS: Almost New Hampshire

How Big Were The Ratings For ABC's New Hampshire Debate?

John Kasich Is Not the 'Electable' Republican

Posted by Baseball Crank at 10:05 PM | Politics 2016 | Comments (0)
February 6, 2016
POLITICS: New Hampshire Fight Night

The Curious Case of the Senators That Didn't Bark on Debate Night

Now The Marco Rubio Spin Wars Begin

What Trump Should Try To Do Tonight

Posted by Baseball Crank at 11:29 PM | Politics 2016 | Comments (0)
POLITICS: Road to New Hampshire

Are "Electable" Candidates Actually Electable? Part II: Swing State Electability

New Hampshire Is Very Different From Iowa

Paul Ryan on President Obama: Don't Feed The Troll

Hear Rush Limbaugh Call Marco Rubio A "Legitimate, Full-Throated Conservative" [AUDIO]

The Two Kinds of Presidential Primary Personality Cults

Posted by Baseball Crank at 1:31 PM | Politics 2016 | Comments (0)
February 3, 2016
POLITICS: Ulrich for Mayor?

Bill de Blasio May Get A Republican Challenger

Posted by Baseball Crank at 11:47 AM | Politics 2016 | Comments (0)
February 2, 2016
POLITICS: Now With More National Review

As a reminder, you can follow me on Twitter @baseballcrank or bookmark these links to catch up on my latest work:

at RedState

at The Federalist

and now at National Review

Latest since my last post here:

Eight Takeaways From Iowa As New Hampshire Looms

The Iowa Caucus Expectations Game: What Do the Republican Candidates Need?

BREAKING: Projected Winners: Cruz & Hillary

Tim Scott to Endorse Marco Rubio

Media: On Today's Glenn Beck Program

Iowa Establishment Quislings Backing Trump For 30 Pieces of Ethanol?

Nebraska Senator Ben Sasse Responded To Donald Trump and It Was PERFECT

Michael Reagan to Donald Trump: You're No Ronald Reagan

Last Night's Debate Underlines Why Congress Is a Problem for the 'Establishment' Republicans

Are "Electable" Candidates Actually Electable? Part I: Presidential Primaries 1948-2012

Where Will The "Republican Regular" Voters Go?

The Case For Marco Rubio Part II: The Salesman

New Hampshire Poll: Hillary Up 17 With Women, Bernie Up 42 With Men

GOP Big Money Goes After Marco Rubio

ARG Polls Love John Kasich When Nobody Else Does

Dear Ted Cruz, Donald Trump & Jeb Bush: Stop Trying To Extort GOP Voters Instead of Persuading Them

Posted by Baseball Crank at 5:26 PM | Politics 2016 | Comments (0)
January 17, 2016
POLITICS: Trumpian Motion

Donald Trump Floats A Pro-Abortion Vice President

Posted by Baseball Crank at 11:13 AM | Politics 2016 | Comments (0)
January 14, 2016
POLITICS: Rubio, Cruz, Trump

Marco Rubio Is Now Getting Attacked Unfairly For Killing Charlie Crist's Climate Scheme

Ted Cruz Leading Tight Iowa Race In New Gold Standard Poll

The Case For Marco Rubio, Part I: Experience

How A Donald Trump Nomination Would Make The GOP Consultant Class Very Rich

Do Liberals Know The History Of Their Own Ideas?

Posted by Baseball Crank at 10:46 AM | Politics 2016 | Comments (0)
January 4, 2016
POLITICS: End of 2015

My last two essays of 2015 were just before Christmas:

Against Despair: A Christmas Credo for Republicans

What Would a Rubio Win Look Like?

On to 2016.

Posted by Baseball Crank at 4:47 PM | Politics 2015 • | Politics 2016 | Comments (0)
December 18, 2015
POLITICS: Bomb Aladdin!

PPP Polls Shows Why Issue Polling Is So Unreliable

Posted by Baseball Crank at 1:30 PM | Politics 2015 • | Poll Analysis | Comments (0)
December 16, 2015
POLITICS: Fifth Debate Analysis and Boyd Strategy Essay

My longest deep dive of the year, from the theories of John Boyd: Military Strategist Explains Why Donald Trump Leads - And How He Will Fail

In the LA Times: To understand Donald Trump, look to Europe

Debate Review: The Superstars Bleed

Pick Your Favorite Lindsey Graham Face

Posted by Baseball Crank at 10:55 AM | History • | Politics 2015 • | Politics 2016 | Comments (0)
December 10, 2015
POLITICS/LAW: Up With Scalia, Down With Kasich

This Dumb, Dishonest Attack On Justice Scalia Takes The Cake

This One Statistic DESTROYS John Kasich's Presidential Campaign

Posted by Baseball Crank at 3:31 PM | Law 2009-16 • | Politics 2015 • | Politics 2016 | Comments (0)
December 9, 2015
POLITICS: Latest Essays Through Dec 8, 2015

The 2016 GOP Primary Calendar Is A Challenge For Ted Cruz

8 Ways This Facebook Meme Is Wrong About Treating Guns Like Abortions

Here's The Real Republican Voter Turnout Issue In 2016 (And The Democrats' Too)

Democrat Alan Grayson Goes Full Birther on Ted Cruz

Posted by Baseball Crank at 11:15 AM | Politics 2015 • | Politics 2016 | Comments (0)
November 26, 2015
POLITICS: Happy Thanksgiving, 2015!

Diebold Stole My Doobies! Stoners Blame "Stolen" Election

The Myth of "4 Million Conservative Voters Stayed Home in 2012"

Posted by Baseball Crank at 12:25 PM | Politics 2015 • | Politics 2016 | Comments (0)
November 23, 2015
POLITICS: Nutty Uncle Bernie

Bernie Sanders Is Still Polling Better With Democrats Than Donald Trump Is With Republicans

Posted by Baseball Crank at 5:19 PM | Politics 2016 | Comments (0)
November 20, 2015
POLITICS: Fear and Loathing in Hillaryland

Democrats Start To Show Early Signs of Panic About 2016

Posted by Baseball Crank at 1:44 PM | Politics 2015 • | Politics 2016 | Comments (0)
November 18, 2015
POLITICS: Aging Democrats

The Democrat Bench Is Shallow And Aging

Posted by Baseball Crank at 12:31 AM | Politics 2015 | Comments (0)
November 16, 2015
POLITICS: What Conservatism Is

Conservatism's Essential Element Is Experience

Posted by Baseball Crank at 3:59 PM | Politics 2015 | Comments (0)
POLITICS: Jindal for President

Conservative Voters Should Give Bobby Jindal A Chance

Posted by Baseball Crank at 3:54 PM | Politics 2015 • | Politics 2016 | Comments (0)
November 4, 2015
BLOG/POLITICS: My Latest, 10/6/15-11/3/15

The Obama Administration Goes Big On Extraordinary Rendition

Bobby Jindal's Ambitious Tax Plan

Should House Republicans Draft Paul Ryan To Be Speaker?

Paul Ryan Uses His Leverage To Drive A Hard Bargain

Donald Trump Tries To Backtrack After Insulting Iowa Voters As Brain-Damaged Corn-Huffers

How and Why Ronald Reagan Won

Previewing The GOP Presidential Primary Calendar

Hillary Clinton Embraces Obama's Immigration Policy and Contempt for Congress

Seven Questions About Matt Bevin's Win In Kentucky

Posted by Baseball Crank at 2:07 PM | Blog 2006-16 • | Politics 2015 • | Politics 2016 | Comments (0)
September 24, 2015

Yogi Berra: Born To Squat

Posted by Baseball Crank at 4:21 PM | Baseball 2012-16 • | Baseball Columns | Comments (0)
POLITICS: Rubio on "Amnesty"

Marco Rubio on "Amnesty": Let's Take Care of Everything Else First

Posted by Baseball Crank at 4:19 PM | Politics 2015 • | Politics 2016 | Comments (0)
September 17, 2015
POLITICS/LAW: My Latest, 9/17/15

Syrian Refugees: Arm Them, Train Them, And Send Them Back

This Was Not A Good Debate For Jeb Bush and John Kasich

The Supreme Court Probably Isn't Done With Obamacare Litigation

Posted by Baseball Crank at 8:40 PM | Law 2009-16 • | Politics 2015 • | Politics 2016 • | War 2007-16 | Comments (0)
September 4, 2015
POLITICS/LAW: Latest Roundup

Bobby Jindal and the Easily Forgotten Lessons of Hurricane Katrina

Donald Trump Shows Why Money In Politics Is A Good Thing

Go Back To Your Day Job, Lindsey Graham

How The Supreme Court Created Kim Davis

Posted by Baseball Crank at 9:44 AM | Hurricane Katrina • | Law 2009-16 • | Politics 2015 • | Politics 2016 | Comments (0)
August 13, 2015
POLITICS: Trumpathon

My two most recent posts at RedState:

1. My quick reaction to the first debate (it seems from post-debate polling that many viewers disagreed with me about Ben Carson, who I thought had a very weak debate but who finished strong.

2. Laura Ingraham Gets Punked By Donald Trump, on the recklessness of conservative talk radio in boosting Donald Trump.

Posted by Baseball Crank at 1:01 PM | Politics 2015 • | Politics 2016 | Comments (0)
July 24, 2015
POLITICS/HISTORY: Connecticut Democrats Erase Thomas Jefferson and Andrew Jackson From Their History

At RedState: Connecticut Democrats Erase Thomas Jefferson and Andrew Jackson From Their History

Posted by Baseball Crank at 11:29 AM | History • | Politics 2015 | Comments (0)
LAW/POLITICS: King v Burwell

I forgot to add this one the last time I updated here - I didn't get around to writing up a full analysis of the King v Burwell decision and its many glaring flaws, but I did put together a Storify essay from my Tweets.

Posted by Baseball Crank at 11:21 AM | Law 2009-16 • | Politics 2015 | Comments (0)
July 10, 2015
BLOG: Welcome Back, Blog!

I've been neglecting this blog rather badly for altogether too long - the archives say I haven't posted here since September 21, 2014. I've been busy in the interim on Twitter, of course, and publishing elsewhere. I probably need to post archived versions of some of those posts here. For now: links.

I will start with The Weekly Standard, where I have this issue's cover story, just posted today: Giving Thomas His Due, on Justice Thomas' opinions over the past year and what they tell us about his philosophy.

The Federalist

Then there's The Federalist, where I tend to post my longer essays these days. I ran a lengthy 5-part essay prior to the Obergefell decision, "Can Gays And Christians Coexist In America?". Part I looked at the Biblical reasons why Christians believe in one-man-one-woman-for-life marriage. Part II looked at the history of Catholicism and other Biblical Christianity in the battles over slavery and Jim Crow. Part III looked at the Christian concept of scandal and the battle between liberty-based and equality-based views of "LGBT rights." Part IV looked at the legal arguments over the rational basis for distinguishing between opposite-sex and same-sex marriage. And Part V traced possible ways forward for coexistence post-Obergefell, which admittedly are not looking especially promising at the moment.

The First Principle Of U.S. Foreign Policy looked at various approaches to our foreign policy.

Others from the fall, including some of my poll-analysis posts:

The Ferguson Riots Are Nothing Like The Original Tea Party Protests

Polling Postmortem: The Best And Worst Senate Polls Of 2014 (I keep meaning to run the companion piece on the Governors races before 2016 polling heats up).

Do Democrats Always Win Close Statewide Elections? (covers the 1998-2013 elections; I should update this with 2014 results).

Listening To President Obama's Ebola Advice Could Get People Killed

And of course, if you missed it last time, my essay on how History Is Not On The Democrats' Side In 2016 is still an important read on the coming election, undoubtedly the most significant piece I will write on the 2016 election.


The Rise & Fall of the Confederate Flag in South Carolina - I wrote this a few weeks back, but it's very relevant to today's news.

Reading Tea Leaves on the 2015 Supreme Court Term - Basically just some educated speculation on who would write what and when, which ended up having mixed results.

Democratic Party Now Literally Selling Hate - a Father's Day gift post!

Bernie Sanders, Deodorant and Diversity - a meditation on central planning and markets.

Marco Rubio Recounts The History of Obama’s Treatment of Israel - quick hit on a great Rubio floor speech. Rubio isn't my first choice in 2016, but he's done nothing but impress this year.

From the fall:

2014 and Republican Morale - a GOP victory lap and a reflection on what it meant.

The Breakers Broke: A Look Back At The Fall 2014 Polls - A personal victory lap on my 2014 poll analysis and how it relates to the polling controversies of 2012.

The 2014 Polls And The 2012 Exit Polls - An earlier look at the same topic and at some specific issues with exit polling and poll methodology.

Nobody at Has Read The Fourteenth Amendment

BREAKING: Supreme Court Takes Obamacare Subsidies Case (on King v Burwell).

First Cut: 7 Polling and Elections Lessons From 2014 (Immediate 2014 election aftermath)

Why I Voted Yes On Question 1 (NY) (Election Day post on a NY ballot initiative)

Final Senate Breakers & Governors Breakers Report November 3, 2014

Senate Breakers Report October 30, 2014

Governors Breakers Report October 30, 2014

A Sad and Desperate Attack on Chris Christie - Actually a fairly deep dive on voter fraud controversies.

Governors Breakers Report October 22, 2014

Senate Breakers Report October 21, 2014

Senate and Governors Breakers Report October 10, 2014

Senate Breakers Report and Governors Breakers Report: Oct 1

Introducing The Senate Breakers Report - September 26, 2014, the start of my Fall 2014 stretch drive when I started getting too busy to cross-post here.

Posted by Baseball Crank at 9:22 PM | Blog 2006-16 • | Law 2009-16 • | Politics 2014 • | Politics 2015 • | Politics 2016 • | Poll Analysis | Comments (0)
September 21, 2014
POLITICS: Bobby Jindal's Energy Plan

My latest at RedState.

Posted by Baseball Crank at 9:07 PM | Politics 2016 | Comments (0)
POLITICS: Better Call Paul

My latest at RedState.

Posted by Baseball Crank at 3:22 PM | Politics 2014 | Comments (0)
September 20, 2014
POLITICS: Mary, Mary

My latest at RedState, on Mary Burke's "plagiarism" scandal and why it matters.

Posted by Baseball Crank at 11:40 AM | Politics 2014 | Comments (0)
September 19, 2014
BLOG: RedState and Federalist Roundup

I owe longtime readers here some explanation and apology - my work at both RedState and The Federalist is now exclusive, at least when first published, to those sites, and while I post links on Twitter and Facebook, I tend to forget sometimes to post links back here at the old stomping grounds. (I may well close the comments section here too soon, since the lack of activity means a high spam-to-real-comments ratio, and since most regular commenters by now know how to find me elsewhere).

Here's my most recent posts over the past month, all of them on matters of politics and/or history:


Ferguson, Missouri and the Fog of Partisanship and Ideology

93% of Democratic Senate or Governor Candidates Are White

Where I Was On September 11 (a repost of the annual remembrance)

Is The Democratic Party Proud of its History of Slavery & Segregation?

Mid-September Polls Are Not The Last Word On Senate Races

The Federalist:

History Is Not On The Democrats' Side In 2016

Presidential Battleground States: A History

Posted by Baseball Crank at 3:28 PM | Blog 2006-16 • | History • | Politics 2014 • | Politics 2016 • | Poll Analysis | Comments (0)
September 15, 2014
POLITICS: Mid-September Polls Are Not The Last Word On Senate Races

A Snapshot, Not A Verdict: Will A Wave Still Swamp More Democrats?

The perennial question about election polls is back again, if ever it left: how far can we trust them? Should we disregard all other evidence but what the current polling of individual Senate races tells us - which is, at this writing, that if the election was held today, Republicans would gain 6 seats in the Senate to hold a narrow 51-48 majority? As usual, a little historical perspective is in order. It is mid-September, with just over seven weeks to Election Day, and as discussed below, all the fundamental signs show that this is at least a mild Republican "wave" year. A review of the mid-September polls over the last six Senate election cycles, all of which ended in at least a mild "wave" for one party, shows that it is common for the "wave party" to win a few races in which it trailed in mid-September - sometimes more than a few races, and sometimes races in which there appeared to be substantial leads, and most frequently against the other party's incumbents. Whereas it is very uncommon for the wave party to lose a polling lead, even a slim one, after mid-September - it has happened only three times, one of those was a tied race rather than a lead, and another involved the non-wave party replacing its candidate on the ballot with a better candidate. If these historical patterns hold in 2014, we would therefore expect Republicans to win all the races in which they currently lead plus two to four races in which they are currently behind, netting a gain of 8 to 10 Senate seats.

Read More »

Posted by Baseball Crank at 1:00 PM | Politics 2014 • | Poll Analysis | Comments (0)
August 12, 2014
POP CULTURE: Robin Williams, Suicide, Depression, and Evil Spirits

My latest at RedState.

Posted by Baseball Crank at 10:20 PM | Pop Culture • | Religion | Comments (0)
August 8, 2014
POLITICS/LAW: Recent Posts Roundup

Now that my posts are single-sourced to RedState and The Federalist (for Google/traffic reasons), I've been forgetting to link to them all here. A roundup of my latest:

At RedState:

Halbig's Critics Hoist By Their Own Petards

Obama Peddles Impeachment Conspiracy Theories To Raise Money

John McCain on the Decline & Fall of the United States Senate

Josh Marshall & TPM Promise a "BOOM," Deliver A Dud

Obama Administration Lied About Insurance Company Bailouts

At the Federalist, a cross-posted version of the Obamacare bailouts piece.

Posted by Baseball Crank at 4:05 PM | Blog 2006-16 • | Law 2009-16 • | Politics 2014 • | Politics 2015 | Comments (0)
July 22, 2014

More of my latest posts, off the site. At RedState:

DC Circuit Blocks Obamacare Subsidies, Mandate in 36 States (updated with the Fourth Circuit's decision)

Could Elizabeth Warren Face Ted Cruz In 2016?

8 Myths In The Immigration Debate

At The Federalist:

17 Ways Driverless Cars Could Change America

Posted by Baseball Crank at 2:52 PM | Business • | Law 2009-16 • | Politics 2014 • | Politics 2016
July 18, 2014
POLITICS: Could Elizabeth Warren Face Ted Cruz In 2016?

Similar, But Not The Same

Should the Democrats nominate Elizabeth Warren for President in 2016, as a draft-Warren movement, some liberal pundits and enthusiasts at this week's Netroots Nation convention believe?

Should Republicans nominate Ted Cruz, who has kept his options open with frequent trips to Iowa and New Hampshire? In some ways, Cruz and Warren are mirror images, and the cases for and against them are surprisingly similar. But there are also some critical differences.

Read More »

Posted by Baseball Crank at 3:38 PM | Politics 2014 • | Politics 2016 | Comments (0)
July 15, 2014
POLITICS: 8 Myths In The Immigration Debate

Stop Saying That. It's Not True.


The ongoing debate over immigration, and over illegal immigration in particular, is one of the most acrimonious - usually needlessly so - in our politics. It divides both parties, though it's no secret that the divisions within the GOP on this issue are far worse. And all sides in this debate are guilty of peddling myths and rhetoric that do more harm to the debate than good.

Read More »

Posted by Baseball Crank at 12:03 PM | Politics 2014 | Comments (0)
June 30, 2014
HISTORY/WAR: Enduring Lessons From The Diplomatic Crisis of July 1914

My latest at The Federalist, which also has fairly extensive coverage of today's Hobby Lobby decision.

Posted by Baseball Crank at 1:11 PM | History • | War 2007-16 | Comments (0)
June 26, 2014
POLITICS: Waiting For The Wave: The 2014 Senate Map

2014 SEN RCP 6 26 14

The polling tells us that the bulk of 2014's contested Senate races are basically dogfights. So why are so many Republicans optimistic? Because it's still June, and some of the elements of the dynamics of 2014 may not be fully baked into the polling yet. How good a year this is for the GOP will depend on those factors.

If you look at the chart at the top of this post, what you pretty clearly can see from the data is that the Senate races right now seem to be sorted into three general groups (although in each group I'm including one race that is less favorable for the GOP than the rest).

Group One, three currently Democrat-held seats in deep-red territory without real incumbents, is the likely GOP blowouts. Montana and South Dakota are both looking locked up, and the South Dakota polling may get even uglier for the Democrats if the third-party support for Larry Pressler (a former Republican Senator running as an independent) fades. West Virginia is closer, close enough that a giant gaffe or scandal or something could put it back on the table, and in a different year or state a 10-point lead would not look insurmountable. But it's hard to see where that support comes from, in a 2014 midterm in West Virginia.

Group Two is the tossups, nine states that are really too close to call right now. Seven of the nine are Democrat-held seats, five with incumbents (Alaska, Arkansas, Colorado, Louisiana and North Carolina) and two open seats (Iowa and Michgigan). One of the two GOP-held seats has an incumbent (Kentucky), the other is open (Georgia). The Democrats have settled on candidates in all nine, Republicans still have a primary in Alaska (the poll average here is the matchup of frontrunner Dan Sullivan against incumbent Mark Begich), a runoff in Georgia (the poll average here is the matchup of frontrunner Jack Kingston against Democrat nominee Michelle Nunn), and a "jungle primary" that will probably result in a December runoff in Louisiana (the poll average here is the runoff matchup of frontrunner Bill Cassidy against incumbent Mary Landrieu). In only one of these races, in Michigan, does the current leader have a 5-point lead; in five of the nine races the frontrunner is below 45%, and in eight of the nine (all but Cassidy in Louisiana) below 46%. While a 2 or 3-point lead in the polls in October may be meaningful, a race with a lead that size in June and 10-20 percent undecided is functionally a tossup, at least until you take into consideration the various factors (national environment, state electorate) that are likely to pull the race in one direction or another as we enter the fall.

Why do Republican analysts feel so optimistic? Because polls, as we recall from 2010 and 2012, are only as good as their ability to project who will turn out and vote, and we are probably still a few months from pollsters being able to really make accurate assessments of what the fall electorate will look like. As Sam Wang, Ph.D., has noted, the various models for predicting how the Senate races will go are predicting different things depending on the extent to which they look beyond the polls to incorporate predictive elements like the economy, the effect of incumbency, the President's approval rating, and the like. Sean Trende, here and here, offered a model based mainly on Obama's approval rating, and found even after some tweaks to incorporate a few other variables, that Democrats could be projected to face double-digit Senate seat losses if the President's approval rating was 43% or lower on Election Day.


That's just one way of skinning this cat, but right now, Obama's approval sits at 41.5 approval/53.9 disapproval, and has been trending rather sharply downward for the past month, with his approval on the economy, foreign policy and healthcare all consistently worse than his overall approval rating. (Via Ace, it's even worse in the battleground states). In that national environment, with midterm elections in general tending to produce Republican-leaning electorates, and with the historic poor performance of second-term presidents in sixth-year midterms, you really have to feel pretty good about GOP chances of winning most of those nine races. That may seem improbable, but there were basically seven Senate races that went to the wire or involved potentially big Democratic upsets in 2012 - Pennsylvania, Ohio, Wisconsin, Virginia, Massachusetts, Indiana, and Missouri - and I didn't think at the time they would run the table and win all seven. They did. In a few of those, like Virginia and Wisconsin, the Senate races tracked almost precisely the outcome in the Presidential race, meaning turnout from the top of the ticket was decisive. If the national environment really does show as sour across the board for Democrats in November as it looks from today, eight-for-nine or nine-for-nine could be a possibility. If the environment (including the parties' turnout operations) swings back to a more neutral one, I'd be looking more at the GOP winning five of the nine, which would net a six-seat overall gain in the Senate, enough for control of the chamber but by a very narrow margin that might not last beyond 2016.

For now, that's still a big if, not reflected in polls showing voters not really ready to commit to either side in most of those races. It's why Republicans are waiting for the wave. But it's also a reminder that those races won't win themselves - Democrats ran the table in 2012 by fighting all the way to the whistle in every race with every resource they had. One thing helping the GOP may be the Governor's races: for example, Rick Snyder is now comfortably ahead in the polls in Michigan, and the Colorado GOP dodged a repeat of the 2010 trainwreck by picking Bob Beauprez over Tom Tancredo; Beauprez may not beat John Hickenlooper, but he'll give him a tough race without Tancredo's divisiveness.

Finally, there's Group Three, the races in which the polling shows the Democrats safe for now - but, depending on the national environment, maybe not safe enough just yet to declare those races over. Incumbents Jeff Merkley in Oregon, Al Franken in Minnesota, Jeanne Shaheen in New Hampshire all have leads around 10 points, and Mark Warner in Virginia has a sixteen-point lead on Ed Gillespie. (It's also always possible some other races could come on the board; there hasn't been much in the way of general election polling in Mississippi or New Mexico, for example. But we'll have to wait and see). But none of them are regularly polling above 50%, the usual rule of thumb for a safe incumbent.

Realistically, those are "reach" races that only go on the board if things really get ugly for the Democrats. Oregon is, I would guess, the best hope for the GOP relative to its present polling given the Cover Oregon fiasco, New Hampshire the toughest of the OR-MN-NH trio due to Shaheen's personal popularity and the likelihood of a landslide win for the Democrats in the Governor's race (the other two will have tight GOV races). Also, Al Franken has a huge warchest, so his race with self-funder Mike McFadden could get ugly and expensive. Virginia, of course, is the longest reach, but Gillespie should be sufficiently well-funded and anodyne to take advantage if Warner slides into the neighborhood of actually being vulnerable.

Predictions? Anybody who's predicting the fall elections in June with too much certainty is nuts. But right now, Republicans have a lot of opportunities in the Senate. If Obama's approval rating keeps tanking, the GOP avoids any major campaign-killing gaffes, and the Democrats don't come up with a magic turnout bullet, the swing in the Senate could be bigger than anyone is realistically talking about right now. Don't count your chickens; this is just the optimistic scenario. But it is not, from the vantage point of late June, an unrealistic one.

Posted by Baseball Crank at 2:07 PM | Politics 2014 • | Poll Analysis
LAW: A Good Day For The Rule of Law


It is not the job of the court system to tell us what is right, or just; to make policy for us or govern our lives. But it is the job of the court system to police the basic rules of the road that keep our various elected officials, administrative agencies and lower courts from exceeding the powers the People, in the Constitution and laws, have entrusted to them. And today was a good day for the rule of law and a bad one for abuses of power:

1. The Supreme Court held 9-0, in an opinion by Justice Breyer, that President Obama abused his recess appointment power by unilaterally appointing members of the NLRB withouut asking the Senate. The Court split 5-4 on exactly how broad the recess-appointments power is, but all agreed that the President cannot just unilaterally claim that the Senate is in recess (for purposes of bypassing it) when the Senate itself (even Harry Reid) says that it is not in recess. That renders many of the NLRB's acts over a period of years invalid (although proper appointments were eventually made). So much for Obama's vaunted status as a Constitutional scholar; even his own appointees didn't buy his nonsense.

Justice Breyer left some wiggle room, however, for future debates over exactly when the Senate is recessed:

Canning 1

Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, would have gone further in scaling back the recess power. Scalia reminds us of a favorite point of his, that separation of powers is the true backbone of Constitutional liberty:

Canning 2

2. The Court also held, in a 9-0 loss for Martha Coakley (now running for Governor of Massachusetts) that Massachusetts abused its power under the First Amendment by a blanket ban on protests within 35 feet of an abortion clinic. As Chief Justice Roberts observed, this ban was so draconian that it prevented women entering the clinic from being exposed to peaceable forms of persuasion:

Petitioners are not protestors. They seek not merely to express their opposition to abo­rtion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm....Respondents point us to no evidence that individuals regularly gather at other clinics, or at other times in Boston, in sufficiently large groups to obstruct access. For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Common­wealth is hardly a narrowly tailored solution.

Justice Scalia would again have gone further, noting evidence that the buffer zones were deliberately intended to discriminate against pro-life viewpoints:

This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence.

3. Meanwhile, the New York Court of Appeals, the state's highest court, by a 6-1 vote struck down former Mayor Mike Bloomberg's Big Soda ban in a challenge brought by the Hispanic Chamber of Commerce. The court concluded that the agency that passed the ban was not entitled to create policy-making legislation (a common feature as well of President Obama's agencies). A few key excerpts explain why unelected executive agencies (like courts) should not set policy:

Soda 1

Soda 2

Indeed. A good day for a government of laws, not of men.

Posted by Baseball Crank at 11:01 AM | Law 2009-16 | Comments (0)
June 5, 2014
WAR/POLITICS: Yes, It Matters That Bowe Bergdahl Deserted

bad deal indy

Does it matter whether Army Sergeant Bowe Bergdahl was a deserter, or worse, a traitor? In evaluating President Obama's decision to trade five high-ranking Taliban terrorists for Bergdahl, it absolutely does.

Given the public-relations fiasco around the Bergdahl deal, liberal commentators are circling the wagons. Their latest argument, designed to compartmentalize the pieces of the controversy so they can't be considered as a whole, is that the President's calculation of what it was worth giving up to get Bergdahl back should not have taken consideration of the facts of Bergdahl's conduct and disappearance, specifically his abandonment of his comrades and mission under circumstances suggesting a deeper betrayal than simple desertion. This argument (which is summarized here by Brian Beutler at the New Republic, although it's been coming from people all over the left side of the commentariat the past two days), goes more or less like this:

1) Either you believe the military should have an ethos of "leave no man behind," or you do not.

2) Either you believe deserters should be court-martialed, or you do not.

3) You can't have a court martial until you've brought Bergdahl back.

4) If you believe in 1) and 2), you should want Bergdahl back first before deciding if he deserted, which is a matter for the court martial system, and he is presumed innocent until then.

As Beutler put it on Twitter, "this standard of rendering verdicts against POWs while they're in captivity and using them to oppose rescue is disgusting."

There are two related problems with this syllogism that illustrate its dependence on simple-minded sloganeering in lieu of sober judgments of reality. First, it confuses purely military decisions with major national security decisions. For soldiers, "leave no man behind" is more than a slogan - it's part of the deep ethos of military service, the knowledge that your comrades have your back even if you get lost or wounded or just screw up. It's the second-highest value the military has, and it's why commanders won't think twice about rescue missions that may put the lives of more soldiers at risk than those that are being rescued. Of course, there's a fair amount of bitterness at Bergdahl's desertion - his decision to leave everyone behind - among his former Army comrades and especially those who lost loved ones trying to get him back. But nobody really argues the point that the military should make efforts like that to get guys like him back.

But an exchange of high-value detainees is not a purely military decision. It's a national-security decision of precisely the type that has always been reserved, not to military men according to their military code, but to the elected civilian political leadership that makes the really big decisions with an eye beyond today's battlefields to the greater interests of the nation. After all, the military's highest value, even higher than its commitment to the lives of its men and women in uniform, is the mission itself - and it's the civilian leadership that sets the mission and chooses what sacrifices we ask of them. There are serious downsides to making ransom deals with terrorists, including setting dangerous men free and setting bad precedents and incentives for the future. Even President Obama had to admit that we could live to regret this deal in terrible ways:

"Is there a possibility of some of them trying to return to activities that are detrimental to us? Absolutely," Obama told a news conference in Warsaw.

"That's been true of all the prisoners that were released from Guantanamo. There's a certain recidivism rate that takes place."

The existence of downsides, even grave ones, may not convince us to adopt an absolute rule against deals with terrorists; national security decisions often involve a choice among lesser evils, and if your foreign policy can be summarized on a bumper sticker, you will probably get in a lot of accidents. But they illustrate why the pros and cons and competing values need to be weighed carefully, rather than letting one motto ("leave no man behind") or another ("we don't negotiate with terrorists") do our thinking for us. Our principles, as always, must remain a compass, not a straitjacket. And once you concede that the decision involved weighing competing values rather than blindly following a single overriding rule, you have to take consideration of the fact that - while of course we all wanted Bergdahl back - retrieving him was not as compelling a value as retrieving a soldier who did his duty as best he could and unquestionably remained loyal to his country.

Which brings me to the second problem with the syllogism being proposed: that it asks the President of the United States to make vital national security decisions while wearing lawyer-imposed blinders as to the facts. Yes, as a legal matter under U.S. criminal law and the Uniform Code of Military Justice, Sergeant Bergdahl is innocent until proven guilty of desertion or any graver misconduct. But every day of the week, every hour of the day, Presidents make decisions on matters large and small, in the national security area and other areas, affecting the lives of many people, based on facts that have not been litigated in court. The idea that the facts of Bergdahl's disappearance could simply be wished away or pretended not to exist, simply because no court-martial had been convened, is ridiculous and juvenile. It's not as if we could get the five Taliban back if we tried Bergdahl and found him guilty, after all. Presidents make decisions based on the best information they have. Sometimes, that information doesn't come from sources that conform to the legal rules of evidence, or from sources that could ever be disclosed in a courtroom. And sometimes, facts come out later that show that the President was misinformed - but those facts arrive too late for a decision to be made. These are the adult realities of the Presidency, and only an appallingly misguided legalism can lead President Obama's own supporters, in the sixth year of his presidency, to remain blind to it.

The military owed Bowe Bergdahl its promise to try to rescue him, even if he walked away. The nation did not owe him an agreement to compromise national security by surrendering five high-value prisoners without asking what we were getting in return.

Posted by Baseball Crank at 5:00 PM | Politics 2014 • | War 2007-16 | Comments (9)
May 28, 2014
POLITICS/LAW: Interstate Commerce and Interstate Sales of Health Insurance

My latest essay at The Federalist.

Posted by Baseball Crank at 12:58 PM | Law 2009-16 • | Politics 2014 | Comments (0)
May 21, 2014
POLITICS: Does The Tea Party Need More Experienced Candidates?

Nathan Hale

This election season's primary results, in particular Mitch McConnell's lopsided trouncing yesterday of Matt Bevin, have produced their share of obituaries for the Tea Party. But the experience so far of Tea Party and other insurgent showdowns against the GOP establishment just goes to show that candidates and campaigns still matter - and that's not likely to change. While both "Establishment" and Tea Party campaigns have gotten savvier in learning how to play the primary game, we are likely for the foreseeable future to see Tea Party challengers win when they are good candidates, with some prior political experience, talent and funding - and lose when they lack one or more of those attributes. I'd like to look here in particular at the importance of political experience, and whether Tea Party campaigns has been losing races because it was running complete political novices.

As my analysis below shows, the answer to that question is not cut and dried - but on the whole, the Tea Party candidates with the staying power to win both a primary and general election have tended not to be people jumping into the political fray for the first time in their lives. As we'll see, political novices are most likely to win when they are business executives running for governor without an incumbent opponent, and candidates without prior elective experience are best suited to win when they have some family connection or other appointed entree into politics.

Experience isn't everything; Tea Party challenges have also failed for being underfunded and for having a crowded field that divided the anti-Establishment vote. But these and other aspects of successful campaigns - the ability to raise money, unite factions behind a single candidate, and avoid disabling gaffes - tend also to be byproducts of experience. The lesson is that activists who want to win statewide races behind Tea Party challengers to entrenched incumbents should begin by building a bench of Congressmen, state Attorneys General, state Treasurers, Secretaries of State and Comptrollers, state legislators, Mayors, district attorneys, and other intermediate rungs on the ladder to governorships and Senate seats.


For the analysis below, what I did was go through the list of Republican primary battles in Senate and Governor's races from 2010 through 2014, and isolate the races that can reasonably be classified as "Establishment" versus "Tea Party" races. Now, this involves a fair amount of generalization, and I show my work so you can draw your own conclusions. The Establishment, broadly speaking, refers to the official party committees (the RNC, NRSC, RGA and the state-level parties) and large organizations (e.g., the Chamber of Commerce, Karl Rove's group), but also to the constellation of donors, officeholders, and pundits that collectively tend to circle the wagons around party leadership and more moderate or less rock-the-boat candidates. Not every "Establishment" organ or figure has taken sides in each of these races, and each can argue for their own won-loss record, but it's usually not hard to tell who has the implicit or explicit backing of party bigwigs. The "Tea Party" is an even more amorphous collection of insurgent groups across a variety of issues, including the Club for Growth, the Senate Conservatives Fund, FreedomWorks, and a host of smaller groups with "Tea Party" in the name (some of which are more legitimate than others, some of which are frankly scams on donors and candidates), social conservative groups, and individual figures like Jim DeMint, Sarah Palin, Mark Levin, and of course Erick Erickson. And again, different figures in this space have made different choices in different races. That said, it's still possible to see fairly sharp distinctions between the candidates who have "Establishment" backing and those who had to run against a headwind of opposition and rely on Tea Party support. I left off some races like the 2012 Ohio Senate race, where Josh Mandel had a lot of early Tea Party support but had no real Establishment opposition; ditto John Boozman's 2010 Senate campaign in Arkansas.

I also rated the candidates' experience on a 4-point scale - which again oversimplifies, but allows us to perform a quantitative comparison. I gave 3 points to incumbents and other candidates who had previously won a prior Senate, Governor or At-Large (i.e., statewide) House race; 2 to candidates who had won prior elections above the local level; 1 to candidates who had some political experience (appointed or local office, or working as a full-time activist or pundit) but nothing on the level of a Congressional or even state legislative race; and 0 to true political newcomers. Those ratings are listed under "TE#" and "EE#" and the difference between the Tea Party and Establishment candidate in a race listed under "Diff".

Let's walk through the races, grouped by outcome, and then sum up the findings at the end. Note also that in a few places I've listed a "win" that was delivered, not by primary voters, but by a party convention or by one side dropping out of the race.

Read More »

Posted by Baseball Crank at 4:00 PM | Politics 2014 | Comments (5)
May 19, 2014
POLITICS: The Latest Bogus Obamacare Spin: The Ad Gap

Has Obamacare been outspent on the airwaves? Only if you don't count the biggest source of Obamacare ads.

The last diehard supporters of Obamacare have a new excuse for its pervasive and persistent unpopularity: that there are just too many negative ads out there convincing Americans that Obamacare is a bad idea. But this argument is based on obviously misleading statistics.

President Obama's April 1 now-infamous a football-spiking "Mission Accomplished" speech kicked off the latest round of this meme:

[T]his law is doing what it's supposed to do. It's working. It's helping people from coast to coast, all of which makes the lengths to which critics have gone to scare people or undermine the law...Many of the tall tales that have been told about this law have been debunked. There are still no death panels. (Laughter.)...[T]he debate over repealing this law is over. The Affordable Care Act is here to stay.(Applause.)

...And we didn't make a hard sell. We didn't have billions of dollars of commercials like some critics did. But what we said was, look for yourself, see if it's good for your family. And a whole lot of people decided it was. So I want to thank everybody who worked so hard to make sure that we arrived at this point today.

The latest entrant in this sweepstakes is a "study" the media has presented as being done by "nonpartisan analysts":

The report, released Friday by nonpartisan analysts Kantar Media CMAG, estimates $445 million was spent on political TV ads mentioning the law since the enactment of the Affordable Care Act in 2010. Spending on negative ads outpaced positive ones by more than 15 to 1.

Outside of Social Security and Medicare, "no other law has come close to these amounts, much less within such a short period of time," said Elizabeth Wilner of Kantar Media. "It speaks to the intensity of the opposition among the ACA's political critics" and their belief that the health care issue will benefit their party in this year's elections, she said.

As the November midterm elections approach, the picture looks much the same, Wilner said, although a few pro-Democratic ads are countering with messages supporting the health law and a few pro-Republican ads have gone from a flat-out call for repeal to a message of replacing the law with "free-market solutions."

In the 2014 congressional races, 85 percent of the anti-Obama ads were also anti-"Obamacare" ads, the analysis found. In some competitive races, 100 percent of the pro-Republican TV ads aimed at Democrats contained anti-health law messages.

Over the four years, an estimated $418 million was spent on 880,000 negative TV spots focusing on the law, compared to $27 million on 58,000 positive spots, according to the analysis. Nearly all of the spending was on local TV stations, in races ranging from state offices such as treasurer and governor to Congress and the presidential election.

Steve Benen of the Rachel Maddow Show Blog presents this analysis in pie chart form, and asks:

Benen Pie Chart 5.19.14

[W]hy does the public still disapprove of the Affordable Care Act? Perhaps because they've seen some of the 880,000 attack ads. In fact, maybe I'm the oddball on this, but given the one-sided advertising, shouldn’t the ACA be a lot less popular?

There are four big problems with this analysis. First and foremost, it ignores the fact that the landscape of commentary on Obamacare, and even specifically paid advertising, has been limited to the subset of ads considered by this study. What is missing is the $674 million in taxpayer money spent to market and promote the virtues of the ACA, most of it in the past year, a tidal wave of spending that easily dwarfs the political ad buy:

Obamacare Pie Chart

Second, that's without counting the free media generated by the President of the United States and his celebrity allies in touting the benefits of the ACA. It's egregiously dishonest to suggesting that this wasn't a "hard sell" but just a scrappy, underfunded plucky little federal government outnumbered and outgunned by the big bad Koch brothers. As Caleb Howe noted:

Get Covered You Rubes

You didn’t make a hard sell?? In what universe are the OFA ads, the thousands of carefully crafted tweets, the celebrity endorsements, the endless speeches by the President and every other democrat in every city, county, state, region, principality, protectorate, bus station, nebula, star cluster, dimension and PLANE OF EXISTENCE EVERY SINGLE MINUTE OF EVERY SINGLE DAY SINCE THEY FIRST PULLED OBAMACARE OUT OF THEIR COLLECTIVE NO NO AREAS NOT A HARD SELL???

Pitching from every rooftop and every television and every station. Is that a hard sell?

I’m sorry. I probably seem agitated. I should get some Obamacare for that.

But I’m asking. Is having Ellen say America owes our thanks to Obama for this program a hard sell? Are campaign ads touting Obamacare a hard sell? Are dozens and dozens of town halls a hard sell? Are the hours of free air time from MSNBC, including ridiculous ad campaigns for the network touting Obamacare, a hard sell? Are the hundreds of "viral" content pushes a hard sell? Are sports legends telling you to Get Covered a hard sell? Is Valerie Jarrett hocking her wares in Hollywood a hard sell? IS THAT a hard sell? Tell me! Tell me what a hard sell is!

Is asking citizens to investigate which of their friends and family aren't pro Obamacare and then berate them for THAT a hard sell?

As you'll recall, that sales campaign was so reeking in desperation that it was parodied on Saturday Night Live with Obama kissing Justin Bieber on the mouth to sell insurance. pushing moms to evangelize Obamacare to their kids.

UPDATE: Then there's Organizing For Action, the Obama campaign arm, which is now cutting back staff it had employed to market the ACA:

[T]he group's workforce has shrunk in recent months from a high of more than 200 to just over 100 paid employees, according to a Democrat familiar with the group's workings.

The reduction came as OFA was winding down a major enrollment push for Obama's health care law. The group had staffed up for that campaign and to manage 1,700 participants in its fellowship program, and some were on temporary contracts. Most - but not all - of the departing staffers worked on those projects.

But somehow, now after all of that, when it turns out that Obamacare is still unpopular, the problem is that, gosh-darn it, nobody has tried to sell it.

Third, Obama and Benen are basically admitting the failure of one of their chief talking points, to wit, their contention that the 2012 election was a referendum on Obamacare. Obama, after all, spent a billion dollars getting re-elected, and we've been told that "the debate is over" because that election ratified Obamacare, sort of the way the 2004 election ratified the Iraq War. To say that not a penny of the pro-Obama spending was pro-Obamacare spending is to implicitly admit that he did not get re-elected on the popularity of his healthcare plan. And it's not as if Democrats and their billionaire backers, unions and dark-money interest groups - who are not, contrary to spin, being massively outspent by the Koch brothers - are unable to put more money into advertising; the fact that ACA critics are running campaign ads on the topic and its defenders are not is a sign that political professionals know the public has already made its mind up, and their money speaks louder than words as to what they think the voters will respond to.

Fourth, Obamacare's unpopularity is not a new thing. RCP's polling average goes back to November 2009, and the program's popularity has been at least 4.7 points underwater every single day of the past four and a half years, and more than double digits underwater for the great majority of the period (only for a few days in August 2012 did it rise above -5):

Obamacare RCP Average

The only really large-scale spike in unpopularity came in late 2013, and was associated not so much with campaign ads as with the disastrous rollout of the online exchanges. If anything, the persistence of the polling on this issue suggests that few minds are likely to be changed by TV ads (you'll recall that a major theme of the 2012 postmortems was the ineffectiveness of TV ad campaigns at changing minds). At some point, you just have to admit that the reason Obamacare is unpopular is that people don't like it.

Posted by Baseball Crank at 4:00 PM | Politics 2014 | Comments (1)
WAR/POLITICS: Hillary Clinton's Iraq War Vote

My latest at The Federalist.

Posted by Baseball Crank at 1:23 PM | Politics 2016 • | War 2007-16 | Comments (1)
May 5, 2014
BUSINESS: In Defense Of Homeowners

My latest at The Federalist.

Posted by Baseball Crank at 3:31 PM | Business | Comments (0)
April 9, 2014
POLITICS: Watch How The Left-Wing Smear Machine Does Dick Durbin's Dirty Work

sahil kapur

Watch how Dick Durbin launches a coordinated assault on a Republican with an egregious misquote that takes off after it gets laundered through the left-wing media.

Yesterday afternoon, Sahil Kapur of TalkingPointsMemo wrote a piece quoting remarks from Mitch McConnell:

"Instead of focusing on jobs, [Senate Majority Leader Harry Reid] launched into another confusing attack on the left's latest bizarre obsession," the Republican leader said on the Senate floor. "Just think about that. The percentage of Americans in the workforce is at an almost four-decade low, and Democrats chose to ignore serious job-creation ideas so they could blow a few kisses to their powerful pals on the left."

My RedState colleagues and I can hardly be accused of being Mitch McConnell's biggest fans, but here he was, as any remotely fair-minded observer could tell from his remarks, referring to Reid's now-daily attack on the Koch brothers, which the (current) Senate Majority Leader has for weeks now been pursuing with the single-mindedness of Captain Ahab and the unhinged paranoia of Captain Queeg. If you woke anybody following American politics in the middle of the night and asked, "what is Harry Reid obsessed with attacking?" they would immediately say, "the Koch brothers."

That's what Erik Wemple of the Washington Post concludes today, with somewhat grudging assent from Kapur:

In a brief chat with the Erik Wemple Blog, Kapur said, "The initial confusion was that Sen. McConnell didn't specify whether he was referring to pay equity or the Koch brothers and his remarks don’t point to one issue or the other. "His office says it was about the Koch brothers, which I’m not disputing. I want to be transparent, and I really regret the confusion." Here's a draft of Reid's remarks as prepared for delivery. They are heavy on anti-Koch content.

"As is crystal clear to anyone who actually read or heard his remarks, Senator McConnell was referring to an 'attack' that Senator Reid had made the previous day on two private citizens who disagree with him," McConnell spokesman Brian McGuire said in a statement. "Only someone who believes that Senator Reid was 'attacking' pay equity could conclude that Senator McConnell was doing so himself."

As Wemple notes, the New York Times has appended a correction to a story it ran in this morning's paper, in which the Times is now equally unambiguous: McConnell was clearly misquoted:

Correction: April 9, 2014

An earlier version of this article misidentified the target of criticism by Senator Mitch McConnell, Republican of Kentucky, as the Senate prepared to vote on legislation meant to close the pay gap between men and women. When he referred to "the left's latest bizarre obsession," he was criticizing Democrats' attacks on David H. and Charles G. Koch, conservative billionaires whose political organizations have spent more than $30 million on ads so far to help Republicans win control of the Senate. He was not referring to the pay-equity issue.

But how many people will see the correction? And how did Kapur, whose piece was posted at 1:40 p.m., get this so wrong? Well, at 12:01 p.m., The Hill quoted Reid's number two, Majority Whip Dick Durbin:

"Tune in tomorrow and find out whether five Republicans will join us to raise this issue of pay fairness for women across America. I am not encouraged by the statement just made on the floor by the Republican Senate Leader," Durbin said. "He said that we were blowing 'a few kisses' to our powerful pals on the left with this legislative agenda."

The Hill corrected its piece by 2:02 to clarify McConnell's remarks, and a screenshot isn't available. But the quote from Durbin, dishonest as it is, doesn't outright claim that McConnell was talking about the equal-pay push. For that, he needed allies willing to bend the truth further.

Going back over the Twitter timeline, first up, at 1:22 p.m. we have that reliable toady, Joan Walsh of Salon, with a reference to McConnell's Democratic opponent:


That got 57 Retweets. Walsh's article at Salon, naturally still uncorrected, asserts without citation or context that "Senate Minority Leader Mitch McConnell has called equal pay 'the left’s latest bizarre obsession' and accused Harry Reid of 'blowing a few kisses' to advocates."

Then, at 1:31, we have DSCC Press Secretary Justin Barasky, citing the Hill article:


At 1:43 we have former DNC flack and now American Bridge and Americans United for Change (ha!) leader Brad Woodhouse, also citing The Hill (you can see in his and Barasky's tweets a sample of what the original Hill article looked like):


It's at this point that the coordinated message-carrying power of the left-wing media kicks in. At 1:45 we get Sally Kohn of the Daily Beast:


Meanwhile, Kapur posted his piece at 1:40, and at 1:46 we have Kapur's editor, Josh Marshall:


No disinformation campaign would be complete without the Daily Kos, so also at 1:46, its eponymous leader kicks off:


At 1:47 we get Kaili Joy Gray of Wonkette, also a former Kos writer:


Hey, how about the White House? At 1:50 we get official White House spokesman Jesse Lee, with the kind of factual rigor - discussing remarks made at the other end of Capitol Hill and easily checked - that we have come to expect from this White House:


By this point, the misinformation is becoming received Beltway conventional wisdom. At 2:12, Politico deputy editor Blake Hounshell moves on to discussing how it will haunt McConnell:


At 2:10 pm, after the Hill has already issued its correction, Jed Lewison posts a Daily Kos front-page item, "McConnell calls equal pay 'the left's latest bizarre obsession'," which remains uncorrected. [UPDATE: After I prodded Lewison on Twitter, he appended a correction to the post] Citing Kapur's piece, he writes, "Senate Minority Mitch McConnell dismisses Democratic concerns about women getting equal pay for equal work as a 'bizarre obsession'". Kos Managing Editor Barbara Morrill circulates the piece at 2:19:


Meanwhile, bearing out Hounshell's prediction. Woodhouse's lavishly-funded propagandists have been busy, and at 2:21 he tweets out a video that continues to completely mischaracterize McConnell's remarks:

At 2:46, Gray is still using the misquote to pester the RNC chairman:


At 3:47, the Daily Beast is still circulating Kapur's original piece:


The irony, of course, is that the "equal pay" push the Democrats are putting on is, itself, based on a farrago of lies and junk statistics (as even this Slate XX analysis observes and as the White House's economist in charge of the issue essentially concedes, yet the White House has been pushing the bogus number without shame or caveat). And Reid's daily Koch brothers attack is itself awash in phony math. But when you're desperate, it seems, the next step from your own lies is to double down by lying about what the other side is saying, even when it's easily checkable.

Because there will always be people on the Left eager to repeat those lies.

Posted by Baseball Crank at 7:14 PM | Politics 2014 | Comments (2)
April 2, 2014
POLITICS: Yes, There's A Republican Health Care Plan - Bobby Jindal's Plan

Bobby_Jindal_CPAC_2013There's a Republican alternative to Obamacare - a health insurance plan rolled out today by Louisiana Governor Bobby Jindal. It's not only a better plan, but starts with a better way to think about how we pay for healthcare.

The Search For A Republican Alternative

One of the hoary, beaten-to-death talking points of Obamacare's last-ditch defenders has been that it's impossible to repeal the Affordable Care Act because there isn't an alternative on the table. Of course, while there are some transitional issues that would arise in unwinding the damage Obamacare has done to the pre-Obamacare insurance market, if you believe (as most Obamacare critics do) that the statute has made things on balance worse, then there's no reason why Congress couldn't or shouldn't first tear the thing up and then get to work finding a different way to improve our healthcare system. And part of what is at work in this line of criticism is the Wonk Hack Trap: the desire of liberal policy writers and Democratic ad-makers to force Republicans to submit detailed plans to be picked apart with one-sided propaganda before there is any realistic prospect of them even being seriously debated, and possibly improved, in Congress (see this Jonathan Chait piece on the 2015 Ryan budget for a classic example of the genre - of course, with Harry Reid running the Senate, no Republican policy proposal has any prospect of being considered for a vote).

But as Ben Domenech has noted, there are actually a number of principles that already attract the consensus support of most Republican lawmakers:

1. They want to end the tax bias in favor of employer-sponsored health insurance to create full portability (either through a tax credit, deductibility, or another method);

2. They want to reform medical malpractice laws (likely through carrot incentives to the states);

3. They want to allow for insurance purchases across state lines;

4. They want to support state-level pre-existing condition pools;

5. They want to fully block grant Medicaid;

6. They want to shift Medicare to premium support;

7. They want to speed up the FDA device and drug approval process; and

8. They want to maximize the health savings account model, one of the few avenues proven to lower health care spending, making these high deductible + HSA plans more attractive where Obamacare hamstrung them.

The best time to put such plans on the table is in a presidential campaign, or when the party holds both Houses of Congress (as it may next year, but does not now) and can pass at least parts of it and force the President to veto. Unfortunately, in 2012, Republicans were unable to offer a forceful message on this issue, because their candidate had already signed into law a plan nearly identical to Obamacare at the state level, and was generally interested in avoiding discussion of specific plans. Many Republicans would prefer to just stay silent for now, at least until 2015, in hopes of capitalizing on longstanding voter dissatisfaction with Obamacare. But with the Senate up for grabs and potential presidential candidates beginning to gear up, Governor Jindal has decided that it's time to put his cards on the table with a plan that includes many of these elements and some specific ideas of his own.

Jindal is already a veteran of the healthcare wars. In 1996, he was appointed - at age 24 - as Secretary of the Louisiana Department of Health and Hospitals, running the entire state hospital system, and in 1998 he served as Executive Director of the National Bipartisan Commission on the Future of Medicare, a Clinton-created bipartisan commission. A bipartisan majority of the commission ended up recommending a "premium support" plan for Medicare reform based on a model that Jindal had originally put together as a Congressional intern - a plan that (in varying forms) has resurfaced in Paul Ryan's annual budget proposals. Jindal went on to work as a policy advisor to Tommy Thompson in the Bush-era Department of Health and Human Services before his tenure as a Congressman and Governor, and he's been engaged in healthcare issues in his two terms as Governor of Louisiana. So, his plan is not merely a thrown-together campaign document, but represents his long-term thinking about how to approach healthcare.

The Jindal Plan

You can read the full 21-page plan document here, the 3-page Executive Summary here, Gov. Jindal's op-ed here, and overviews from Robert Costa and Amy Goldstein at the Washington Post and Benjy Sarlin at MSNBC.

Jindal takes as his starting point that Obamacare would be repealed root and branch, a goal that will be music to the ears of GOP primary voters, but will focus the attention of the many voters who despise Obamacare but want some reassurance that Republicans won't simply replace it with a desert sowed with salt. The theory of his replacement is as important as its details, many of which would surely have to be negotiated with Congress even if Jindal wins the presidency.

At a conceptual level, Jindal's plan - like most GOP proposals - diverges from the outset from plans like Obamacare-Romneycare-Hillarycare that promise "universal" coverage and set out to achieve it by (1) forcing people against their will into common insurance pools, (2) forcing insurance companies against their will into insuring all comers, (3) forcing employers to provide health insurance to certain of their employees, (4) in the case of how Obamacare was originally designed, forcing states to follow federal dictates in how and to whom they provide Medicaid, and (5) dictating in minute detail the terms on which all of these compelled interactions are carried out. Even with all of those mandates, even the optimistic CBO projections at the time the Affordable Care Act was passed estimated that the bill would reduce the uninsured population only from 54 million to 23 million by 2019, and those projections have grown less rosy over time, reminding us that universal burdens on the public do not guarantee universal compliance. Rather than chase the chimera of a one-size-fits-everyone plan that will never actually fit everyone, Jindal's plan revives the premise of our pre-Obamacare healthcare system (where over 80% were insured and about 85% of the insured were happy with their health insurance) and seeks to create the conditions of lower cost and more competition that will entice more people to voluntarily choose a health insurance plan. If this sounds like a familiar concept to you, it's because that's how the rest of the American economy works, and always has.

From his perspective as a Governor, Jindal also wants to reverse the centralization of power over health insurance in Washington, and create competition between states to offer better health insurance. Thus, in place of having mandatory federal rules (for Medicaid, for insurers, for employers, and for individuals) that are subject to waivers and delays at the whim and favor of the President and HHS, he would write more latitude for states directly into law, block-granting Medicaid funds and reducing the federal role to holding states accountable for outcomes rather than micromanaging their process (spoiler alert: Jindal has strongly signalled that this will also be his approach to education). Sarlin frets that this permissive approach "might just spawn dozens of mini-Obamacares at the state level," but at least that would be those states' choice, and in a blogger conference call this afternoon, Jindal stressed that by allowing insurance policies to be sold across state lines, he would rely on competition to incentivize states to avoid imposing an unreasonable volume of mandates.

For individuals who can afford their own healthcare, Jindal would step back and give them more tools to take control: a tax deduction on par with the employer deduction, and more health savings accounts to encourage people to be more involved in the costs of healthcare. Jindal is less interested than Obama in enrolling healthy, childless adults above the poverty line in Medicaid. But for those who legitimately cannot afford healthcare, Jindal's plan recognizes that government is too involved to simply walk away: he's proposing separate high-risk pools for people with pre-existing conditions, and focusing on making sure Medicaid focuses the safety net on those most in need. He would also keep in place the pre-Obamacare laws guaranteeing the continuation of coverage when you change jobs once you have insurance, regardless of whether you've gotten sicker since first enrolling. Jindal argues that Obamacare has undermined these protections.

Some of Jindal's proposals are things that could be enacted now at the state level already, or proposed piecemeal at the federal level in 2015, and much of it could be enacted in stages rather than in one swoop. That's a strength: it would enable him to avoid another thousand-page omnibus bill infested with hidden goodies, and provides some intermediate goals for activists to focus on between now and 2016. But it also means that at least some of his proposals (like tort reforms at the state level) would be beyond his reach to command even from the White House.

Medicare premium support, whether as a voluntary supplement to the current system or a phased-in replacement, will be more controversial, and Jindal's plan isn't entirely explicit on how it would approach that thorny problem. Nor is this a complete plan with all the accounting gimmickry needed to pass the CBO's arcane rituals for deficit scoring; the sacrificing of the required number of goats and chickens to satisfy the CBO models will have to wait. And Jindal's promise of more pro-life and conscience protections, while popular with social conservatives, will likewise test his fortitude if he makes it far enough to propose actual legislation. But as far as frameworks go, this is already a fairly detailed view of where Jindal wants to take American healthcare into the post-Obamacare world.

Follow The Leader

As I've noted before, Republicans and conservatives shouldn't fall in love with any one candidate this far ahead of 2016, and given the plethora of potentially attractive candidates and the roiling debate within the party over a variety of policy issues, we should be more rigorous than usual in demanding that potential candidates make the case for a policy agenda that has some realistic prospect of being put into action. Personally, if forced to choose at this writing, I would rate Jindal and Scott Walker as my top two choices, in that order - but there's a lot yet to happen, and we are not particularly close to even knowing who will and won't run (Jindal and Rand Paul are probably the two potential candidates who have given the strongest indications of interest, but many others - including Walker, Ryan, Ted Cruz, Jeb Bush, Marco Rubio, Chris Christie, Rick Perry, Rick Santorum, Mike Huckabee, Peter King, John Kasich and Joe Scarborough - seem to be floating trial balloons). While it's a plus for Jindal that he has a head start in rolling out a reasonably fleshed-out policy agenda on the signature policy issue of the Obama years and the experience to back it up - a head start that will force other potential 2016 aspirants to play catch-up - the more important thing is that he is kick-starting the serious business of having a real policy debate that will move us towards the common goal of repealing Obamacare and offering an alternative. And that will benefit the nominee in 2016 regardless of who it is.

Posted by Baseball Crank at 7:00 PM | Politics 2014 • | Politics 2016 | Comments (5)
March 27, 2014
LAW/POLITICS: Tough Day In Court For Obamacare

Legal Times has the story from the D.C. Circuit on the suit challenging subsidies on Obamacare's federal exchanges on the ground that the plain language of the statute doesn't allow them. I recommend these backgrounders on the case from Sean Trende and Michael Cannon.

You can never tell for certain from oral arguments, and there have been some surprise twists already in this case, but these comments don't sound encouraging for the federal exchange subsidies. A few excerpts - there's much more in the story:

"If legislation is stupid, I don't see that it's up to the court to save it," said Senior Judge A. Raymond Randolph...Randolph and Judge Thomas Griffith seemed inclined to side with foes of the law, who told the panel that lower-income people are only eligible for tax credits if they buy health insurance through an exchange established by a state - not one set up by the federal government...

...[Randolph] called the Affordable Care Act "a last-minute deal filled with a lot of predictions, even the title," and said the predictions have not been born out. "The launch was an unmitigated disaster," and the costs of implementation "have gone sky-high," he said. "Suppose Congress made another prediction" - that if the tax credits were conditioned on setting up exchanges "all the states would line up for this deal." But this prediction too was not borne out, he said.

..."The legislative history is a wash," Griffith said. "There doesn't seem to be any clear legislative history." Without evidence of congressional intent, Griffith said, "You have a special burden" to show that the plain language of the statute "doesn't mean what it appears to mean."

Randolph added, "What we've got here is language that doesn't seem malleable." If the court knows "the clear purpose of the statute" - in this case, to provide affordable health insurance - but Congress "didn't write it clearly enough, is it our job to fix the problem?," Griffith wondered.

Randolph said no. The court can overrule plain statutory language based on the "absurdity principle, but I don't see a stupidity principle."

Stay tuned.

Posted by Baseball Crank at 4:04 PM | Law 2009-16 | Comments (3)
POLITICS: 6 Reasons Why Iowa Senate Candidate Bruce Braley Has Had A Very Bad Week


Iowa Democrat Bruce Braley's Senate campaign has had a rough week, which has only gotten worse after the now-infamous video of Braley at a Texas fundraiser deriding Chuck Grassley as "a farmer from Iowa".

How bad? Let's review 6 ways:

1. Everybody's Piling On

The commentary on Braley's gaffe has been brutal. The Iowa papers have been all over the story, with heavy coverage in the Des Moines Register and a front page above the fold headline in the Quad City Times, helpfully contrasting Braley with the unveiling of a statue on Capitol Hill of Iowa agriculture legend Norman Borlaug. Even reliable Democratic partisans like Jonathan Chait were commenting that "Bruce Braley must realize that his career in Iowa politics is finished." Chuck Todd tweeted that this was a "Big unforced error on Braley's part...not just elitest but un-Iowan to attack another Iowan the way he did." Popular Republican Governor Terry Branstad ripped Braley's "arrogance."

2. Lost On The Farm

The fact that Braley speaks Iowa farmer as a second or third language was driven home by his staff. His press release apologizing for the gaffe only made things worse:

The Braley campaign misspelled a couple of basic Iowa-farm-related words - detasseling and baling - in its press release defending the U.S. Senate candidate's street cred with farms and farmers.

A sharp-eyed Des Moines Register editor noticed that the news release said: "Bruce grew up in rural Iowa and worked on Iowa farms, detassling corn and bailing hay."

One suspects that Braley has not surrounded himself with farm-literate staffers. Which is also ironic for a guy who has mocked his Twitter followers' spelling in the past.

3. Can't Find Iowa With A Map and Google

Andrew Kaczynski of Buzzfeed noticed that Braley's Facebook site had a photo of a supposed Iowa farm that was actually a stock photo of a fruit farm from England or maybe India. Caleb Howe saved screenshots before they were deleted from Braley's site, and noticed other places where the same stock images show up. Kaczynski also noted that Braley's Facebook page featured a photo of a minimum wage worker that was apparently taken in Mexico:

braley mexico

4. Not Polling So Hot

Rasmussen reported this afternoon a poll taken last week (before the gaffe) showing Braley polling only at 40-41% against three of his potential GOP rivals and 44% against a fourth:

A new statewide telephone survey of Likely Iowa Voters finds Braley with a 41% to 38% lead over businessman Mark Jacobs. He leads State Senator Joni Ernst 40% to 37% and runs four points ahead - 40% to 36% - of former U.S. Attorney Matt Whitaker. Braley posts a 13-point lead - 44% to 31% - over another GOP contender, conservative talk show host Sam Clovis.

It was only Monday that Nate Silver's poll model still gave Braley a 75% chance to win this race. Rasmussen's polling has looked rather volatile and unreliable since the departure of founder Scott Rasmussen last year, and its national job-approval polls have tended to be more favorable than any other pollster for President Obama, so take that as you will; there should be more regular polling in this race as it goes along, especially as the GOP field narrows and the candidates get better known. Quinnipiac also polled the race earlier this month, similarly showing Braley in the low 40s but with more distance over his GOP rivals:

42 - 30 percent over former U.S. Attorney Matt Whitaker; 42 - 29 percent over State Sen. Joni Ernst; 40 - 31 percent over businessman Mark Jacobs; 42 - 27 percent over radio commentator Sam Clovis

Note the Q poll found Grassley with a stratospheric 62-27 approval rating among Iowans, compared to 55-31 for retiring liberal Democrat Tom Harkin and a ghastly 39-57 for President Obama. So, insulting Grassley is definitely not the winning move here. Braley's own 35-18 favorability rating in the poll reflects the fact that nearly half the voters hadn't formed an opinion of him yet, which I'm guessing many will be doing this week.

Neither poll seems to have polled the fifth GOP candidate, car salesman and Navy veteran Scott Schaben. There's more to be said about the GOP field - Jacobs has polled of late as the frontrunner, while Ernst has put on a big p.r. push this week, with a viral first ad talking about growing up castrating hogs on a farm and endorsements from Mitt Romney and Sarah Palin - but GOP voters will have plenty of time to size them up before the June 3 primary.

5. Gaffe-Tastic!

At the start of this week, Braley was just a name on paper to a lot of people following this race from out of state, and a modestly-known Congressman to Iowans. But now that he's coming into focus, we can see that the signs have been there for a while that Braley was not the top-flight Senate recruit the Democrats had touted him as, but rather an abrasive lawyer with a gift for gaffe:

-Braley's trial-lawyer-bully demeanor and obsession with academic credentials are on full display in this hearing where he badgered a Canadian female expert in healthcare economics over where she went to school:

-Last March, he had to delete a tweet that compared an NCAA basketball loss by Iowa State to the Cherokee "Trail of Tears."

-During the government shutdown last fall, Braley staggered critics with his out-of-touch complaints about the lack of towels in the House gym. Even left-wing radio host Bill Press, on whose show Braley whined about the towel service, was appalled:

"I was speechless," Press said, telling ABC7 he thought he was asking Braley an easy question that he would answer by saying the gym needed to be shutdown.

"I was angry until he told me that they had to do their own towels," Press said. "I sort of felt sorry
for them. Poor members of Congress, they're only getting paid a hundred seventy five thousand dollars a year, and they have to do their own towels."

"The staff gym, by the way, is closed," he continued. "The members gym is open. And then they have to do their own towels. I don't think many people are crying their hearts out about that tonight. Gimme a break."

6. Wait Until We Get To The Issues

All of this is just revealing Braley's character. On the issues, Braley is still going to have to answer for being a vocal backer of Obamacare who was telling people on the trail last year that Obamacare was "something people should 'celebrate.'" And David Freddoso notes that Braley has a history of being completely in the pocket of his trial lawyer donors.

The filing deadline passed in this race on March 11, so Democrats will sink or swim with Bruce Braley. They may find the going rougher than the Missouri in spring flood season.

Posted by Baseball Crank at 4:00 PM | Politics 2014 | Comments (0)
March 25, 2014
POLITICS: Iowa Senate Candidate Bruce Braley Insults Iowa Farmers


You won't believe what Iowa Congressman Bruce Braley was caught on tape saying about Iowa farmers:

Braley, the presumptive Democratic nominee for an open and hotly-contested Senate seat in Iowa, is a lawyer, and a former president of the Iowa Trial Lawyers Association, and he's speaking here to fellow lawyers at an out-of-state fundraiser, presumably blissfully unaware that things said at fundraisers could be videotaped (who knew?):

[I]f you help me win this race you may have someone with your background, your experience, your voice, someone who's been literally fighting tort reform for thirty years, in a visible or public way, on the Senate Judiciary Committee. Or, you might have a farmer from Iowa who never went to law school, never practiced law, serving as the next Chair of the Senate Judiciary Committee. Because, if Democrats lose the majority, Chuck Grassley will be the Chair of the Senate Judiciary Committee.

Let us count the ways in which this is colossally stupid.

One, Braley seems unaware that there are a lot of farmers in Iowa, who may well like the idea that someone with their background, their experience, and their voice will have a position of influence in the U.S. Senate, over the courts. This may come as news to Congressman Braley, but while lawyers live with the most immediate day-to-day business of the courts, they affect the lives of everyone - yes, even those lowly Iowa farmers. As a lawyer myself, I like the idea that we should have some lawyers on the Senate Judiciary Committee and on its staff, but the whole point of democracy is that the common man gets a say in how he is governed, not just the experts. Relatedly, Braley's stress on "your background, your experience, your voice" just emphasizes how he sees the voice and interests of trial lawyers as one that will be very different from that of farmers.

Two, Braley didn't just say farmer - he said "farmer from Iowa," as if to underline to his audience that they should view an Iowa farmer as especially parochial. I will hazard a guess that this is not the first time most Iowans have heard themselves spoken of this way, and that they will not like it much.

Three, Braley manages to mention here that his losing the election would elevate the state's senior Senator to the chairmanship of a powerful committee. Way to go making the sale there.

Four, he manages to sneak in the fact that he's been a longstanding opponent of tort reform, and doesn't even bother to come up with some focus-group-tested euphemism for reform. He's bluntly telling the trial lawyers in the audience that he's for their interests - not like those Iowa farmers. [UPDATE: The Des Moines Register helpfully notes that "Braley's biggest donors this election cycle to date are lawyers and law firms, according to They've funneled $1,122,748 into his campaign."]

Well done, Bruce Braley, well done. This might even get you 47% of the vote.

Posted by Baseball Crank at 2:33 PM | Politics 2014 | Comments (9)
March 21, 2014
LAW/POLITICS: Court: Planned Parenthood Violated Fourth Amendment in Home Raid


"An incident that is more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect in the United States of America"

Sometimes, the recitation of facts in a judicial opinion speaks volumes. A decision this morning from the U.S. Court of Appeals for the Sixth Circuit in Ohio, captioned Bray v. Planned Parenthood, et al., No. 12-4476 (6th Cir. Mar. 21, 2014), is one of those cases.

Michael Bray, the plaintiff, is not a terribly sympathetic character; he wrote a book in 1994 advocating violence against abortionists, and served four years in prison in the 1980s for a series of bombings of abortion clinics. (Like Bill Ayers, Bray never injured anyone and denies any intent to do personal harm, but as we know, setting off bombs in populated areas is a hazardous business). In 1993, the Supreme Court ruled 5-4 that clinic protests by he and his wife Jayne did not violate the Civil Rights Act of 1871, a/k/a the Klu Klux Klan Act, but the following year, at the urging of the Clinton Administration, Congress responded by passing the Freedom of Access to Clinic Entrances Act. Planned Parenthood immediately filed suit against Bray in Oregon under the new federal statute that was more or less designed to target him, and won a $110 million jury verdict, reduced on appeal to $850,000. It then set about trying to collect the judgment from Bray's book sales, which as you may imagine don't seem to have been particularly extensive.

By 2007, further legal proceedings were underway in Ohio, where the Brays live with their seven children. Bear in mind that, while Planned Parenthood at this juncture was entirely in the right in seeking to collect on a valid judgment, this was no more than that: debt collection. Yet when the Marshals came to the Bray house, they brought not only four Marshals, two county sheriffs' deputies and an ATF agent, but also two outside lawyers for Planned Parenthood and a number of other unknown individuals (apparently from Planned Parenthood as well) to root through the house videotaping the place, taking books, computers, manuscripts, cameras and camcorders. Many of those items were later returned by the court on grounds of having been improperly seized, but in some cases only well over a year later and after much legal wrangling. Here's how the Sixth Circuit characterized these facts (as alleged in the Brays' complaint):

If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China's Cultural Revolution than like what we should expect in the United States of America. A surprise raid was made on a judgment debtor's home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas. The debtor was required to sit on his couch while flak-jacketed U.S. Marshals, along with agents of advocates for moral and political positions that the debtor despised, plus persons with unknown identities and purposes, went through and seized the books and papers, and computers and cameras, of the debtor and his family. The only exception was for children's books and Bibles. The interior of the home was videotaped. The debtor was not allowed to leave the couch, to go outside, or to call his lawyer, although eventually a marshal called the debtor's lawyer.

This kind of home attack on the ability to convey ideas should not happen in our Republic. It is true that the debtor's ideas - that it is moral to take violent, illegal action to stop abortions - are repugnant. But it is contrary to our fundamental norms to permit government-sanctioned attacks on the purveyance of ideas, even when those ideas are repugnant.

In ruling on the Brays' civil suit against Planned Parenthood and the Marshals, the unanimous three-judge panel (which included Judge Bernice Donald, an Obama appointee) found that the presence of Planned Parenthood representatives wandering around the house and videotaping violated the Fourth Amendment, and undermined any claims by the Marshals that there was a genuine security threat presented by the Brays and their children to justify such a heavy-handed raid:

No countervailing governmental interest justified the four-hour detention of Michael Bray. For one thing, the raid presented none of the operational and safety concerns that may justify seizing the occupants of a home during the execution of a criminal warrant….Allowing Michael Bray to leave his home or to use the telephone would not have threatened the completion of the search. Nor would an unrestrained Michael Bray have presented a safety concern. To the contrary, the marshals' own actions belie that argument. Had the marshals believed that not restraining Michael Bray risked violence, they would not likely have permitted numerous representatives of PPCW to join in a surprise raid of his home.

Inviting multiple representatives from PPCW to join the search did more than undermine the argument that the marshals believed Michael Bray to be a safety threat. In addition, the action violated the Fourth Amendment because it exceeded the writ, which authorized only "a representative from [PPCW]" to "be present to assist in the identification of property subject to seizure."...Contrary to this clear instruction, the marshals permitted not one, but "numerous" representatives of the organization to join the raid...

Adding further support to the conclusion that the marshals' actions violated the Constitution, the presence of multiple unauthorized representatives of PPCW served no valid purpose under the writ. Although the Fourth Amendment does not require that all conduct by an officer within a home be expressly authorized by a court order, it does demand that actions relate to the lawful objectives of the order...PPCW had no articulated expertise in satisfying the ostensible purpose of the writ, identifying valuable goods to satisfy a monetary judgment.

Moreover, because the presence of additional representatives of PPCW was not authorized, and because the writ made no provision for the use of a camera, it was a violation of the Fourth Amendment to permit the organization to film the home. A person who is not lawfully present in a home may violate the Constitution by engaging in warrantless filming of the area. The Supreme Court made clear...that the right to be present in a home does not necessarily entitle police to bring photographers with them. In this case, the unauthorized filming of the Brays' home was particularly unreasonable because the raid was unannounced and the filming occurred within the home itself. Moreover, because of the location and nature of the filming, the use of the camera posed a heightened risk of intimidating the family and capturing its intimate, unguarded moments.

As it turned out, because the Brays had settled with Planned Parenthood and certain other defendants, the court ended up dismissing the remaining claims against the Marshals, finding that while they had participated in an unconstitutional raid, they were immune from civil suit under the doctrine of "qualified immunity" because they had been carrying out a valid court order and may not have realized that they were going far enough afield for a clear constitutional violation (qualified immunity law requires that law enforcement officials can be sued only when they clearly and obviously knew they were violating a Constitutional right; the doctrine protects cops from second-guessing by judges after the fact).

At the end of the day, the Brays may not be worthy of much sympathy, but the Constitutional rights of unpopular citizens can matter to the rest of us, especially when the people trampling on those rights come from an organization like Planned Parenthood that is all too accustomed to getting its way in the legal system regardless of who gets hurt (just ask a Pennsylvania state legislator who is the cousin of one of Kermit Gosnell's victims and now faces Planned Parenthood's wrath). The Fourth Amendment's protection against unreasonable searches of the home was put in the Constitution to protect our privacy. It is ironic, given its rhetoric, that Planned Parenthood does not respect that right.

Posted by Baseball Crank at 3:06 PM | Law 2009-16 • | Politics 2014 | Comments (1)
March 12, 2014
POLITICS: Vox in Box

My latest at The Federalist.

Posted by Baseball Crank at 11:22 AM | Politics 2014 | Comments (0)
March 8, 2014
POLITICS: Witness the Political Genius of Salon

Brian Beutler of Salon is generally regarded by progressives as one of the smartest people in their movement, and his work is often cited with solemn nods of approval by others on the Left. So, when he writes a widely-cited article purporting to reveal a secret and diabolical Republican plot - breathlessly titled, "Republicans have a secret Obamacare strategy - and it's based on deception" - it's instructive to consider the political basis of this thesis.

I advise you to not be drinking anything when we get to his reasoning.

Beutler argues that Republicans are going to make gains in this year's election no matter what happens, and are deviously going around campaigning against Obamacare to make it seem as if the voters are unhappy with Obamacare, when really they are just peachy keen on it! I will leave aside, as Beutler does not mention them, the polls that have shown that the voters disapprove of Obamacare (spoiler: virtually every poll taken for the past five years), and quote Beutler's poll analysis in its entirety:

I bring this up in light of a new Washington Post/ABC News poll, which finds that in spite of the GOP's abiding unyielding infatuation with Obamacare, the law is actually a political wash, at least to first approximation.

Here's Greg Sargent on the numbers: "barely more than a third (36 percent) say support for Obamacare would make it less likely they vote for a candidate, versus 34 percent who say 'more likely.' This is overwhelmingly driven by Republicans: 70 percent of them say 'less likely,' while only 35 percent of independents say the same, and moderates say they'd be marginally more likely by 35-31."

So here we are, eight months out from the midterms, with control of the Senate on the line, and the GOP is orienting its entire campaign around an issue that - again, to first approximation - confers them no net benefit. Why the hell would they do that?

A few reasons. One obvious reason is that they've worked their voters into such a lather over Obamacare that they can't just quietly sideline it, particularly now that it's actually being implemented. Then there are related, second-order effects. If Obama creates an intensity gap between Democrats and Republicans, then the issue obviously advantages the latter. Having worked their voters into said lather, Obamacare is precisely the kind of issue that will drive them to the polls in November - especially if they've been deceived into thinking that Obamacare can be repealed.

So, you know, it's a political wash...except with the people who actually vote, and except that it is the issue that will motivate them to actually vote.

But you know, besides that. Because who ever heard of voter turnout affecting an election?


If you actually dive into the one poll under discussion, it gets worse for Beutler's and Sargent's theory. Because that 34-36 number is all adults, and as we all know, all adults don't vote; registered voters vote (and not all of them, either, but eight months from an election it's hard to project who the likely voters are, because...oh, sorry, I'm discussing what motivates voter turnout again. How unsporting of me.)

When you flip the tab to registered voters, the +/- on Obamacare deteriorates to 33/40, seven points underwater. A 40/33 issue isn't an 80/20 issue, but it's certainly one I'd feel comfortable running on.

Then you hit the breakdowns by group, bearing in mind that these appear to be subsets of adults, rather than subsets of registered or likely voters. As noted, Obamacare is 11/70 with Republicans and 30/35 with independents. It's 34/40 in the Midwest, which is chock full of purple states that have Senate and House races this year. And then you get to the people the Democrats would presumably bank on, and you see significant weakness. Obamacare is 57/12 with Democrats and 45/18 with moderate or conservative Democrats - that's a lot of Democrats to be unhappy enough with the party's signature domestic policy that they say it would negatively impact their vote. Losing almost 1 in 5 self-identified moderate or conservative Democrats on Election Day, whether they switch sides or more likely stay home, would be a bloodbath when they are already going to lose independents. And let's not discuss unions.

How about non-white voters? 44/18. That's right, among non-white respondents to the WaPo poll who said Obamacare would affect their vote, more than a quarter would be less likely to vote for a pro-Obamacare candidate - nearly a fifth of all non-white adults. Among Hispanics, it's 42/19. If I'm a Democratic strategist counting on these groups as core base voters, those are chilling numbers. (And note that the number for liberal Democrats is 75-1. Which suggests to me that most of the non-white respondents to this poll did not self-identify as liberal Democrats, an interesting finding in itself).

All of this is only one poll, of course, but since it's the entire basis for Beutler's argument, it gives you a sense of how much straw-grasping is really involved here. If you can convince yourself that voter turnout doesn't matter, and that Democrats didn't really suffer in 2010 from their Obamacare votes, I guess you can convince yourself of almost anything.

Posted by Baseball Crank at 2:36 PM | Politics 2014 | Comments (2)
March 7, 2014
POLITICS: The Democrats' 2014 Whitewash


Barack Obama's electoral success has shown the Democratic Party the value of a non-white candidate in driving turnout and enthusiasm among the non-white voters that are vital to the party's success. So why are nearly all the statewide Democratic candidates this year white?

If there is one central theme to the political strategy of the Democrats and the electoral analysis and optimism of liberal pundits in the Obama era, it is race. To say that they are obsessed with these topics is to vastly understate the case. Virtually every analysis of "the Republicans' demographic problems" and the long-term case for Democratic/progressive dominance is premised upon the rising share of non-white voters in the electorate and their identification with the Democrats. To be sure, these are not Republicans' only challenges - even with younger white voters there are a few issues (mainly same-sex marriage and marijuana) on which the GOP is out of step with generational trends, and there is legitimate concern that younger voters of all races are less likely to be religious or get married, two traditional markers of conservatism. But even looking at the 2012 election returns, we see that Barack Obama lost white women by the largest margin of any candidate of either party since Walter Mondale, suffered a huge reversal among white voters under 30 (who he lost by 7 points after winning them by double digits in 2008), and even narrowly lost white women under 30. So, all of the Democrats' advantages along gender and age lines are still really just symptoms of a racially polarized electorate.

 photo turnoutdivideetimpera9212-1.jpg

And turning out that electorate has been a challenge for Democrats. The big turnout wave of African-Americans for Obama exceeded anything John Kerry or Al Gore was ever able to muster, and the midterm elections in 2009, 2010, and 2013 (with the arguable exception of the 2013 Virginia Governor's race) yielded electorates that were older, whiter and more conservative than the 2008 or 2012 electorates (this was even true in 2006, although depressed GOP turnout and heavy independent support for Democrats made that a big year for the Democrats anyway). There has been much open fretting by Democrats that the turnout will look the same this year - which threatens to make this a serious wave year for Republicans, given the public mood. That's even before you get to the fact that Democrats' rising success with non-white voters has coincided with hemorrhaging support among white voters and the very real possibility that the Democrats haven't yet found their floor among white voters. To say nothing of the possibility that the natural long-term arc of Hispanic voter preferences may move back in the direction of the GOP. In the immediate term, we have already seen polling showing that Hispanics are the most disillusioned of Obama's 2012 supporters. Few things in a two-party political system are forever.

And there is a very real sense in which the big turnout of 2008 and especially 2012 was a show of racial solidarity with Obama (and his wife) personally, as much as it was a traditionally political phenomenon. There were all sorts of signs of this in the 2012 exit polls. Only 23% of voters in the exit polls said that the economy was in good or excellent shape, for example, but 90% of these voted for Obama. Who are these voters? A July 2013 Quinnipiac poll - somewhat typical of the breakdowns these days - found that 47% of black voters, but only 25% of white voters, described the for state of the economy as good or excellent. By contrast, an October 2007 CNN poll found 69% of black voters describing the economy as in recession, compared to 42% of white voters. This, despite the fact that the objective evidence shows unemployment significantly higher among African-Americans in 2013 than 2007.

But forget the data; listen to liberal African-American pundits. Here is The Atlantic's Ta-Nehisi Coates, laying it out in the purplest of prose:

Barack Obama was not prophecy. Whatever had been laid before him, it takes gifted hands to operate, repeatedly, on a country scarred by white supremacy. The significance of the moment comes across, not simply in policy, by in the power of symbolism. I don't expect, in my lifetime, to again see a black family with the sheer beauty of Obama's on such a prominent stage. (In the private spaces of black America, I see them all the time.) I don't expect to see a black woman exuding the kind of humanity you see here on such a prominent stage ever again....I don't ever expect to see a black man of such agile intelligence as the current president put before the American public ever again.

This symbolism has real meaning. What your country tells you it thinks of you has real meaning. If you see people around you acquiring college degrees and rising only to work as Pullman porters or in the Post Office, while in other communities men become rich, you take a certain message from this. If you see your father being ripped off in the sharecropping fields of Mississippi, you take a certain message about your own prospects. If the preponderance of men in your life are under the supervision of the state, you take some sense of how your country regards you. And if you see someone who is black like you, and was fatherless like you, and endures the barbs of American racism like you, and triumphs like no one you've ever known, that too sends a message.

And this messenger - who is Barack Obama - becomes something more to black people. He becomes a champion of black imagination, of black dreams and black possibilities. For liberals and Democrats, the prospect of an Obama defeat in 2012 meant the reversal of an agenda they favored. For black people, the fight was existential. "Please proceed, governor," will always mean something more to us, something akin to Ali's rope-a-dope, Louis over Schmeling, or Doug Williams over John Elway.

How does a black writer approach The Man when The Man is not just us, but the Champion of our ambitions?

Or here is the Daily Beast's Jamelle Bouie, writing in the midst of that election:

 photo bouieonobama.jpg

The upside of making the race of the candidate an existential issue for African-American voters is, it's a tremendous motivator to turn out to keep the symbolic leader in office. The downside is, it's not easily transferable to other candidates - not to other non-white candidates for lower offices, and certainly not to a bunch of white politicians who look pretty much just like the people they are running against.

And yet, bafflingly, that is exactly what the Democrats are running in 2014. At this writing, the Democrats are running a candidate in 62 Senate and Governors' races this fall (nobody has really stepped forward yet in the Nevada, Tennessee or Wyoming Governors' races). And depending how you count the frontrunners, anywhere from 57 to 60 of those 62 candidates will be white (92-96%), and 47 to 49 of them will be white males (more than 75%). Let's take a look at that roster of candidates, ranked by a very rough ranking of the competitiveness of the races ("1" being hotly contested races, "2" being races that will be contested but with a clear favorite, "3" being races that look lopsided and may end up being de facto cakewalks - this is giving the benefit of the doubt that a lot more races will be competitive than polling may suggest, but races like the New York and Texas governorships will be big-time battles even if the outcome seems pretty clear in advance). I also rated as at least a 2 every race with a Republican Senate incumbent who has a non-obscure Tea Party challenger. I marked with an asterisk the races in which the Democrats have a significant chance of ending up with a different candidate - for example, the one black female candidate here, Richland County Councilwoman Joyce Dickerson in South Carolina, is an obscure candidate with a white male opponent in a race so unlikely to be contested that there's been no polling (I rate her as the frontrunner because she at least holds elective office, but with a primary electorate that ran Alvin Greene in 2010, you never know). One white male Democratic Senator, Brian Shatz, faces an Asian female primary opponent, Congresswoman Colleen Hanabusa, who may well defeat him, and David Alameel in Texas is in a runoff with Kesha Rogers, a black female LaRouchie who wants to impeach Obama. On the flip side, the two non-white Democratic frontrunners for Governor, Providence Mayor Angel Taveras in Rhode Island and Lieutenant Governor Anthony Brown in Maryland, still face significant white primary opponents - Rhode Island State Treasurer Gina Raimondo and Maryland Attorney General Doug Gansler, respectively. So the number of non-white candidates could easily go down rather than up.

StateOfficeStatusD CandidateCompetitive?RaceGender
AKSENIncumbent DMark Begich1WhiteMale
ARSENIncumbent DMark Pryor1WhiteMale
COSENIncumbent DMark Udall1WhiteMale
LASENIncumbent DMary Landrieu1WhiteFemale
NCSENIncumbent DKay Hagan1WhiteFemale
NHSENIncumbent DJeanne Shaheen1WhiteFemale
COGOVIncumbent DJohn Hickenlooper1WhiteMale
CTGOVIncumbent DDan Malloy1WhiteMale
ILGOVIncumbent DPat Quinn1WhiteMale
MTSENIncumbent D (App)John Walsh1WhiteMale
KYSENIncumbent RAlison Lundergan Grimes1WhiteFemale
FLGOVIncumbent RCharlie Crist1WhiteMale
KSGOVIncumbent RPaul Davis1WhiteMale
MEGOVIncumbent RMike Michaud1WhiteMale
MIGOVIncumbent RMark Schauer1WhiteMale
NMGOVIncumbent RGary King*1WhiteMale
OHGOVIncumbent REd Fitzgerald1WhiteMale
PAGOVIncumbent RTom Wolf*1WhiteMale
IASENOpen DBruce Braley1WhiteMale
MISENOpen DGary Peters1WhiteMale
MAGOVOpen DMartha Coakley*1WhiteFemale
RIGOVOpen DAngel Taveras*1HispanicMale
MNSENIncumbent DAl Franken2WhiteMale
NMSENIncumbent DTom Udall2WhiteMale
ORSENIncumbent DJeff Merkley2WhiteMale
VASENIncumbent DMark Warner2WhiteMale
HIGOVIncumbent DNeil Abercrombie2WhiteMale
MNGOVIncumbent DMark Dayton2WhiteMale
NHGOVIncumbent DMaggie Hassan2WhiteFemale
NYGOVIncumbent DAndrew Cuomo2WhiteMale
ORGOVIncumbent DJohn Kitzhaber2WhiteMale
HISENIncumbent D (App)Brian Shatz*2WhiteMale
KSSENIncumbent RChad Taylor2WhiteMale
MESENIncumbent RShenna Bellows2WhiteFemale
MSSENIncumbent RTravis Childers2WhiteMale
GAGOVIncumbent RJason Carter2WhiteMale
IAGOVIncumbent RJack Hatch2WhiteMale
SCGOVIncumbent RVincent Sheheen2WhiteMale
WIGOVIncumbent RMary Burke2WhiteFemale
SDSENOpen DRick Weiland2WhiteMale
WVSENOpen DNatalie Tennant2WhiteFemale
ARGOVOpen DMike Ross2WhiteMale
MDGOVOpen DAnthony Brown*2BlackMale
GASENOpen RMichelle Nunn2WhiteFemale
AZGOVOpen RChuck Hassebrook2WhiteMale
TXGOVOpen RWendy Davis2WhiteFemale
DESENIncumbent DChris Coons3WhiteMale
ILSENIncumbent DDick Durbin3WhiteMale
NJSENIncumbent DCory Booker3BlackMale
RISENIncumbent DJack Reed3WhiteMale
CAGOVIncumbent DJerry Brown3WhiteMale
VTGOVIncumbent DPeter Shumlin3WhiteMale
SCSENIncumbent RJay Stamper3WhiteMale
TNSENIncumbent RTerry Adams3WhiteMale
TXSENIncumbent RDavid Alameel*3WhiteMale
AKGOVIncumbent RByron Mallot3WhiteMale
ALGOVIncumbent RParker Griffith*3WhiteMale
IDGOVIncumbent RAJ Balukoff3WhiteMale
SDGOVIncumbent RJoe Lowe*3WhiteMale
SCSENIncumbent R (App)Joyce Dickerson*3BlackFemale
NESENOpen RDavid Domina*3WhiteMale
NEGOVOpen RFred Duval3WhiteMale

As you can see here, beyond Cory Booker (who faced a real race in October but as of now has no real opponent), not only are the Democrats running a virtually all-white slate of candidates in the marquee statewide races, just about every Democrat in a hotly contested race this year is white. (Protip to activists: somebody with the time to put together a graphic of all these candidates could have some fun with it).

Should that matter? Of course not. Does it? Look at the primary results from this week's Democratic gubernatorial primary in Texas - and you can see that white female abortion zealot Wendy Davis lost most of the Southwest Texas border counties - the places where Barack Obama did best in 2012 - to a primary opponent who has basically no campaign, but who had a Hispanic surname:

 photo wendyfail2-1.jpg

The result was stunningly low turnout in favor of a Democratic nominee in Texas. As it happens, these are also the most Hispanic counties in Texas:

 photo texspanic.jpg

The GOP candidate, Greg Abbott, will not hesitate to send his Hispanic wife, Cecilia, to campaign there.

For a party so focused on "diversity" as a slogan and the turnout of non-white voting blocs as a lifeline, it's hard to see why you would run that risk. Of course, a similar analysis of the leading Republicans would also show a heavily white, heavily male slate - but a little less so: Republicans are running two non-white incumbents in South Carolina, Nikki Haley and Tim Scott, two incumbent Hispanic Governors in Brian Sandoval and Susanna Martinez, and a Native Hawaiian gubernatorial candidate, former two-term Lieutenant Governor Duke Aiona, as well as a number of white female candidates. And more to the point, Republicans are already doing fine with white voters; they're not the ones who are existentially dependent upon firing up non-white voters with racial appeals. Democrats are - and so their failure to recruit and develop more non-white candidates adds yet another cause for alarm in what is already shaping up to be an alarming election season.

And if the results are ugly, that may make the Democrats rethink running a 69-year-old white woman as their national candidate in 2016.

(NOTE: The original version of this article stated that Joyce Dickerson's opponent in the race to run against Tim Scott had a felony record - actually, it's Jay Stamper, who is running against Lindsay Graham, who has a felony record. I've corrected that as quickly as I could.)

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