Category Archives: Law

Automatic Voter Registration: Is Oregon’s New Law a Game Changer?

A Path for Voters?

A Path for Voters? [click on photo to check out Irv Lefberg Photograph]

The short answer is: Oregon’a automatic registration law isn’t about to spread like wildfire to other states, where most legislatures and governors are trying to make it harder, not easier, for citizens to vote. Ballot measures in the states may be a way for other states to adopt the Oregon approach. But if the U.S. Supreme Court, in a case dealing with legislative re-districting, limits what voters can do to change electoral laws, the Oregon measure is even less likely to spread. Still, if you favor gains in voter turnout, Oregon’s effort is an inspiration.

(Maybe ALEC, the aggressive and wildly successful, conservative organization that provides model legislation for its ideological comrades in state legislatures, will make automatic voting spring up all over the U.S.    Just kidding, of course).

By almost any gauge, the state of Oregon took a radical step toward making it possible for every citizen over the age of eighteen to vote. The State passed a law which automatically registers everyone who has official contact with its motor vehicle department (DMV). The Oregon law allows an automatically registered voter to opt out. Of course, non-citizens won’t be registered.

You may recall the 1993 federal measure, dubbed “Motor-Voter,” requiring state DMVs to provide opportunities for voter registration.  Motor-Voter is an ancestor of the Oregon law. In retrospect, that law, maybe radical for it’s time, was toothless and passive by comparison. Oregon’s measure can rightly be called “Motor -Voter” on steroids.

A few say Oregon wimped out by not making voting compulsory, like in Australia.  Deep skepticism about the value of every citizen voting is in America’s DNA, starting with our Constitution. If every state adopted the Oregon method, another 50 million people would be (automatically) eligible to vote. That would elate some, and horrify others.

As mentioned earlier, Oregon didn’t go as far as Australia, and about ten other democracies in the world that legally require citizens to vote.  Does compulsory voting sound excessive? Perhaps. But In Australia you wouldn’t have a situation, like in the 2014 U.S. mid term elections, where about 18 to 25 percent of the adult citizenry (depending how you calculate it), gave Republicans control of the U.S. Senate and two additional governorships.

Rarely have any of our President’s, D’s or R’s, been elected by more than 30 to 35 percent of voting eligible citizens.  Even if a candidate garners 60% of the vote, with barely 60% turnout, just 35% of the electorate has made the decision — and that’s in a “landslide” and in a high turnout year.

Don’t look for legislatures and governors in any fiery red states, or for that matter, Wisconsin or Ohio, to jump on the Oregon band wagon. But, in theory, people in some states can push for something like the new Oregon automatic registration law through ballot measures.

Can that work?  Perhaps, in a few places, and with a lot of effort and money. But reformists will encounter opposition lawyers who say the U.S. Constitution empowers only state “legislative bodies” to change electoral laws; that “the people” acting through initiatives or referenda are not legislative bodies, and thus can’t change electoral systems on their own.

That’s precisely the argument in a case out of Arizona, recently heard by the U.S. Supreme Court. It involves a voter approved ballot measure which empowered an “independent commission,” rather than sitting legislators, to draw state legislative and congressional district boundary lines. It’s a highly worthy effort to prevent politicians from perpetuating their power.  (I expect the Supreme Court to over turn it).

The outcome of that case may have enormous implications for representative government in the U.S., not only for re-districting.  It can also determine whether automatic voter registration has any chance at all to spread beyond the Pacific Northwest in the foreseeable future.

U.S. voter participation has always been tepid.  For most of the nation’s history,  the Constitution and state laws denied the vote to women, blacks, and citizens under 21. Even white males who didn’t own property couldn’t legally vote in all U.S. states till 1856.  Even as legal barriers to voting were stripped away by amendments to the U.S and state Constitutions, and by Acts of Congress, voter participation rates in the U.S. have lagged behind, and still trail, those in nearly all other advanced (genuinely) democratic polities.

In the halcyon, “Leave it to Beaver,” days of the 1950s and early 60s, most political scientists thought low voter turnout in the U.S. was a good thing — that it signified Americans’ satisfaction with their economic conditions, government, and direction of the country. All was well; there were no rascals to throw out. There may have been some (minimal and perfunctory) truth to that in the 1950s.


Corrected Link to More Info on Dynamic Scoring

Wonder Where the Numbers Come From?

Wonder Where the Numbers Come From?

In a recent, brief blog post about Dynamic Scoring and “Voo Doo Economics,  I included a defective link to a prior article on the subject, with more detailed information. Thank  you to several readers who found the error. 

If you want to read the prior article, please continue.


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NYC Police Union Activism Aggravates Race Divisions; Thwarts Needed Revival of Unions in Private Economy

The behavior of New York City (NYC) Police Union leader, Patrick Lynch, and some of his union members in the wake of recent citizen and police officer deaths is regrettable and deeply disappointing.   Lynch obviously enjoys playing the tough guy, loud mouth, “don’t give an inch,” NYC public sector union boss, right from central casting.  But he wasted a big teachable moment after the Garner choke-hold deaths and ensuing cold blooded murders of two Brooklyn police officers.

Lynch’s inflammatory statements will go down in history as some of the most reckless and foolish behavior by a NYC public sector union chief. This, in a city that has had entirely too much municipal labor union melodrama and strife for decades.  How sad!

The tragedies in New York, the Union response,  and what it implies for race relations has been amply covered; but what all that means for the Democrats’ fragile coalition and the role of labor unions in advancing “progressive” ideas,  has not even been buried on page seven.

Lynch’s and his Union’s behavior is lamentable, not only for its lawlessness (not enforcing laws on the books as a protest) and  aggravation of racial conflict, but equally in its disregard for a core democratic principle, which says civilians in America, not police captains and generals, have ultimate control of armed services of all varieties (from U.S. Army on down). Civilian control has been a key plank of American exceptionalism, one that both liberals and conservatives have normally praised and respected as a core founding principle of the country.

Lynch, with body language and facial expressions to match, lashed out at NYC Mayor DeBlasio – his civilian boss — saying the Mayor “has blood on his hands” for the cold blooded murder of two police officers by a deranged gunman,  while the two public servants sat quietly in their patrol vehicle at the corner of Tompkins and Myrtle Avenues in Brooklyn’s Bedford-Stuyvesant neighborhood.

Department store clerks are routinely fired for ill considered remarks on facebook about their employers. But I suppose its OK to call your boss a murderer, and for police, during a solemn ceremony, to diss and turn their backs on the City’s top elected official. I guess belonging to a Police Union, or any public sector union, makes one immune from discipline.

The senseless murders of two police officers followed the (highly avoidable and equally senseless) death of citizen Eric Garner in a confrontation with police over the (under-taxed) sale of cigarettes on a street corner in Staten Island. None of these killings of course made any sense whatsoever. None are even remotely justifiable.    I mean, someone was killed here for something that started out as aiding and abetting tax evasion?   That’s what accountants do for a living,

Commentators, across the board, from Sharpton and Maddow at one end, to Krauthammer (“grand jury’s failure to indict was totally incomprehensible”) and Glen Beck (“how this cop didn’t go to jail is beyond me”), at the other – were appalled by the Garner killing.

Did Lynch ever apologize or admit there was something deeply wrong and disturbing about Garner’s death?  Or ask how such outcomes might be avoided in the future?  Of course not. Don’t tell me his only job is to “defend his members,  right or wrong,” not to be a social worker, or healer or, g-d forbid, an enlightened public sector union leader.

The militant and divisive actions of public sector unions, like the Police in New York, and Teachers in Los Angeles (and Teachers in NYC for decades), have created fissures and cross cutting pressures among Democrats that is making it a lot harder for them to unite around paramount issues, like worker wage stagnation and income inequality. The private economy desperately needs effective worker representation. For that to happen, Unions need to repair their image; learn to communicate less toxically with management and the public. Lynch’s rhetoric, or even the more refined Randi Weingarten feminine version, poison the atmosphere for a revival of effective labor unions,  with broad public support.

What really was the NYC Mayor’s sin that caused Lynch to lose it?  DiBlasio tried walking a fine line between keeping a lid on community rage and supporting his police department in the wake of the Eric Garner police choke-hold death. Apparently there was a small group of protesters who said some vile things about police, which Lynch says DeBlasio (in effect) condoned by his silence. I don’t know whether or not the Mayor denounced those protestors; but I didn’t hear about the offensive language till Lynch went out of his way to point it out. It was a very small part of a very large protest.

I do know that NYC has so far thankfully averted a civil meltdown, like ones that followed the Martin Luther King assassination and other racially incendiary situations. The police union leader has taken us back to the 1960s when the same PBA demolished another new NYC mayor, John Lindsay, trying to keep peace in his city after some questionable police behavior. Lindsay’s crime?  He proposed a civilian police review board to adjudicate complaints against police officers. Gasp!

Linsday’s career was ruined by the confrontation; the same will likely happen to DeBlasio. Lynch will be overwhelmingly re-elected as head of the PBA and likely advance to a national position of union leadership. And we’ll be back here again in another fifty years, or sooner, doing the same pathetic dance.  So, DeBlasio has blood on his hands for the murders of those two fine officers, but nobody even mentions Wayne LaPierre. 

If You Are Worried About the National Debt, Be Wary of “Dynamic Scoring”

Wonder Where the Numbers Come From?

Wonder Where the Numbers Come From?

Republican Congressmen led by House Appropriations Chair, Paul Ryan, are going to direct congressional staff to change the way they estimate the revenue impact of proposed changes to the tax code. They want the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) to use “dynamic scoring” to estimate the cost of tax policy changes. The method reflects the belief, not without some merit, that tax cuts can change behavior in ways that boost economic activity and generate new revenue, thus paying for themselves without contributing to deficits.  You can see why this scoring approach might be attractive!

The story did make the front page of the LA Times business section. But because it’s an arcane subject it’s been flying under the radar.

It’s not entirely clear how the Ryan proposal would affect the scoring of spending bills. Some government spending, especially in education and transportation, is demonstrably positive for the economy.  Such measures too can also be scored as “paying for themselves” and being debt neutral.  Dynamic scoring is thus a double edged sword for fiscal conservatives.

The dynamic scoring approach, championed now by “conservatives,” ironically, would make it harder to bring down the national debt; but easier to pass tax cuts. It would also make it easier to pass spending bills, which is, of course, not Mr. Ryan’s intention.

The “scoring” of tax (and spending) bills is a nerdy and technical enterprise, performed often by PhD economists and MBAs,  but it has serious consequences for the nation’s short and long term fiscal outlook—both perception and reality. The contrasting approach to dynamic scoring is “static scoring.” These are not either/or options; they are on a continuum.

Ideally, government needs an approach to scoring taxes (and spending) which is:

• Transparent
• Replicable
• Explainable (to people without MBAs or doctorates in economics)
• Fiscally prudent
• Not easy to manipulate for political purposes

The Ryan dynamic scoring proposal falls short on all these accounts. Static scoring, the traditional approach, scores much better.

The Ryan proposal is also breath-taking in its hypocrisy, because its proponents talk about using “sophisticated advances in economic science” (new and better economic models) that make dynamic scoring more reliable.  So, is “economic science” (and its modeling) more reliable than, say, “climate science” (and its modeling infrastructure)?  Really?

On the spending side, the CBO, under pressure from both Republicans and Democrats, used a form of scoring with some dynamic elements, to estimate the impact of the Affordable Care Act (ACA).  Thus, the CBO says Obamacare will slow down the overall rate of growth in health care costs and make it easier to reign-in the national debt. Some of that has actually happened since the measure passed, though it’s not clear how much of it is due to the ACA. This made Democrats happy and made it easier to pass the ACA in 2010.

The CBO also put its toe in the dynamic scoring waters by assuming the ACA would cause a number of people to exit the labor market because they would no longer be dependent on employer provided health insurance.  This CBO analysis made it easier for Republicans to argue that the ACA would shrink the U.S. economy. (Funny, how only part of the CBO’s story about ACA seems to have made it into the consciousness of Americans).

You can see the can of worms being opened here. There is, of course,  some merit to identifying the “full” impacts of tax (or spending) bills, but trying to score the budget this way is not only dicey, but it’s not transparent, replicable, fiscally prudent, or readily explainable; and it’s ripe for political manipulation.

Dynamic scoring is not quite the equivalent of “voo-doo economics,” like its fiercest critics say. A cut in the gasoline tax (up to a point) will likely induce more economic activity across the economy. Even a Marxist economist (with a real PhD) would probably own up to that. But the more dynamic you get in scoring, the closer it gets to voo-doo. That’s because even the best economists and models can’t predict these secondary and tertiary and Nth order impacts very accurately.

Not only that, but dynamic scoring doesn’t typically reflect the spending cuts that would accompany a tax cut (if one wanted to avoid increasing the debt). A gasoline tax cut would likely reduce the amount of money available to build highways, bridges and other transportation infrastructure. That could have a very large negative impact on the economy, maybe not immediately, but down the (better paved) road. Typically, dynamic scoring models either don’t measure that at all, or do it inaccurately.

Besides, there is always room for fancier modeling and research as a supplement to official scoring, where economists can legitimately talk about broader effects without affecting the official balance sheets,

If you want a better understanding of dynamic (versus static) scoring, read on.

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More Data Show Why the Ferguson Decision Angers So Many

car_train05An impressive research effort published by PBS News makes a powerful case that an indictment in the Ferguson-Brown-Wilson affair would have made a great deal of sense. Conviction of the officer is another matter.  PBS researchers systematically culled voluminous transcripts to summarize and quantify key eye witness testimony from the grand jury hearings. The PBS findings show that testimony from eye witnesses (chosen by the Missouri prosecutor)  would have normally been clear grounds for an indictment.

Partly because the PBS report wasn’t (could not have been) issued immediately after the prosecutor’s announcement, it has received scant attention in the mainstream media. Here are the main findings, quoted directly from the report.

More than 50 percent of the witness statements said that Michael Brown held his hands up when Darren Wilson shot him. (16 out of 29 such statements)
• Only five witness statements said that Brown reached toward his waist during the confrontation leading up to Wilson shooting him to death.
• More than half of the witness statements said that Brown was running away from Wilson when the police officer opened fire on the 18-year-old, while fewer than one-fifth of such statements indicated that was not the case.
• There was an even split among witness statements that said whether or not Wilson fired upon Brown when the 18-year-old had already collapsed onto the ground.
• Only six witness statements said that Brown was kneeling when Wilson opened fire on him. More than half of the witness statements did not mention whether or not Brown was kneeling.

The PBS report is definitely worth studying, especially their main chart coding and summarizing the testimony.    Here it is:

Eyewitness testimony Ferguson Case, PBS Report

Eyewitness Testimony,  Ferguson Case, PBS Report

In his press conference on November 24th, viewed by millions, Prosecutor McCullough said, in his own words,  that eye witness testimony was ambiguous, contradictory, and inconsistent.  For a breath-taking split second, I thought he was going to surprise the world with news of an indictment.  The ambiguity alone, documented by McCullough, in an extremely sensitive case involving a fatal shooting, should have resulted in an indictment.

An indictment would have meant there are a lot of unanswered questions that needed to be looked at in a trial, which is what Mcullough appears to have said.   The PBS report provides the documentation.

An ensuing trial is where conflicting testimony, in a case like this, is supposed to be sorted out in true adversarial fashion, with an umpire.  Instead, prosecutor McCullough used the fog of the testimony, together with some physical evidence, which he said favored one side, to conclude that an indictment was unjustified.

Conviction in a subsequent trial would have hardly been a slam dunk. But when the charge being considered is so serious, and exculpatory evidence at best murky, prosecutors routinely seek indictments;  grand juries almost always go along.  We wouldn’t need criminal trials, judges and juries, if prosecutors and grand juries operated as they did in Ferguson.  Hey, maybe there is a useful cost saving idea embedded in this affair?

The main factor behind the outcome in Ferguson is severe reluctance to second guess, much less prosecute or punish,  law enforcement officers for actions they take in the line of duty. This is hardly a new phenomenon, or unique to the USA or to any one part of the country.

It makes sense for societies to subject police actions in the line of duty to a somewhat different standard than we use in civilian life.  But a lot of criminologists and ordinary citizens believe the society has gone too far, maybe way too far,  in that direction. Here are some data, which may help us make a judgment.

The newest and most believable data I could find (based on a Bowling Green State University criminology study reported in a Wall Street Journal article), says that (in a 7 year period ending in 2011), 41 officers in the U.S. (about 6 per year) were charged with either murder or manslaughter in connection with on duty shootings.  These are just charges, not necessarily resulting in convictions.

In the same period, the FBI says there were 2,718 justified homicides by police (or about 400 per year). This is widely considered by criminologists as a large undercount because of lax reporting standards.  An “independent” estimate based on news paper reports across the U.S. says the real number is closer to about 1,000 per year. (Or about 7000 in seven years, rather than the 2,700 reported by the FBI).

If you accept the FBI police homicide number, it means about 1.5% percent of police homicides result in a “charge” of murder or a lesser manslaughter offense. If you accept the “independent” count of police homicides, the percent of officers charged in on-duty killings would be 0.6%. I of course don’t know what an appropriate charge rate might be, but a percent in this vicinity is worrisome.

Government at all levels in the US needs a robust process for holding police accountable,  one that’s more effective and trustworthy than internal reviews or appointed “review boards” dominated by police or their labor unions. The process must still be sensitive to the unique position of law enforcement officers, and their need to know they have the support of elected officials and citizens.  But today’s “acquittal” rate of about 99% ought to raise some eye brows.

Most governments at all levels in the U.S. have the capacity to create special adjudicatory systems to handle charges of police misconduct, which strike the right balance. We don’t have that in very many places today in the U.S.

Obamacare Could Easily Unravel After Tuesday’s Election: More Supreme Court Drama Ahead

GOP Judges Eyeing Obama Care

GOP Judges Eyeing Obama Care

The U.S. Supreme Court has given itself the opportunity to gut the Affordable Care Act (ACA), wipe out President Obama’s signature policy achievement, thumb its nose at the I.R.S.,  and align itself with last Tuesday’s electoral outcomes……all at the same time, in just one legal case.   And, oh yes, they also get to diss Harry Reid and the new judges appointed by the President to the D.C. Court of Appeals, after Reid exempted judicial appointments from the Senate 60 vote requirement; again, in the same legal case.  What an opportunity!

In a story drowned out by wall to wall coverage of Tuesday’s election, the U.S. Supreme Court announced its intention to hear an appeal to a 4th Circuit Court of  Appeals decision in King vs. Burwell,  concerning subsidies under the Affordable Health Care Act (ACA).  The 4th Circuit’s decision in Burwell rejected claims which would have gutted the ACA. The High Court’s sudden announcement last Friday to hear the case this term should be viewed as an existential threat to Obamacare.  I would not have characterized it that way before Tuesday’s election.

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D.C. Court Decision on Obamacare: Absurd Outcome Means Absurd Decision

Heading toward the Supreme Court?

Heading toward the Supreme Court?

A prescient article by Henry Aaron of the Brookings Institution in April, provides the sensible and legally correct answer to the question whether people receiving health insurance from federally run health care “exchanges” under Obamacare (also known as ACA) can receive the same subsidies as enrollees in the fourteen states which run their own exchanges. (This is course not the same Henry Aaron who broke Babe Ruth’s career home run record. But I bet he doesn’t mind being called Hammerin Hank).

Hammerin Hank’s article was buried at the time, but now has great relevance, after the D.C. Circuit Court of Appeals ruled (2-1) that, admittedly flawed, language in an isolated section of the ACA, alas, means that the plain purpose of the Act, to make health insurance affordable to all, is entirely negated. On the same day, another U.S. Circuit Court, by a 3-0 vote, issued an opposite ruling, setting up the possibility that the U.S. Supreme Court will ultimately hear the case.

Aaron’s article reminds us that centuries of western jurisprudence have upheld the notion that judges have an obligation to interpret law in a manner that doesn’t produce absurd outcomes; or render an Act worthless, ineffective, or inoperable. (See “Absurdity and the Limits of Literalism”)

As a 2008 Congressional Research Service (non partisan and authoritative) report on the Supreme Court’s interpretation of statutory law observes, “the one generally recognized exception to the [“plain meaning of the language”] rule is that a plain meaning is rejected if it would produce an “absurd result.”*

Is that plain enough?  I think so,  But nothing the High Court does would surprise me these days.

*See, for example, United States v. Granderson, 511 U.S. 39, 47 n.5 (1994) (dismissing an interpretation said to lead to an absurd result); Dewsnup v. Timm, 502 U.S. 410, 427 (1992) Justice Scalia, dissenting) (“[i]f possible, we should avoid construing the statute in a way that produces such absurd results”); Public Citizen v. Department of Justice, 491 U.S. 440, 454 (1989) (“[w]here the literal reading of a statutory term would compel ‘an odd result,’. . . we must search for other evidence of congressional intent to lend the term its proper Scope.”