LFTC - Letter From The Capitol

LFTC - Index 9/11/09

4 posts: (1) 9/11 + 8: War Agonistes--Us v. Them; (2) Asian Angst: Divining Japan's New Course--Wobble Watch; (3) Gaddafi's Petro-Politics--Us v. Them; (4) An American "Tiger" Flies On--The Home Front.

LFTC - 9/11 + 8: War Agonistes

Eight years after the atrocities of September 11, 2001 launched militant Islam's third crusade against the West (the second having ended September 11, 1683 at the gates of Vienna), Americans (and their allies) are growing increasingly restive.  The combination of the lack of a major terror attack since 9/11 on America's homeland, plus extended multi-tour troop commitments in remote places with uncertain ultimate prospects for victory--and even uncertainty as to what victory means in practical terms--raises again the familiar theme of whether Western publics can sustain a long-term war effort.  Partly this is due to news media shortcomings: Robert Kaplan, vastly traveled and a wise voice, writes that al-Jazeera's reporting is not much different than the coverage offered by CNN or the BBC.

Afghanistan is the prime concern today, though Iraq is far from tranquil.  Frederick Kagan explains why the status of Pakistan is inseparable from that of the tribal areas in Afghanistan:

Critics of the war have suggested we should draw down our troops and force Pakistan to play a larger role in eliminating radical extremists. American concerns about al Qaeda and Taliban operating from Pakistani bases have led to the conventional wisdom that Pakistan matters to the U.S. because of what it could do to help—or hurt—in Afghanistan. The conventional wisdom is wrong as usual.

Pakistan is important because it is a country of 180 million Muslims with nuclear weapons and multiple terrorist groups engaged in a mini-arms race and periodic military encounters with India—the world's most populous state and one of America's most important economic and strategic partners. Pakistan has made remarkable progress over the last year in its efforts against Islamist insurgent groups that threatened to destroy it. But the fight against those groups takes place on both sides of the border. The debate over whether to commit the resources necessary to succeed in Afghanistan must recognize the extreme danger that a withdrawal or failure in Afghanistan would pose to the stability of Pakistan.

Read his excellent piece in full.

Not all is bleak, thankfully.  Ralph Peters, soldier-author extraordinaire and a deep skeptic of our continuing efforts inside Afghanistan (he thinks the tribal and religious atavisms too strong too overcome), reports on what he calls a "wildly successful" new Army training program:

Consider a project that's proven wildly successful: At Ft. Leavenworth's National Simulation Center, a team of soldiers and civilians got a $10 million budget to explore the use of computer-game technology to train soldiers.

Ten million's less than a major contractor would bill the Army for hotel rooms. But our "geeks with muscles" developed sophisticated applications that teach soldiers and officers crucial decision-making, planning and even cultural skills. The interactive training scenarios range from complex ambushes to sitting down with a wary tribal chieftain without triggering a range war.

Under Marco Conners, the deputy dog at the Futures and Integration Directorate, the Army's team not only designed those state-of-the-art training programs, but fielded both the software and supporting hardware to every major military installation -- for half of their budget.

The remaining funds then went for a license that enables our military to use cutting-edge technologies from the civilian gaming world -- potentially saving the taxpayer tens of millions in future rights negotiations and development costs.

Of course, video training isn't going to replace pushups or marksmanship. It's not supposed to. This expands training possibilities -- thrusting soldiers and officers alike into complex situations based on authentic battlefield scenarios.

And the training works. As a dinosaur among dinosaurs, I'm always skeptical around techno-zealots. But the training has been so successful that commanders throughout the Army are begging for more, and the computers in the field are reserved for months in advance. (More are on the way.)

Older commanders seem bemused. One recurring comment is, "I don't know why it works so well, but it just does." Young soldiers love it.

Read the rest of RP's column for more solid, uplifting detail and leadership training.

WSJ pundit Bret Stephens assesses Afghanistan succinctly, and warns of four bad consequences--he calls them "notions" that would take root in the jihadist mind-- if we decamp the country without victory:

Notion One: Attacks on the scale of 9/11 are by no means fatal to the cause of radical Islam. On the contrary, despite the huge losses the movement has suffered over the past eight years, it would emerge from a U.S. defeat in Afghanistan with something it was denied in Iraq: a monumental political and ideological victory from which it could recruit a new field of avid jihadists. Ergo, further attacks on the U.S. homeland could yield similar long-term benefits.

Notion Two: The U.S. has no stomach for long-term counterinsurgency. Ergo, surrender or political accommodation to apparent U.S. military success is pointless; if you hold out long enough, they leave and you win.

Notion Three: The U.S. is not prepared to stand by its clients in the Third World if it believes those clients are morally tainted. That happened to South Vietnam's Nguyen Van Thieu, it happened to the Shah of Iran and, if the U.S. leaves Afghanistan, it will happen to the lamentable Hamid Karzai. Ergo, other shaky or dubious U.S. allies in the Muslim world—Algeria, for instance, or, yes, Saudi Arabia—are prime targets for renewed assault.

Notion Four: A U.S. that doesn't have the stomach for a relatively easy fight like Afghanistan, where even now casualties are a fraction of what they were in Iraq during the worst of the fighting, will have even less stomach for much tougher fights. Ergo, maximum efforts should go into destabilizing and, not implausibly, taking over Pakistan, a country that, as Mr. Will says, "actually matters."

Iran.  A New York Times front=pager today reports that US intelligence has concluded Iran now can quickly make an atomic bomb:

American intelligence agencies have concluded in recent months that Iran has created enough nuclear fuel to make a rapid, if risky, sprint for a nuclear weapon. But new intelligence reports delivered to the White House say that the country has deliberately stopped short of the critical last steps to make a bomb.

In the first public acknowledgment of the intelligence findings, the American ambassador to the International Atomic Energy Agency declared on Wednesday that Iran now had what he called a “possible breakout capacity” if it decided to enrich its stockpile of uranium, converting it to bomb-grade material.

The New York Times reported earlier this week that Muhammad el-Baradei, the International Atomic Energy Agency (IAEA) inspector told his UN superiors that a "stalemate" exists with Iran: the regime will neither stop its uranium enrichment program nor negotiate about doing so.  New York City DA Robert Morgenthau, a paragon of the old school, reveals the emerging Iran-Venezuelan axis:Iranian military technology for Venezuelan refined oil.  Here is his Sept. 8 Brookings Address text.  UN maven Claudia Rosett adds perspective on Chavez's UN visit & implications of the Iran-Venezuelan relationship for US diplomacy (ominous).

North Korea.  The WSJ editors discuss Kim's uranium enrichment move.  The hawks were right.

Air Power.  If all the above is not enough, AEI scholar Tom Donnelly argues (rightly) that we are giving away our unchallenged aerial pre-eminence, which augurs ill for our future national security position.

Bottom Line.  The West must resolve morally ambiguous issues with sufficient clarity to enable pursuit of its war aims.  Given the difficulty of promoting liberal democracy in remote areas culturally inhospitable to the liberal variety, we may have to settle for pacification that curtails use of remote areas as command bases from which terrorists can launch global operations.

LFTC - Asian Angst: Divining Japan's New Course

Aussie pundit Greg Sheridan astutely assesses the geostrategic issues facing Japan after its election change of power, and suggests how Japan will draw increasingly on America & Australia to buttress its strategic position in Asia, and to face possible crises with China & North Korea.  GS quotes an ex-Bush 43 Asian security staffer's view of a coming showdown with North Korea:

Mike Green, the former Asia head of the US National Security Council under Bush, predicts a crisis in North Korea within a couple of years. South Korean intelligence believes that North Korea's dictator, Kim Jong-il, survived a stroke but now has pancreatic cancer, which would certainly accord with his haggard look in recent public appearances.

The best estimate is that he will die within two years. He has planned a succession for his third son, Kim Jong-un. But in a newly published analysis, Green argues that the favoured son, still in his 20s, is in a much weaker position to assume power than was his father, who inherited the mantle of leadership after a lifetime's grooming.

Green forecasts a three-stage crisis of intense danger. First, North Korea, armed with nuclear weapons, brandishes its arsenal not to gain aid but to alter the security structure of northeast Asia. Second, the regime begins to collapse. And finally there is the prospect of settling terms for a unified Korea.

Green reveals a meeting in 2004 at which the North Koreans told the US they would demonstrate their nuclear deterrent, expand that deterrent and transfer it. Given North Korea's recent nuclear tests, the nuclear reactor it helped to build for Syria (which the Israelis bombed) and the troubling reports of at least incipient nuclear trade between North Korea and Burma, Pyongyang has fulfilled all three promises.

Fears of North Korea have driven much Japanese security policy, and will continue to do so.

LFTC - Gaddafi's Petro-Blackmail Politics

Christopher Caldwell writes in the Financial Times how Libyan thug-dictator Muammar Gaddafi has successfully used an unholy trinity of terror, petroleum and hostage-taking to blackmail the West, and predicts that Libya will win integration into the international order on its terms, not the West's.  Noting how Gaddafi cut off oil shipments for two days to Switzerland to protest its trying to reign in his wayward thug-son Hannibal for committing assaults inside the country, CC concludes:

Much of the discussion of Britain’s release of Mr Megrahi has focused on non-issues, such as the erosion of the US-UK special relationship. While the US public is indeed furious over the release of Mr Megrahi, the Obama administration’s criticisms are probably pro forma. From his apologetic speech in Cairo to the Ramadan dinner he held at the White House last week, Mr Obama has placed good-faith gestures at the heart of his Middle East policy. It is almost as if he believes that the west’s tensions with the Muslim world involve an accounting of manners. We have run up a big deficit of slights, which must now be paid down with courtesies. Letting Mr Megrahi go is consistent with that. Susan Rice, America’s UN ambassador, described the US as “offended by the reception accorded to Mr Megrahi in Libya upon his return from the UK”. That is not a criticism of the Brown government.

Yet the west has a big problem with Col Gaddafi. There is a standard Gaddafi method that was visible in both the Swiss and Scottish cases. Right and wrong are put to one side, and only bargaining chips remain. After Libya’s prosecution of Bulgarian nurses in 2004 on the absurd charge of infecting local babies with the Aids virus, Col Gaddafi negotiated their return with French and other diplomats. His son, Saif al-Islam, claimed that an arms agreement was negotiated as part of the deal. The very same Saif said recently that Mr Megrahi’s release was always “on the table” whenever Libya discussed oil contracts with Britain. Revealing such details would seem to risk killing the goose that laid the golden egg. But Col Gaddafi is after something bigger than wringing money and technology out of the west. He means to sully its good name and expose its corruption, which is part of what he and his fellow officers professed to be revolting about in 1969.

In this he has succeeded. He has revealed that there are exceptions to the “norms” of international law. What is the legal principle under which Chilean generalísimos and Balkan strongmen get hauled before European courts but Col Gaddafi can travel to Italy for the G8 and to New York for the opening of the UN? He has revealed that there is impunity under Swiss law for certain playboys, that Scots nationalism is either a sign of British weakness or an avenue of diplomatic corruption, that the UK government, confronted with questions about terrorism, can go two weeks without giving a straight answer – in short, that reintegrating Libya into the international community is likely to be done on Libya’s terms.

Daily Telegraph columnist Janet Daley praises Conservative Party opposition leader David Cameron's public display of anger over the Lockerbie Affair.

LFTC - An American "Tiger" Flies On

This Los Angeles Times obituary memorializes an American hero, who recently passed on: General Charles R. Bond, Jr.  Unlike fictional hero James, Bond was an ace with the fabled Flying Tigers who flew inferior aircraft against the Japanese in Asia.  In 1996 Bond was awarded the Distinguished Flying Cross.  Read the article and learn more about this grand hero.  So long as America can produce citizen-warriors like General Bond, we will not need to dream about being saved by 007.

LFTC - Index 9/10/09

3 posts: (1) The President's Health Care Address: Pass!--The Home Front; (2) Palin Pans ObamaCare, Team Obama Pans Palin--The Home Front; (3) Sonia's First Case: First Amendment Biggie--The Home Front.

LFTC - Obama's Health Care Address: Pass!

I missed the President's speech--all 50 minutes of it.  Here is his Sept. 9 text (8 pages). Here is the GOP response given last night.  Here are reactions from the WSJ editors, Bill Kristol, Karl Rove, Fred Barnes and Jed Babbin.  Michael Barone includes health care on 44's "convenient fantasies" list.  A WSJ op-ed warns that unions are moving in on hospitals as part of ObamaCare.

44's address can await my later consideration.  Good night, sweet princes & princesses who read LFTC, good night.  May flights of (health care) angels sing thee to thy rest!  (My apologies to the Bard.)

LFTC - Palin Pans ObamaCare, Team Obama Pans Palin

Yesterday the WSJ published Sarah Palin's take on ObamaCare.  She notes what 44 said in April and raises the "death panel" issue:

Now look at one way Mr. Obama wants to eliminate inefficiency and waste: He's asked Congress to create an Independent Medicare Advisory Council—an unelected, largely unaccountable group of experts charged with containing Medicare costs. In an interview with the New York Times in April, the president suggested that such a group, working outside of "normal political channels," should guide decisions regarding that "huge driver of cost . . . the chronically ill and those toward the end of their lives . . . ."

Given such statements, is it any wonder that many of the sick and elderly are concerned that the Democrats' proposals will ultimately lead to rationing of their health care by—dare I say it—death panels? Establishment voices dismissed that phrase, but it rang true for many Americans. Working through "normal political channels," they made themselves heard, and as a result Congress will likely reject a wrong-headed proposal to authorize end-of-life counseling in this cost-cutting context. But the fact remains that the Democrats' proposals would still empower unelected bureaucrats to make decisions affecting life or death health-care matters. Such government overreaching is what we've come to expect from this administration.

Palin also discusses deficit projections,l government incompetence, burden on small business and endorses market-oriented HC ideas.

The White House released talking points including a vigorous attack on Sarah Palin's Tuesday op-ed.  The result can only be to build up Palin more as a national figure and a player in the HC debate.

LFTC - Sonia's First Case: First Amendment Biggie

Why Sonia's First Case is Major.  Associate Justice Sonia Sotomayor joined her 8 new judicial colleagues to hear a second round of oral argument in Citizens United v. Federal Election Commission (the link is to a webpage tracking all developments in the case--here is the actual Citizens United v. FEC lower court decision), a monster First Amendment case involving a possible overturning of campaign laws restricting political speech.  What makes this case so unusual is that the Supremes heard argument last March on a narrow framing of the case, then asked after the argument for a second round to consider broader challenges to the laws governing political speech during campaigns.  This is rare enough, but to have a special argument set nearly one month before the Court season officially beings (Oct. 5) is truly extraordinary.  Sotomayor, having been a lawyer for the New York City Campaign Finance Board, will likely side with the government.

The Case's Fast Track to the Supremes.  The appeal came to the Supreme Court by an unusual procedural route: a statutory provision (Title 28 U.S. Code sec. 1253) permitting direct appeal to the Supreme Court of decisions made by Congressionally-authorized three-judge panels in the U.S. District Court (28 U.S.C. 2284 covers other direct-appeal routes to the Supreme Court).  These courts normally try cases under a single judge, often but not always with a jury impaneled to decide facts, with appeal going to the intermediate level of the federal court system, the U.S. Courts of Appeal, organized into 12 Circuits.  In special cases created by Congress, as is the case here, a three-judge panel hears legal arguments without a jury, and appeal bypasses the Circuit Court level.  Section 403(3) of the Bipartisan Campaign Reform Act of 2002 ("McCain-Feingold", in popular parlance) provided for this special expedited judicial review.

The Legal Issue in a Nutshell: Is corporate speech by a non-profit corporation that accepts minuscule funding from for-profit corporations within 60 days of a general election or 30 days of a primary election, that may expressly advocate support or defeat of an identifiable candidate, constitutionally protected under the First Amendment, or can it be restricted under federal campaign finance laws?  A neat op-ed by former Solicitor-General Ted Olson, who argued the First Amendment side of the case yesterday, frames the issue squarely.  Basically, corporate entities are barred from using general corporate treasury funds to influence campaigns within the statutory periods, but can contribute limited amounts under the stringent political action committee (PAC) rules, using "separate segregated (not racially, financially) funds" only.  Non-profit organizations can use general treasury funds, provided they do not get money from for-profit corporations.  Citizens United is a non-profit corporation that made Hillary, the Movie!, a 90-minute documentary that the courts barred it from airing during the 2008 campaign, as advocating expressly the defeat of a candidate.  The rule applies to broadcasts only--print media excluded--that can potentially, plausibly reach at least 50,000 people; media companies are exempted.  Thus GE, which has NBC, is free; but GM is not.  The film was legally shown in movie theaters, and distributed on DVD & videocassette.

Who Filed Briefs?  Here is a page with all briefs filed in Citizens United for this latest round.  Indicative of the stakes is that the parties themselves filed 7 briefs, and that 53 parties filed separate amicus curiae ("friend of the court") briefs in the case; of the 53 amicus briefs, 33 support Citizens United, 16 support the FEC & 4 support neither party.  Here is the 69-page (text 56 p., notes 13 p.) March 24 Oral Argument transcript in the first round of the case.  Here are the 7 party filings--filings 1-3 for the March 2009 round, and filings 4-7 for the September 2009 round; (1) Brief for Appellant Citizens United; (2) Brief for Appellee Federal Election Commission; (3) Reply Brief for Appellant Citizens United; (4) Supplemental Brief for Appellant Citizens United; (5) Supplemental Brief for Appellee FEC; (6) Supplemental Reply Brief for Appellant Citizens United; (7) Supplemental Reply Brief for Appellee FEC.

Notable amicus Briefs (filing party names only).  In support of Citizens United: (1) 7 Former Chairmen & 1 Former Commissioner of the FEC; (2) Senate Minority Leader Mitch McConnell, filed by First Amendment superstar Floyd Abrams; (3) Center for Constitutional Jurisprudence (co-counsel ex-A-G Edwin Meese); (4) American Civil Liberties Union; (5) National Rifle Assn. (counsel Charles Cooper, a top GOP constitutional lawyer; (6) American Civil Rights Union (brief by health care maven Peter Ferrara); (7) American Civil Rights Union, supplemental brief; (8) Campaign Finance Scholars.

In support of FEC: (1) Senators John McCain & Russell Feingold (co-sponsors of the 2002 law being challenged, lead counsel ex-Clinton Solicitor-General Seth Waxman); (2) Senators John McCain & Russell Feingold (supplemental brief); (3) Common Cause et al. (CC is a high-profile Beltway self-styled citizens lobby); (4) Norman Ornstein & Thomas Mann, et al. (two top think tank political scholars--NO at American Enterprise Institute & TM at Brookings Institution); (5) League of Women Voters et al. (the LWV sponsored all Presidential debates, 1976-1996).

In support of neither party: (1 ) 2 Former Officials of the American Civil Liberties Union.

The League of Women Voters' brief presents an interesting history of the populism that led to the passage of the first campaign finance laws; here is an online campaign finance law timeline for reference.  The Ornstein-Mann brief recounts a solid history of how political ads are used in campaigns via "soft money" to circumvent statutory financing limits.  The Common Cause brief notes that candidate Barack Obama raised $745M in the 2008 election cycle, and that in 2008 he average cost of winning a House seat was $711,000 and for the Senate, $2.4M; CC compares this to the $23.5 TR valuation for corporations as of 2005.

The Campaign finance Scholars brief is fascinating, informing the Supremes that court campaign finance rulings have relied on faux history, tilted towards the populist side.  Their brief includes this juicy quotation on the risk of relying on legal advocates for history: "The lawyer's use of history may be fiction from the standpoint of a scholarly historian, but if it produces victory it has served its purpose."  The National Rifle Association's brief focuses on the absurdity of treating non-profits alike with for-profit enterprises, and also dryly notes that suppressing speech critical of incumbents was a prime motivator (true) of campaign finance legislation.  The ACLU stated that identifying what constitutes express advocacy is often subjective, and thus the restriction in issue is unconstitutionally vague, because the speaker does not know the line the law draws separating lawful from unlawful speech; thus the law will likely foster discriminatory application.

The ACLU also noted that banning the satellite or cable broadcast of the film, while permitting it to be shown in a movie theater & sold on DVD & videocassette, is illogical & arbitrary.  The brief filed by seven former Federal Election Commission commissioners cited (p.13) the danger posed to political speech by complex, vague rules:

This case presents the Court with a glimpse into
the burden and unworkability of current campaign
finance law. The field has become so complex that citi-
zens cannot understand it and experts find it difficult.
The pristine simplicity of the First Amendment’s pro-
scription of any law abridging speech yielded first to
urgent circumstances, but now is replaced by a flood of
complex restrictions. The complexity requires citizens
to hire specialists to speak. Specialists cost money. Er-
rors risk penalties. Core political activity is chilled.

Indicative of how risible the government's position is, consider this, as explained in the brief filed by Senate Minority Leader Mitch McConnell: Michael Moore's 2004 film, Fahrenheit 911, a savagely anti-Bush film, escaped falling under federal election laws, because it was a "commercial" film.  Former ACLU senior officials said in their brief that the Court should rule narrowly: uphold the general legal principles but rule that the minuscule for-profit corporate contributions to non-profit corporation Citizens United does not trigger campaign finance regulations.

Yesterday’s Oral Argument.  It is famously hazardous to predict what the Supremes will do, but here goes: Based on what follows, I believe it likely that the Supremes will narrow the scope of the statute governing “independent expenditures” by non-profit corporations, by allowing them to accept minimal contributions from for-profit firms, without losing their non-profit status.  (Campaign laws recognize a major distinction between “contributions”—sums paid directly to a candidate’s campaign, and independent expenditures—sums spent without coordination with any candidates or their campaigns.)

The Court may also decide that the so-called Wellstone Amendment of the McCain-Feingold Bipartisan Campaign Reform Act of 2002 (named after the late Minnesota Democratic senator), which bars “express advocacy” via independent expenditures, should be declared unconstitutional.  In effect, doing so would reinstate the so-called Snowe-Jeffords Amendment (named after Maine GOP Senator Olympia Snowe & a former Vermont GOP, then Independent Senator Robert Jeffords—whose May 2000 switch threw the Senate from GOP into Democratic hands).  Snowe-Jeffords allowed independent expenditures by non-profits, using funds from individuals and segregated into a separate fund, without forcing the non-profit to go through burdensome PAC rules.  (The oral argument featured next to nothing about what constitutes “express advocacy”—a major problem with existing laws, because the definition is often subjective, and thus speakers do not know when they might cross the line between protected and unlawful advocacy.)

Here is the transcript (prints 99 pages, but only 82 is text) & audio (90 min.) of yesterday's oral argument, courtesy of NPR.  Several points stood out at yesterday’s argument, in which two top lawyers argued for each side.  Solicitor-General Elena Kagan argued for the government; also on the government’s side was Seth Waxman, ex-Clinton S-G, representing Senator John McCain & other senators.  Former Bush S-G Ted Olson argued for Citizens United, joined by First Amendment superstar Floyd Abrams, representing Senator Mitch McConnell (whose challenge to the McCain-Feingold law at issue yesterday was rejected in 2003 by the Supremes).

Several points of interest stood out.  Justices Ginsburg & Stevens raised the issue of foreign money—including sovereign wealth funds with huge troves of government money.  Olson declined to say they would be outside First Amendment protection, and in the event it is not at issue in this case.  But the liberal Justices have a point for future reference: foreign government money could be used in large gobs to influence US elections, in pursuit of their own strategic interests.

Asked by Justice Breyer about the risk of corruption from corporate funds, at the expense of political parties, Olson answered that 27 states, including California, permit state corporation funds to be used, with no sign of added corruption as a result.

lFoyd Abrams argued that where First Amendment rights are at stake, the Court has in the past preferred broader rulings to protect free speech, over narrow rulings leaving future protected speech in peril.  Justice Sotomayor, asking a question for the first time, asked Abrams if removing restrictions on corporate independent expenditures might not be “cutting off the democratic process.”  Abrams replied that protecting First Amendment rights aided the democratic process.

Justice Kennedy asked if using an “as applied” standard—which calls for case by case adjudication—would not chill speakers who feared how a vague law might be applied in a given case.  Kagan demurred, but not convincingly.  Kennedy continued sparring with Kagan, stating that corporations have subject matter knowledge that would make them able to add to the quality of public debate.  Kagan stressed fear of corrupting influence.

Chief Justice Roberts pressed Kagan hard here, noting that of three potential rationales for curtailing corporate speech during campaign blackout periods—potential to corrupt, protecting shareholders and quid pro quo—none have been used by the Court to date as to independent expenditures; only in case of regulating corporate contributions to candidates has the corruption rationale been adopted by the Court.

Ginsburg noted that unions couldn’t compel dues-paying members to support political beliefs against their will (in real life, unions ignore this in Democratic administrations, who simply decline to enforce the rules).  Ginsburg asserted that shareholders lack have similar protection, to which Kagan agreed.  But both ignored that shareholders can protect themselves by selling shares, which members of a union closed shop (barring non-union workers at a given plant) cannot do.

Scalia noted that books could be banned under the Wellstone Amendment, if they offer “express advocacy” for or against a particular candidate.  Yet free DVDs or a theater showing are not banned!  Kagan acknowledged this.  Justice Scalia suggested that the statute is thus “overbroad”—legalese for a law that encompasses too much within its ambit.

Seth Waxman stressed the history of campaign finance reform, harking back all the way to 1894.  (Abrams had noted that the history of 20^th century campaign reform was misleading, and that in practice many laws were not vigorously enforced, for fear of curbing speech.)  Waxman also noted that while most corporations ar small, there are huge ones as well.  True, but no one picked up on this: Unlike billionaire renegades like George Soros, who can slip vast sums into campaigns with zero accountability, no corporation can devote significant sums to finance campaigns, without attracting such notice, from both press & shareholders.

Scalia noted that in a case involving the Michigan Chamber of Commerce, 96 percent of member companies were small businesses with fewer than 100 employees.  These are, Scalia said, hardly the types to corrupt campaigns with huge sums.  (Olson earlier noted that 97 percent of the 6 million corporations filing to pay US taxes had assets under $5 million.)

Olson returned to the podium for a short rebuttal.  He noted that the government shifted its position from relying on corruption to the other two prongs Justice Roberts cited: protect shareholders and prevent quid pro quo—rationales applied to direct contributions in earlier cases, but not to independent expenditures.  Olson also noted that S-G Kagan embraced the equalizing goal of balancing political speech, anathema under several major Supreme Court rulings.

Bottom Line: How Will the Justices Vote?  It is fair to say that Chief Justice Roberts, and Justice Scalia, Thomas and Alito, the four most conservative jurists, will vote to narrow McCain-Feingold.  The question is what must they give up to get another vote or two.  Kennedy will likely join them, but may wish the narrowest ruling.  That might even attract Stevens, though a long-shot, depending upon the language.  To get to 6 votes, the ruling will have to be narrower than to get to 5, and the 4 conservatives may have to balance the political benefit of 6 votes versus a broader ruling decided by 5-4 the minimum margin.  Consider Justices Ginsburg, Breyer and Sotomayor as sure votes to sustain the government’s position.  I expect lots of back-room horse-trading on the scope of the ruling and the language used to express it.  Because certain arguments made by each side were first made in the later stages of the case, and not argued early on, some Justices may wish to defer a decision on those issues, pending further briefing in a new, more focused case.  This is a common preference among jurists, and those pushing the line on issues may well select a more prudential political course, in accord with intra-Court politics.

I think the government could only win full endorsement of its position if it hit a bases-loaded grand slam with its case.  I seriously doubt it did.  The Court clearly leans towards some liberalization of the rules governing non-profits.  How much of a change in the law awaits the ruling.  A very experienced Court hand told me to expect a ruling no earlier than November.

LFTC - Index 9/9/09

3 posts: (1) The First "East Jerusalem" Settlement, and Abusing an Ally Today--Wobble Watch; (2) A Doctor's Plan to Reform the Legal System; Another's 10 HC Gripes--The Home Front; (3) Health Care Ideas, Good (Mostly GOP) & Bad (Mostly Dem)--The Home Front.

LFTC - The First "East Jerusalem" Settlement, and Abusing an Ally Today

Israeli archaeologists have uncovered a 3,700 year old wall, the oldest yet found, in Jerusalem's Old City.  Which brings to mind two thoughts.  First, does anyone think the Arabs can be trusted to preserve, let alone look for, these antiquities, when there airbrushed official history denies the First & Second Temples?  The Jordanians torched Jewish synagogues after taking the eastern section of Jerusalem in 1948, and after taking control of the West Bank Yasser Arafat's minions were caught destroying evidence of Jewish antiquity on Temple Mount.  That is how the Palestinians repaid former World's Best Mayor Teddy Kollek for turning over to control of the Muslim Waqf (religious authority) administration of what to Muslims is called Haram al-Sharif ("Noble Sanctuary"). Indeed there is a pre-1948 record of Arab desecration & destruction of Jewish holy places.  Here is more detail on how bloody-minded supposed Palestinian moderates in Fatah are--never mind Hamas.

Second, had the Obama administration's ban on settlements in so-called East Jerusalem (an appellation created after the 1948 Jordanian conquest to ratify the seizure)been in place, would this ancient treasure even have been built?

On to modern times: The Jerusalem Post reports that Israel has approved construction of 455 new settler homes within existing Judea & Samaria settlements.  a new poll run by the firm of ex-Clinton pollster Stanley Greenberg shows a majority of Palestinians in both the West Bank & Gaza holding a negative view of Hamas.  While most (no surprise) blame Israel, as usual, for their troubles, there were other surprising results noted in the Jerusalem Post article:

Nonetheless, Gazans and Jordanians both showed a surprisingly high level of support for direct negotiations with Israel. More than half of those two groups - 52% of those polled - said they believed Palestinians should negotiate directly with Israel, accept its right to exist and honor past agreements. Thirty-nine percent of Egyptians said the same, compared to 36% of Palestinians in the West Bank.

Also surprising, Greenberg said, was that while 35% of the other groups polled stressed the importance of releasing captive IDF soldier Gilad Schalit, an overwhelming two-thirds of Gazans said the same.

The poll also revealed that nearly a decade after the breakdown of the Camp DavidAccords between Yasser Arafat, then-US president Bill Clinton and then-prime minister Ehud Barak, a majority of those polled in Egypt, Jordan and the West Bank expressed regret that Arafat failed to accept the peace deal proposed there.

Fifty-six percent of West Bank Palestinians said that in retrospect, they wished Arafat had accepted the agreement, while 50% of Jordanians and 39% of Egyptians said the same. In Gaza, 57% of those polled said they did not regret Arafat's rejection of the deal.

Greenberg said that these West Bank results show a change of heart since the breakdown of the Camp David talks.

Ex-Reagan & Bush 43 senior foreign policy official Elliott Abrams demolishes Jimmy Carter's latest sally against Israel over settlements & Palestinians, in a crisp op-ed (Abrams links to Carter's op-ed, if you can stand it).  Abrams offers economic growth figures that buttress what Greenberg says (as well as what George Gilder said in The Israel Test, a book I recently reviewed in The American Spectator).

While this would seem to hold out hopes for talks, Mideast ace Barry Rubin warns Americans not to place too much faith in Mideast regional dialogue.  Re BR's full column for relevant history, but he says of Team Obama's tilt towards Syria,--despite Syria's role in bombings inside Iraq--that it is reminiscent of US appeasement of Saddam prior to Saddam's invading Kuwait:

And now the Obama administration has done precisely the same thing. Of course, Syria won't invade Iraq, it will just keep welcoming, training, arming, financing, transporting and helping the terrorists who do so.

The Obama administration has declared the war on terrorism to be over. But it also said that the US viewed al Qaida and those working with it as enemies. The Syria-based Iraqi terrorists fall into that category. America sacrificed hundreds of lives for Iraq's stability. Most of those soldiers and civilian contractors were murdered by the very terrorists harbored by Syria.

HOW CAN the administration distance itself from this conflict instead of supporting its ally and trying to act against the very terrorists who have murdered Americans?

Nominally, of course, the cheap way out was to say: We don't know who did these particular bombings. Well, who do you think did it, men from Mars? Even this is not relevant since the Iraqi demand for the expulsion of the terrorists - who have committed hundreds of other acts - came before the latest attack even happened.

Moreover, the administration not only invoked its obsession with dialogue at any price but did so in an incorrect and dangerous manner. The Iraqi government had sought dialogue, had used diplomatic means and was turned down flat.

So is this administration incapable of criticizing Syria? Even if it wants to engage in talks with Syria, it doesn't understand that diplomacy is not inconsistent with pressure and criticism, tools to push the other side into concessions or compromises.

Looking at this latest development - along with many other policy statements and events during the new administration's term so far - how can any ally have confidence that the US government will support it if menaced by terrorism or aggression? It can't. The problem with treating enemies better than friends is that the friends start wondering whether their interests are better served by appeasing mutual enemies or mistreating an unfaithful ally which ignores their needs.

Bottom Line.  Henry Kissinger's famous line after the fall of the Shah of Iran was aided by foolish Cater administration policy, that if it is dangerous to be an enemy of the United States, it can be fatal to be its friend.  The leftist trope of appeasing enemies whilst pressuring allies is aimed at moving parties towards presumed common ground.  The idea that we have much common ground with the ordinary Palestinians is a huge stretch; the idea that we have any with the likes o Syria & Iran beggars the imagination.

LFTC - A Doctor's Plan to Reform the Legal System; Another's 10 HC Gripes

Turnabout being fair play, savor this radiologist's set of proposals to reform the practice of law in America.  One might say that President Obama & his trial bar friends have trying to create a system that make doctors unhappier and lawyers happier than they are with medical practice today.  Adopting the radiologist's plan would make lawyers unhappier and doctors happier than is the case today.

Now, ask yourself: Are patients likely to be made happy if doctors are happy & lawyers unhappy, or if lawyers are happy & doctors unhappy?

A cardiologist offers ten complaints about today's HC system, well worth a read.  Notable are his points that (a) prevention will not reduce HC costs and (b) that reform must make medicine a more attractive career option.

LFTC - Health Care Ideas, Good (Mostly GOP) & Bad (Mostly Dem)

 Health care (HC) ides run from good to bad to worse.  ObamaCare is among the worst, though not alone.  Newt Gingrich offers a ten-point checklist for evaluating tonight's Presidential HC Address.

GOP Gem.  Do not believe the lies that the GOP lacks HC ideas & just says "No" on HC or other issues.  Two GOP Congressmen propose HC reform in a WSJ op-ed,based upon patient choice, phasing out employer-funded care, malpractice reform and high-risk reinsurance pools for catastrophic care and to cover pre-existing conditions. These are sound ideas.  Read the full article for a fuller picture.  And here is one GOP Congressman's case for promoting use of health savings accounts.

Baucus Bummer.  Yesterday Senator Max Baucus (D-MT) introduced his HC bill, detailed in this WSJ editorial.  (Here is the Health Care webpage at Baucus's website; it has lots of lovely principles, but is short on the details given by the WSJ editors.)  I would call it HillaryCare in Drag.  It imposes heavy taxes, drives insurers into the not-so-tender arms of Congress, forces people to join, etc.  MB wants to ram it through by bypassing the 60-vote rule, if need be.  Then it would go to a conference with a House bill that will have an explicit public option, and what do you think then will emerge?

Medicare Advantage: Targeting a Program that Works.  This Wiki page on Medicare Advantage explains two vital reforms in Medicare.  In 1997 the Clinton administration created MA to give seniors a private market option.  More than 50 fee-for-service private insurers offer MA to several million seniors.  In 2003 the Bush administration extended MA to cover the prescription drug benefit, which had a trigger for a public option, had choice not materialized.  It did, and the trigger was never pulled.  Karl Rove explains how Team Obama ran into a buzz-saw trying to eliminate MA, offering political metrics that explain MA's political appeal.  A WSJ editorial Tuesday shows how the trigger that worked for MA will not work for ObamaCare:

It's true that there was a trigger in the Medicare prescription drug benefit and the world didn't end. But recall the dynamics in 2003: The GOP decided that private stand-alone or Medicare Advantage plans should manage the benefit. As a concession to Democrats, they agreed to trigger a "public option" for drugs—in which the government would have bought them directly, with its typical "negotiating" tactics—if seniors didn't have more than two plans in a given region.

Today, there are 1,689 stand-alone and 2,099 Advantage plans, and on average seniors have 50 to choose from—and costs in 2007 were $26 billion lower than expected. For all its problems, the Medicare drug plan created more choice for seniors and more competition among providers to offer packages that they found most attractive, holding down costs. In short, it created the incentives for multiple "private options."

ObamaCare doesn't bother with incentives, instead merely increasing government command and control of private insurance while making it more expensive in the process. That's why a trigger will inevitably lead to the public option, and also why ObamaCare will make all of our current health problems worse.

Put simply, MA is a market-based offering that works beautifully.  But neither our current HC mess--driven by insurers in non-MA markets who operate without market incentives--nor under ObamaCare would markets be able to work as with MA.  Thus the trigger will inevitably be pulled under ObamaCare.

Two Big Health Care Advisers and Their Books.  And then there are the ideas of 44's major advisers, which are mostly bad.  Lacking time to plow through thousands of pages of legislative language in bills none of which will pass in current form, I settled for reading two books: Critical: What We Can Do About the Health-Care Crisis, by former Senate Majority Leader Tom Daschle, a highest-level lobbyist & adviser to Team Obama on HC, despite his nomination as Secretary for Health & Human Services torpedoed by his failure for declare tax liability; and Health Care Guaranteed: A Simple Solution for America, by Ezekiel Emanuel, brother of WH Chief of Staff Rahm, a physician & a top bioethicist at the National Institutes of Health, and a member of the Federal Coordinating Council for Comparative Effectiveness Research, created in March 2009 by HHS.  Emanuel has come under fire for suggesting that the Hippocratic Oath is out of date, for failure to take into account larger societal needs.

Daschle's book is laden with heart-rending anecdotes and is best read with a box of Kleenex, nearby.  Yes, we should figure out fixes to prevent more such stories from turning up, but the book is too long on such material for my taste.  Daschle advocates bypassing Senate procedure if need be, to ram a health care ill through, stating that "[t]he issue is too important to be stalled by Senate protocol (pp. 196-198).  Not for Daschle the purpose of the Senate explained in Federalist 63, to check the ruling passions of the day.

Emanuel's book is better.  It even has two good ideas: curbing malpractice lawsuits, an idea Daschle would not ore do than throw his family in front of a speeding train; and opposing single-payer government-only care.  Emanuel also, however, opposes health savings accounts, because he fears consumers will economize not only on unnecessary care but also necessary care.

Time precludes me from detailing each book's laundry list of proposals.  Instead, it is best to focus on a few common elements, thus giving insight into the thinking of two of the President's closest HC advisers, leaving the rest for hC policy specialists, doctors, etc.  First, both propose a new national regulatory body modeled after the Federal Reserve Board, to render supposedly independent judgment on HC matters, including determining which HC procedures are truly effective.  Second, both endorse mandatory universal coverage.  Third, both stress the need for far better cost control, and see the new health board as a prime vehicle for accomplishing that goal.

Daschle, however, goes even further.  On page 179 he notes that in the past private insurers have often followed Medicare's lead, and may well continue to do so  And Daschle sees Congress possibly using the lever of eliminated taxpayer-funded employer HC payments--which Emanuel explicitly advocates eliminating--to lean on private insurers to follow the health board's recommendations.

Implications for ObamaCare.  These books show the risks of ObamaCare, through the lenses of two top advisers.  Two risks stand out.  RISK ONE: Public Option or Health Board Crowds Out Private Insurance.  Senator Daschle's public option carrier would surely compete by stacking the deck, as medicare does today.  Medicare offloads costs on private insurance (as does Medicaid, the program for the poor), by paying less than $1 per dollar of HC costs incurred by providers.  Medicare pays 93 cents on the dollar, Medicaid 86 cents, and thus private insurers pay $1.32 to cover HC costs of $1.  Private patients unknowingly subsidize the two government programs.  As noted above and put again here for reader ease of access, a WSJ op-ed exposes the public option "trigger" proposal--setting a metric for insurance coverage which, if not met, triggers a public option--as the camel's nose under the tent it is.  Manhattan Institute Fellow Paul Howard notes that bashing HC insurance companies for allegedly earning windfall profits is contrary to the reality that Medicare fraud annually runs 5 times total insurance industry profits, $60B vs. $12.9B.  (The Democratic assault on private HC insurers is based upon industry profits having jumped five-fold, from $2.4B to $12.9B, between 2002 & 2007.)

RISK TWO: Cost Control Induces the Health Board to play Insurance God.  OK, there is no "death panel" as such.  But cost control can only be accomplished three ways: (1) eliminating waste by making providers more efficient, a goal all support but famously hard to achieve in practice; (2) denying timely care to patients, a tactic used widely in single-payer European systems, as people die waiting in line for procedures, or are denied insurance coverage on the basis of poor prospects; (3) creating a true free market in health care, enabling consumers to bargain directly with providers by eliminating third-party middlemen (like employers).

The political popularity of employer-paid premiums guarantees it will be left alone, so forget about a true free HC market in this administration.  Efficiency gains will likely, as ever, prove elusive, and likely to occur, if at all, over a long period of time.  which leaves cost control by denying access to insurance needed to cover care in cases the government judges too marginal to expend limited dollars.  Think of a 76-year old man diagnosed with an aggressive brain tumor, who needs insurance to get life-prolonging care, but is judged unlikely to survive more than a year or two.  One specialist shows how ObamaCare will force patients into primary care when they need specialized care; he uses Senator Kennedy's case as part of his explanation.

Denials to the contrary, there simply is no way that such a candidate will receive coverage under ObamaCare--unless he is  senior Massachusetts senator who is wealthy enough to pay or, if there is no private option left, connected enough to pull political strings.  The added cost of universal coverage will surely elevate cost control to the top of the priority list for the health board.

Cost Control: ObamaCare's Fuzzy Math.  Harvard economist Martin Feldstein explodes ObamaCare's financial finagling in a brilliant op-ed.  He offers dizzying HC deficit math:

The deficits projected for the next decade and beyond are unprecedented. According to an assessment released in March by the Congressional Budget Office (CBO), the president's budget implies that deficits will average 5.2% of GDP over the next decade and will be 5.5% of GDP in 2019. Without the president's proposals, the budget office forecasts a 2019 deficit of only 2% of GDP.

The CBO's deficit projections are based on the optimistic assumptions that the economy will grow at a healthy 3% pace with no recessions during the next decade; that there will be no new spending programs after this year's budget; and that the rising national debt will increase the rate of interest on government bonds by less than 1%. More realistic assumptions would imply a 2019 deficit of more than 8% of GDP and a government debt of more than 100% of GDP.

Such enormous deficits would crowd out productivity-enhancing investments in new equipment and software as the government borrows funds otherwise available to private investors. The result would be slower economic growth and a lower standard of living.

Feldstein sees tot total cost of ObamaCare as more likely $2 TR than $1 TR, including $300B annual interest on debt-derived deficit HC spending.  Feldstein estimates that what economists call the 'opportunity cost"--the cost of benefits foregone by choosing a different path--of not eliminating the politically-popular employer-paid HC tax subsidy is $1 TR in lost corporate tax revenues over 5 years and $3 TR over a decade.  Put another way: Eliminate the employer subsidy and raise trillions.  PLUS: get a far better functioning private HC marketplace.

Bottom Line.  ObamaCare, if the writings of two top advisers are a proxy--as likely they are, given their names and positions held (or nominated for), tell us TWO BIG THINGS about ObamaCare: (1) OC will use public power to drive out, over a period of time, private options, thus concentrating health decision-making power in the central government; (2) OC will use cost control to deny coverage to cases judged too marginal, based upon rules established by a remote bureaucracy (under the rubric of "comparative effectiveness").

Everyone's future health care is on the line.  Call ObamaCare "Choices Denied."

LFTC - Index 9/8/09

8 posts: (1) Czarina Michelle--The Home Front; (2) NATO's Afghan Air-Strike: War & Western Values--Us v. Them; (3) Nuclear Deception: Syria & North Korea Succeed--Us v. Them; (4) Labor Day's Labor Laments--The Home Front; (5) President Obama's Back-to-School Speech--The Home Front; (6) Hillary of Honduras: "Constitutions? Bah Humbug!"--Wobble Watch; (7) The Big Apple's Oldest Unsolved Case: 400 Years & Counting--The Ap & the Cap; (8) Terror Trial Triumph, With a Trick, But Lawfare Wins an Appeal--9/11, 3/11 & N/11.

LFTC - Czarina Michelle

The Canada Free Press unearthed a gem I missed, but it was just updated, so here is the current tally: First Lady Michelle Obama has a staff of 26 employees, whose aggregate salary cost totals $1,750,000 per year.  Not in the linked article, but vouchsafed to me by an LFTC reader, is that Jacqueline Kennedy & Laura Bush had one staffer and Hillary--no slouch in the Department of Divas--had only three.

In an administration with an estimated 34 Czars and counting (Fox News tries to keep track)--more than twice the Tsar total accumulated by the Romanovs in 284 years (1633-1917), it is only fitting that it have a Czarina.  This falls far short of the Romanov Tsarina total, but give Michelle time.

Let's try to help Michelle along, by suggesting a few Czarina positions: Corporate Jet Czarina, Political Correctness Czarina, American Apology Czarina....

LFTC - NATO's Afghan Air-Strike: War & Western Values

First read this New York Times report on how a NATO air-strike resulting in collateral casualties raises anew the moral dilemma of bombing terrorists who secrete themselves amidst civilian populations to make targeting morally ambiguous.  Worse, ascertaining who is a genuine civilian and who is a terrorist or supporter in tribal mufti is nearly impossible.  The air-strike was ordered by the Germans, who have 4,500 troops in Afghanistan (which rarely take part in active combat operations).  A Washington Post front-pager notes that the strike ignited a political firestorm in Germany; this is common in Western countries, where liberal values often clash with battlefield war judgments.  (Making matters worse and creating what might be the biggest issue in Germany's upcoming elections, reports Der Spiegel, is that the German government initially said there were no civilian casualties; this is always a mistake, given that early reports after such incidents are usually revised as more data come in.)  .  The Washington Post also reported more detail on the NATO strike: The decision was made on the basis of a single Afghan source, plus a grainy thermal-image night video sent from an F-15E reconnaissance pass:

A NATO fact-finding team estimated Saturday that about 125 people were killed in the bombing, at least two dozen of whom -- but perhaps many more -- were not insurgents. To the team, which is trying to sort out this complicated incident, mindful that the fallout could further sap public support in Afghanistan for NATO's security mission here, the target appeared to be far less clear-cut than it had to the Germans.

One survivor, convalescing from abdominal wounds at a hospital in the nearby city of Kunduz, said he went to the site because he thought he could get free fuel. Another patient, a 10-year-old boy with shrapnel in his left leg, said he went to gawk, against his father's advice. In Kabul, the Afghan capital, relatives of two severely burned survivors being treated at an intensive-care unit said Taliban fighters forced dozens of villagers to assist in moving the bogged-down tankers.

"They came to everyone's house asking for help," said Mirajuddin, a shopkeeper who lost six of his cousins in the bombing -- none of whom, he said, was an insurgent. "They started beating people and pointing guns. They said, 'Bring your tractors and help us.' What could we do?"

None of the survivors and the relatives dispute that some Taliban fighters were at the scene. But just how many remains unclear, as does the number of civilians. And because many of the bodies were burned beyond recognition, and others were buried in the hours after the explosion, it may be impossible to ascertain.

The German commander stood his ground after, but found himself at odds with NATO Commander Gen. Stanley McChrystal.  Their dispute, well-framed in the article, illustrates the gray-area judgments involved.  Frederick Kagan, a co-architect of the surge strategy in Iraq, offers Gen. McChrystal's views in a mini-article that details the general's stellar counter-insurgency credentials:

There is clearly a role for precise operations that keep the insurgents off balance, take the fight to their sanctuaries, and prevent them from affecting the population. These operations are important, but, in and of themselves, are not necessarily decisive. They can be effective when the insurgents have become so isolated from the population that they are no longer welcome, have been kicked out of their communities, and are reduced to hiding in remote areas and raiding from there. Setting these conditions throughout the year will enable kinetic operations to have an enduring rather than fleeting impact.

Bottom Line.  The humane values held by the West are held in contempt by jihadist Islamist terrorists (and other terrorist types as well).  So our adversaries force innocents to serve as shields.  As with other forms of hostage-taking, the West faces a cruel dilemma.  Risk killing innocents, or pass up virtually any chance to kill the enemy.  These choices are not made easier by the knowledge that we will likely never unravel the full story in many cases, including this episode.

LFTC - Nuclear Deception: Syria & North Korea Succeed

This article on Syrian deception of International Atomic Energy Agency (IAEA) inspectors and this Reuters news story about North Korea nearing uranium enrichment capability (Pyongyang already has a weapons-grade plutonium production capability) each illustrate the weakness of the existing nuclear nonproliferation regime.

For the reccord, here is the December 2002 National Strategy to Combat Weapons of Mass Destruction.

LFTC - Labor Day"s Labor Laments

Twin laments for labor as we marked Labor Day 2009: unemployment & pensions.

Unemployment.  Robert Samuelson's Labor Day column puts Friday's 9.7 percent unemployment report in gloomy perspective, comparing the 2007-2009 recession to the 1981-1982 recession: (1) While the official unemployment rate is 9.7 percent, lower than the levels reached in 1982, recovery is likely to be slower because the earlier recession was a cyclical byproduct of disinflation, whereas today's recession is a result of the financial collapse, which augurs for a slower, lesser recovery; (2) adding those underemployed--part-timers who seek full-time work--raises the jobless number to 16.8 percent; (3) the long-term unemployment rate will stay high if the economy does not expand fast enough to absorb new workers entering the workforce; (4) the need to pull excess money out of circulation as the economy picks up will acts as a brake on growth; (5) Americans have not had European=style experience with prolonged high unemployment, which could have devastating political consequences such as promoting protectionism.

Pensions.  Hudson Institute scholar Diana Furchtgott-Roth explains union pension winners & losers: while union pensions have been underfunded relative to non-union ones, pensions for union capi are overfunded.  She informs us:

In 2006, the latest year for which full data are available, only 17% of union-negotiated plans were fully funded, compared with 35% of nonunion plans.

Under the Pension Protection Act of 2006, funds with less than 80% of assets are in "endangered" status. In 2006, 41% of union funds were "endangered," compared with 14% of nonunion funds.

Thirteen percent of union funds had less than 65% of required assets, also called "critical" status by the Labor Department, while only 1% of nonunion plans were in critical shape.

Unions have separate pension plans for staff and officers of national and local unions because usually officers and staff are employees of the union. These pension plans are doing far better.

A sample of 30 staff pension plans among unions that sponsor the largest 46 rank-and-file plans shows that whereas the collectively bargained plans had 70% of the funds needed to satisfy their obligations, the officers' own plans were 93% funded.

Read DR's op-ed in full and get the rest of the pension scam story.

Bottom Line.  For Labor, the Bard's "winter of our discontent" can easily become "decade of our discontent."  Leave us hope the gloomy signs prove false ones, and pension reform comes to Big Labor.

LFTC - President Obama's Back-to-School Speech

Today President Obama addresses school students across America.  His Arlington, Virginia "Back to School" Address is a wonderful, inspirational speech promoting all the good stuff everyone agrees upon.  Conservatives fearing the worst had caught wind last week of an Education Department Lesson Plan whose controversial details CNN reports:

Some of the controversy surrounding Obama's speech stems from a proposed lesson plan created by the Education Department to accompany the address. An initial version of the plan recommended that students draft letters to themselves discussing "what they can do to help the president."

The letters "would be collected and redistributed at an appropriate later date by the teacher to make students accountable to their goals," the plan stated.

After pressure from conservatives, the White House said that the plan was not artfully worded, and distributed a revised version encouraging students to write letters about how they can "achieve their short-term and long-term education goals."

Whether the President would have spoken in the same vein as the early Education bureaucracy's version is unknowable.  on this one I ma inclined to give him the benefit of the doubt, as surely he would know that such a blatant appeal for political support would backfire with much of the public.

In the end, Justice was served.  With bad stuff excised from supporting materials, the President is giving a fine speech.  As the CNN report shows, Newt Gingrich praises the idea.  Also, to be fair, President Reagan called for lower taxes in a 1988 school speech, hardly non-partisan, though a goal I supported then & still support today.  Nor will the kids be Liberals for Life.  I was moved by JFK's 1961 Inaugural Address (which I saw courtesy of a snowstorm that closed schools in the Atlantic & Northeast), but that did not prevent me from voting GOP beginning in the 1976 Presidential contest.

LFTC - Hillary of Honduras: "Constitutions? Bah Humbug!"

Former Reagan-era Latin American human rights official Elliott Abrams eviscerates Secretary of State Hillary Clinton for declaring--two months before--that a November 29 election in Honduras will be deemed invalid by the US.  Abrams explains:

Honduras's ejected president Mel Zelaya saw the Secretary and apparently persuaded her that the outcome of Honduras's next elections must be rejected. On what basis? None was stated, and no logical basis exists. The next elections will be entirely constitutional and held on time; and the term of office of the ousted Zelaya would end naturally and constitutionally when a new president is sworn in, in January. The candidates were selected before the current crisis began, and all the parties--including Zelaya's Liberal Party, one half of Honduras's essentially two party system--are participating. There is no reason whatsoever to doubt that the election can be monitored by international observers (and we could have demanded more of them than usual) and fairly conducted. Honduras's vote for a new president on November 29 was the obvious way for everyone to dig out of the current mess without hurting the Honduran people and without damaging Honduras's democratic institutions.

But it was rejected yesterday by Clinton and the Obama administration. The State Department's spokesman said that "Based on conditions as they currently exist, we cannot recognize the results of this election." The irrationality of the words is striking: based on conditions today, we can't recognize the results of a free election more than two months from now on November 29, even if everyone thinks it's free and even if Zelaya's party participates, and even if his term would constitutionally be over anyway. Remember, it was Zelaya who wanted to screw around with that election, and hold a referendum on that date allowing him to be re-elected in perpetuity--just as his mentor Chavez has done in Venezuela. That's what gave rise to his defenestration. Now Hondurans want to go back to regular elections, but the United States won't allow them to do so?

Read the rest of this short, highly informative op-ed to see another Team Obama Disaster in the Making.  Then read Ralph Peters, who equally well lambastes Team Obama for sucking up to Hugo Chavez at the expense of Honduran constitutional democracy.

LFTC - The Big Apple's Oldest Unsolved Case: 400 Years & Counting

This New York Times front-pager chronicles an unsolved new York murder case dating back to...1609.  Read this short article for a little spice in nasty times.

LFTC - Terror Trial Triumph, With a Trick: But Lawfare Wins an Appeal

Terror Trial Triumph, With a Trick.  This 11-pager penned by a juror chronicles a major trial of two arms dealers who trafficked with terrorist groups.  It gives a flavor of the travails--in this case, successfully surmounted--of putting terror defendants on trial.  Notable in this case also, however, are three facts jurors were not told until after the trial, per the judge's decision, made in pursuit of a fair trial for the defendants: (1) evidence that one defendant had in prior instances cooperated with Spanish & American intelligence; (2) evidence that the defendants had engaged in drug dealing; (3) the fact that one defendant had been acquitted in a trial when he was charged with supplying arms to the hijackers who seized the cruise ship Achille Lauro in 1985, during which an elderly Jew confined to a wheelchair, Leon Klinghoffer, was shot to death and then dumped into the Mediterranean.

The defendant's acquittal in the 1985 trial came after two witnesses who were to testify for the prosecution at the trial were murdered, and a third witness withdrew after his child was kidnapped.  Thus, jurors who were selected to sit at this trial of a highly dangerous defendant were not told that by doing so they potentially put their own lives and family in jeopardy, should they vote to convict.  Ignorant of this risk, the jurors voted to convict on all counts, and the judge sentenced them to 30 & 25 years respectively, in maximum security prison.

Bottom Line.  It is a fair inference that had prospective jurors been told of what the one defendant had apparently done in the earlier trial they would have done anything to get out of serving.  Which emphasizes the point about American criminal trials: Fairness to defendants, no matter how heinous they are, comes first; fairness to anyone else, no matter how innocent, comes after.

Lawfare Wins an Appeal.  The ever-liberal Ninth Circuit Court of Appeals (one of the 12 federal appellate panels immediately below the Supreme Court) ruled in Al-Kidd v. Ashcroft (9/4/09) that former Bush 43 Attorney-General John Ashcroft is not legally immune from suit filed by 70 plaintiffs who claim they were wrongly detained as material witnesses in the immediate post-9/11 roundup.