Notes Around California: March 11, 2013

A few articles worth reading from around the state today.

• 

  California poppy in the East Bay.

  Inequality: Reporting from a tent city in San Jose, an AP article saying that poverty is spiking in the Bay Area in spite of the renewed success of tech companies and those that work for them. So much for a rising tide lifting all boats. This is further evidence of the continuing deterioration of the social contract underlying America’s post-war prosperity: if the wealthy can succeed while the middle-class declines, the non-wealthy have less and less of a reason to buy into the system. There are a variety of causes for this – outsourcing, offshore tax havens, declining union membership, tax cuts for the rich, innovation and automation- so it’s difficult to say exactly what should be done, but it is undeniable that the issue must be addressed. As a country, we’ll succeed together or fail alone. Or we’ll end up with two separate Americas, one for the wealthy and one for everyone else, which is my eyes is failure anyway. Watch this video on the disparity between Americans’ perceptions of inequality in our country, their beliefs on the ideal distribution of wealth, and the actual distribution of wealth. It’s pretty surprising.

• Courts: California Supreme Court Chief Justice Tani Cantil-Sakauye gave her State of the Judiciary speech before the Legislature this afternoon, emphasizing the necessity of restoring court funding cut in the budget crises of recent years. The cuts prevent the courts from providing proper services for low-income and indigent litigants, including appointed counsel, and force the courts to charge higher fees, further reducing access to justice. Of coures, no justice system is perfect. Still, if our commitment to equal protection of the law is to be honored, we must have a minimum level of access for all, regardless of wealth. Among all of our spending priorities in California, this should be near the top.
• Fracking: The California Division of Oil, Gas and Geothermal Resources will hold two hearings on new fracking regulations over the next week and a half, in Sacramento and Bakersfield. Despite the relative novelty of fracking as a national political topic, oil companies have been fracking in California for decades and argue  that California’s regulation are sufficient because they require high quality construction for wells. However, there are a variety of important issues outside of the quality of well construction, including wastewater disposal, disclosure of the chemicals used to allow public oversight, groundwater monitoring to catch leaks when they happen, GHG releases through methane leakage, and proper insurance for cleanup in the case of accidents. Especially with the newly economical Monterey shale formation, California’s regulators need to implement adequate regulations to prevent possible harm to our state’s environment. These hearings are the start of that process. For more, see NRDC’s Damon Nagami on legislative efforts to regulate fracking and suggested minimum regulations.
• Healthcare: Jerry Brown and Democrats in the Legislature disagree on how much California should expand MediCal in light of Obamacare’s required extension. Democratic legislators want to take advantage of the full expansion, which would be fully federally funded until for the first three years and 90% subsequently. Jerry Brown wants instead to enact a more modest proposal which would cover less low-income residents. The Legislative Analyst says that California could be on the hook for $300mil to $1.2bil in 2020 but still supports the legislators’ proposal because the benefits would outweigh the costs. While it’s reasonable that Jerry Brown is trying to practice fiscal restraint, I agree with the LA: when we underfund healthcare, the costs come back to haunt us as those without health insurance use public facilities such emergency rooms and ambulances for treatment that could have been avoided through adequate preventive care.

The U.S. Isn’t California, and Obama’s Not a Jedi (Unfortunately)

Waiting for Jerry to give him lessons.

In a column today at Salon, David Sirota argues that Obama is approaching his “Jerry Brown moment”: just as Jerry Brown accepted a cuts-only austerity budget and used the public backlash against the cuts to marshall support for the tax increases in Prop. 30, Obama can will be able to use public backlash from the sequester cuts to secure passage of his plan to close tax loopholes. Superficially, his argument makes sense – Jerry Brown faced a similar dilemma, i.e. needing Republican support for tax increases to avoid further cuts, prior to the passage of Prop. 30.

However, upon further examination, the analogy doesn’t hold up. The main reason: there’s no initiative process for the United States. Jerry Brown was able to pass tax increases because he had the support of the electorate as expressed on Election Day, not Republican support. To pass taxes at the national level, Obama would need support from Republicans in Congress, but Jerry Brown didn’t have Republican support in the California Legislature. Furthermore, even if a majority of the public supported Obama’s plan, as a majority of Californians supported Brown’s plan, that won’t necessarily translate into Congressional support because of the malapportionment of the House. Plus, even if he did have majority support in the House and Senate for his plan, Republicans could still use the filibuster, since Harry Reid didn’t think they’d continue to abuse it and refused to implement meaningful reform. All of which is to say that the support of a majority of the public isn’t enough to get something passed in Washington. The political system is not responsive enough.

So, what will happen? In my eyes, it depends on two things: whether Senate Democrats are willing to ignore the filibuster and whether John Boehner and the Republican House leadership is willing to allow a balanced bill, with spending cuts and tax increases, to be voted on without the support of a majority of the Republican House caucus. Obama pointed out recently that he’s not a Jedi and thus he can’t just compel Republicans to agree with his plan:

Obama’s plan is supported by the public, as was Jerry Brown’s, but because of the differences between the two political systems it doesn’t matter as much. Eventually, it’s possible that something similar could take place – public sentiment driving a tax increase after austerity measures – but Obama will have to go through the Republican Party to get his increase; Brown didn’t. Does this make Brown a Jedi instead of Obama? Probably not, but perhaps.

Elections Should Be Won on Policy

On Wednesday, the Supreme Court heard arguments in Shelby County v. Holder, a lawsuit brought by an Alabama county challenging the constitutionality of Section 5 of the Voting Rights Act. The Voting Rights Act was originally passed in 1965 to protect minorities against the heinous discriminatory electoral practices that were the norm in the South and elsewhere at the time. To prevent states and counties with a history of discrimination from circumventing the law via last-minute changes, Section 5 requires certain states and counties to obtain pre-approval for any changes in their election laws before implementation. In their lawsuit, Shelby County alleges that the VRA violates the Equal Protection Clause by treating their counties and others like them in covered states differently than other counties and states not covered by the Act.

It’s obvious that the VRA treats states and counties differently but that differential treatment is justifiable, given the history of discrimination in those states. The 15th Amendment prohibits discrimination in voting and entrusts Congress with the power to enforce that prohibition through “appropriate legislation.”

The problem, according to Shelby County, was that Congress didn’t update the formula used to determine which areas are covered by the pre-clearance requirement. Thus, there are now areas covered by the requirement whose past history doesn’t justify it. The conservatives appeared to buy this argument, unsurprising considering their near-invalidation in the 2009 case Northwest Austin Municipal Utility District v. Holder.

Different commentators argued for the VRA’s continuing necessity, as well as the broader point of the VRA’s vital necessity to ensuring the continuing enfranchisement of minorities in our democracy. Recent election cycle showed that there remain a variety of facially nondiscriminatory tactics available to those who wish to disenfranchise minorities–voter ID and gerrymandering most prominent among them but we can’t forget Ohio’s paper weight regulations.

The arguments in this case, however, expose a more fundamental problem with the American electoral system: partisan control. The administration of elections should not be a partisan endeavor, and elections shouldn’t be won by making it easier or harder for people to vote; they should be won by presenting candidates and policies that make people want to vote for you.  Political parties shouldn’t compete on the basis of who can suppress the other side’s supporters more effectively. That isn’t democracy. When a political party can use the power gained in one election to tilt the playing field in a following election, the electoral process doesn’t reflect voter preferences as accurately. Instead, it’s biased towards the party who gained control over electoral mechanisms in the previous election. This has happened across the country after the 2010 Census through gerrymandering and is in part responsible for the Republicans’ current control of the House of Representatives despite losing the aggregate vote for House seats by more than a million votes. Furthermore, it happens in every state, not just the South, e.g. Pennsylvania’s voter ID laws or Ohio’s paper weight requirement.

What we need, then, is a national mandate against partisan control of elections – either a constitutional amendment or an expansion of the VRA. We need to make it easy for people to vote – crazy, right? Will that happen anytime soon? Probably not. But progress is possible: California’s current electoral boundaries were drawn by a nonpartisan citizen commission. While it wasn’t completely free of controversy, the maps drawn produced elections that reflect Californians political beliefs. The Supreme Court take the imprudent course of invalidating the VRA, but what we need is more of what the VRA provides, in a roundabout way: elections on the basis policy instead of voter suppression.

P.S.: As Rachel Maddow said on the Daily Show, Scalia, who effectively described the right to vote as a “racial entitlement,” is a troll.

Dysfunction at its Finest

Having dealt with the debt ceiling and the fiscal cliff, the politicians in Washington are now entangled in negotiations over the sequester, attempting to disarm the spending cut explosive they primed this past summer. The negotiations are tilted strongly towards spending cuts instead of tax increases. This is stupid – cuts in government spending have been a drag on the economy since the expiration of the stimulus and we have no short-term debt crisis – but that’s not the point I’d like to make.

No, the point I’d like to make is: this is a horrible way to run a government. Dysfunctional and frankly embarrassing, to the point that I can’t bring myself to pay any attention to it. Congress and Obama enacted delayed drastic spending cuts in order to force themselves to make better cuts in the future. Why not just enact the better policy in the first place? Who knows, but it reflects the debt madness that flooded into D.C. after the Tea Party wave and continues despite the resounding rebuke that madness was handed at the ballot box in November. Washington operates with a deficient logic.

Unreformed Filibuster Update

Harry Reid decided against reforming the filibuster when he had the chance in January because – well, it wasn’t really clear. But there was at least an implication that Republicans were going to reduce their abuse of the anti-democratic parliamentary process. Now, in an unprecedented the Republicans are filibustering Chuck Hagel’s nomination for Defense Secretary. There has never been a filibuster on a Cabinet nominee before. As Josh Marshall of Talking Points Memo put it: “He got played.“

FBI, Don’t You Have Anything Better to Do?

It appears that the FBI has once again thwarted its own terror plot, in the words of Glenn Greenwald. He’s referring to cases where the FBI “infiltrates” a supposed extremist group, encourages a member or members to plan a terrorist attack against the United States, supplies the “materials”  to execute the attack (i.e., fake explosives), allows the supposed homegrown terrorist go through or almost go through with the attack (which wouldn’t have caused any harm because the materials are fake), and then arrests the perpetrator and makes a to-do about it in the press.

The latest “success” comes today in nearby Oakland, where the FBI arrested suspect Matthew Aaron Llaneza and charged him with attempted use of a weapon of mass destruction. Llaneza pressed a cellphone trigger that was supposed to detonate a fake car bomb built by the FBI outside a Bank of America branch office. In their court filings today, the FBI said Llaneza supported the Taliban and wanted to wage jihad against the United States. His only accomplice was an undercover FBI agent “who had been meeting with him since Nov. 30.”

Now, can I say with certainty that Llaneza would not have attempted to commit a terrorist attack if the FBI wasn’t encouraging him? No. However, it appears to be FBI policy to engage individuals who it thinks for whatever reason (often race, it seems) should be encouraged to plan terrorist attacks. His FBI accomplice had been in touch with him for supplied the supposed weapon. Would he have gone through with it without the accomplice and weapon? It seems much less likely. Greenwald gives a list of other examples:

Last year, the FBI subjected 19-year-old Somali-American Mohamed Osman Mohamud to months of encouragement, support and money and convinced him to detonate a bomb at a crowded Christmas event in Portland, Oregon, only to arrest him at the last moment and then issue a Press Release boasting of its success. In late 2009, the FBI persuaded and enabled Hosam Maher Husein Smadi, a 19-year old Jordanian citizen, to place a fake bomb at a Dallas skyscraper and separately convinced Farooque Ahmed, a 34-year-old naturalized American citizen born in Pakistan, to bomb the Washington Metro. And now, the FBI has yet again saved us all from its own Terrorist plot by arresting 26-year-old American citizen Rezwan Ferdaus after having spent months providing him with the plans and materials to attack the Pentagon, American troops in Iraq, and possibly the Capitol Building using “remote-controlled” model airplanes carrying explosives.

He continues, addressing the FBI’s method in supporting the plots:

None of these cases entail the FBI’s learning of an actual plot and then infiltrating it to stop it.  They all involve the FBI’s purposely seeking out Muslims (typically young and impressionable ones) whom they think harbor animosity toward the U.S. and who therefore can be induced to launch an attack despite having never taken even a single step toward doing so before the FBI targeted them. (emphasis his)

Beyond being a waste of resources, these schemes go against the concept of rule of law: effectively, once the FBI identifies its mark, the individual is treated as if they’ve already committed a crime. The FBI stops trying to prevent crime and in fact foments it. But there was no trial where the mark was found to be inclined to commit terrorist acts, and with good reason: we base criminal punishment on peoples actions, what they actually, not what they think about doing (unless Tom Cruise is involved).

Greenwald goes on to connect the FBI’s tactics as part of a larger pathology within the American security apparatus that reinforces the idea that we are at war, despite the fact that we do most of the invading these days. Whether or not that’s true, these operations are a waste of FBI resources that ensnare initially innocent young men without making us any safer. It’s a firefighter putting out a fire she started: you deserve no points.

A Not-Less Perfect Union

Last we checked, Republicans in swing states were planning to award Electoral College votes based on their gerrymandered Congressional districts and Democrats were failing to reform the filibuster. Unsurprisingly, the Democrats snatched defeat from the jaws of victory by passing a filibuster reform package that was in fact nothing more than cosmetic.  A New York Times editorial rightly called Senate Democrats out for letting their fear of future consequences and individual self-interest. As I’ve said before, Democrats should want a functioning government that responds effectively and efficiently to the needs of its constituents and the accountability cloak that is the filibuster is contributing greatly to the public’s declining faith in the federal government.

In a more surprising development, the Republicans’ Electoral College play is also fizzling after “[k]ey Republican officials” in Florida, Michigan, Virginia and Ohio voiced their opposition to the plan. There was a clear if less obvious downside for those states if they did decide to change their EV allocation procedure: they would no longer be swing states, which would make them less attractive to presidential candidates. I frankly was surprised to see these efforts flop: Republicans have done everything in their power in terms of procedures – the filibuster, Senate holds, voter suppression, reducing voting hours, gerrymandering – in order to amplify their political support. So, in the end, we have both Democrats and Republicans failing to push their procedural advantage – Democrats failing to make the government more democrat; Republicans failing to capitalize on their prior anti-democratic tactics – and we end up just where we were before, a not-less perfect union.