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March 04, 2015 5:07 PM Day’s End and Night Watch

I’m discovering that Brunswick Stew tastes better every day it sits in the refrigerator. And also that making too much of the stuff for company pays off down the road. Our California friends call it “BBQ Soup.”

Here are some remains of the day:

* While Justice Department is charging Ferguson, MO, police with pattern of racially biased behavior, it will not charge Darren Wilson of civil rights violation, citing lack of evidence to prove he was not defending himself.

* Rep. Chris van Hollen first Member of Congress to leap aggressively into race to succeed Barbara Mikulski.

* Attempt to override Keystone XL Pipeline veto falls five votes short in the Senate, to no one’s surprise.

* At Ten Miles Square, Martin Longman notes you don’t have to operate on the same financial playing-field as others when your last name is “Bush.”

* The Other College Guide gets a strong review from the Seattle Times.

And in non-political news:

* NTSB may reopen investigation of 1959 plane crash that killed Buddy Holly, Ritchie Valens, and the Big Bopper.

That’s it for Wednesday. Let’s close with Chris Squires jammin’ on “Astral Traveler” from the early Yes album Time and a Word. I’d almost forgotten how good these guys were before anybody talked about Prog Rock.

Selah.

March 04, 2015 4:07 PM Clinton Email “Scandal” a Nothing-Burger?

Since I’ve made a few ominous noises about the possible fallout from Hillary Clinton’s email practices at the State Department, I should note two very persuasive arguments available today suggesting the real scandal could be sloppy or incomplete reporting by the New York Times, which broke the story on Monday.

Mike Tomasky asked the right question late yesterday:

The article says that there were “new” regulations that Clinton was supposed to abide by. It notes that one past secretary of state, Colin Powell, who served from 2001 to 2005, sometimes used his personal email account “before the new regulations went into effect.”
So, a key question would seem to be this: When did the new regulations go into effect? If 2007 or 2008, then Clinton would appear to be in direct violation of them, depending on what precisely they said. If later, it gets a little murkier.
Oddly, the Times article doesn’t say. It doesn’t pin the new regs down to a specific date or even year….
The new regs apparently weren’t fully implemented by State until a year and half after Clinton left State. Here’s the timeline: Clinton left the State Department on February 1, 2013. Back in 2011, President Obama had signed a memorandum directing the update of federal records management. But the National Archives and Records Administration (NARA) didn’t issue the relevant guidance, declaring that email records of senior government officials are permanent federal records, until August 2013. Then, in September 2013, NARA issued guidance on personal email use.
A senior State Department official emailed me to say that “in October 2014, a Department-wide notice was sent out which explained each employee’s responsibilities for records management. Consistent with 2013 NARA guidance, it included instructions that generally employees should not use personal email for the transaction of government business, but that in the very limited circumstances when it is necessary, all records must be forwarded to a government account or otherwise preserved in the Department’s electronic records systems.”

A separate analysis by Bob Cesca at The Daily Banter goes into the various laws and regs in more detail, and argues the only reg (no law) Clinton might have violated was one involving the archiving of her private email—which she later complied with. He’s as unimpressed as Tomasky at both the relatively unremarkable nature of her “crime” and the quality of reporting by the Times.

Now none of this is to say the content of her emails might theoretically contain some dynamite, as congressional Republican “investigating” Benghazi! clearly hope. But that’s true of anyone in public office. So unless more develops, it’s probably time to call off the hunt for alternative Democratic presidential candidates.

March 04, 2015 3:02 PM Struggle for the Soul, or Just Stale Kabuki?

I literally groaned aloud when I read this headline from The Hill a couple days ago: “Centrist Dems ready strike against Warren wing.”

The accompanying article by Kevin Cirilli was exactly what I expected: the congressional New Democratic Coalition, with advice from the Progressive Policy Institute, Third Way, and the New Democrat Network, is going to release some sort of agenda/messaging document, like every other identifiable Democratic group in Washington. One of the NDC members and PPI president Will Marshall allowed as how they think Democrats need to talk about economic growth as well as redistribution. Nobody said a damn thing about Elizabeth Warren, other than the NDC member who called her a “great leader.” Yet in Cirilli’s mind—and perhaps this was planted there by one of the “centrists” speaking off the record—this is a “strike” being readied against Warren, if not a full-fledged Struggle for the Soul of the Party.

Ironically, the only Democrat quoted in the piece as directly suggesting Warren’s approach might be politically off was Howard Dean, not exactly your classic “centrist.”

And indeed, Dean’s quote may have been what motivated the esteemed Democratic activist and strategist Mike Lux to rise to Cirilli’s bait and pen an angry response to the “DC centrists” at HuffPost.

Lux accuses the “centrists” of building up “straw men” of populists like Warren bashing the wealthy. But he seems to be attacking his own “straw men” in interpreting a plea for attention from the NDC as some sort of intraparty Big Bertha.

I cannot speak for any of these people, though I know most of them (other than Dean) pretty well. But it sure sounds like a “fight,” to the extent one actually exists, born of ancient grievances rather than anything said by Elizabeth Warren or anybody else in the present tense.

As a veteran of the intraparty wars of the 1990s and early 2000s, I really don’t know that this is what the Donkey Party needs right now, when Democrats are more in accord on big issues than at any time in my own memory, and with a pretty important election ahead. Yes, of course, there are significant differences among Democrats on policy issues; we’re about to see one of them, on trade policy, blow up for a bit. But it’s just ridiculous to see everybody reaching for their guns over vague nuances of emphasizing this over that theme in messaging documents that nobody’s read and that frankly few will ever read.

There are plenty of calm ways to talk about legitimate differences, and when it comes down to it, primaries are available to let the rank-and-file decide. Perhaps the very first step would be for Democrats to avoid the temptation to seek attention through media types who are trolling for a “Democrats in disarray” article. If I were them, I sure wouldn’t have Kevin Cirilli on speed-dial status.

March 04, 2015 2:08 PM Federalism and Silence

The transcript of today’s Supreme Court oral arguments in King v. Burwell are out, and since the legal pundits all seem to still be working on their takes, I’ll just cite two tweets from Jeffrey Toobin that to me seem to sum up what we don’t know, which is probably more important than what we do know:

I strongly suspect some analysts will probably put stock in Kennedy’s discussion of the “doctrine of constitutional avoidance,” which in this case would probably mean construing the statute in a way that does not create a constitutional problem—the kind of “undue burden” on or coercion of states the plaintiff’s construction of ACA suggests. And indeed, it would be a pretty rich irony if the same “federalism” concerns that led to the Court making ACA’s Medicaid expansion optional could save Obamacare subsidies. But as Kennedy himself suggests, his “concerns” could lead himself and the rest of the Court in any number of directions.

I’m inclined to consider Roberts’ silence as ominous, but who knows? Let’s just say the arguments did not create the impression of a Court majority frothing to find anyway to kill Obamacare.

March 04, 2015 1:07 PM Lunch Buffet

Well, my Georgia Bulldogs gave it the old college try, and actually led Kentucky by 9 points in the second half before the insanely talented Cats took over. Now Georgia needs a win at Auburn Saturday to lock an NCAA bid.

Here are some Wednesday midday news/views treats:

* Hospital stocks surge on perceptions Justice Kennedy leaning against plaintiffs in oral arguments for King v. Burrell. More about that later.

* SCOTUSblog analysis of arguments also concentrates on Kennedy questions, but less certain it’s good news for the government.

* Bill Scher the first to ask “what if” HRC forced out of presidential race by email disclosure and what it might lead to.

* Interesting argument at Politico that Boehner actually presiding over “coalition government,” not a majority, in the House.

* 7-1 decision of Alabama Supreme Court instructs probate judges to defy federal court rulings and stop issuing licenses for same-sex marriages.

And in non-political news:

* A guide to bargains available at Radio Shack while company’s banktruptcy is in progress.

As we break for lunch, here’s another excellent Squire bass performance, though the cameras don’t show him a lot. It’s a 2001 performance of “Roundabout” from Fragile. The amateur dancers on stage are members of an orchestra with whom Yes was performing that night.

March 04, 2015 12:34 PM Subsidizing Invasive “Care” For the Dying

What a lot of people probably “know” about Medicare and end-of-life situations is the Big Lie told by Sarah Palin and others that the Affordable Care Act had modified Medicare to set up “death panels” aimed at forcing old people and special needs kids into the grave as a cost-saving measure.

The fact that Medicare, before and after the enactment of Obamacare, actually subsidizes invasive, humiliating, fruitless and (yes) wildly expensive care for people already at death’s doors may be hard to credit for some people. Perhaps anyone who read Palin’s infamous Facebook post on “death panels” should have to read Shannon Brownlee’s review of The Conversation: A Revolutionary Plan for End-of-Life Care, by Dr. Angelo Volandes, and Curing Medicare: One Doctor’s View of How Our Health Care System Is Failing the Elderly and How to Fix It, by Dr. Andy Lazris, in the latest issue of the Washington Monthly.

Brownlee, who is senior vice president at the Lown Institute and a lecturer at Dartmouth, skillfully weaves together accounts from Volandes and Lazris of cruel and irrational treatment regimes they’ve felt forced to administer under the current system with her own experience of her father’s death. “Go to the hospital” and “keep treating” are almost always the imperatives, regardless of what the patient or his or her family—who often have no way of understanding what’s happening to them—actually want or need.

Lying just below the surface of these… books is a set of political decisions with which the United States will be forced to grapple in coming decades. When a frail, elderly person gets sick, takes a fall, or has trouble breathing, it’s as if they have stepped onto a slippery chute leading straight into the hospital, no matter how fervently they and their families might wish to avoid invasive treatment as they age and approach death. That’s because hospital services are what our medical industrial complex has been built to offer, and delivering invasive end-of-life care is the job for which we have trained our doctors and nurses. Medicare policy, federal subsidies for hospitals, and taxpayer dollars for medical training all have helped create a technology-rich, hospital-centric system.
What we don’t do is train clinicians to talk to patients, and what we don’t have is the community-based infrastructure for delivering “high touch” care to people where they live. We don’t provide the simple services, like regular meal delivery and aides to help with housecleaning and bathing, that can help an elderly person preserve some autonomy and dignity. We don’t have enough primary care doctors practicing in the community—in part because our teaching hospitals make more money when they train more specialists—and the primary care doctors we do have are too busy to make house calls. Of course, there’s always an assisted-living facility— for those who can afford the $3,000 to $6,000 a month. For the rest of us, once we can no longer perform the simple tasks of daily living, like cooking for ourselves, or toileting, we can either move in with the kids or go to the nursing home.

My own perspective is undoubtedly colored by watching first my stepfather and then my father die slowly in ICU units during the last few years, which embroiled my family in an endless struggle to pry the truth from the armies of medical personnel treating them. When most recently my mother died suddenly, at home, we all said “it was a blessing.” Perhaps it’s time to incorporate that sentiment into our health care policies.

March 04, 2015 11:42 AM Bibi the Linchpin

I thought I had a low opinion of Benjamin Netanyahu’s speech to Congress yesterday. But get a load of Fred Kaplan’s take at Slate:

Benjamin Netanyahu’s speech before Congress on Tuesday was a disturbing spectacle: shallow, evasive, short on logic, and long on cynicism.
The Israeli prime minister pretended to criticize the specific deal that the United States and five other nations are currently negotiating with Iran, but it’s clear from his words that he opposes any deal that falls short of Iran’s total disarmament and regime change. He pretended merely to push for a “better deal,” but he actually was agitating for war….
It’s worth noting, for now, that Netanyahu has been consistently wrong on this whole issue. He denounced the interim accord, signed a year ago, as a fraud that wildly favored the Iranians and that the Iranians would soon violate anyway; in fact, it’s been remarkably effective at freezing Iran’s nuclear activities, while freeing up a small fraction of its sanctioned funds. For the past 15 years, he’s been warning that Iran could or would go nuclear in the next year—and yet, here he still stands, in a Middle East where the only nation with nuclear weapons is his own.

Ouchy ouchy. Kaplan does, however, save some spleen for Bibi’s adoring hosts:

It’s appalling that so many members of the U.S. Congress cheer Netanyahu’s every utterance as some holy oracle, seemingly unaware that many senior Israeli security officers dispute his assertions about the urgency of an Iranian nuclear threat—unaware even that he’s increasingly unpopular among his own citizens. It’s downright unseemly that these same members of Congress cheer his condemnation of the P5+1 deal as “a very bad deal”—they stand up, applaud madly, and howl toward the cameras and galleries—without giving their own president and his diplomats a chance to complete and defend the deal themselves.

It is “appalling,” but hardly a surprise any more. For all sorts of tangled reasons, most of today’s Republicans treat Bibi with his imperial vision of a bristling and ever-expanding Israel not just with approbation but as the linchpin of their own foreign policy thinking. You do almost long for the moment not long ago when the GOP had reestablished Russia as their central overseas preoccupation.

March 04, 2015 10:45 AM Ben Carson’s Prison Rape Theory of Human Sexuality

Before you read this story, remind yourself that we’re talking about the overwhelming sentimental favorite of conservatives, a guy who would almost certainly be the front-runner for the 2016 Republican presidential nomination if he had met the generally assumed minimum qualifications of some prior involvement in politics or government.

Here’s the report from CNN’s Eric Bradner:

Ben Carson says homosexuality is a choice because many people “go into prison straight — and when they come out, they’re gay.”
The neurosurgeon and potential Republican candidate for president in 2016 made the comment in an interview with CNN’s Chris Cuomo that aired Wednesday on “New Day.”
That argument, Carson said, “thwarts” the notion that homosexuality isn’t a choice, which is at odds with the majority of the medical community, including the American Psychological Association, who says “most people experience little or no sense of choice about their sexual orientation.”

Gee, aren’t you glad we have a presidential candidate with some serious scientific training?

UPDATE: Well, one voice was raised in Carson’s defense: that of Bryan Fischer, the former spox of the American Family Association (and still the host of their radio show). If there were an awards show for homophobia, Fischer would be a lifetime achievement winner.

Jesus wept.

March 04, 2015 10:31 AM Injured on the Job? Sorry, You’re On Your Own.

I think most of us are at least dimly aware that collective bargaining rights have been steadily eroding in this country for a good while, with a special acceleration of that erosion after the Republicans landslide in state offices in 2010. And the Great Recession and its aftermath have exposed the inadequacy of our system of unemployment insurance.

But these aren’t the only negative trends affecting working people. In a new and rather startling report released today by the Occupational Safety and Health Administration, the failure of the traditional state-based workers compensation system to cover anything like a majority of the costs of workplace injuries is laid bare. To put it simply, injured workers are bearing an ever-increasing share of the cost of dealing with such injuries, and fewer and fewer of them are covered at all.

On the first point, the report is clear:

Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses through workers’ compensation. This cost-shift has forced injured workers, their families and taxpayers to subsidize the vast majority of the lost income and medical care costs generated by these conditions.

State “no-fault” laws and other caps on employer responsibility, compounded by escalating health care costs, have a lot to do with this problem, OSHA suggests. But difficult as the situation is for workers only partially indemnified for the costs of workplace injury, they are fortunate as compared to the contingent workers, undocumented people, and employees misclassified as “independent contractors” (particularly in the construction industry), who are outside the system entirely.

With an estimated level of nearly three million serious occupational injuries and illnesses occurring each year—and 4500 deaths—this isn’t a small problem. And it ought to provide those who assume any domestic government function is best performed at the state level with some troubling food for thought.

March 04, 2015 9:41 AM Big Bang

Like a lot of other gabbers, I’ve been following the debate over Matt Yglesias’ “American Democracy is doomed” piece at Vox. I don’t much buy the idea that military coups or revolutions are going to break out in the foreseeable future, but think it’s even less likely this country is going to decide to adopt (and more to the point, figure out how to set up) an entirely different governing system.

But the gridlock Yglesias and others are writing about is a very real thing with no particular remedy available until such time as one party or the other pulls off a landslide election. And at some point the anticipation of such elections could become the driving force in American politics as ideologues hold out for maximum achievement of their agendas during brief periods when the opposition is powerless to stop them. Lest we forget, that was in the works in 2012 as Republicans, hoping for a presidential win and a Senate takeover, feverishly worked on a plan to implement the Ryan Budget and repeal Obamacare in a lightning strike via a single budget reconciliation bill.

This all-or-nothing sentiment reinforces, of course, day-to-day gridlock. Why disappoint your “base” with compromises when you could be revving them up for that great gettin-up morning when all your dreams can come true?

I don’t think Democrats are thinking this way just yet—other than in retrospective criticism of their party for partially squandering the 2008 landslide—but there’s not much question Republicans are.

I wrote this all up for my weekly column at TPM under the headline: “The Big Bang Theory of Polarization: How Gridlock Has Remade Our Political Process.” I had hoped they’d adorn it with a photo of Sheldon Cooper, but they instead went with the gridlock metaphor and showed a traffic jam. So here goes:

March 04, 2015 9:07 AM All Eyes on Roberts

At 10:00 this morning, the U.S. Supreme Court will hear oral arguments in the case of King v. Burwell, the challenge to the availability of tax subsidies for health insurance purchases by people in the 34 states that did not set up their own exchanges under the provisions of the Affordable Care Act. SCOTUSblog’s Lyle Denniston has a useful brief summary of the case, in which he mildly criticizes those who seem to think the Court’s acceptance of the case tells us how it will decide.

During the arguments all eyes will be on the Chief Justice, presumed to be the swing vote in the case, mainly because of his pivotal role in NFIB v. Sebelius, the 2012 case that upheld the individual mandate feature of ACA. No matter how many warnings we hear that you cannot necessarily discern which way a Justice is leaning by the questions he or she asks in oral arguments, tea leaves will be on sale all over Washington today.

One thing that pretty much has been resolved is that nobody’s got anything like a consensus Plan B to “fix” Obamacare if the subsidies are killed, a factor that many observers think could influence the decision itself. This is particularly true of the Republicans who control Congress; as if to underline the disarray, Ted Cruz (with Marco Rubio as a cosponsor) introduced yet another “Obamacare alternative” proposal just yesterday.

Under the Court’s normal procedures it should hold a conference on Friday to take an initial vote on King v. Burwell and parcel out opinion responsibilities. But we won’t know what happened then until some point in June, barring an unprecedented breach of security, and it’s always possible votes could change, as some reporting suggested may have happened in the earlier ACA case.

It’ll be a fine day for idle speculation.

March 04, 2015 8:35 AM Daylight Video

Chris Squire of Yes is 67 today. As a kiddie bass player, I was completely in awe of this guy. Having seen the band (sans Jon Anderson) perform last year, I can report he can still play stuff nobody else can touch. Here’s one of his classic performances. from Close to the Edge, “Total Mass Retain.” Sorry for the studio version, but couldn’t find a live version where you can really hear the bass.

March 03, 2015 5:30 PM Day’s End and Night Watch

Tonight I plan to watch my Georgia Bulldogs men’s basketball team take on the mighty Kentucky Wildcats. They’ll likely lose like every other Cats opponent so far this year, but it’s at home, on Senior Night, with a Blackout called, and the Dawgs are finally semi-healthy, so weird stuff could happen.

Here are some remains of the day:

* House approves clean DHS funding bill by margin of 257/167. Republicans split 75 for, 167 against.

* Daily Kos Elections has nifty visual guide to people being “mentioned” as possibly running for Mikulski Senate seat.

* Not real surprising: US Justice Department finds pattern of racial bias among Ferguson, MO, police.

* At Ten Miles Square, Harold Pollack says Abercrombie & Fitch has richly earned a parental boycott.

* At College Guide, Andre Perry has amazing list of 101 things—that’s right, 101—black fathers can do to stay engaged with their kids, even if they don’t live with them.

And in non-political news:

* Media get first look at partially renovated Wrigley Field.

That’s it for Tuesday. Having abandoned any musical theme, let’s just end the day with a seasonal song I haven’t gotten around to posting this year: Simon and Garfunkel with “Hazy Shade of Winter.”

Selah.

March 03, 2015 4:24 PM Vote As I Say, Not As I Don’t

As we examine the compliance of presidential candidates with public records requirements, it’s interesting that there’s some significant doubt as to whether Jeb Bush might have committed his own startling oversight by failing to vote in 2008, as reported by Steve Eder and Kitty Bennett of the New York Times:

In the final stretch of the 2008 presidential campaign, Jeb Bush appeared in a television ad urging Floridians to support John McCain, the Republican nominee, at the polls.
“Join me and vote for John McCain,” Mr. Bush said in the 30-second spot.
But according to voting records from Miami-Dade County, where Mr. Bush and his wife, Columba, are longtime residents, the couple did not vote for Mr. McCain or anyone else in that presidential election.
Mr. Bush said through his spokeswoman, Kristy Campbell, that he and his wife cast absentee ballots for Mr. McCain, but election officials could not locate any record that either had voted. Digital and paper records from the 2008 cycle - which may have provided evidence about whether they requested absentee ballots - were destroyed under retention policies, they said….
The episode highlights either an odd oversight by the elections office in Florida’s most populous county, a case of mishandled mail or a strange lapse by Mr. Bush, who is now looking to begin a presidential campaign of his own.

Well, Jeb’s problem prompts me to come clean: I didn’t vote in the 2008 general election either; I was traveling to a wedding out of the country the week before Election Day and accidentally left my absentee ballot at home, unmailed. It was too late to procure another. I did vote in the primary, though. But it still upset me, as it broke a streak of nine presidential elections I’d voted in. I dunno, if Jeb was the stoner he was reputed to be in his younger years, he may have missed one or two at the front end.

We’ll probably never know for sure if Bush missed voting in 2008, but it can be an issue. Once when I was at the DLC I met a congressional candidate who was asking for advice on this or that and suddenly asked, “Do you think it’s a problem that I haven’t voted in twenty years or so? I was in the diplomatic service and was usually overseas. I understand Ike hadn’t voted in ages when he ran for president, so I plan on using that as a response.”

I told him he might not want to compare his situation to Ike’s unless he’d been off winning a world war. He lost pretty badly.

March 03, 2015 3:50 PM Will Republicans Be Estopped From Going Nuts About HRC’s Emails?

As you’ve probably heard by now, it seems Hillary Clinton never set up a government email account at the State Department, and instead used a personal account for official business. Depending on some timing issues, this could have been illegal, though hardly a felony, and was definitely unwise unless she took extraordinary steps to secure her personal account.

But as Melissa McEwan points out at Shakesville, evading scrutiny by doing official business on personal emails was SOP during the Bush administration:

In 2007, Joseph Hughes and I collaborated on a piece detailing a similar violation of the Federal Records Act by multiple members of the Bush administration. At the time, not only did very few people care about this violation, and precious few reporters covered it at all, but I found myself having to explain over and over why this was a violation that mattered; why we need to care that public officials use private email for official communications.
So it will certainly be interesting to watch how this story unfolds, in terms of the amount of coverage it gets and the level of criticism Clinton receives as a result, compared to the administration-wide practice by the Bush administration.
To be abundantly clear: I’m not arguing that Clinton should not face scrutiny as a result of this disclosure. To the contrary, I believe the Bush administration should have received a great deal more scrutiny than it did.
And because I so keenly remember the yawning indifference, of the media and of average USians, to the Bush administration email scandal, I will note that, if this turns into a massive story for Clinton, a potentially presidential-derailing story, it is not because people give a shit about compliance with the Federal Records Act, unless people have suddenly developed an inexplicable fondness for it in the intervening eight years.

As Brother Benen notes, Republican malfeasance towards and indifference about official email requirements didn’t stop with the Bush administration, either:

Three years ago we learned that Mitt Romney oversaw the purchase of 17 state-issued hard drives, and wiped clean computers and servers that contained electronic copies of emails from his gubernatorial office. Romney later admitted the move was intended to hide official correspondence from the public and keep potentially-embarrassing information under wraps in advance of his presidential campaign. During the 2012 race, Republicans said this didn’t matter, either.

So to use a legal term in a less technical way, Republicans are to some extent “estopped” (i.e., limited by their own previous behavior) from making too big a deal about Clinton’s behavior unless there’s more to it than currently appears. Perhaps we can actually get some bipartisan agreement now to prevent officials in either party from circumventing open records requirements.

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