Riffing on Krugman: The regulatory implications of his work on comparative advantage

As many are aware, this year's Nobel Prize in Economics went to Paul Krugman. According to some accounts, one of the accomplishments that garnered Krugman his prize was his work on international trade and comparative advantage. Basically, Krugman explained why it was that at the same time as Germany exports cars to Japan, Japan might also export cars to Germany. The reason is because Japanese cars have somewhat different characteristics than German cars, and this allows the dynamics of comparative advantage (aka Ricardo's Law) to manifest themselves within industries as well as across industries.

(In a sense, Krugmen can also be seen as offering a solution to the famous koan advanced by the ancient Chinese philosopher Gongsun Long, who asked, "Is a 'white horse' a 'horse'?" Krugman’s answer would seem to be: "it depends on if they are competing or substitute goods.")

But Krugman’s demonstration also has some important but heretofore overlooked regulatory implications. Since the 1990s, a diversity of scholars have begun exploring the structural relationship between regulatory systems and industrial systems. Examples include Hugh Collins’ book on Regulating Contract; Gunther Teubner’s essay on ‘Legal Irritants’; and on the other side of the Atlantic, Mark Roe’s work on the relationship between corporate governance, corporate financing and what he calls 'social democracy'. This suggests that there might be a symbiosis between the particular kinds of comparative advantages enjoyed by Japanese vis-à-vis German automakers and their respective regulatory systems, part of what is sometimes referred to as 'agglomeration effects'. (Whether it is the former that shapes the latter or vice versa doesn’t really matter, but the best interpretation of existing studies is that, contrast to the claims of institutional economics, industrial organization seems to shape regulation at least as much as the other way around.)

And if all this is in fact the case, it means that parts of Japan’s domestic regulatory environment may well be directly shaped by the domestic regulatory environments found in Germany. Moreover, they are not being shaped through dynamics of ‘convergence’ or ‘divergence’ – the dominant focus of the legal development literature – but through dynamics of complementarity. This hypothesis is supported by recent studies of labour regulation in the context of transnational production chains in East and Southeast Asia, which find that these production chains, which are very much structured by domestic regulatory systems of downstream regulatory environments, impose very different kind of regulatory pressures on upstream regulatory environments than they do on downstream sites.

Why is this significant? Well, for basically the same reason that Krugman’s work is significant. Krugman is sometimes credited with re-introducing ‘geography’ as a significant variable into American economic thought. The above syllogism suggests that geography might also be a significant albeit largely unrecognized variable in law as well. It suggests, for example, that a state or region or city’s legal and even constitutional capacities and capabilities may be significantly constrained by its (economic) relationship with other regulatory geographies.

We are used to thinking about and treating domestic regulation as a thing unto itself, one whose shape and effectiveness is determined primarily if not solely by the autochthonous ‘political will’ of the state or region in which it is found; we invariably see legal and political ‘development’ as simply a matter of ‘getting the institutions right’ (albeit with significant disagreement about what constitutes ‘right’ institutions). But it might not be so simple: Krugman’s demonstration suggests that the legal, constitutional and regulatory options available to many countries and regions, particularly those sporting more 'peripheral' economic activities, may be much more constrained than our developmental theories realize.

Mike Dowdle

Lawyers and Economists: Division of Labor

Early last month, I posted some comments about the differences between the ways economists and lawyers think about problems. While any such observation surely oversimplifies, I noted that -- based on my experiences both as an economics professor and as a law professor -- each profession seems to instill certain tendencies in its practitioners. While lawyers seem to take an all-or-nothing approach to problems (leading them too often to reject useful partial solutions because "that won't solve the problem"), economists come to believe their models just a bit too much. On the latter point, Alan Greenspan's recent testimony before Congress to the effect that he has been in "shocked disbelief" at the failure of his long-held model of how the economy works (unregulated markets will lead to good results) has shown the potentially enormous negative consequences of the economist's default mindset.

Beyond the tendencies that are drilled into members of the two professions (or which, perhaps, lead to self-selection into the two professions), a more interesting question is what lawyers and economists actually do. More precisely, when we have a public policy problem, how do the skill sets of lawyers and economists determine their respective usefulness in dealing with the problem? Again, I make no claim that my answer is anything beyond a broad-brush summary and that individual cases will vary. Still, recent events suggest that, on big issues, economists' contributions are essential but can be either helpful or useless depending on what the lawyers do. Examining the current crisis and the policy responses to it will, I hope, clarify my meaning.

Regarding the ongoing financial crisis, it really does take some training in monetary economics and finance to understand the causes and consequences of the panic in the financial markets. It is especially helpful to understand the nature of financial contagions to understand why the current crisis is not merely a "too big to fail" phenomenon but rather a matter of the unique fragility of the psychology of financial markets. Economists who would never support the nationalization of, say, Wal-Mart (even if it were failing) understand that the failure of even much smaller financial firms threatens to lead to much more profound problems for the entire economy. As far as it goes, the insight from economics is that the bailout/rescue is both important and unique, and that partial and temporary nationalization of the banking system is currently called for in ways that need not set a precedent for bailouts of non-financial markets. (There are, to be sure, respectable economists who disagree about the wisdom of the financial rescue. The vast majority of economists, though, agreed that the rescue was unfortunately necessary.)

What do lawyers do? They make it work (or not). Earlier this month, the economist Alan Blinder wrote an article in the New York Times, "Got $700 Billion? Sweat the Details," in which he described all of the things that need to be done well in order to make sure that the rescue plan succeeds. Blinder tells us in so many words that the legal work is now what matters. Among the issues he raises is that the rescue plan can be disastrously derailed by conflicts of interest. Without adequate legal rules and procedures that will rein in individual self-interest among the recipients of government assistance, the plan could do more harm than good. Similarly, he describes the difficulty in setting prices for assets for which there is no market. When there is no reliable market indicator for determining the fair market value of assets, it becomes essential to write complicated laws and contracts that allow the government to include contingencies in their dealings with private actors. In principle, this is easy. "If X happens, then the parties' respective rights and responsibilities change." Anyone who has studied legislative drafting or contract law knows just how simple this is not.

It is tempting to think of this as a physicists-versus-engineers split. The economists are the theorists, and the lawyers actually implement the theory. That analogy, however, does not quite get at the nature of the problem. Economists still have things to say about, for example, the likely incentive effects of provisions to curb conflicts of interest; but their theories on the smaller-bore issues leave open much more room for uncertainty. That uncertainty must be filled in by the lawyers. The better they do their job, the more likely it is that the economists' policy prescriptions will actually work. As always, a neutral legal framework cannot be assumed into existence.

-- Posted by Neil H. Buchanan

[Today's post, in slightly edited form, is cross-posted on the Concurring Opinions blog. My guest stint there ends as of today. I will, of course, continue to write my once- or twice-weekly posts here at DoL.]

An Abortion By Any Other Name

Today on FindLaw, I have a column that explores the theory that underlies bans on a method of abortion called "intact dilation and evacuation" (or D & X). In 2003, Virginia passed a law that it called the "Partial Birth Infanticide Act" -- which largely mirrors other so-called "partial-birth abortion" legislation that prohibits one form of second-trimester abortion. The U.S. Court of Appeals for the Fourth Circuit heard argument (for the third time) on Tuesday on the Virginia law, which is challenged as placing an undue burden on a woman's right to terminate a pregnancy. As I point out in the column, the coming election will play an important role in determining the future of such laws and, more generally, the continuing ability of women to decide whether or not to remain pregnant. As a moral-philosophical matter, the column argues that one might distinguish different abortion methods from one another but that "partial-birth" is an unpersuasive basis for doing so.
In this post, I want to discuss an aspect of the second-trimester abortion question that rarely receives much attention: the fact that many people find later abortions much more disturbing than earlier abortions. For a person who calls himself or herself "pro-life" and means by this the belief that a "person" has come into existence from the moment of conception, the culpability of abortion has nothing to do with where in the zygote's development into a full-term baby a woman seeks to terminate a pregnancy. As a pro-life attorney with whom I regularly converse argued, a person is a person regardless of where it is located (inside or outside a woman's body) and regardless of how developed it is (a zygote or a 2-year-old child). Pro-life theorists therefore reject the notion that late abortions are "worse" than early abortions.
Why does this matter? If most people accept the grading of abortions into "better" or "worse" based on their timing, why should the moral commitments of the pro-life movement matter to our reaction to proposed or challenged legislation? The answer to this question is that if the group that presses abortion regulations does not distinguish -- in terms of their own views -- between the morning-after-pill and infanticide, it may very well propose laws that "save" embryos at the expense of late-term fetuses.
Consider a concrete example. Laws that require parental consent or notification prior to abortion are quite common, and most people seem to think they make sense (though I argued otherwise here). If a minor truly wants an abortion, however, then laws that require parental notification (with a judicial bypass option) likely have the effect of delaying many of the abortions that might have taken place early in pregnancy. This is true as well for legislation that requires women to come to her provider for an "informed consent" session and then leave and return for her procedure after 24 hours have passed. Such laws force women who would like to have an abortion on day 1 wait until day 2 (or, if practical considerations preclude immediate return, then day 30 or day 60). From a pro-life person's perspective, delay is not a problem, because it leaves open the possibility of no abortion at all and, if there is an abortion, it is not worse at 5 months than it would have been at 5 weeks. A woman who works directly on reproductive rights law told me, in fact, that quite a few pregnant 17 year olds wait until they turn 18 to have an abortion (even if that means she aborts much later in pregnancy) rather than tell a parent about the pregnancy, as the law requires her to do. From the standpoint of those who believe that an early abortion is far less troubling than a late abortion, such realities ought to matter a great deal.
Pro-life groups, however, are just as eager to prohibit use of the morning-after pill and medical abortions (such as those induced with RU486) as they are to ban the later and more controversial methods. Indeed, if they manage successfully to delay a woman's ability to get an abortion until late in pregnancy, they can then point to the disturbing nature of the procedure involved to gather more supporters from the population at large. Knowing the motives and the moral views of abortion opponents is thus not only in assessing the sincerity of arguments surrounding D & X bans but also in predicting the likelihood that mainstream views of abortion will find proper expression in legislation crafted by people who view an embryo as morally identical to a toddler. It may be, in other words, that if one hopes to reduce the number of late abortions (rather than to reduce the total number, even if it increases the most troubling sorts), the best strategy is to make morning-after-pills and other early abortion methods as accessible as possible rather than to ban later methods of termination. This is the opposite of what President George W. Bush has done, and it is the opposite of what John McCain and his extremely pro-life running mate Sarah Palin would do, if given the chance.

Posted by Sherry Colb

Giving Us The Business

Let's say you're a small business owner, perhaps you own a plumbing company with 5 employees, each one a master plumber earning $120,000 annually. Your business might be organized as a sole proprietorship, a joint venture with your spouse (if it's a mom & pop business), a partnership, a LLC, etc. (For a useful explanation, click here.) The tax code provides a variety of combinations of burdens and benefits depending on the nature of the organization, but regardless of the form of the business, one rule applies: Taxes apply to profits, which are calculated after subtracting expenses, and expenses include salaries of your employees (with some special rules for yourself and your family when classified as employees).

For simplicity, let's assume your business is a sole proprietorship and your five employees are not related to you. Now let's say that your small business is successful enough to generate more than $250,000 in after-expense profits. Let's imagine you run a stupdendously successful plumbing business that generates $400,000 in profits. Under the Obama tax plan, the marginal rate on your profits increases from 33% to 36% for dollars earned over $250,000 and from 35% to 39.6 % for dollars earned over $357,700. Using these numbers, you will pay an additional 3% on $127,700 (i.e., $3,831) plus an additional 3.6% on the last $42,300 (i.e., $1,522), for a grand total tax hike of $5,353. I suppose that's a substantial chunk of change, even for someone netting $400,000, but recall that the McCain argument is not that this is unfair to the owner of the plumbing business owner but that it somehow will dampen job creation.

Can that be? Whatever you pay your master plumbers comes out of the before-tax number, and so your labor costs haven't gone up. In fact, they've gone down, because we need to take account of what they earn. If we assume that each master plumber has 2 kids, saves for retirement, and has $100,000 outstanding on his mortgage, then, according to the Obama tax calculator, each of your high-wage employees saves about $1100 on his taxes. In my assumption that your business employs 5 master plumbers, that almost exactly cancels out your tax increase.

You might even try to get some of that money for yourself by paying your employees a little less, on the theory that their after-tax income will remain the same, but because wages are sticky, this will be hard to do. Perhaps we can imagine this is a new business, and you're trying to decide how much to pay your plumbers. The idea would be that you could pay them a lower gross under the Obama plan than under either current law or the McCain plan, without lowering their net pay. That in turn, increases your profits, substantially offsetting your own tax increase.

Not entirely, of course, since transferring money from employees with lower marginal tax rates to an owner with a higher marginal tax rate means that Uncle Sam gets more total. But that only means that the Obama plan makes it more efficient to pay your employees more. And the bigger point is that there is no logical way to explain how the Obama plan is bad for employees of small businesses. Sure, if Obama planned to raise the top marginal tax rate on small businesses to 95% or some comparable figure, then no one would have an incentive to create a small business that makes over $357,700/year. But with rates nowhere near that high in the Obama plan, it is hard to see how it could have any real negative impact on job creation.

Of course, relative to the current tax law, the Obama plan does redistribute about $5500 from our hypothetical plumbing company owner to the five employees working for him. But were it not for fear of being called a Marxist or worse, someone might point out that those employees are the drivers behind the success of our plumbing company owner's business in the first place.

Posted by Mike Dorf

Musical Senate Chairs

Sen. McCain has called upon Sen. Stevens to resign from the Senate now that he is a convicted felon. The NY Times story so reporting does not clearly state whether Sen. McCain thinks Sen. Stevens should resign effective immediately, thereby all but ensuring the election of Democrat Mark Begich to the Senate, or whether McCain would prefer if Stevens stayed on the ballot, won the election, and then resigned, giving Governor Palin a chance to name an interim Republican Senator pending a special election. (For a discussion of the further complexities of filling vacancies in Alaska's Senate seats, see this post by Rick Hasen.) The latter course would presumably be in what McCain regards as the country's best interest, since it would reduce the Democratic margin in the Senate. Yet the man who puts country first does not appear to be suggesting a delayed resignation. Why not? Herewith 3 possibilities:

1) Perhaps I've just misread McCain and he does have in mind a resignation by Stevens after he is re-elected. According to the McClatchy story, McCain said Stevens "should now step down," but perhaps by "now" he means "some time in the next two weeks, preferably in 8 days."

2) With no time to substitute a different name for Stevens on the ballot, perhaps the election of Begich is a fait accompli, as a majority of Alaskans will not pull the lever for a convicted felon, even if it means the Democrats pick up a Senate Seat.

3) Or perhaps McCain has calculated that whatever happens to Stevens, he just can't afford to have his "reform" brand further tarnished and so must put his own campaign first. This is an acute problem for Gov. Palin who, fairly or not, will be associated with Stevens, especially in light of the finding that she acted unethically in seeking to have her ex-brother-in-law dismissed.

Posted by Mike Dorf

Where's the Veep?

Glenn Reynolds has a short Op-Ed in today's NY Times arguing that Sarah Palin may have gotten it right when she described an active role for the Vice President in Senate affairs. Palin, in answering a third grader's question about what the VP does, recently said the VP is ". . . in charge of the United States Senate, so if they want to they can really get in there with the senators and make a lot of good policy changes . . . ." (The ellipses do not do any damage to Palin's full statement, available in text here and for viewing below.)



The Constitution provides that "[t]he Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." By tradition, the Vice President is not "in charge of the" Senate, as Palin put it, but the text of the Constitution does not literally rule out the sort of active legislative role Palin describes. Indeed, Reynolds says, precisely because the Vice President is a legislative official, the assumption of executive powers by our two most recent Vice Presidents has been a violation of separation of powers.

Perhaps, but let's put that one aside for the moment. Reynolds also says that the VP's most important job is to be ready as a "spare President." He offers the following simile: "Using the spare president in the ordinary course of business is as unwise as driving on one’s spare tire. Spares should be kept pristine, for when they are really needed."

Need I point out the obvious? Using a spare tire wears out the tread so that it will not function as well when called into active duty. By contrast, a Vice President who--like every VP since Mondale--plays an active role in the administration, gains valuable experience that will enable him or her to do a better job as President if needed.

Okay, so Reynolds chose a poor simile, but he also set forth a brief substantive argument. He says: "If the president resigns or is removed from office, a vice president who has been involved in the activities of the executive branch is also likely to be at risk for impeachment. Just as important, a vice president who is enmeshed in the affairs of the president cannot offer a fresh start for the executive branch."

But that's highly misleading. In the course of American history, exactly one President (Nixon) resigned, and no President has been removed by the Senate after impeachment by the House. By contrast, eight Presidents have died in office. If history is our guide, there is thus a much greater chance that a Vice President would become President after the President's death than following resignation or removal. And in those circumstances, interests in stability and continuity counsel very much against a "fresh start."

Moreover, even in the unlikely event of resignation or removal, Reynolds is wrong. Had Bill Clinton been removed for his cover-up of the Lewinsky affair, Al Gore would have been untainted by that scandal, despite Gore's active role in the executive branch. More generally, the lesson of the Andrew Johnson impeachment is that Presidents should only be removed for actual wrongdoing, not because of policy disagreements. Following a President's removal, we want policy continuity. Otherwise, Congress will have an incentive to remove Presidents based on mere policy disagreement.

So, what about the broader argument that the VP can't take part in the executive because to do so would violate the separation of powers? So long as the VP's role in the Senate is just ceremonial and tie-breaking, this seems pretty clearly wrong too. Presiding over, in the sense of formally chairing but not taking an active role in, the Senate, no more makes the VP a legislative official than the Chief Justice presiding over a Presidential impeachment trial makes the Chief Justice a legislative official. And while the VP's power to break ties in the Senate is a legislative function, so is the President's power to sign or veto bills. Yet no one would suggest that the Constitution itself is somehow unconstitutional for mixing powers in this way.

In the end, then, Reynolds has only an inapt simile, a historically imbalanced prescription, and a formalistic notion of separation of powers going for him. But he did manage to write an Op-Ed that purported to make Sarah Palin look good, to make Joe Biden look bad, and to distract people from the fact that the most likely mid-term route to the Presidency of a sitting VP would be via the death of the President.

Posted by Mike Dorf

Riggs v. Palmer Lives!

The Supreme Court's June decision in Boumediene v. Bush entitled Gitmo detainees being held as enemy combatants to file habeas corpus petitions to challenge the basis for their detention because, in the majority's judgment, the procedures for judicial review of Combatant Status Review Tribunal (CSRT) enemy combatant status determinations set forth in the Detainee Treatment Act (DTA) and Military Commissions Act (MCA) were not an adequate substitute for habeas. But what about Gitmo detainees who have had CSRTs and want to take advantage of the judicial review provisions of the DTA and MCA? That question is presented by the government's rehearing petition in Bismullah v. Gates.

The DC Circuit panel decision in Bismullah, which was handed down before the Supremes decided Boumediene, held that detainees' lawyers (who have security clearances) have a presumptive right to see all the evidence adduced to support a CSRT enemy combatant status determination. Otherwise, the court thought, it could not discharge its appellate duties under the law.

That was then, says the government. Now that the Supreme Court has said that statutory judicial review of the CSRT system is constitutionally inadequate, the whole system disappears in a puff of logic, and so detainees like Bismullah should simply file habeas petitions. But the petitioners say that the CSRT determination was an important predicate for their detention and, perhaps more importantly, dismissing and starting over with a habeas petition would just further run the clock. For a summary, with links, of the latest wrangling, check out this entry by Lyle Denniston on Scotusblog.

Whatever the exact merits of the respective arguments here, there does seem an overriding principle that cuts against the government, and it must surely be a cousin of the great principle recognized in that old 19th century chestnut, Riggs v. Palmer. There, the NY Court of Appeals denied to 16-year-old Elmer the legacy to which he would otherwise have been entitled under his grandfather's will, on the ground that Elmer had murdered his grandfather to obtain the inheritance. The case is frequently cited as an application of the maxim "no one should profit from his own wrong." Extension of this maxim to the government is but a small step, and would seem to be completely appropriate in Bismullah.

Posted by Mike Dorf

Obama Defense is Good For McCain

According to this news story, a federal district judge has dismissed a lawsuit against Sen. Obama, alleging that he is ineligible to be President because he was not born in the U.S. In fact, Obama was born in the U.S. (Hawaii to be exact), but that was not the basis for the dismissal. The case was dismissed on the ground that the plaintiff lacked standing, being unable to show a personal injury.

That's even better news for Sen. McCain than for Sen. Obama because while Obama is undoubtedly qualified, some uncertainty surrounds McCain's eligibility. The Constitution requires that the President be a "natural born Citizen." It is not entirely clear what this odious requirement means, but one pretty clear possibility is it requires that, at the time of his or her birth, the person in question was a citizen. McCain was born in the Panama Canal Zone, and so did not get automatic citizenship under the 14th Amendment. Moreover, according to an article by Professor Gabriel Chin in the online version of the Michigan Law Review, U.S. statutory law at the time of McCain's birth did not confer automatic citizenship on him. (The law was changed before McCain turned one, but Chin says that was too late for McCain to have been "born" a citizen.)

Other articles in the Michigan Law Review online symposium take issue with Professor Chin's analysis, but it is at least a contestable question whether Sen. McCain satisfies the constitutional requirement. Therefore, whereas Sen. Obama could have easily defended the case on the merits, a dismissal on standing grounds of a similar suit against Sen. McCain would be more valuable, because it would mean he would not need to defend against a potentially meritorious suit.

To my mind, the best approach would have been to dismiss on political question grounds. Per the 12th Amendment, Congress would seem to be the best judge of the qualifications of any Presidential candidate. And the Senate has already declared itself satisfied that McCain is qualified. (See story here.) Professor Chin says the Senate got it wrong, but given the offensiveness, in a nation of immigrants, of the "natural born Citizen" clause, any doubt should be resolved in favor of eligibility. (There's a limit to doubt, though, even for an odious clause, and so some people who would be eligible for the Presidency under a better Constitution, clearly are ineligible under ours. Sorry Ahnuld.)

Posted by Mike Dorf

Rot

As Neil noted yesterday, today continues the Symposium on what we owe future generations at GW Law School. I'm presenting my paper today. It's still too rough for me to post online, so I'll give a very brief overview here.

Prima facie, a constitution is a curse rather than a blessing bestowed on future generations because a constitution limits the political freedom of the future generations. However, this view is superficial. Structural constitutional provisions provide a framework for democracy, thus empowering future generations to enact the policies they deem necessary, rather than leaving them constantly to re-fight the ground rules. Constitutional rights, by contrast, do seem more problematic. One standard defense of constitutional rights posits that democracies go through periods of insecurity in which mob rule leads them to lose sight of their most fundamental values. Constitutions enshrine these values, thus protecting against backsliding (or what Justice Scalia calls "rot.")

The anti-backsliding view is widespread and it has some force. E.g., Geoff Stone's excellent book Perilous Times shows how we typically suppress free speech and the press in wartime. However, the anti-backsliding view does not really explain how constitutional rights are typically enacted. Constitution writers and amenders don't typically seek to entrench accepted rights. They typically aim to change the legal status quo. Sometimes they succeed and sometimes they fail, or fail for a while, only to have a later generation transform and redeem their handiwork. The clearest example of this phenomenon is the 14th Amendment, which was largely ignored with respect to its central purpose until the civil rights movement of the mid-20th century. More generally, constitutional rights often adopt aspirations.

The anti-backsliding view leads rather naturally to originalism in constitutional interpretation. But where constitutional rights serve an aspirational rather than an anti-backsliding function, some other method of constitutional interpretation fits better. My article explains how various conceptions of the "living Constitution" do the job. I'll post a more complete draft after my research assistants and I have had a chance to clean up the footnotes, probably in about a month.

Posted by Mike Dorf

What Do We Owe Future Generations?

This afternoon and all day tomorrow, GW Law will be hosting a symposium: "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century." There will be an opening panel on the philosophy of justice between generations, followed by four panels discussing the implications for intergenerational justice of the following areas of policy: government spending and taxation, environmental law, reproductive rights, and consitutional law. The principal presenters for the five panels are, respectively, Bob Hockett (Cornell) and Ori Herstein (private practice), Neil Buchanan (GW) and Dan Shaviro (NYU), Jamison Colburn (Penn State) and Matt Adler (Penn), Sherry Colb (Cornell), and Mike Dorf (Cornell).

I have been working with the GW Law Review students to organize this symposium, which is based on my forthcoming article: "What Do We Owe Future Generations?" Over the last several years, I have been trying to work through the implications of the oft-heard claims that current generations are short-changing future generations. (Listen to almost any politician speak for more than five minutes and you'll hear something about our irresponsibility toward the future). Usually, this is couched in terms of anti-deficit rhetoric, and it is often misleadingly tied to efforts to change the Social Security program. As my scholarly interests are solidly in the area of fiscal policy, I decided to see whether there is actually a strong argument that -- as a matter of government spending and taxing policy in the long run -- current generations are cheating future generations. What I found was surprising. Even given the long-term trends in spending and taxing, future generations' per capita GDP will be higher than ours even under the most pessimistic scenarios. The issue is distributional (both within and across generations), therefore, because the averages look unexpectedly promising.

When I taught a seminar on the subject of intergenerational justice a few years ago at NYU Law, I found that my students were only mildly interested in the fiscal policy aspects of intergenerational obligations. No surprise there, I guess, as macroeconomics is not everyone's idea of a fascinating topic. We thus expanded our inquiry and confirmed that, even if we are not cheating future generations in terms of pure economic income, there are enormous issues in the areas of education, the environment, reproductive rights, the rule of law, and many other areas of policy in which current generations are obviously harming the interests of future generations. This symposium is designed to stimulate discussion about those matters. I also am in the planning stages of turning this into a book.

I am very excited to hear what the other scholars at the symposium will say over the next two days. I will report back next week on some of what I hear.

-- Posted by Neil H. Buchanan

Is Heller Like Roe?

Yesterday's NY Times ran a story by Adam Liptak about how two prominent conservative federal appellate judges had criticized the Supreme Court's decision in D.C. v. Heller, likening the Court's discovery of an individual right to possess firearms for self-defense in the Second Amendment to the Court's discovery of a right to abortion in the Due Process Clause of the Fourteenth Amendment. Herewith, a few reactions:

1) This isn't all that surprising. These days Judge Posner is less of a conservative than a Holmesian pragmatist. He is strongly skeptical of the claim that formal legal materials---whether the Fourteenth Amendment or the Second Amendment---resolve concrete cases and, where appropriate, will unabashedly argue that judges should therefore make decisions based on what they consider the all-things-considered best outcome. Because one of the things considered in constitutional cases is the allocation of decision-making authority, this inclines Posner (like Holmes) to defer to legislatures in most matters, including abortion and gun control.

2) Ditto about the lack of surprise with respect to Judge Wilkinson. Were it not for the preposterously high bar set by the prolific Posner, Judge Wilkinson would be renowned for his own prodigious academic output. Having read his prior writings over the years, I would say that while he has been most critical of liberal rights-protective decisions (on, e.g., abortion, the death penalty, and gay rights), his main beef is with the judicial inference of rights that preclude democratic responses. That is why, in a 2002 article in the University of Colorado Law Review (not available for free online), he defended the Rehnquist Court's federalism jurisprudence as different from both Lochner-era conservative rights jurisprudence and Roe-era liberal rights jurisprudence. Wilkinson believes in a robust judicial role in the enforcement of the constitutional structure. He distinguishes structure from rights; he does not place much stock in the difference between enumerated but ambiguous rights (such as to "keep and bear arms") and unenumerated rights (such as the right to privacy).

3) So, apart from the man-bites-dog quality of these condemnations from the right, is there anything noteworthy here? That, to my mind, depends on the outcome of the Presidential election. If Obama wins, then the important cleavage on the Supreme Court will continue to be between moderates/liberals and conservatives. However, if McCain wins, we will likely see a solid conservative majority, at which point the key cleavage will be intra-conservative. A President McCain would not nominate Posner or Wilkinson to the Supreme Court because both are too old (though both are younger than McCain: Posner is 69 and Wilkinson is 64). However, to the extent that they represent a distinctive strand of conservative judicial thought, Justices in their mold might part company with the Roberts/Scalia/Thomas/Alito wing---although all would probably vote to cut back on or eliminate liberal landmarks like Roe.

Posted by Mike Dorf

Back to Ohio

My latest FindLaw column praises the Supreme Court for its per curiam in Brunner v. Ohio Republican Party. The Court acted in a principled way, I say, by applying the very restrictive law on implied rights of actions for private parties to sue to enforce Acts of Congress. For the most part, that restrictive doctrine has been the brainchild of conservatives, and so it is nice to see the Court applying it even-handedly against the Republicans.

Here I want to say a word about the merits of the underlying lawsuit, which I describe in the column. (If you haven't read the column, you'll find the rest of this post hard to follow, so go read the column!) After all, the Supreme Court's ruling that private parties can't sue to enforce a particular provision of the Help America Vote Act (HAVA) does not mean that the Ohio Secretary of State isn't under a duty to comply with HAVA.

Here's the puzzle: The Motor Voter law says that state election officials can't systematically purge voter rolls within 90 days of an election, but HAVA says the relevant state official should compare new registrations with motor vehicle records. Meanwhile, the voting registration deadline in many states is less than 90 days before an election. How to reconcile HAVA and Motor Voter?

Ohio Secretary of State Brunner says that her duty to compare voter registrations with motor vehicle records doesn't include a duty to share the results with county-level election officials, but the Republicans argue that this makes the comparison pointless. That seems overstated. The comparison could serve an in terrorem effect. People who know that their registrations will be checked against motor vehicle records could worry that, as a result, deliberate falsehoods in their registrations will be found and possibly prosecuted. That in turn could encourage honesty in registrations.

Still, the Republicans have a point that the purpose of the contested provision of HAVA does seem to be actually to catch ineligible voters before they vote. Given that HAVA was a compromise, and given that Republicans wanted this provision to prevent what they regard as voter-level fraud, it does seem plausible to suppose that state officials are supposed to do something with the registrations that don't match motor vehicle records before the election. I suppose one could say that giving mismatched names back to county election officials for removal does not count as a "program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters," and is thus not forbidden by Motor Voter. One would have to argue that this would not be "removing" names but simply failing to add them. Still, that is a strained reading of Motor Voter.

Another possibility is that HAVA partially repeals Motor Voter by implication, but standard canons of statutory construction disfavor repeal by implication.

Bottom Line: It is by no means clear what the duty of state officials like Secretary Brunner is under HAVA. If this were a federal law imposing a duty on federal officials, it might be appropriate to give those federal officials deference under Chevron. However, while the notion of federal law conferring discretion on state-level officicals is not unheard-of, Chevron itself does not directly apply. Therefore, Secretary Brunner may as a practical matter have discretion to decide how to comply with HAVA (because no one can sue to tell her otherwise), but if a case ever reaches the federal courts in which her judgment is challenged, she may not get any deference.

Posted by Mike Dorf

What I Meant to Say About the Presidential Election and the Court

As announced, I was on "The Takeaway" this morning, talking about the effect of the election on the Supreme Court. At least I was on the second try. While I was waiting to come on the air, one of my daughters accidentally put another extension of the phone on, and so I got cut off when the producers of the show heard her and her sister discussing High School Musical or some other weighty subject. When I finally did come on, there was less time than expected---or so I surmise in retrospect from the fact that the hosts appeared impatient with my thorough answers. Or maybe I'm just longwinded. (Update. Link for audio now works.)

Anyway, one effect of my poor clock management was my inability to use my one prepared zinger. Anticipating a request for specific names that might be on the list of possible Obama and McCain Supreme Court appointees, I planned to say something like the following with respect to McCain:

Throughout his career, Senator McCain has not been especially interested in the courts, but Republican Presidents tend to use judicial appointments to shore up support from the social conservative base of their party. Therefore I think that a President McCain might nominate Daniel Winfree.

Interviewer: Who is Daniel Winfree?

Me: For almost a year now, he has been a Justice of the Alaska Supreme Court. He was appointed by Governor Palin.

Actually, I almost certainly wouldn't have said that, in part because I have no idea whether Justice Winfree is a social conservative. (Hey Alaska readers: What's his story? Gov Palin's press release certainly makes him look like a respectable and respected fellow.) More importantly, it's not quite accurate to say that social conservatives control judicial appointments under Republican Presidents. When they can get a social conservative through the Senate (which seems to be whenever there are fewer than 60 Democrats there), Republican Presidents typically try to do so, but the actual selection process has generally been run by what might be called the Washington conservative legal establishment, and as I have argued in my academic work, they like to pick insiders who have proven their bona fides to the conservative legal establishment working in Republican Administrations. The unhappy result of President Bush's circumvention of the conservative legal establishment in his nomination of Harriet Miers will only reinforce the importance of sticking with the formula.

On the Democratic side, the Clinton playbook is fairly straightforward: Pick very-well-respected federal appellate judges who have a history of getting along well with conservatives (the Ginsburg/Scalia friendship is legendary and Breyer was well-regarded by Republicans for his work on airline deregulation) but will be reasonably liberal on the key social issues. If he wins, Sen. Obama will certainly have options that fall into this category, and I'm willing to say for the record that the front-runner for the first seat on the Court in an Obama Adminstration would be Second Circuit Judge Sonia Sotomayor. She was first named to the district court by Pres. George H.W. Bush (albeit under a deal between then NY Senators D'Amato and Moynihan, with Moynihan actually putting her on the list) before being elevated to the appeals court by Pres. Clinton. There is only one woman on the Supreme Court now. And Sotomayor would be the first Hispanic Justice.

Subsequent picks (if any) by a President Obama are harder to handicap. Many people would like to see someone with a broader resume than federal appellate judge. Sen. Hillary Clinton would be an intriguing choice among politicians, and while she's certainly up to the job, she strikes me as someone who would enjoy the Court less than her current job. A colleague has suggested Mass. Gov. Deval Patrick, who is a terrific lawyer and thus also would do well. It seems VERY unlikely that any President would name an academic without at least first seasoning that academic with a judgeship.

Posted by Mike Dorf

Lawyers' Salaries: Mommy Penalties, Daddy Bonuses, and Pure Gender Effects

Even among highly educated professionals, there is a persistent difference in the salaries of men and women. Untangling the reasons for that difference is quite difficult, and it involves as a threshold matter trying to figure out whether there are factors other than gender that explain why women earn less than men. Some studies have suggested that the difference in salaries is not in the first instance about the gender of the worker but about the worker's status as a parent or non-parent. Some empirical research, for example, has found that men with children earn more than everyone else in their fields but that there are no detectable differences among women with children, women without children, and men without children.

I recently finished a draft of a paper (available here) in which I looked at the results of two surveys of graduates of the University of Michigan Law School from the classes of 1970 through 1996. These surveys were developed by Richard Lempert, David Chambers, and Terry Adams, who used the data from the first survey to study the effects of race on lawyers' careers in their fascinating article: "Michigan’s Minority Graduates in Practice: The River Runs Through Law School," 25 L. & Soc. Inquiry 395 (2000). Professor Lempert and his co-authors administered a follow-up survey that gathered information about gender and parental status; and they allowed me to use their data for the empirical analysis summarized in my draft paper.

Most of my paper is focused on technical matters of survey techniques and econometric analysis. For those who find such matters tedious or worse, the most direct discussion of the statistical results is in the introduction and conclusion and on pp. 30-32. My tentative results confirm the "daddy bonus" that others' have found in other studies, with the range of estimates suggesting a 15-20% salary advantage for fathers. Unlike previous studies, however, I also find a strong suggestion that women with children endure a "mommy penalty," earning perhaps 10-15% less than the childless (and thus 25-35% less than fathers). I also find some weaker statistical support for the hypothesis that childless women earn less than childless men, with my estimates suggesting an 8-9% difference disfavoring women.

The wonderful thing about empirical research is that every interesting set of results demands further study. Can my results regarding the salary losses for mothers and childless women be confirmed by further research? Although I also look at differences such as part-time status, the ages of children, and whether the children are living with the lawyer-parent, what other evidence should be taken into account in future studies?

Perhaps a more intriguing question is why the salary disadvantages against women and in favor of men largely show up through parental status. (Parenting itself still tends to be characterized by massive differences in gender roles, of course. Even if all of the difference in salaries between men and women were mostly about differences in child-rearing, therefore, this would simply relocate the question of how sexism continues to affect women and men differently.) Because this draft is mostly a technical discussion of empirical results, I speculate only briefly on the reasons for the daddy bonus, offering three possibilities: fathers feel the need to work harder to bring home more bread for the family, men wait to become fathers until their salaries are high enough to support a growing family, and (my cynical favorite) fathers shirk childcare responsibilities by hiding in the office and incidentally raising their salaries.

Fortunately, the surveys from which I drew my data are now being superseded by an even larger study of Michigan law graduates, with more detailed questions and more respondents from more graduating classes. This will allow researchers to use "panel data" techniques and other sophisticated methods of searching for statistical relationships.

Because I plan to be one of those researchers, I would be especially interested in readers' suggestions (either on the Comment board or via email: nbuchanan@law.gwu.edu) regarding both how to improve and refine the regressions and how to explain the results. The best way to analyze empirical issues is to analyze data from as many angles as possible, so I will be very appreciative of any constructive suggestions.

--Posted by Neil H. Buchanan

[My cross-posting on Concurring Opinions has been extended until further notice.]

Supreme Court Takeaway Points

On Monday morning (7:20 Eastern time, more or less), I'll be on the radio show "The Takeaway," a co-production of the BBC, WNYC, and the New York Times, talking live about how the Presidential election is likely to shape the Supreme Court. (At least we know there'll be no litmus test!) WNYC streams over the web and The Takeaway's website also provides a variety of listening options. If I say anything REALLY REALLY stupid, I'll be sure to remove this post.

Posted by Mike Dorf

McCain's Litmus Test

In the opening pages of my book No Litmus Test, I noted that while Presidents and Presidential candidates commonly say they will not impose a "litmus test" for Supreme Court nominees, this is clearly false. Surely all Presidents would impose a litmus test barring otherwise qualified nominees who thought that Brown v. Board should be overruled. Indeed, most informed observers think that Presidents will now impose litmus tests on abortion, the issue it is meant to refer to. To be sure, they may not always succeed: A Republican President with a strongly Democratic Senate will sometimes pick a candidate who is squishy on overruling Roe v. Wade, but that's a matter of pragmatic politics or incomplete screening, not preferences.

Nonetheless, in Wednesday night's debate, both Senators McCain and Obama said they would impose no litmus test, even as each pretty strongly indicated he would. McCain's answer, to be sure, was practically word salad. Asked point blank in a follow-up by Bob Schieffer whether, as President, McCain would consider nominating "someone who had a history of being for abortion rights," McCain answered: "I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test."

Let's try to deconstruct that. The first sentence presumably means something like "I would be willing to take a look at anyone who had the requisite professional, i.e., non-ideological, qualifications, such as demonstrated excellence in the law and judicial temperament." The point is awkwardly put, to be sure, but I think McCain's meaning is reasonably clear. Now comes the tricky sentence: "I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications." This appears to mean that whether someone has supported Roe is not a matter of professional qualifications, and that therefore, yes, McCain would consider nominating an otherwise professionally qualified person who had supported Roe. This is complicated, however, by the fact that the following sentence begins with "But," which suggests that McCain's intention not to apply a litmus test cuts against what he has just said in the middle sentence. That makes no sense if the middle sentence means that McCain would be willing to appoint a Roe supporter. Hence, it seems plausible to read the middle sentence to mean something like the opposite of what we first think it means, namely: I wouldn't reject someone who supported Roe on professional qualifications grounds, but that support would count against him or her on other, ideological grounds. Read this way, the final sentence simply means that while prior support for Roe is very damaging to a candidate for nomination, it is not completely disqualifying.

Thus, taken as a whole, McCain's three sentences should probably be read to say:
1) The first step in my screening process for Supreme Court nominees will be to look for professionally qualified people.
2) Prior support for Roe is not disqualifying in this first step, although it will count heavily against a potential nominee in a subsequent, ideological step.
3) The ideological step, however, is not a "litmus test," i.e., it is theoretically possible that someone could be so well qualified along every other dimension that I would nominate him or her notwithstanding prior support for Roe.

This reading of McCain gains further support from what he said in another portion of the discussion of Supreme Court nominations. He noted that whereas Obama had voted not to confirm Justices Roberts and Alito, he, McCain, had voted to confirm Justices Ginsburg and Breyer. McCain thereby probably scored some points to the effect that Obama is a down-the-line liberal whereas McCain is a moderate. But McCain then undermined this point by couching it as a disagreement over the role of the Senate. "Elections have consequences," he said (twice), and Senators should vote to confirm President's choices regardless of ideological disagreements, so long as the nominees are professionally qualified.

There is an internal contradiction here. If elections have consequences, presumably SENATE elections also have consequences and so, as Obama and others (especially Chuck Schumer) have argued, Senators can take account of ideology too. But let's put this issue aside. The main point McCain was making was that the PRESIDENT is the one who, as a consequence of winning the Presidency, gets to consider ideology in deciding whom to nominate to the Supreme Court. And so we circle back to the original question. Why wouldn't McCain, as President, narrow the field of superbly qualified individuals by seeking those who share his "strict constructionist" philosophy and therefore would likely overrule Roe? The answer is that he would do just this.

I am pretty confident that I have unraveled what McCain meant to say but it's noteworthy how much work it takes to do so. Possibly that's because McCain's much-ballyhooed "straight talk" is actually quite circuitous. In Wednesday's debate, he twice pointed to Obama's "eloquence" as a way of saying that people should not be fooled by what they think they hear, but in fact Obama's sentences are much more straightforward than McCain's.

Another possibility is that McCain was deliberately speaking in code on the abortion/Supreme Court issue. Moderates would be comforted by his renunciation of a litmus test while the conservative base would know that, when push comes to shove, he would likely apply one.

Posted by Mike Dorf

Debate as Debate, the Final Cut: What Now, My Friends?

The final 2008 presidential debate was held last night at Hofstra University. As I have done with the two previous presidential debates and the vice presidential debate, I watched last nights' debate from the standpoint of a former debater and debate coach/advisor. Setting aside questions of who positioned himself best in the eyes of pundits or undecided voters, I once again watched the debate as if it were simply a debate and assessed the winner and loser on the basis of who argued and responded more effectively. Whereas in the previous two debates it was clear that Sen. Obama was allowing himself to be dragged down by his opponent's deficiencies as a debater, in this debate he pulled away cleanly and easily won the night. This is true even though Sen. McCain managed to improve somewhat on his earlier weak performances.

Last night's debate was, to my pleasant surprise, the best debate of the four that have been held this Fall. There was some actual arguing between the candidates, or "clash," where each candidate responded to his opponent in a way that was on point and required his opponent to respond further. Unlike the previous two presidential debates, it was also not boring. True, Sen. McCain's strategy amounted to what debaters often refer to as "dump trucking" -- throwing out every attack possible and hoping that something works -- but at least there was a bit of actual clash of ideas.

Despite being soundly defeated by Sen. Obama, there were some good things to be said for Sen. McCain. He had a very good line at the ready when Obama launched his first attempt to tie McCain to the historically unpopular incumbent Republican president, which everyone knew was coming. "I am not President Bush. If you wanted to run against President Bush, you should have run four years ago." That was a very nice way to put some distance between himself and George W. Bush. It was catchy and memorable. Unfortunately for Sen. McCain, his opponent had an answer, which is that Sen. McCain so frequently votes with Pres. Bush that it is hard to tell the difference. McCain's best thrust of the night, at least rhetorically, was thus neutralized by a quick and relevant riposte.

The other bit of good news for Mr. McCain was not really of his doing. When he tried to return to his pattern of making non-rebuttable pronouncements that he "knows how" to do things -- in this case "I know how to save billions of dollars in defense spending. I know how to eliminate programs" -- the moderator stopped him immediately by asking "Which ones?" Sen. McCain deserves credit for trying to answer the question and for being smart enough to (mostly) stop making such pronouncements, which had been such a major part of his claims in the first debate.

On the other hand, his attempt to list which programs he would eliminate to save money included eliminating the "marketing assistance program," which is surely unfamiliar to almost everyone listening to the debate. Even more damaging, the third of his three examples of how he would save money was to "eliminate the tariff on imported sugarcane-based ethanol from Brazil." This may or not be a program that should be eliminated, but tariffs raise revenue. Telling us how you're going to save money by collecting less of it is more than a bit nonsensical.

McCain's biggest problem is that he apparently never learned the first lesson that my debate coach taught me: repetition is not refutation. While it is surely true that any effective speaker must repeat themes in order to emphasize and drive home points, mere repetition in response to an opponent's responses to your arguments is a losing strategy. For example, pushing his "Joe the plumber" theme far beyond its limited effectiveness, McCain simply could not respond to anything Obama said about Joe's taxes other than to simply repeat that Obama would raise them. This even after Obama described his tax plan and specifically explained why a small business owner (especially a first-time small business owner) would not see his taxes increase under that plan.

I am sure that there is a way to argue that any tax plan can indirectly harm small business owners, and the McCain campaign might well be putting out an argument to that effect as I write. Nothing in Sen. McCain's remarks, however, indicated that he had anything to say other than "Hey, Joe, you're rich, congratulations." Oy.

Sen. McCain's inability to parry his opponent's responses was especially evident when he challenged Sen. Obama early in the debate to provide examples of times when Obama had stood up to his party's leaders. When Obama quickly provided three examples, McCain's only response was: "Senator Obama, your argument for standing up to the leadership of your party isn't very convincing." Now that's not very convincing. Similarly, McCain responded to Obama's advocacy of a bill to allow the victims of discrimination to sue after they learn of the discrimination merely with this: "Obviously, that law waved the statute of limitations, which you could have gone back 20 or 30 years. It was a trial lawyer's dream." That's not an argument.

Beyond his preference for repetition over argumentation, Sen. McCain suffered from two other major problems in the debate. First, he could not stop himself from heckling Sen. Obama in what can only be described as a smart-alecky way. He interrupted Obama's responses with attempts at one-liners (example: after Obama's first example of how he had strayed from his party's line, McCain interjected sarcastically: "An overwhelming vote."), and he even ended the debate (prior to the closing statements) by saying, completely out of order: "Because there's not enough vouchers; therefore, we shouldn't do it, even though it's working. I got it." The smile on his face indicated that Sen. McCain was quite pleased with himself.

This lack of gravitas also carried over to McCain's general demeanor. I happened to watch the debate on C-SPAN, which used a split screen to show both candidates throughout the debate. I have rarely seen anyone look as uncomfortable as Sen. McCain did last night. I doubt that Sen. Obama's campaign could have hoped for a less confidence-inspiring performance from their opponent. As I have said previously, I do not put much weight in judging a debate on stylistic matters, but this was too obvious not to notice.

A few examples of specific substantive matters on which there were exchanges between the debaters will help to demonstrate why Sen. McCain lost so decisively. First, during the early exchange between the candidates about taxes, Sen. McCain's remarks followed the usual line of describing all taxes as bad. Sen. Obama responded by noting that, obviously, no one likes to pay taxes; but revenue must be raised, and we have to decide from whom and how to raise taxes. Sen. McCain's best effort at a response was: "Nobody likes taxes. Let's not raise anybody's taxes. OK?" To be as kind as possible, this response lacks several logical steps.

Perhaps the high point -- from a pure debating standpoint -- of the night came during the discussion about the vice presidential nominees. Earlier, Sen. Obama had repeated his attack that Sen. McCain's proposed across-the-board spending freeze would prevent us from expanding valuable programs. When Sen. McCain gamely tried to make the case that he is proud of his running mate, he pointed to her concern for helping the families of special needs children and agreed that we need to do more to help them. Sen. Obama used that as a perfect example of what is wrong with a spending freeze. If we want to increase our assistance to the families of special needs children, then such spending cannot be frozen. This was a highly effective way to avoid directly attacking Gov. Palin, and Sen. Obama seized the opportunity to highlight a contradiction in Sen. McCain's arguments.

Another example of Sen. Obama's ability to respond on point and Sen. McCain's inability to follow up effectively was the exchange about abortion. Sen. McCain was prepared with an attack on Obama's votes in the Illinois State Senate against a bill to require that doctors care for infants who are born alive after a failed abortion, and against a so-called partial birth abortion bill. Sen. Obama explained that he voted against the first bill because doctors are already not only legally required to care for live infants but also required to do so as a matter of medical ethics. Sen. McCain had no response.

Sen. Obama further explained that he did not vote for the partial-birth bill because there was no exception for the life or health of the pregnant woman. Sen. McCain's response to this was puzzling in a number of ways. He repeated an earlier theme that suggested we should be suspicious of Sen. Obama's "eloquence" -- surely the first time I've heard that word used as a negative -- and then put air quotes around the word "health" to try to portray Sen. Obama as somehow favoring a slippery definition of health. This response does not at all address the lack of an exception for the life of the mother, and it also insults women by suggesting that their "health" is not a legitimate area of concern when passing laws affecting their bodies. If the choice of Gov. Palin as a running mate was supposed to appeal to Sen. Hillary Clinton's supporters, it is hard to imagine an answer that could have been more damaging to Sen. McCain's standing not only among Democratic women but among all women who are worried about politicians who do not take their lives and health seriously.

Finally, on the broad issue of government spending, it was not at all surprising that Sen. McCain revived his anti-spending theme and repeated it at every possible moment. While Sen. Obama did not push back on this as much as I think he should have, he did do a very good job of explaining why some government spending is fiscally responsible. First, he pointed out that the financial bailout/rescue plan need not end up costing taxpayers money. Properly managed, the money spent today will be recouped later. What it means to be "properly managed" is, of course, a matter of dispute and concern, which Sen. Obama acknowledged. Even so, Obama correctly described exactly why focusing on annual deficits can be so misleading.

It was thus good to see Obama point out that not all dollars spent are dollars lost. He made this point even more forcefully when he talked about spending on early childhood education, noting that "every dollar we invest in that, we end up getting huge benefits with improved reading scores, reduced dropout rates, reduced delinquency rates." This is an area on which I am in the process of doing some research, and Sen. Obama is clearly correct. It was truly heartening to hear someone make the case, in a clear and understandable way, that some spending is both prudent and good for future generations. Sen. McCain's default position was simply to repeat that spending is bad.

As I noted at the beginning of this post, the final debate ended up being a lot of fun for an old debater to watch and evaluate. Even though the debate was not close, this was another example (like the vice presidential debate) where a superior debater was able to shine even without facing effective opposition. Whether the Democrats' sweep of this year's debates will affect the election is beyond my powers of prediction. As debates, though, the results were clear.

--Posted by Neil H. Buchanan

[Once again, this is being cross-posted on Concurring Opinions.]

Divided Government

Neil will have a more complete analysis of the debate in the morning, but here I want to register a reaction to a point that at least 3 Republican-leaning pundits made. Each said he was surprised that Sen. McCain didn't offer the blessings of divided government as a basis for supporting him, McCain. With Nancy Pelosi in charge of the House and Harry Reid in charge of the Senate, the argument would go, Americans need a Republican President to check the Dems.

It strikes me that McCain simply could not make this argument for two reasons:

1) It would essentially concede the House and Senate. Of course we know that the Dems will almost certainly add to their majorities in both chambers but every seat in the House is up for election and enough seats are up in the Senate to make it theoretically possible for the Republicans to take control there. The only way for McCain to say there ARE going to be Democratic majorities in both chambers is by relying on polls, but if he has confidence in polls concerning Congress, why not have confidence in the polls that say he's going to lose the Presidential election? Further, running at the top of the Republican ticket, McCain cannot afford to alienate the members of his own party running for Congress.

2) The idea that Americans really like divided government is simply a myth. Divided government is largely a product of political diversity tracking geographical diversity. Most voters don't split their ballots. To be sure, some independents do split their ballots, but usually because of preferences regarding particular candidates, not out of any sense that divided government is a good in itself. Even if we concede that there are some number of voters who would be amenable to an argument that divided government is a good in itself, that argument would seem to have the most salience when you think that government itself is a problem. When, as now, the biggest issues are how government can help, divided government, which tends to produce gridlock, is unattractive. The argument that we need a Republican to stop the threat from government might appeal to the Republican base, and in other times it might appeal to some independents, but it is a losing argument now.

Posted by Mike Dorf

Think Different?

Perhaps the most astute analysis I've heard of the Presidential campaign came over the weekend from a caller on Michael Feldman's radio quiz/variety show, Whad'yaKnow . The caller, who claimed to be undecided, likened his voting choice to the decision whether to buy a PC or a Mac, which he had recently faced. He then explained that if you ask a Mac owner why to buy a Mac, he'll tell you all the things he likes about a Mac, but if you ask a PC owner why to buy a PC, he'll tell you everything that's wrong with a Mac. The caller then said he had bought a Mac.

This analysis jibes with the most recent polls showing that McCain's having gone negative hurt him more than it hurt Obama. How do we reconcile that with the conventional wisdom that while voters say they don't like negative campaigning, it works? Here I think the key is that the attacks were both coming from too close to the McCain campaign (i.e., from Gov Palin) and they were not even arguably about policy. Saying Obama's tax plan will hurt economic growth is one thing; saying that he "pals around with terrorists" was never likely to work (unless it were true, which it obviously isn't).

Posted by Mike Dorf

UnAmerican Activities

Today the Supreme Court hears oral argument in Pearson v. Callahan. The underlying Fourth Amendment issues are nicely explained in Sherry Colb's most recent FindLaw column. There is, in addition, a procedural issue that may prevent the Court from reaching the merits: whether to overrule Saucier v. Katz, a question that the Court specifically added to the petitioners' questions. In Saucier the Court held that when deciding a civil case in which the defendant raises a qualified immunity defense, the courts should first decide whether the plaintiff's claim states a constitutional violation, and if so, only then consider whether the defendant had qualified immunity, i.e., whether at the time of the alleged rights violation it was clear that what the defendant did violated the plaintiff's rights. The Saucier rule has been justified on the ground that without it the law could become frozen, with courts only ever deciding what the law was, rather than what it is. It has been criticized, however, on the ground that it is too rigid, and that therefore when courts are presented with an easy qualified immunity question and a hard merits question, they should be permitted simply to decide the qualified immunity question.

If the Court chooses not to overrule Saucier, or if it does overrule Saucier but decides that this is the sort of case in which it will exercise its discretion to decide the merits first anyway, then the Fourth Amendment issues discussed in Sherry's column will be decided. In particular, the Court will have to consider whether an undercover informant can give consent to a warrantless search on behalf of the target of a police investigation, where the target himself does not consent. As she explains, there are good reasons to think the answer should be no---that the rationales for permitting undercover informants and consent searches don't mix.

I want to add that the underlying constitutional law (per United States v. White) in this area is simply terrible. Indeed, it is downright unAmerican. That underlying law permits the police to hire a confidential informant to befriend anyone, without any requirement that there be probable cause, or even reasonable suspicion of criminal activity by the target of the investigation. In other words, as far as the Constitution as interpreted by the Supreme Court is concerned, the police can act pretty much like Stasi of the old East Germany. (For the film version, see The Lives of Others.)

Undercover agents may well be vital to legitimate police investigations, but that does not mean that police should be able to employ them without grounds for suspicion that are presented to a neutral magistrate. Matters might be somewhat different for sting operations and so-called "reverse-sting" operations, e.g., for cases in which an undercover police officer poses as a drug buyer or drug seller to ensnare someone who self-selects for criminal activity. But where the police designate someone to infiltrate a target's business, home, and life, surely something more than a hunch (or a vendetta) ought to be required for singling out that target.

The Supreme Court is highly unlikely to reconsider the constitutional doctrine that permits the use of undercover agents without probable cause or a warrant, but Congress could and should provide statutory protection, ideally in a non-election year.

Posted by Mike Dorf

Is Growth Good?

I spent a year in New Zealand in the 1980s, at a time when that country's economy was still struggling to make the transition from essentially exporting agricultural commodities into something more dynamic. A popular joke was to describe the government in those days as having unwittingly adopted the economic policy of the fringe "Values Party" (a predecessor to the NZ Green Party). The Values Party called for, among other things, zero economic growth.

That was a good joke but it points to an underlying problem: Economic growth often has terrible long-term environmental consequences. More economic activity means more demand for fuel and thus more pollution, global warming, etc. Conversely, economic stagnation can be beneficial. The recent drop in oil prices reflects the market's assessment that a global recession will mean less in the way of energy consumption. (Lower demand means lower prices.)

To be sure, the relation between growth and the environment is complex. The most technologically advanced countries generate and use energy much more efficiently than subsistence farmers (who often burn forests) or newly industrializing countries (which tend to burn coal).

The policy upshot of this analysis seems blindingly obvious. On the economic side, Congress should pass a stimulus package; on the environmental side, the stimulus should direct a substantial chunk of cash to green technology. To an important extent, both the Democratic leadership and the Obama campaign get this. (Contrast the prior stimulus package?)

However, if Social Security is the third rail of American politics, then gas prices must be the fourth. (Yes, I know that's a meaningless metaphor; there are only 3 rails; but you get the point). Falling gasoline prices should provide a perfect opportunity for a Pigovian tax to keep prices at the pump above $4/gallon, coupled with tax credits to individuals and businesses to offset the net pocketbook impact of any such tax. But say that on the stump and you'll instantly be met by catcalls and the sensible-sounding-but-ultimately-empty rejoinder that you don't raise taxes during a recession.

Posted by Mike Dorf

Debate as Debate, part 2 (or 3): What is the Point of the Exercise?

After the first presidential debate late last month, I posted some comments about the event from my perspective as a former academic debater and coach/advisor. Similarly, I later posted some reactions to the vice presidential debate. The short version of my take on those debates is that Obama clearly won his debate, but paradoxically not by as much as he would have if his opponent were not such an insistently inept debater; and Biden won his debate by successfully transcending his opponent's inability to offer a coherent argument.

In making these assessments, I deliberately set aside the criteria on which the pundits usually proclaim winners and losers in such debates: who had the best zinger or the most memorable line, who performed better than or worse than they were expected to perform (by whom?), and so on. My purpose was to answer a question that I have often heard people ask in this and other election years: Viewed solely as a debate, who won?

When I did not post any comments on the second presidential debate (which was held this past Tuesday evening), several people contacted me and asked that I offer similar commentary on that debate at some point before the final debate this coming Wednesday. I am happy to do so; but I should note that the reason I did not post comments immediately afterward was that there seemed to be very little new to say about that debate (in which so little new was said). Indeed, I am beginning to wonder what the point of such debates could be, given that they can seem so unproductive and vapid. I will return to that question after a quick assessment of the second debate itself.

First, it has to be said that the format of the second debate was unhelpful (and that's putting it gently). The debate was in a so-called "town hall" style. If anything, this format makes it even less likely that the candidates will engage with each other on the issues, mostly because they seem to be so busy trying to flatter the voter/questioner -- which, among other things, prevents the candidate from challenging the premises or importance of a question. Given that I have always given minimal credit for style and maximum credit for clash on the issues, this format was all but guaranteed to make this debate worse in my assessment for both candidates than the first one. (I am not, of course, completely impervious to differences in debaters' styles. For example, McCain's occasional tendency to speak in breathy, dramatic tones was new to this debate and more than a bit off-putting.)

On the merits, the second debate went pretty much the way of the first debate. Perhaps the major differences were that Sen. McCain reduced (but certainly did not eliminate) the number of times that he made simple assertions ("I know how to ___") in place of arguments, and Sen. Obama seemed to have made a strategic decision not to try to untangle McCain's description of the issues as much as he did in the first debate. Thus, this debate looked much more like alternating stump speeches than the last one did. There were still sharp exchanges in which Obama debated and McCain merely repeated (especially regarding the questions on Pakistan and health care), making Obama clearly the better debater. There was not, however, nearly as much direct exchange of arguments as there had been in the earlier debate.

Sen. McCain had one particularly good moment, which was when he forthrightly refused to answer a yes-or-no question and explained why he would not do so. Question: "This requires only a yes or a no. Ronald Reagan famously said that the Soviet Union was the evil empire. Do you think that Russia under Vladimir Putin is an evil empire?" McCain's response included this: "If I say yes, then that means that we're reigniting the old Cold War. If I say no, it ignores their behavior." This was a very effective way to expose the inanity of the question.

On the other hand, McCain continued to insist that Obama "fails to admit that he was wrong about Iraq." Sen. Obama, of course, does not believe that he was wrong about Iraq, which means that when Obama tries to explain his position on Iraq, he "fails to admit" what he believes to be false. It's an old rhetorical trick, and it can be applied to anything. "Sen. McCain has never admitted that his image as a maverick has long since gone stale and has no current basis in fact." Build an assertion into the premise of the question, and then watch the other guy struggle to disentangle the assertion from the actual question. Obama did not take the bait.

The only other noteworthy aspect of this debate is McCain's attempts at quasi-heckling. Having asserted that Obama would impose fines on companies and parents who failed to buy health insurance, he then predicted that his opponent would not tell the audience how big the fine would be. After Obama responded by describing his health plan in a way that McCain did not like, McCain interrupted the moderator and said: "I don't believe that -- did we hear the size of the fine?"

Similarly, Obama at one point (mixing "wet behind the ears" and "green" as metaphors for inexperience) said: "Now, Senator McCain suggests that somehow, you know, I'm green behind the ears and, you know, I'm just spouting off, and he's somber and responsible." McCain jumped in with: "Thank you very much," and laughed. The effectiveness of this sort of thing is, of course, largely in the eye of the beholder; but it certainly struck me as odd for McCain to be acting frivolous and irresponsible while claiming to be somber and responsible. It was especially surprising that Sen. McCain thought these one-liners were even worth launching, given his need to come across as less volatile and more grounded in these debates than he has recently.

As I noted above, the lack of news in the second presidential debate left me wondering whether there is even a point in holding these events (whether or not we continue to mislabel them as debates). On The Daily Show with Jon Stewart, the correspondent John Oliver offered a brilliant critique of the debates as being nothing more than people sitting around waiting for a candidate to commit a gaffe. That certainly seems more accurate than viewing the debates as clashes of ideas.

Still, the reason that I was involved in competitive debate for so many years was that even stilted exchanges offer opportunities to see whether debaters can think on their feet, respond directly to questions and challenges, and point out when someone else's arguments simply miss the point. Those skills are valuable in any position where difficult decisions must be made about complex issues. This is not by any means the only basis upon which to choose a president, but it at least will bring me to my TV set this coming Wednesday evening to watch the final debate.

At this point, viewed as debates, Obama and Biden have a total of three wins under their belts.

--Posted by Neil H. Buchanan

[Through October 15, I will be cross-posting on the Concurring Opinions blog.]

Collective Action

Here's a good test for distinguishing a thoughtful economic conservative from a slogan-based economic conservative: What does he or she think about the role of government in solving collective action problems? A thoughtful conservative will acknowledge that there are some things that markets are not very good at doing. National defense is an example nearly everyone (including the slogan-based conservatives) can agree on. In theory, if there were no government-run military, we could rely on private forces to protect against foreign enemies (albeit for a price) but in practice, this is wildly impractical. Likewise for other recognized public goods, such as roads and other infrastructure, fire protection, etc.

To be sure, one sometimes encounters smart conservatives who will point to examples from history of the market providing services we now generally regard as public goods, often claiming that the market provided them more cost-effectively than the govt now does. But these people are outliers. To the extent that they are not simply mouthing reflexively anti-government slogans, they should be understood to be sounding a caution: Beware of arguments rooted in claims of market failure, public goods, and the need to solve collective action problems, for once one begins down that road, there is no stopping (and it leads straight to serfdom). Thus stated as a warning, the point has some merit. Not every phenomenon that could be characterized as market failure, tragedy of the commons, a collective action problem or what-have-you necessarily calls for a government solution.

Against this backdrop, some of the conservative opposition to the various economic rescue packages makes some sense. To be sure, some of it is just plain ideology. Only an ideologue frets over whether a temporary, albeit very large, government equity stake in the U.S. banking industry would amount to "socialism." The obviously more salient question is whether it will work.

Putting aside opposition to anything too red (even if for bankers), some of the rational opposition to various bailouts stems from a legitimate worry that bailing out those who made bad investments will, in the long run, undermine the discipline of the market. Some of it (from the left as well as the right) may also be a form of not-exactly-economically-rational-but-also-not-irrational spite, as Sherry explained in a recent FindLaw column.

Here I want to suggest a third basis for opposition to a government rescue package: skepticism of collective action problems. Although the Dow is hardly a perfect proxy for overall economic well-being, let's consider it just that for the moment. None of the individual and institutional investors who were heavily invested in stocks benefited from the loss of roughly a quarter of the value of their portfolios in less than a month. Indeed, each investor would benefit if all the other investors had stayed put, but of course, their actions were not coordinated. As a result, we had a race to dump stocks, which only reinforced itself.

One way to understand the various bailout measures is as an effort by the investors as a group (through the government) to coordinate their actions. By injecting lots of money into the system and/or flushing out the bad debt, they can act together in a way that they can't act alone. In other words, in order to prevent individually rational actions (basically panic selling) from bringing down the whole economy, the government is attempting (via subsidies) to make buying (or holding onto) equity individually rational.

To be clear, that's not a perfect account of what's going on here. The bailout measures don't aim at all firms equally, focusing on banks and, in some proposals, housing. But in the big picture this is surely right: What it means to "restore confidence" in the markets is precisely to make otherwise risky transactions more attractive by reducing the risk.

So now the question: Is it rational to oppose these measures as reflecting too much faith in govt's ability to solve collective action problems? I tend to think so, although I also think that this is a crisis in which the government doing nothing would be worse than a number of things the government can be (and to some extent is) doing. What's needed from the thoughtful critics of the various proposals (and needed soon) is an account of why this particular collective action problem will solve itself---and the particular collective action problem I have in mind is not so much panic selling on Wall Street (which usually is self correcting) but the freeze-up in the credit markets due to rational fears that borrowers will go belly up before paying back.

Meanwhile, on the critical side, I will say that Treasury and the Fed are looking distressingly like the McCain campaign lately, i.e., haplessly trying one thing after another in the hope that something will work.

Posted by Mike Dorf

A Conspiracy of Silence

Earlier in the week, the NY Times ran a story on the sorts of judges and Justices a President McCain or a President Obama would appoint. I was interviewed for the piece, and most of my comments (not quoted) were to the effect that the courts are a low priority item in every Presidential election, and that in this one, even for someone like me, who cares a great deal about them, they'd have to rank behind: 1) Avoiding further economic meltdown; 2) averting further environmental catastrophe; and 3) advancing national security by diminishing the U.S. military presence in Iraq and doing what's necessary to stabilize Afghanistan (which is not necessarily what either candidate is proposing).

I did acknowledge that judicial appointments are valuable in mobilizing each party's base, and I floated a theory to explain why neither Republican nor Democratic Presidential candidates like to talk about the courts when swing voters are listening. The Republican story is easier. The vast majority of Americans, if they have any views about the courts, have views about abortion and that's it. In this respect, Sarah Palin is a perfect mirror. If you're dealing with voters who can only identify Roe v. Wade, mentioning the courts to a general audience is a losing proposition, for a majority of Americans don't think Roe should be overruled (which is not to say they understand exactly what this means).

Meanwhile, for Democrats, the problem is just about everything else. On nearly every major constitutional issue other than abortion, a minority of American voters hold the liberal position. To wit: affirmative action, the death penalty, rights of criminal suspects more broadly, and school prayer. So any sort of in-depth discussion of the courts could go against the Democrat quickly.

For those who care, here's what I was quoted saying in the Times story:

“McCain is a social conservative, and he’s given every indication that his appointees would be conservative, especially since that’s the traditional way to repay the Republican base for helping elect you,” said Michael Dorf, a professor at Cornell Law School and a former clerk for Justice Anthony M. Kennedy. “Obama’s whole message, meanwhile, is about uniting people and listening to the other side. And he is close to a number of core centrist Democratic thinkers about the court, so it’s likely that he would pick people who are fairly centrist.”

Now, obviously, moderation and centrism are in the eye of the beholder, so people I think of as moderates/centrists would certainly be regarded as liberals by the right. The notion of centrism I gave the reporter was confirmability in a Senate with fewer than 60 Democrats. Stephen Breyer was my prime example.

Posted by Mike Dorf

You Imprison Them, You Give Them a Home

Not as catchy as the "Pottery Barn rule" (you break it, you own it), the "Uighur rule" says that if the United States imprisons people at Gitmo without adequate legal justification, then the United States has to find a place for them to live. Yesterday's ruling by Judge Urbina ordered the release of 17 Uighur prisoners held at Gitmo that the government concedes are NOT enemy combatants.

As far as I have been able to piece together the government's position: 1) it would be happy to send the prisoners back to China but the parties agree they would be in grave and unwarranted peril there; 2) it would be happy to send them to a third country but none is available (Albania, a recipient country of some earlier released Uighur prisoners, is now closed, perhaps out of fear of Chinese retaliation); 3) because the prisoners are not legal immigrants, they have no right to stay in the U.S., so Judge Urbina's order is unwarranted; and therefore 4) the government gets to hold the prisoners at Gitmo. Here let's take a slightly closer look at propositions 3 and 4.

I'm willing to grant that had these 17 fellows simply shown up in DC, they'd have no right to stay---assuming that they could not make out a claim for asylum. But of course they didn't just show up in the U.S. Our government imprisoned them without legal justification. Even if the 17 are not eligible for asylum, oughtn't there to be some sort of principle of estoppel that prevents the government from invoking their immigration status under these circumstances? It would be one thing if the government were coming forward with evidence that these detainees now pose a threat to national security, but as far as I can tell, the government's position is simply jurisdictional: a federal district judge can't order admission of an alien who doesn't meet the statutory immigration criteria. I'm highly dubious of this claim: Judges have broad remedial power for constitutional violations. Given the lack of other options, and given the lack of a threat, release of the 17 into a community volunteering to assist them seems quite reasonable.

Moreover, even if the government is right in this jurisdictional argument, it hardly follows that the alternative to release into the U.S. would be detention at Gitmo. The earlier order in this case was for the govt to transfer or release the detainees. "Transfer" is ambiguous, I suppose, and could mean transfer to civil detention, which is no picnic. Putative refugees awaiting asylum or other immigration determinations are often held in conditions that look a lot like (and often actually are) prison. That morally dubious policy has been approved in other contexts, but seems especially shameful here, given what the government has done to these detainees already. It's not as though detention at Gitmo is about to become a backdoor for illegal immigration into the U.S., so there is no floodgates concern here.

Posted by Mike Dorf

Citizens and Taxpayers

Under the provocative title "How Many Americans Should Have Skin in the Income Tax?" the TaxProf blog recently described a study by the Tax Foundation regarding the number of people who pay no federal income tax. While about one-third of income tax filers reported no federal income tax liability in 2006 (up from 20% in 1981), this number is estimated to rise to 43% under John McCain's proposed tax policies and 44% under Barack Obama's. TaxProf concluded: "The Tax Foundation rightly notes: 'It is time for a serious public discussion of whether it is desirable to have so many Americans disconnected from the cost of government and what the consequences are of using the tax system as a vehicle for social policy.'" It is, indeed, a good idea to have a serious discussion about why this question seriously misses the point.

This view of low-income taxpayers is reminiscent of the Wall Street Journal editorial page's infamous "lucky duckies" argument from several years ago. The basic idea is that some people have low enough incomes to fall below the threshold for paying federal income taxes, making them lucky duckies who can thank their good fortune to have no fortune. Like the "skin in the game" trope, the stated worry is that people who get a free ride will not have a reason to be vigilant guardians against overweaning government and thus will not be good citizens.

The most obvious response to this argument is that the people who pay zero federal income tax still pay taxes. Between payroll taxes (starting on the first dollar of earned income), sales and excise taxes, state and local income taxes (which frequently do not exempt nearly as much income as in the federal system) and property taxes (paid by those who own homes despite low incomes), even the lowest income people pay taxes. This is (or should be) old news, but it does not stop people from repeating the argument as if federal income taxes were the whole of the tax system.

Much more fundamentally, however, are we really to take seriously the idea that people -- even (or especially) purely self-interested people -- become disengaged simply because they currently pay no income taxes? Last week, Mike Dorf discussed the Johnson Amendment, which puts tax exempt organizations at risk of losing their tax-free status if they engage in certain types of partisan political activity. Recently, some ministers directly engaged in a protest to dare the IRS to revoke their tax exempt status for making blatant political endorsements from the pulpit. By the "skin in the game" argument, this should not have happened. The churches currently pay no taxes, so they must be "disconnected from the cost of government and what the consequences are of using the tax system as a vehicle for social policy." When it comes to the social policy of subsidizing religious activity through the tax code, however, these non-taxpayers are quite obviously deeply engaged.

The broader point, after all, is that one's tax situation can always change. If we view people simply as tax minimizers (and thus subsidy maximizers, since subsidies are negative taxes), as the "skin in the game" and "lucky duckies" logic would have it, there is still plenty at stake for everyone who potentially has something to gain or lose from a change in tax and spending policy. That is, everyone. Moreover, even people who know that they are going to receive a subsidy will understand that the size of their potential subsidy will depend on whether the rest of the government is wasting money, giving even net recipients of government dollars the same (if not greater) incentive to oppose waste elsewhere as everyone else.

If we do not view everyone as simply out for their own hide, of course, the argument becomes weaker still. Citizenship is about more than one's net tax bill. If the government fails to properly regulate the financial system, then we lose livelihoods, neighborhoods, and potentially the entire economy. If the government allows pollution to poison the water and air, disease and death follow. We all have skin in the game, all the time.

-- Posted by Neil H. Buchanan

[Through October 15, I will be cross-posting on the Concurring Opinions blog.]

Tough Crowd

My latest FindLaw column addresses the controversy over the effort by the Alliance Defense Fund, through its "Pulpit Initiative," to challenge the Johnson Amendment. The ADF has posted a link to my column, along with the somewhat mysterious notation that I am "a self described 'liberal'." On the occasions when I've taken somewhat conservative positions, liberals have sometimes called me out for abandoning the cause, but this is the first time I can recall that a conservative organization has challenged my liberal credentials. Perhaps the ADF likes to think of itself as "liberal" in the sense of defending religious liberty?

In any event, it's hard to know what to make of the ADF reception of my treatment of the issue. I say in the column that their constitutional challenge is not frivolous but should probably lose. I also say that religious separationists are wrong to suggest that the Johnson Amendment is constitutionally required. But the ADF folks clearly think I've missed the boat. They say that I "assume[] tax exemption for churches is a government gift granted through the Internal Revenue Code." Having heard an ADF spokesman on the radio last week, I think what they mean by this is that churches are just inherently non-taxable.

That's a mysterious position. If churches are non-taxable other than by "gift" of Congress, it must be because the Constitution forbids their taxation. I acknowledge as much in my column. I don't assume the Constitution fails to convey immunity. I argue it, point by point.

The only constitutional argument that now occurs to me that I don't consider in the column is that the activities of churches fall outside the scope of any Article I power. But that's an almost obviously frivolous argument insofar as churches engage in income-generating activity. Perhaps equally obviously, some activities of churches are non-taxable on this theory. E.g., a tax on prayer would be invalid as beyond Article I or the Sixteenth Amendment, quite apart from the First Amendment. But that's not at issue here. It's worth noting that Article I includes a number of provisions limiting the taxing power of Congress. (E.g., "No tax or duty shall be laid on articles exported from any state.") Neither it nor the Sixteenth Amendment nor any other provision---except perhaps the First Amendment per the arguments I consider and reject in my column---expressly exempts churches from federal taxation. (Which, as I say in the column, is not to say that taxing churches, or the Johnson Amendment, is necessarily a good idea.)

I await further enlightenment and/or vilification.

Posted by Mike Dorf

Biden's Impressive Evening

Last Thursday evening, I watched the vice presidential debate between Sen. Biden and Gov. Palin. Because of an earlier commitment, I had to leave town the next morning, and I have been in virtual seclusion ever since. I have not seen any commentary or spin from the various camps, nor do I know whether there is an emerging consensus of whether one side or the other exceeded or fell short of whatever artificial expectations they had managed to create in advance of the debate. I have seen enough headlines to know that Gov. Palin is still on the Republican ticket (which in itself is rather remarkable at this point). Other than that, however, I am -- even at this late date -- as untainted by publicity as any jury pool could be.

In my comments last week about the first presidential debate, I noted that my experience as a debater and debate coach/advisor (totaling 18 years) generally has been a disadvantage in watching political debates in the U.S. Such debates tend to involve little actual clash of arguments, and the assessment of winners and losers is determined by who had the best zinger or one-liner. The pleasant surprise coming out of the McCain/Obama debate, therefore, was that it was possible to assess it as a real debate. Seen in that way, it was obvious that Sen. Obama is an extremely able debater and that Sen. McCain is not; but McCain's form of non-argument has the tendency to muddy the waters and make it unnecessarily difficult to see just how badly he is losing on the merits. While McCain's performance would still be a D+ on an academic grading scale (which is not how debates are generally graded, but I'll use the letter grading system here because of its familiarity to most readers), his refusal or inability actually to debate had the effect of lowering Obama's grade to a B+. Still a clear-cut win, but hardly reflective of the apparent underlying differences.

While I had immediately recognized Obama's situation as one where a superior debater was struggling with how to respond to an inferior opponent, Biden/Palin was immediately recognizable as something similar but with a crucial difference: a superior debater who was unaffected by his opponent's inability to make a coherent argument. Biden thus showed how to beat an outmatched opponent without being dragged down in the process. I would, in fact, say that Biden's performance in this debate was one of the best debating performances that I've ever seen outside of a championship debate round. Only a few small demerits (repeating a claim about Exxon's taxes too many times, for example) moved him from an A+ to an A, notwithstanding Palin's solid D. (Failing grades are reserved for people who cannot even speak for their allotted time or who melt down on the spot.)

The general pattern of the debate was set early. Palin would make a broad assertion, Biden would respond on point, and Palin would either repeat what she had originally said or change the subject. (Indeed, on at least one occasion, she changed the subject immediately upon hearing the question from the moderator.) Biden displayed a broad and deep knowledge of public policy, and he was clearly prepared to answer specific assertions that he had anticipated Palin making. Each time she talked about some vote or statement that Biden or Obama had made in the past, Biden had an answer that was directly responsive. I don't know if others watching the debate found this type of exchange compelling, but I was riveted. Biden seemed to be prepared for every argument, and Palin quickly lapsed into home-spun generalities as she ignored her opponent's arguments.

It did not help Palin's case that her prepared comments seemed to have been written without concern for whether they contradicted each other. Thus, she simultaneously managed to decry the lack of "oversight" of the financial markets -- asserting quite energetically that the subprime mortgage mess had been caused by predatory lending -- while repeatedly asserting that it would be bad to have the government try to solve problems. (She even paraphrased, in garbled form, Ronald Reagan's famous government-is-not-the-solution-to-the-problem-government-is-the-problem mantra: "Patriotic is saying, government, you know, you're not always the solution. In fact, too often you're the problem so, government, lessen the tax burden and on our families and get out of the way and let the private sector and our families grow and thrive and prosper.")

One particularly interesting exchange occurred when Gov. Palin made a now-familiar assertion about the number of times that Sen. Obama has "voted to increase taxes or not support a tax reduction." Her claim was that Obama had cast such a vote 94 times. Biden's response was devastating in two ways. First, he pointed out that Palin's method of counting votes would show McCain as having "raised taxes" 477 times. Second, and much more importantly, he refused to fight on her turf, stating quite correctly that "it's a bogus standard." I have also argued in the past that this whole "didn't vote to cut taxes" concept is nonsense; so it was especially nice to see Biden refuse to accept the premise of Palin's too-familiar claim.

Another highly effective argument from Sen. Biden was in response to what was almost surely an unanticipated, bizarre argument from Gov. Palin. Unsurprisingly, one of Biden's broad strategies in the debate involved tying the McCain/Palin ticket to the leader of their party, George W. Bush. Also unsurprisingly, Palin wanted to distance herself from an extremely unpopular president. Yet I cannot imagine that Biden could have expected Palin to say that Biden and Obama were engaging in "just too much finger-pointing backwards to ever make us believe that that's where you're going" (referring to the future). Apparently, Palin's argument was that the past is irrelevant.

Whether I'm right or wrong that this took Biden by surprise, though, his response was again doubly effective. He started by saying that "past is prologue." Just as I was thinking to myself, "Hmm, that's a bit too indirect to score points," Biden then launched into one of his most effective arguments in the debate, listing quickly all of the ways in which McCain's policies (in this case, foreign policy positions) were the same as Bush's. For someone with the reputation of being long-winded, moreover, it was especially surprising to see how quickly Biden was able to deliver such a devastating response.

Palin was, however, unaffected by the failure of her argument. She even tried to return to it with her least effective scripted line: "Say it ain't so, Joe." (It was at that moment that it became clear why Palin had been heard on a live microphone at the beginning of the debate asking Sen. Biden if she could call him Joe.) She followed that non-starter with this: "[T]here you go again pointing backwards again. You preferenced your whole comment with the Bush administration. Now doggone it, let's look ahead . . ." The commentary just writes itself.

Finally, one of the most difficult tasks that Sen. Biden faced was the choice of when to respond as opposed to when to pass up opportunities to respond to Gov. Palin's assertions. At one point, he used the familiar but always effective "I don't know where to start." The most interesting choice that he had to make, though, was whether to respond to Gov. Palin's repeated claims that she and Sen. McCain are "mavericks." This is the kind of non-specific claim that made the Obama/McCain debate so difficult for Obama, and Biden shrewdly let those claims slide. At some point, however, even a meaningless claim has to be refuted; and when Biden did finally respond, he had one of his best moments of the debate. He quickly listed five issues -- the budget, health care, education, the Iraq war, and (the one small-bore issue) assistance to low-income citizens to pay winter heating bills -- on which McCain "has been no maverick." Biden thus took what had clearly been one of Palin's safety nets (using the word six times in her remarks), gave it content, and then used it to score a very important point.

Again, at this point I do not know how the expectations game has played out in the vice presidential debate. I do know that, no matter what one's expectations were, Sarah Palin's performance as a debater was simply terrible while Joe Biden's was extremely effective. I wish I could see the Senator debate again, even if he again had to do so without any real opposition.

[Through October 15, I am cross-posting on the Concurring Opinions blog.]

-- Posted by Neil H. Buchanan

From OJ to Obama

The conviction of O.J. Simpson on charges stemming from his cartoonish effort to steal/reclaim sports memorabilia confirms the saying (usually attributed to Karl Marx) that history repeats itself first as tragedy, then as farce. Simpson’s fans---if there be any remaining---may point to the racial composition of the jury (11 whites, one self-described Hispanic, no African Americans) and the fact that coming into the trial, some of the jurors said they disagreed with Simpson’s acquittal for the murders of his ex-wife and Ronald Goldman. But at least based on what I’ve read, this was a fair trial.

The farce this time was not the trial but the crime itself. Whatever might have been left of Simpson’s credibility after his tasteless effort to write a book about how he would have committed the 1995 murders “if” he had done so, was surely shredded by his participation in this outlandish crime.

The bigger story here, of course, is the fact that there is no story. And that, to my mind, says something about how things have changed since 1995. Although the country and the news media are still susceptible to periodic obsessions with nonsense, we live in a more serious age. Hillary Clinton’s efforts during the primary campaign to instill nostalgia for the 1990s failed in part, I think, because people now recognize that decade as not just a period of peace and prosperity, which it was, but as a time of missed opportunities. While Americans obsessed over OJ and Monica, while they bought bigger and bigger gas guzzlers, al Qaeda gained strength and the planet heated up. Yes, the last 8 years made things immeasurably worse, but they were, in important respects, a continuation of trends of the Clinton years.

Which brings us to Barack Obama, whose promised (and admittedly somewhat empty slogan of) “change” is not simply a change from George W. Bush but from a politics of nonsense to a politics of pragmatic substance. I was initially mystified by the McCain campaign’s latest efforts to demonize Obama as a dangerous radical. Rather than emphasize his real connection to Rev. Jeremiah Wright, Sarah Palin made headlines over the weekend by going after Obama’s tenuous connections to erstwhile Weatherman Bill Ayers. This seems almost certain to fail, not only because it’s mostly bogus, but because most people don’t even recall the Weather Underground, except perhaps via the Bob Dylan lyric from Subterranean Homesick Blues.

The McCain/Palin decision to demonize via Ayers rather than Wright may not last; or it may just be a response to the fear that Americans have heard what they’re going to hear about Wright and made their peace with it; but I suspect that part of what is going on is a pivot away from racial politics. Yes, racial politics will give McCain some racist votes in Appalachia, but he’ll lose more throughout the country by people who see it as the transparent distraction that it is. Thirteen years later, Americans are coming to understand that we can’t afford OJ anymore.

Posted by Mike Dorf

The Man Who Would Be Dictator?

According to the NY Times,:

A coded French diplomatic cable leaked to a French newspaper quotes the British ambassador in Afghanistan as predicting that the NATO-led military campaign against the Taliban will fail. That was not all. The best solution for the country, the ambassador said, would be installing an “acceptable dictator,” according to the newspaper.

The big story here, I would argue, is NOT the fact that Western leaders think that, given the choice, our interests would be better served by an Afghan version of Mubarak than by the return to power of Mullah Omar. If it's going to be autocracy, certainly we're better served by a friendly autocrat than one who opens his country to training camps for terrorists who want to kill us.

The big story---or rather, the lack of story---is the near-complete absence in American public debate of support for the view that we should be disengaging from Afghanistan. In the Presidential contest these days, Obama and McCain agree that it's important to increase the American military presence in Afghanistan. They argue about who should get credit for the point: Obama says that he's been calling for greater attention to Afghanistan for years and that the Iraq war dangerously diverted American military resources from Afghanistan (and western Pakistan); McCain says that the reduction in violence in Iraq, which he attributes entirely to the surge, is what makes it possible to re-deploy troops to Afghanistan, and that doing so would be another surge (a term on which he apparently has the copyright). Top American officers in the field also seem to think that a heavier military footprint is needed in Afghanistan.

I want to register some skepticism. The very reasons why people were skeptical about the ability of the U.S. and/or other Western powers to occupy Iraq apply with equal force to Afghanistan. Here is a Muslim country with ethnic and tribal divisions, and a very long history of resisting foreign occupation. (Don't believe me? Ask Rudyard Kipling, per the title of this post.)

Why the conspiracy of silence on this issue by nearly everyone but the hard left? I suspect there are two reasons. The first is the widely shared view (which I too share) that U.S. military intervention in Afghanistan was justified in the first place, so that once we were there, we had no choice but to occupy. Here too a little skepticism may be warranted. "After ten days of U.S. bombardment, a senior Taliban leader, in secret Pakistani conferences, asked for a puase while moderate members of the Taliban tried to persuade their Supreme leader, Mullah Mohammed Omar, to hand over bin Laden. But President Bush rejected every offer." (That's from p. 13 of After 9/11, which is, admittedly, a comic book, but it's an accurate comic book.) It's quite possible, of course, that the opening was a ruse, and that nothing would have come of it, but we'll never really know because Bush flatly rejected it. The point I'm making is simply that the initial decision to use military force against the Taliban was not itself a commitment to a decade-long or longer occupation of Afghanistan.

The second reason for the silence may be the apparent success of the surge. If it worked in Iraq, the thinking goes, it can work in Afghanistan, with its smaller population. Yet, as Bob Woodward has recently argued, the surge is only one factor, and probably not the most important one, in explaining the reduction in violence in Iraq. A new method of targeted killings gets the prize, according to Woodward. Since that method remains classified, we don't yet know whether it will, in the long run, produce stability or blowback.

Consider a variant on a point Obama made against McCain in their debate: McCain talks as though the Iraq war began in 2007. Yet the problem for everyone who assumes that more American troops in Afghanistan would be good for the U.S. (or the Afghan people) in the long run is obvious: History didn't begin with Iraq in 2007 or 2003. We have a great many more data points about the effect of military occupation of Muslim countries by non-Muslim powers, and they're not encouraging. Indeed, we don't even know whether the surge in Iraq will prove to be a long-term success. It's worth recalling that the Iraq Study Group (remember them?) said they considered but ruled out something like a surge because they thought that while it could contribute to a temporary reduction in violence, it would only postpone the day of reckoning. I hope that view is ultimately proven wrong in Iraq, but even if it is, that won't be proof that it's wrong everywhere.

Posted by Mike Dorf

Progress

Here's a sign of progress: In a Presidential debate in 1996, in fielding a question about gay rights, Bob Dole dodged it by saying that he personally was not prejudiced and that he didn't think discrimination against gay people was appropriate. He also said, however, that he didn't want to give gay people (the broader notion of LGBT had not then, and probably still hasn't, made it into mainstream parlance) "special rights," which was an artful though misleading way of disguising the fact that he opposed extending anti-discrimination law to cover sexual orientation.

In last night's VP debate, Joe Biden essentially said that he favored complete formal equality except for the term marriage. Biden actually referred to married same-sex couples in his initial answer but in responding to the follow-up, he made clear that he and Obama oppose govt-recognized same-sex marriage. Sarah Palin was a bit cagier. She gave a Dole-like answer in referring to her personal views ("tolerant"), and said the government shouldn't outlaw same-sex partners visiting one another in the hospital, which, of course, is not the issue. The question is whether the government should require that same-sex partners be given the same rights as straight spouses in such matters. She also said that she worried that extending too many rights to same-sex couples would lead to marriage rights, thus suggesting that she would stop substantially short of full-fledged equal-in-all-but-name rights for same-sex couples.

This leaves the state of play short of where I'd like to see it: an equal right to marriage and everything else. Still, it's worth marveling at how much progress has been made. The center-left position of those not running for President is to support same-sex marriage. (E.g., Gov. Paterson). The center-left position for Presidential (or Vice Presidential) candidates is now to support full equality via civil unions but to oppose the use of the word marriage. The centrist position for moderates not running for President (see, e.g., Gov. Schwarzenegger) is to support, or at least not oppose, same-sex marriage rights. And the position of a Republican Vice Presidential candidate who was added to the ticket to appeal to the religious conservative base is to support some, though not full, movement towards an anti-discrimination norm.

That is quite substantial progress. At this rate, I would bet that by 2016 or 2020 the latest, the Democratic Presidential candidate will support same-sex marriage, while the Republican will at least support full civil unions. If I'm wrong, I'll blog about it then.

Posted by Mike Dorf

Blame the Messenger After All?

In my latest FindLaw column, I argue that it is not necessarily a sign of human irrationality when we forgo a benefit to ourselves that would have been distributed unfairly. I suggest that such "spiteful" behavior may be occurring right now, in the context of mass opposition to recent (and proposed future) bailouts, and that it mirrors other, highly respectable, instances of our legal system's sacrificing overall wealth enhancement for distributional fairness. Here I want to discuss another apparently irrational behavior that, in fact, may reflect the same phenomenon as spite: the inclination to "kill the messenger."

When a person brings us bad news, our tendency is to be angry with the person who brought us the news (and, if we are angry enough and enjoy monarchical power, kill that person). The irrational aspect of such conduct is clear – a person who tells us bad news did not create the circumstances that generated the bad news; he or she is simply conveying information.

On second thought, however, in an age when most of us do not have official messengers, the person who bears news – whether good or bad – is likely to be pursuing an agenda rather than neutrally conveying facts. This is, after all, what readers mean when they identify a "media bias" in favor of a particular point of view. One example that I notice from time to time is the eager presentation of data to the public whenever a study indicates the possibility that children with a parent "at home" might fare even slightly better than children in daycare. The agenda: keep professional women (the ones who might have the option of becoming full-time mothers) out of the workforce.

These days, what may leap into our consciousness is the fact that the administration officials who originally argued for the urgency of a 700 billion dollar bailout have previously exhibited a desire for unbridled discretion to address "emergencies" (even when their discretion might include the option of violating the law). When people who mock the "reality-based community" and speak of creating their own reality come to us with facts, it is particularly rational and understandable for us to question not only the accuracy of the facts themselves but also the innocence and neutrality of those who claim simply to be reporting those facts. Mightn't the messenger who previously who pressed for less oversight of business be properly blamed when announcing the consequences of de-regulation in the course of asking for a huge amount of money?

Perhaps this is a limited phenomenon, though. Are messengers always to be blamed? Maybe not, but it is no accident that someone communicating news – even people other than Bush officials – will have some action they want their listeners to take in response to the news. When so much human behavior is an effort at manipulation, the rationality of directing anger, skepticism and ultimately blame at people who announce that something terrible has happened may be the most sensible course. Now that the bailout plan has been modified in a variety of ways and accepted by the leadership of both parties in Congress, as well as both Presidential candidates, perhaps the messenger will prove more worthy of belief.

Posted by Sherry Colb

Debate as Debate: When Your Opponent Won't (or Can't) Argue

The first presidential debate seems like it happened a million years ago, with all of the drama about the financial crisis that has transpired since Friday. Still, with the vice presidential debate scheduled for tonight, and two more presidential debates yet to come (pending more dramatic announcements), it seems like a good moment to reflect on the first debate and perhaps its most trenchant lesson for those who watch tonight's debate.

Sadly, Maureen Dowd's op-ed in this past Sunday's New York Times seemed correct when she impatiently described "what debates are about. It’s not a lecture hall; it’s a joust. It’s not how cerebral you are. It’s how visceral you are. You need memorable, sharp, forceful and witty lines." Yet despite an initial consensus among pundits that Obama and McCain had essentially debated to a tie on style (or whatever it is that one uses to judge a joust), at least some polls showed that Obama won the debate in the minds of more voters. (A TIME poll of independent voters, for example, has Obama winning the debate, 41-27, among likely voters.)

I readily admit that I have an old-fashioned view about debates. Like many academics, I was actively involved in high school debate for four years. I then participated in parliamentary debating throughout my college career. During my first year of grad school, I helped a friend start the parliamentary debate team at Harvard. (Harvard had long had an excellent team that competed in so-called on-topic debate but did not have a team that engaged in the extemporaneous parliamentary style of debating.) I ended up being an advisor for that team for nine years, through three national championships (the 1986 championship team: Michael Dorf and Benjamin Alpers), and I advised the Wellesley College team for a year when I was a visiting professor in their economics department.

This experience, far from qualifying me to judge American political debates, usually severely handicaps me. I pitifully tune into each debate somehow convinced that the contestants will actually argue with each other, then I sit in disgusted silence as they trade scripted sound-bites. When real debating does happen, though, and when one candidate actually wins the debate on the merits, the pundits generally ignore the obvious and focus on, say, whether one candidate sighed too much.

As I watched the debate last Friday, though, I had an unexpected sense of a different kind of deja vu. I was not watching the usual U.S. political debate. I was back on the debate circuit, watching a clearly superior debater and a clearly out-matched opponent, with the inferior debater so insistently refusing to argue that he was (almost surely inadvertently) dragging down his opponent with him. Political preferences aside, I felt sympathy for Obama as I watched him try to engage his opponent, only to find himself facing a blur of non sequiturs, naked assertions, and unprovable claims from McCain. I had seen this before. When a good debater faces a bad debater, it is difficult for the good debater even to figure out where to begin to respond. What ends up being a clear win on the merits (and has the potential to be a blow-out) ends up getting uglier than necessary, because there's both so little and so much to argue against.

For example, one of McCain's most frustrating tendencies is simply to announce things. "I know the veterans. I know them well. And I know that they know that I'll take care of them. And I've been proud of their support and their recognition of my service to the veterans. And I love them. And I'll take care of them. And they know that I'll take care of them. And that's going to be my job." What does one say to such a thing? "No, John, you don't love the veterans, and you don't know how to take care of them"? There is an opportunity to point out that McCain has opposed shortening tours in Iraq as well as the proposed new GI bill, but in the moment it's not easy to find that opening when faced with an opponent's blunt assertions that he'll "take care of" veterans. Similarly, McCain is fond of asserting that he has been places and knows how to do things: "And I know how to work with [David Petraeus]." I asked myself, if I were debating McCain, how could one respond to such a bald assertion? "No, you don't" isn't debating. (Insert Monty Python joke here.)

To the extent that there were actual arguments (or "clash," as the debaters say), it was again quite frustrating to watch. McCain faulted Obama for not holding hearings as chair of a Senate subcommittee. Obama responded by saying that the issues at hand are not in his jurisdiction. McCain's response? "By the way, when I'm subcommittee chairman, we take up the issues under my subcommittee." Right. That's just what Obama said. On a judge's "flow sheet" (notes of the debaters' arguments and responses), this is a clear win for Obama; but it at least appears that McCain has responded, and it would surely be unclear to me (if I were in Obama's shoes) wether I should spend precious time pointing out that my opponent had not responded to my point.

This was even more at play in the exchange over McCain's attacks on Obama for saying that he would meet with world leaders "without precondition." McCain would attack, Obama would respond, and McCain would repeat his original claim that it's bad to agree to talk to an enemy without preconditions. On that issue, though, a different kind of odd argument intruded. McCain claimed that meetings with adversaries would legitimize their views. Obama, quite understandably, replied that sitting down to talk with adversaries has often been useful in the past, and he stated simply that he would talk to anyone "if I think it's going to keep America safe," which would surely include considerations of propaganda advantages. Rather than challenging Obama on what would satisfy that premise, however, McCain ended the segment by saying : "So let me get this right. We sit down with Ahmadinejad, and he says, 'We're going to wipe Israel off the face of the Earth,' and we say, 'No, you're not'? Oh, please." Not only is that completely non-responsive, it also displays a complete lack of understanding of how one talks to adversaries (something that McCain "knows how" to do). This part of the debate also devolved into another "no, it isn't" exchange about what Henry Kissinger had said. At least that can be fact-checked.

In other words, this was one of those debates where the losing side wasn't, as they say, "dancing around the issues." This was simply a debater who did not know how to debate. Every time I saw something like this when I was a debater or a judge in a debate, the frustration was palpable. Never, however, did the superior debater lose. It was always uglier than it should have been, but an inability to make real arguments and to respond on point is not a winning combination.

The final point, regarding tonight's vice presidential debate, is obvious. I'll be watching to see who argues versus who asserts, who responds to points and who misses or misconstrues them. I will not be watching to see who can joust better.

-- Posted by Neil H. Buchanan

[Through October 15, I am cross-posting on the Concurring Opinions blog.]

The Johnson Amendment

The "Johnson Amendment," now codified as part of 26 U.S.C. sec 501(c)(3), states that a tax-exempt organization may not "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." This past Sunday, the "Pulpit Initiative" of the Alliance Defense Fund urged ministers around the country to violate the Johnson Amendment by endorsing political candidates from the pulpit. The campaign is formally neutral, but the ADF is a conservative Christian ally, and so the pastors that challenged the Johnson Amendment apparently did so by endorsing McCain or attacking Obama.

Supporters of the Pulpit Initiative argue that the government has no authority to censor religious leaders. Defenders of the law counter that pastors who want to endorse a political candidate can do so on their own time or, if they want to do so on behalf of their church, can do so without receiving a federal subsidy (via the tax exemption and the tax deductibility of donations). I may have more to say about this subject in my FindLaw column for next week, but for now I'll just make the core points, leaving the bulk of the argument and the citations for later.

1) The pastors invoke the long tradition of religious leaders involved in social and political campaigns, including the abolitionist movement, the temperance movement, and the civil rights movement. Yet there is no plausible claim that the Johnson Amendment violates free exercise of religion, because it does not single out religious speech; it applies to all non-profit organizations eligible for tax exemption.

2) There is also no good free speech claim here, because tax-exempt status is a kind of subsidy, and the governing case law provides that government may insist that, in exchange for receipt of federal funds, an organization not engage in political activities.

3) Some people have defended the Pulpit Initiative on the ground that the Johnson Amendment violates the Establishment Clause because enforcing it against churches requires excessive entanglement between church and state: The government must monitor what pastors say from the pulpit. This is not a trivial concern, but given the fairly bright line of the Johnson Amendment, the amount of monitoring seems minor. Mostly, the effect of the monitoring issue is that pastors who don't deliberately challenge the IRS can probably avoid sacrificing the tax-exempt status of their organizations.

4) People speaking on behalf of Americans United have sometimes suggested that the Johnson Amendment is itself required by the Establishment Clause. This too seems wrong. If the government did not forbid partisan political activity by non-profits, the government would not itself be endorsing the political statements of any religious leaders. More to the point, perhaps, the Establishment Clause is not concerned with government endorsement of political leaders; it's concerned with government endorsement of religion. Thus, if there's an Establishment Clause problem here, the problem is that religious organizations qualify as charitable organizations when engaged in religious activities, not when they engage in secular political ones. Yet no one is proposing the elimination of the tax-exempt status of all religious organizations---and such a proposal itself would be problematic as discriminating against religion.

5) Finally, although Supreme Court doctrine about the government's ability to attach strings to funds suffices to dispose of the pastors' free speech claim (see 2 above), we liberals should be at least a little uneasy about relying on this notion that the government piper gets to call the tune. Liberals have been unhappy with the abortion gag rule and with the Solomon Amendment. With respect to the latter, a great many liberal legal academics argued that universities should be able to take government money but not have to convey the government's anti-gay message. (The Supreme Court disagreed. The Court's unanimous decision in Rumsfeld v. FAIR
avoided the funding issue by holding that the Solomon Amendment did not even require universities that took the money to convey the government's message in a way that would be attributed to the universities.)

Posted by Mike Dorf