Bound in a Nutshell

Discontent.com suffered a major hard drive failure in early February. While it has been replaced and reinstalled, this blog is down temporarily pending a move to scoop, instead of b2evolution, as its backend.

Testing, testing.

GRAHAM: Number one, from a personal point of view, do you believe the attacks on 9/11 against our nation were a crime or an act of war?

ALITO: That's a hard question to answer.

GRAHAM: Good.

ALITO: That's a way of buying 30 seconds while I think about the answer.

I find it somewhat exceptional that Judge Alito hasn't already decided how he feels about this question; it's the kind of thing that I expect every politically aware citizen to have decided, one way or another.

ALITO: Senator, I think that what I think personally about this is really not -- it's not something that would be -- that would inform anything that I would have to do as a judge.

GRAHAM: Well, Judge, I guess I disagree. Because I think we're at war. And the law of armed conflict in a war time environment is different than dealing with domestic criminal enterprises. Do you agree with that?

ALITO: It certainly is.

GRAHAM: We have laws on the book that protects us, the Fourth Amendment included, from our own law enforcement agencies coming against our own citizens. But we also have laws on the books during a time of war to protect our country from being infiltrated by foreign powers and bodies who wish to do harm to us. That's a totally different legal concept. Is that correct?

ALITO: I'm reluctant to get into this because I think things like act of war can well have particular legal meanings in particular context, under the Constitution...

That's much more understandable. The first question was asking a personal political opinion; this is asking a more nuanced legal question on which a judge should not commit himself until he knows the details of the facts in a specific case.

[The rest of the interchange, available here, consists of Graham trying to get Alito to commit himself to the administration's position in Hamdi and Padilla, and Alito refusing to commit:]

GRAHAM: For those who are watching who are not lawyers, generally speaking, in all of the wars that we've been involved in we don't let the people trying to kill us sue us. Right? And we're not going to let them go at an arbitrary time period if we think they're still dangerous because we don't want to go have to shoot at them again or let them shoot at us again.

Is that a good summary of the law of armed conflict?

ALITO: I don't know whether I'd put it quite that broadly, Senator.

(LAUGHTER)

The precedent that you -- the Johnson v. Eisentrager, of course, has been substantially modified, if not overruled. Ex Parte Quirin, of course, is still a precedent.

There was a lower precedent involving someone who fought with the Italian army. And I can't remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question.

But those are the precedents in the area. Then, if you go back to the Civil War, there's Ex Parte Milligan and a few others.

GRAHAM: We don't have to go back that far.
(LAUGHTER)

(Ex Parte Milligan was a civil-war era case which denied Lincoln the power to suspend habeas corpus in northern states in which the civil courts were still operating.)

ALITO: I did say that. The 14th Amendment protects liberty. The Fifth Amendment protects liberty. And I think it's well accepted that this has a substantive component and that that component includes aspects of privacy that have constitutional protection.

DEWINE: Congress has tried several times to protect our children from being exposed to pornography on the Internet. In 1996, we passed the Communications Decency Act, but the Supreme Court struck it down, citing the First Amendment. A few years later, we passed the Child Online Protection Act. Again, the court struck it down.

What bothers me about these cases is they fail to account for something that to me seems relatively simple: The core of the First Amendment is the protection of political speech, but it seems to me that pornography is altogether different. Unlike political speech, pornography has little value, if it has any value at all.

Ah, but the entire point of the first amendment is that Congress may not make that value judgement. The state may not decide that it values certain kinds of speech and doesn't value other kinds of speech, and then prohibit the latter kind on the basis that the state does not value it. This is bedrock, fundamental principle of our political system. It's a shame that certain politicians don't grasp that.

ALITO: The law, of course, as you know, constitutional law draws a distinction between obscenity, which has no First Amendment protection but is subject to a very strict definition, and pornography, which is not obscenity but is sexually related materials.

A distinction which has no basis in the constitution itself, but is drawn instead from the common-law; a better example of judicial activism would be hard to find.

ALITO: Now, in the pre-Internet world, the job of preventing minors from purchasing pornography was a lot simpler. If they wanted to get it, I guess they would have to go to a store or some place and buy it.

But on the Internet, of course, it's readily available from any computer terminal. And a lot of minors today are a lot more sophisticated in the use of computers than their parents. So the ability of parents to monitor what they're doing and supervise what they're doing is greatly impaired by this difference in computer aptitude.

And I can't say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government, so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors.

That sounds ominous.

ALITO: I think that the principle of "one person, one vote" is a fundamental part of our constitutional law. I think it would be -- I do not see any reason why it should be reexamined.

Rick Hasen had expressed concern about this, given Alito's early writings.

ALITO: That was certainly true with respect to the equal protection clause. There was a long period between Plessy v. Ferguson and Brown v. Board of Education when the true meaning of the equal protection clause was not recognized in the decisions of the Supreme Court.

And when Brown was finally decided, that was not an instance of the court changing the meaning of the equal protection clause; it was an instance of a court writing an incorrect interpretation that had prevailed for a long period of time.

It seems to me that Judge Alito is arguing here that there is an absolute truth of the meaning of the equal protection clause and that Brown did not constitute a change in the meaning, but rather a discerning of the true meaning which had heretofore lain unseen. No relativist, Judge Alito.

This may be problematic, depending on what Judge Alito believes the true meaning of things to be. What should happen when stare decisis requires one interpretation of [x], but a judge knows the true meaning of [x]to be something different?

ALITO:The Constitution sets age limits, for example, for people who want to hold various federal offices and there can't be much debate about what that means or how it applies.

But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary.

I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.

They have to identify the principle that is to be applied under these broader provisions of the Constitution and apply it, but I don't see that as being the same thing as the judges injecting his or her policy views or preferences or ideas about the direction in which the society should be moving into the decision-making process.

It's a shame that Senator Kohl didn't then ask Judge Alito for examples of what he thinks does constitute judges injecting their own policy views. This is, I think, the key issue in the dispute between Democrats and Republicans about whether or not Alito should be confirmed: given that everyone more or less agrees that broad principles should be applied to new situations neutrally, how does one draw the line between that and injecting your own policy preferences?

The dispute over pornography is a grand example of this. Given the principle that the freedom of the press may not be abridged by the Congress (or, through incorporation, by the states), is it application of that principle to say that Congress may not ban consenting-adult pornography? Or is that an injection of liberal policy views or preferences into the decision making process?

It's relieving to note that Judge Alito believes that there are broad principles which must be interpreted and applied, as there are some conservative activists who do not; but his statement is utterly useless in helping a neutral observer tell where he draws the line, or even given a scatter diagram of what falls on which sides of the line.

But that seems to be the general pattern of these hearings: vague answers which don't actually say anything. It's almost as though this were a Potemkin hearing instead of a real one.

KYL: According to one survey that I had access to, 93 percent of the American people support the right to say "under God" in the Pledge of Allegiance.

It seems to me that this is fundamentally missing the point of the dispute. Nobody is saying that it is illegal for someone to say "under God" when reciting the pledge of allegiance; the allegation is that it is illegal to *require* someone to say "under God" when reciting the pledge of allegiance. (I must say that I find the dispute to be somewhat peculiar given that the Supreme Court said more than sixty years ago that schoolchildren can't be forced to say the pledge if it would violate their religious beliefs; Newdow appears to be asking not just for the right to not say it, but for the right to say it the way he wants it to be said, in a have-your-cake-and-eat-it-too sort of way).

Senator Kyl went on to make this grand argument involving the notion that sometimes rights conflict, and the role of the judiciary is to adjudicate the conflict, and that's valid, but his example is peculiar. Nobody's rights are trampled if a court rules that "under God" should not be a mandatory part of the pledge of allegiance.

LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department -- and you're familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture. They tried to redefine torture, and they asserted, I quote, that the president enjoys complete authority over the conduct of war, close quote. And they went on further to say that if Congress passed criminal law prohibiting torture, quote, in a manner that interferes with the president's direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional. They seem to say that the president could immunize people from any prosecution if they violated our laws on torture. And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public. Once it became public -- the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it's beyond the pale -- the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer -- no longer -- represented Bush administration policy.

LEAHY: What is your view now? And I ask this because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?

ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States. Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.

LEAHY: Well, let's go into one of those specifics. Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?

ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the twilight zone, where the president's power is at its lowest point.

That response was quite clever, although I don't know if it was intended the way it was received. Judge Alito has not conceded Senator Leahy's premise that the President has overridden laws enacted by Congress. He has merely said that if the President were to do so, it would be problematic under the rules of analysis in question.

But he's said it in a way that allows people who want to hear it that way to think that he's endorsed the notion that the government is currently overstepping its bounds.

That's not to say that he thinks it isn't; merely that this answer is a carefully, cleverly crafted dodge.

SPECTER: Do you agree with Justice O'Connor's statement quoted frequently yesterday from Hamdi that, quote, We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens, when she was citing the Youngstown case? Do you agree with that?

ALITO: Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.

SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, the Constitution applies even in an extreme emergency. The government made a, quote, broad and unwise argument that the Bill of Rights simply don't apply during wartime. Do you stand by that statement?

ALITO: I certainly do, Senator. The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.

Not that I had any serious belief that he would say anything different; but it's still a relief to hear it.

Apparently this web log is the #1 hit for invent automobile terrible idea on certain search engines.

I've been tagged with an internet tell-all-about-yourself meme!

Four jobs you've had in your life: Tow truck dispatcher, cable television cable operator, computer lab technician, computer programmer.

Four movies you could watch over and over: Blade Runner, The Name of the Rose, The Lord of the Rings: The Fellowship of the Ring, The Usual Suspects.

Four places you've lived: Santa Cruz, Los Angeles, San Antonio, East Windsor (New Jersey).

Four places you've been on vacation: Ontario, the Bahamas, Norway, Turkey.

Four TV shows you love to watch:Babylon 5, Queer as Folk, Sex and the City, Remington Steele

Four websites you visit daily: HuSi, Electrolite-Making Light, The Volokh Conspiracy, The New York Times.

Four of your favorite foods: Tzatziki, Borek, Macaroni+Cheese, Espresso.

Four places you'd rather be: Lisbon, Prague, Vancouver, Berlin.

Four albums you can't live without: In Tune and On Time, DJ Shadow. The Joshua Tree, U2. Live in Paris & Toronto, Loreena McKennit. Pretaluz, Waldemar Bastos.

New tagees: Chrononaut, Erik.

The details aren't out yet - or, to the extent that they are, they're vague - but Governor Schwarzenegger's infrastructure proposal, unveiled at today's State of the State address is breathtaking. In nominal dollars, it constitutes the single largest public investment project in the State, ever. In terms of its potential impact on the state, it is the biggest project proposal since the large-scale infrastructure projects overseen by Governor Edmund G "Pat" Brown (Jerry Brown's father) in the early 1960s - the last major statewide infrastructure project.

As we understand the terms today, it is not a conservative proposal. But, in a very real sense, it is; it draws on an older conservative tradition than the one which prevails in modern conservatism: the Whig conservatism which says that if we invest in internal infrastructure improvements, we invest in economic growth which will benefit everyone. Yet rhetoric like "Think of California as a mutual fund --in particular, a growth fund. Why do we invest in a growth fund? Because we believe in the economic future. So I ask each of you... do you believe in California's economic future?" is associated in modern times with political liberalism, and therein lies the political genius of the plan: by boldly seizing the center-left, Governor Schwarzenegger may remake the state's politics entirely.

But as a voter, rather than a student of politics, my concern is less Governor Schwarzenegger's future than this: is his plan good for California? According to the Legislative Analyst's office, the general fund bond debt was $55 billion as of July 1, 2004 (no bonds were on the special election ballot, but more than $3 billion was authorized in the November, 2004 election). So this proposal would more than double the state's bonded indebtedness. The governor's proposal does claim (see page 6) that the percentage of the general fund devoted to debt service will never go above 6% under the plan; but that claim is based upon speculation about the degree of economic growth, and assumes that no other bond measures are passed in the interim (a shaky assumption at best). This is risky business.

But, just as borrowing to buy a house or pay for an education is reasonable for individuals in a way that credit card debt is not, borrowing for infrastructure is good for a state in a way that borrowing for regular, ongoing expenditures is not. So, given that details aren't truly available yet, what do we get for all of the borrowing?

The numbers are a bit hard to decipher; the overall plan incorporates money from other sources (federal matching funds, redirection of existing money), with the result that it's tough to, in a meaningful fashion, see what the effects of the bonds, per se, are. But, in summary, the plan calls for:

• 550 new miles of HOV/HOT lanes
• 750 new regular highway miles
• 9000 miles of highway reconstruction
• 600 miles of new commuter rail line
• 8500 miles of bike and pedestrian paths
• an undefined quantity of truck-only lanes (for example, in and out of the port of Los Angeles)
• 9700 new classrooms
• 38,000 modernized classrooms
• a $6 billion program to upgrade the delta levee system
• two new prisons
• a new forensic crime lab
• 101 new courts

The biggest problem that I have with this list is that I don't believe that $70 billion can pay for all of it. Certainly everything on the list is something I think we need to pay for; the highway upgrades, the school construction, and the court construction - in particular - has been necessary for more than a decade. But $70 billion isn't enough to pay for this (how much has the reconstruction of the Bay Bridge, alone, cost?) And I'm not convinced that the "other revenue" on which the plan depends will be forthcoming. Accordingly, it may very well be that only a fraction of this immense proposal ever gets built - the rest could languish as a promise made, but not fulfilled.

But that is no reason not to try. These are all needed investments; they are all, with the possible exception of the forensic labs, the kind of things which can reasonably be paid for with bond money. The governor's proposal is fantastic, the kind of proposal that I hoped Gray Davis would issue, and Pete Wilson before him. A breathtaking vision of investment in the future, of borrowing to pay for rebuilding an infrastructure which is overstrained and has been crumbling for decades, is exactly what we need.

This is what we expelled Governor Davis for; the voters are well repaid.

Looking just at the politics of Governor Schwarzenegger's infrastructure proposal ($300 billion in infrastructure spending over ten years, including roughly $70 billion financed through bonds), the Governor has flattened the opposition and, most likely, ensured his re-election in the fall. His Democratic opponent - whoever he is - has no reasonable response. He can, like Sen. Perata did briefly during his speech tonight, take the this-is-fiscally-irresponsible tack; but that leaves him in the position of being a Democrat opposed to things like building new schools, cleaning up the air in the Central Valley, and extending hundreds of miles of mass transit lines. Alternately, he can take the this-isnt-enough approach, but then he has to convince the voters that a $70 billion bond issue is too small, a proposition which will be enormously difficult to sell.

The outrage I am expecting in the Conservative blogsphere may cause problems; a Conservative revolt to oust Governor Schwarzenegger, and name someone like McClintock as the Republican gubernatorial candidate, is not out of the question or even unlikely. For a Republican to make this kind of proposal - nominally the largest borrow-and-spend plan in the state's history - is astonishing, out of character, and certain to rile the party activists; and for him to follow it up with a call for a minimum wage increase is even worse. But, presuming that he can withstand a primary challenge, that is the political beauty of the plan: by taking this tack he undermines liberal charges that he's an ultra-conservative ideologue.

Governor Schwarzenegger has seized the political center and a good chunk of the space to the left of center. He has probably guaranteed himself re-election. As a tactical move it was brilliant.

SCOTUSBlog notes that a district court judge in DC has issued an order regarding the legislation which stripped the US courts over jurisdiction over enemy combatants held at Guantanamo.

Without getting into the merits of the legislation, or of the order, I would like to note the following opening portion of the order:

On December 30, 2005, President Bush signed into law H.R. 2863, the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act of 2006 (“the Act”). Section 1005(e) of the Act, entitled Judicial Review of Detention of Enemy Combatants

Read it again.

What does Judicial Review of Detention of Enemy Combatants have to do with Supplemental Appropriations to Address Hurricanes, or Pandemic Influenza?

The Congress should be ashamed of itself, shoving vitally important legislation that significantly alters the functioning of our legal system into an unrelated appropriations bill. I'm not a fan of the legislation in question, but surely it deserved to be debated, and to be approved or disapproved, on its own merits.

The Sacramento Bee reports that Ted Costa, a longtime conservative activist and promoter of ballot initiatives, is putting together a new proposal for redistricting reform. The proposal follows the defeat of Proposition 77, which he had sponsored, and seems to have learned something from that defeat.

If the report is to be believed, the new proposal replaces Proposition 77's panel of retired judges with a citizen committee essentially selected by lot, assisted by a consultant nominated by the chair of the California Judicial Council. In addition, the plan would not go into effect until after the 2010 census.

This fixes two of the most heavily criticizes provisions of Proposition 77, which may be enough to win it the support that Proposition 77 could not find. If the summary in the Bee is correct - something which I cannot easily determine as Costa's website does nto appear to have been updated in months - I will almost certainly vote for the measure: the current system is broken, and any system which is not obviously fatally flawed is worth trying instead.

Besides, there's something somehow charming about a system that attempts to select public citizens by lot.

But that's not my point here. The conversation began with a brief interview of Congressman Nathan Deal (R-GA), the author of the legislation in question. During the course of the interview, he attempted to argue that one of the reasons that we need this legislative change is that it's problematic that people who come to the country as terrorists, intending to destroy it, can give birth to citizen children.

That's just a tiny bit of overreach: suddenly the "war on terror" requires an enormous change to immigration policy, and the overturning of something which has been settled law for more than a century --- in order to prevent something for which there is no evidence has ever happened!

Look for this to become a major meme in right wing circles, however. The linkage of the two issues is too powerful for the proponents of this measure to refrain from, no matter the level of absurdity involved; it's far too easy to smear opponents of changing the rules as being pro-terrorist.

Proposition 78 and Proposition 79, two dueling ballot initiatives involving the state's role in obtaining discounts for purchasers of prescription drugs, are perfect examples of things that have no business on the ballot. They are both technically complex programs with unclear economic side-effects. Unlike Proposition 76, which is even more complex, they do not implicate or threaten the vested interest of the legislature or the broader political class. There is no reason except for political cowardice that decisions of this nature cannot be mae by the legislature, and their presence on the ballot this fall is close to an abuse of the initiative process.

There's been a lot of noise, most of it essentially name calling, generated by proponents of each; and the wording of proposition 78 makes it quite clear that there is only room for one of them in state code. Nevertheless, they are more similar than they are different, and the first question for the voter is whether or not he approves of those similarities; for if the answer is no, then he should vote against both.

AN OVERSIMPLIFIED OVERVIEW

Propositions 78 and 79 would both establish a program wherein certain residents of the state could obtain a discount prescription drug card. People with discount drug cards could go to a pharmacy, which would sell drugs to them at either (a) the usual rate, or (b) a rate negotiated between the state and the pharmacy, minus a rebate amount negotiated with the drug manufacturer. Participation would generally be restricted to the so-called "working poor", although the details differ between the two initiatives. There is no requirement that either pharmacies or manufacturers participate in the program, although there are some mechanisms in Proposition 79 which would require the state to use market pressure and/or public shaming to induce participation.

That's the core concept in both initiatives and, in general, it's a perfectly fine idea: there is much to be said for the market power available when you use the state as a clearing-house for purchases in this fashion, and there is much to be remedied in the health care options available to the "working poor". It is, of course, not clear that this solution doesn't in fact aggravate the problem; more on that later.

THE DIFFERENCES IN THE PROPOSITIONS: WHAT PATIONS ARE ELIGIBLE

Proposition 78 would restrict eligibility to those who

1. are a "resident" (the law does not specify "resident of California", it merely specifies "resident");
2. Have a family income of no more than 300% of the federal poverty line;
3. Do not have outpatient prescription drug coverage from another source, except Medicare;
4. Have not had outpatient prescription drug coverage for any of the preceding three months, with certain exceptions.

Proposition 79 would restrict eligibility to those who

1. Have total unreimbursed medical expenses equal to 5% or more of family income;
2. Are enrolled in medicare and have drugs not covered by Medicare;
3. Have a family income of no more than 400% of the federal poverty line;

There are two striking differences here. Proposition 79 would allow a broader category of participants (and would therefore be likely to have more economic effect on the industry overall); there are many people with large unreimbursed medical expenses who arguably need the support of this initiative who would be covered under Proposition 79 and not under Proposition 78. That speaks in Proposition 79's favor.

On the other hand, Proposition 78 excludes those who already have coverage. That means that under many circumstances, Proposition 79 would in effect be providing discounts not to individuals but to their insurance companies. To the extent that the state is not actually spending its own moey, that may not be a bad thing; but it may be a step towards shifting the burden of health care in aggregate from insurance companies to the state. It may, in short, be the thin wedge of an iceberg of unintended consequences; and those consequences deserve consideration.

THE DIFFERENCES BETWEEN THE PROPOSITIONS: THE COST TO THE PATIENT

Both propositions stipulate that patients with prescription drug costs will be charged the lower of the standard rate for the drug or the rate negotiated between the state and the pharmacy, less the rebate negotiated with the manufacturer; they are identical in that regard. Both charge an annual application fee; Proposition 78's is more, at $15, than Proposition 79's, at $10.

THE DIFFERENCES BETWEEN THE PROPOSITIONS: MEANS OF PERSUASION

Both propositions say that rebates will be negotiated with drug companies. However, Proposition 79 gives the state some weapons to use in the negotiation: it would prohibit Medi-Cal from purchasing drugs from drug companies which do not negotiate, and it would require that the names of manufacturers which do and do not enter into agreements for rebates shall be made public (essentially as a means of using public pressure to force companies to negotiate). Both of these fill an important niche: manufacturers have no incentive other than altruism to participate in the rebate program under the terms of Proposition 78, while Proposition 79 gives them an incentive.

THE DIFFERENCES BETWEEN THE PROPOSITIONS: ADDITIONAL PROVISIONS OF PROPOSITION 79

While a prescription drug program is the core of both propositions 78 and 79, proposition 79 has some additional related provisions:

• It establishes a program to assist small businesses. Those which pay more than 50% of the cost of health coverage for its employees will be able to obtain "a net price comparable to the Cal RxPlus program," using the same procedural mechanism for establishing prices;
• It prohibits "profiteering in prescription drugs", defined as what happens when someone "exacts or demands an unreasonable price; exacts or demands prices or terms that lead to any unjust or unreasonable profit; discriminates unreasonably against any person in the sale, exchange, distribution, or handling of prescription drugs dispensed or delivered in the state; or Intentionally prevents, limits, lessens, or restricts the sale or distribution of prescription drugs in this state in retaliation for the provisions of this chapter." In addition, it specifies a penalty of $100,000 as the minimum penalty for profiteering;
• It creates a nine-member "Prescription Drug Advisory Board" to review access to and pricing of prescription drugs and report on their review.

The first of these is a stunningly good idea; small businesses are often badly pinched by the cost of providing health care to their employees. While I would prefer to remove the burden of health care from businesses altogether, the limited burden-shifting envisioned here - in which small businesses which are clearly working to support their employees are provided access to discounts negotiated with the drug manufacturers and with pharmacies - is a fantastic thing and, if this measure goes down in flames, should be adopted by the legislature forthwith.

Aside from whatever the administrative costs are, the third of these ideas is harmless: a board of advisors selected to meet convoluted criteria runs around investigating and issues a report. It's unlikely to achieve anything dramatic, but also unlikely to cause any problems. I can find no compelling reason to be for or against it.

It's the middle provision which gives me fits. Libertarian economists might say there's nothing wrong with profiteering, but I don't share that objection; and yet the provision still troubles me - not only is it it sufficiently vague as to invite years of litigation, but it also is worded in such a way as to presume that the initiative is going to result in retaliatory actions by drug manufacturers. It presumes an adversarial role between people who should be cooperating, and that is troubling, particularly if that presumption is shared by those who are placed on the harmless board of advisors.

Worse yet, the initiative includes an unusually restrictive clause on legislative amendment.

AMENDMENT OF INITIATIVE STATUTES

A normal initiative statute includes a clause that reads something like this:

The Legislature may amend this act only to achieve its purpose and intent, by legislation receiving at least a two-thirds vote of each house and signature by the Governor.

The intent is that an initiative statute, passed by the people, cannot be summarily overturned by the legislature; the legislature can only act in a way which is consistent with the intent of the initiative, and only by supermajority. That is standard boilerplate language in initiative statutes.

Proposition 79 goes beyond that (emphasis added):

No provision of this act may be amended by the Legislature except to further the purposes of that provision by a statute passed in each house by roll call vote entered in the journal, two thirds of the membership concurring, or by a statute that becomes effective only when approved by the electorate. No amendment by the Legislature shall be deemed to further the purposes of this act unless it furthers the purpose of the specific provision of this act that is being amended. In any judicial action with respect to any legislative amendment, the court shall exercise its independent judgement as to whether or not the amendment satisfies the requirements of this subdivision.

OK, so the Legislature can only amend a provision if it is consistent with the purpose of the specific provision. It can't, for example, determine that a specific provision undermines the purpose of the law as a whole, and amend that provision out of existence. And every level of court gets to make an independent judgement as to whether or not the amendment is consistent.

That fairly effectively ties the Legislature's hand. I'm not convinced that's a good idea.

CONCLUSIONS

Proposition 78 is an incredibly poorly worded law; its drafting is sloppy, and reading it brought me quickly to the suspicion that it is deliberately so. I am skeptical about the wisdom of placing such a law on the statute books.

In addition, while it is less likely to result in a burden-shifting from insurance companies to the state, it excludes a large class of people - those who are not desperately poor but who are effected by large-scale medical bills. There is no principled reason to exclude them. There may be a pragmatic reason - that a program of this sort inevitably distorts the market and that, as a result, it is better to restrict inclusion to the smallest possible population so as to reduce the market distortion - but proponents of Proposition 78 have not made that argument, and there does not seem to be much available analytical data to demonstrate the difference in economic effect of the two measures. Assuming you think such a program is a good thing in the first place, there does not seem to be a pragmatic reason to support the eligibility requirements of Proposition 78 over those of Proposition 79.

Indeed, assuming you think such a prescription drug program is a good thing, there are three reasons I can come up with why one might support Proposition 78 over Proposition 79:

1. Opposition to the state using market force and public shaming to force negotiations;
2. Dislike of the profiteering provisions in Proposition 79;
3. Horror at the restrictive amendment rules in Proposition 79.

I'm in favor of using market force and public shaming to force negotiations; indeed, using the state's market power is the primary purpose of this kind of discount program. I am, however, troubled by the tone of the profiteering provisions; and that distemper is made worse by the restrictive amendment rules, which make it difficult if not impossible to fix any problems with the initiative after the fact. Yet, at the same time, it is clear that Proposition 78 is the lesser of the two initiatives; it is poorly constructed and, by setting its sights lower, guarantees that it would be less successful at achieving the goal.

It's a conundrum for me. Were I a legislator, I would vote against both and insist that someone draft a better one. As a voter, I don't really have that luxury; I can vote against both, but then the goal will likely not be achieved; the legislature has already shown that it is unwilling to touch this, and the defeat of both initiatives will resound as the defeat of the idea, not the defeat of the implementation. But I have problems with both implementations.

In the end, forced to jump off the fence by the impending deadline, my support for the goal outweighs my dislike of the implementations. Either one would be better than the current system; and, of the two, Proposition 79 would be better than proposition 78. Given that the enemy of the ok is the perfect, as the saying doesn't go, I find myself compelled to vote for Proposition 79, despite my misgivings.

Making a decision about Proposition 78 is more difficult. If Proposition 79 passes, I want Proposition 78 to fail (so that it doesn't conflict); if Proposition 79 fails, I want proposition 78 to pass. Clearly, then, my decision about Proposition 78 depends on how I think the voters are going to vote on Proposition 79; and for that, unusually, I must consult the polls. The latest Field Poll shows Proposition 79 failing 37-45-20; they also show Proposition 78 failing 36-45-19. Assuming the poll is correct, then I should vote 'yes' on Proposition 78; but with that number of undecideds, even following the normal rule that undecideds usually break against initiatives, it's hard to be sure.

I haven't yet decided where I stand in the battle between proponents of Proposition 78 and proponents of proposition 79, but Proposition 78 is one of the worst drafted initiatives I've ever read.

Some examples:

[Health and Safety Code Division 112, Section 130601, paragraph f, subparagraph 4, clause i, as added]

"Prescription drug" means any drug that bears the legend "federal law prohibits dispensing without prescription," "Rx only", or words of similar import.

What, there isn't a legal definition of prescription drugs by status, it all depends on what the label says? Seems trivially easy to get around. (To be fair, Proposition 79 has similar wording, but it still seems terribly bizarre to me).

[Health and Safety Code Division 112, Section 130605, as added]

To be eligible for Cal Rx, an individual shall meet all of the following requirements at the time of application and reapplication for the program:
(1) Be a resident.
(2) ...

Be a resident of where? I mean, yeah, it's implied that you have to be a resident of California. But shouldn't a well-drafted law say so rather than requiring a judge to assume it?

[Health and Safety Code Division 112, Section 13606, Paragraph b, Subparagraph 4, clause c; Section 13707, paragraph b, as added]

(c) In assessing the income requirement for Cal Rx eligibility, the department shall use the income information reported on the application and not require any additional information.
...
(b)(1) Private discount drug programs may require an applicant to provide additional information, beyond that required by Cal Rx, to determine the applicatnt's eligibility for discount drug programs.
(2) An applicant shall not be, under any cirrcumstances, required to participate in, or to disclose information that would determine the applicant's eligibility to participate in, private discount drug programs, in order to participate in Cal Rx.

OK, I kind of get this one: eligibility for private discount drug programs and for CalRx are not related to one another, the private programs can have higher requirements, and you don't have to participate in one of them to participate in CalRx. But since CalRx is nothing other than a clearing house for private discount drug programs, this is a meaningless semantic distinction: in effect to participate in the program you have to seperately establish eligibility, using different critiera, with both the state office and the local pharmacy filling the order.

This is unclear at best and tendentious at worst. When combined with the sloppy drafting above, it makes for a poor portrait of craftsmanship and writing. Lawyers can express themselves more clearly than this when they want to. This reeks more of a deliberate intent to be unclear and confusing than honest error.

Proposition 77 is the most revolutionary of the measures on the ballot this fall. It proposes a change to the innermost workings of the political system, something akin to the adoption of the blanket primary in the late 1990s; and its effects, if adopted, may work as profound a change on the state's politics as the abolition of cross-filing in the 1950s or the adoption of the initiative system itself. Then again, it might not; the single biggest problem with the initiative is that nobody can say with any certainty what its effects will be. There is some precedent, and there are some examples of similar systems elsewhere; but evidence which is collectible from such precedents may not apply to California, and many of the conclusions which both proponents and opponents of the measure are reaching are, in fact, the sentinels of wishful or fearful thinking.

THE BASIC PROPOSAL

Proposition 77 would change the rules under which California draws the borders of legislative districts after each census. Currently, those borders are drawn up by the state Legislature. Proposition 77 would change the rules so that tentative borders are drawn up by a party-balanced panel of retired judges, and then must be approved or rejected by the voters in a referendum. Proponents of the measure claim that this will lead to fairer districts, pointing to the current districting scheme as a rank example of political corruption. Democratic opponents of the measure claim that it is nothing more than an attempt at a partisan power grab by the Democratic party, while Republican opponents of the measure claim that it is nothing more than an attempt at a partisan power grab by the Democratic party. The proponents are closer to the truth, but there are some subtle concerns that both they and the measure's opponents are missing.

THE CURRENT SYSTEM

Article 21 of the California State Constitution provides, in its entirety:

SECTION 1. In the year following the year in which the national
census is taken under the direction of Congress at the beginning of
each decade, the Legislature shall adjust the boundary lines of the
Senatorial, Assembly, Congressional, and Board of Equalization
districts in conformance with the following standards:

(a) Each member of the Senate, Assembly, Congress, and the Board
of Equalization shall be elected from a single-member district.

(b) The population of all districts of a particular type shall be
reasonably equal.

(c) Every district shall be contiguous.

(d) Districts of each type shall be numbered consecutively
commencing at the northern boundary of the State and ending at the
southern boundary.

(e) The geographical integrity of any city, county, or city and
county, or of any geographical region shall be respected to the
extent possible without violating the requirements of any other
subdivision of this section.

The California state Legislature is responsible for redrawing the borders of legislative districts after each census. Its border-drawing is subject to federal review under the Voting Rights Act (because certain parts of the state, including Monterey County, are deemed to have been historically discriminatory against the Latino population of the state). In practice, rule (e) above is regularly ignored; a casual glance at any of the current state district maps shows little if any respect for the geographical integrity of anything.

In 1991, after a protracted fight between the legislature and then-Governor Wilson, the State Supreme Court appointed a panel of special masters to hold public hearings and return a recommendation as to what plan should be adopted. That panel rejected both the legislature's preferred plan and the Governor's preferred plan, instead proposing a third plan which was ultimately adopted. One of the signal features of that plan was that all state Senate districts were comprised of two adjoining Assembly districts. These districts were generally considered by partisans on both sides of the aisle as having been fair districts, and there were a substantial number of districts in which the district representative's party switched over the course of the decade.

In 2001, the leaders of both major parties in the state Legislature organized a plan in which every sitting legislator would be ensured a safe district. It was not, as some have alleged, a partisan districting in which the Democrats in the Legislature conspired with Governor Davis to ensure that Democrats would have as many seats as possible; it was a bipartisan incumbent protection plan in which both parties assured that every legislature would be placed in a district in which he was relatively invulnerable to competition. There have been virtually zero districts in which the representative's party has switched in the last two elections.

THE PRAGMATIC PROBLEM WITH THE STATUS QUO

One of the side-effects of an incumbent protection plan is that, as a general rule, it is now true that state Assemblypeople, Senators, and Congresspeople are more likely to be defeated as a result of opposition in the primary than they are in a general election; their districts were designed in such a fashion as to make inter-party competition difficult. This has encouraged politicians of both parties to take positions which appeal primarily to party activists (who are more likely to vote in primaries) and less likely to appeal to the state's centrists (including the approximately thirty percent of voters who are not affiliated with any political party). This has exacerbated the frustration with politics felt by the so-called "independant" voter.

In addition, the need to placate party activists has led directly to the state's intractable budget problems. Compromise between the parties at the legislative level has become all but impossible, as any such compromise risks a backlash from party activists. It is easier for Republicans to hold fast to their determination to not raise taxes than it is for them to seek a budget compromise; it is likewise easier for Democrats to hold fast to their determination to not cut programs than it is for them to seek a compromise. The incumbent-protection districting has created a situation in which everybody has a structural incentive to avoid compromise as much as possible, and has combined with the side-effects of term limits to create a politics of combative paralysis at the state level.

It is, to be sure, not fair to blame this situation entirely on the 2001 redistricting; there are other elements at play. But legislative districts in which interparty competition is less meaningful than intraparty competition encourages extremism in the legislature and discourages compromise, and the results have been unfortunate for the state as a whole.

THE IDEALISTIC PROBLEM WITH THE STATUS QUO

The 2001 redistricting has been widely recognized as an incumbent protection plan: a system in which the legislators drafted districts in order to guarantee their own re-election. A system, in effect, in which the legislators currently in office deliberately chose those voters most likely to support them. To put it bluntly, this is a perversion of democracy. If the legislature can select its voters, if it can aggregate people into districts in such a fashion as to make competitive elections nonexistent, then the people are no longer choosing their legislators in any meaningful fashion. Elections conducted under such a system are a farce, a rubber-stamp in which the people simply verify that the legislators have chosen their voters wisely.

This has always been a danger with reapportionment conducted by the legislature. It is a sin of government that has been around since at least the time of the Long Parliament. But it is also a fundamental violation of the rights of the people. It is no more acceptable than was the decision of Tennessee to forgo reapportionment for decades. And there is some reason to believe that modern technology is making the problem worse by making it harder for the Legislature to accidentally create a few competitive districts in addition to the mass count of districts designed specifically to deny the voters a meaningful choice.

This concern is felt particularly keenly by conservative activists, who believe themselves to be disadvantaged and discriminated against under the current system, and who think that a different system will grant them more power. There is substantial reaosn to think that they are wrong about this proposition granting them more political power; but setting that aside and looking only at their idealistic argument, they have a point. For the legislature to create districts that deny political competition and bear no reasonable relation to geographic communities, in order to ensure their own re-election, denies the voters a meaningful participation in representative democracy. It is intolerable.

THE PROPOSED SOLUTION: PROPOSITION 77

Proposition 77 would take the power to redraw legislative districts away from the legislature entirely and, in effect, split it in half. The power to create new district maps would be handed to a panel of retired judges selected through a complicated procedure designed to ensure partisan balance among the judges; those judges would then be constrained by a set of rules regarding what they could consider in drawing new boundaries. The power to approve new district maps would be vested in the voters themselves, through the power of referendum.

There is some precedent for involving the judiciary in the process. The 1990 redistricting was in effect done by the judiciary, and other states have from time to time had individual redistricting plans issued by the courts. In addition, since the 1960s redistricting plans in areas which are deemed to have had a history of racial and ethnic discrimination in the political process have been subject to judicial review.

More common is the principle behind involving the judiciary: the idea that redistricting should not be done by politicians but by people who are non-partisan and unlikely or ineligible to stand for political office is a common one. Iowa, for example, has for several decades vested redistricting in the hands of an independent commission appointed for that purpose, and district boundaries in most parliamentary systems are redrawn by civil servants whose only responsibility is to ensure fair districting. It is generally agreed by US experts that Iowa's districts are the fairest and most competitive in the United States; and there is very little discontent with the drawing of district boundaries in countries with civil service-drawn district borders (although this may be a result of a generally less polarized electorate in those countries, or of other cultural factors which do not arise from the district boundaries themselves).

Much of the opposition to proposition 77 seems to focus on a perception that the procedure for selecting who will draw new boundaries does not actually guarantee political independance, and may simply result in a politically biased cartel which is not, in the end, responsible to anyone. Proponents are aghast at the idea: if retired judges cannot be trusted to be unbiased and neutral, to apply the rules regarding district boundaries fairly and without a nod to political concerns, then who can be?

The proponents of the measure have a point: we expect judges to be unbiased, as a daily routine, part of their jobs. Judges hearing cases that arise out of election disputes are expected to put their partisanship aside and apply the law fairly and - Bush v. Gore notwithstanding, generally do so. It is not unreasonable to expect them to suppress their political bias in this task, and in any event the fact that their plans will be submitted as an initiative acts as a check on any political adventurism.

There is a problem, however, which opponents and proponents both seem to ignore: unbiased judicial involvement in the drafting of new districts may well lead to a perception of bias. As we've seen with the juggling of judges in the Tom DeLay case (where two judges have now been pushed off the case as a result of charges of political partisanship), it is easy for people to learn to percieve judges as being biased partisan hacks. To the extent that happens, respect for the judiciary, and willingness to comply with the decisions of courts, declines. It is possible, though by no means certain, that redistricting by judges will result in better redistricting and also cause a decline in public respect for the nonpartisanship of judges; that is one of the great risks of the proposal.

VETTING REDISTRICTING BY INITIATIVES

The other great risk in proposition 77 involves using initiatives to approve new district maps. Under the proposal at hand, the panel of retired judges is supposed to send its plan to the Secretary of State. It will go into effect immediately for the upcoming primary and general election, but it will also appear on the general election ballot as an initiative. If the initiative passes, the resulting plan is in effect until the following census; if the initiative fails, then a new panel of special masters is appointed and the cycle repeats itself.

The complaints i've heard about this focus entirely on the fact that the plan goes into effect before it is approved by the voters. If this measure passes, for example, the election of 2012 will be conducted using the districts drawn by retired judges using the 2010 census data, and simultaneously the voters will be deciding whether to accept or reject the boundaries. Doesn't that, as the opponents of the measure say in their rebugttal to the argument in favor, "take away the right of voters to reject redistricting plans before they go into effect?"

To an extent, yes. Under current rules, if the legislature adopts a redistricting plan, angry voters could circulate petitions to force a referendum at the next election, and the new boundaries would be suspended until after the election. This has never happened. The signature gathering does pose a significant barrier; and arguably a system in which the voters automatically get to vote on the plan is one which gives more power to the voters than one in which they only get to vote on the plan if they collect six hundred thousand signatures asking for the right to do so. This particular argument, as presented in the ballot pamphlet, is disingenuous at best.

There is a different concern, though: what will the campaigns over district boundaries be like? There will be expensive, high-profile campaigns; there always are, with ballot initiatives. Will they focus on contiguity (the only real concern that the judges are allowed to take into account when drawing the district boundaries)? Or will they focus on partisan outcomes? How likely is it that we will see political commercials denouncing new district boundaries for creating a democratic, or republican, partisan majority that is inconsistent with voter registration? What is the risk that plans which conform to the letter of the law will be rejected for reasons that the drafters of the districting plans are not lalowed to consider. Worse, what is the risk that plans will be consistently rejected and that, in effect, we will endure biennial redistricting?

Nobody knows the answers to this question; it is the great unknown in proposition 77.

The question that we as voters must consider is this: is that risk, and the risk of damaging the reputation of the judiciary, worth it? Or are we better off sticking with a means of selecting district boundaries which is actively undermining democracy?

In my mind, there's no contest. There are risks associated with Proposition 77; there are uncertainties. But i'd rather take those risks than continue with a system in which legislators select their voters and elections are, in effect, rendered meaningless. The risks of adopting proposition 77 can be ameliorated by further ballot initiatives if they turn out to be too great. While the risks of sticking with the current situation can also be ameliorated by ballot initiative, the failure of this initiative would discourage further attempts, and it is more likely that we would stick with the status quo than try something new. That course would do too much damage to our political culture.

Proposition 77 is a questionable idea whose time has come. It has risks, and it is not guaranteed to fix every problem for which it is offered as a palliative; but it has the potential for great improvement, and the current situation is intolerable. It is an experiment which, like the blanket primary in 1998, deserves the wholehearted support of the voters of the state.

About the best thing I can say for The Legend of Zorro is that it is only the second movie i've ever seen to demonstrate the importance of election inspectors. Otherwise, the movie was ridiculous ahistorical drivel, often unintentionally absurd, with mediocre acting and poor editing.

It's bad when the editing is so poor that the audience notices. Now, granted, because i've done video editing, i'm more likely to notice than most; but still, repeatedly showing the same [redacted] exploding shows a lack of interest in quality which would make any software production team blush deep red in embarassment. But that wasn't the worst part of the film, by any means.

The worst part of the film was the idiotic plot. Here's a summary: in 1850, as California is voting to approve a constitution and join the union, the state becomes embroiled in a plot involving the confederate army's desire for a new weapon to allow it to launch a pre-emptive strike on Washington DC. The weapon is being developed in California and will be sent to the confederacy on the transcontinental railroad.

In 1850. An army which didn't exist until 1861 is using the transcontinental railroad that didn't exist until 1869.

Not to mention the absurdity of transporting wine bottles full of nitroglycerin on a train.

"What were they thinking?" doesn't even begin to describe it.

(Jared, Ian, and I give the movie six thumbs and twenty-four fingers down. Your mileage is unlikely to vary).

There's a somewhat strange report in the news this week (Hat tip: Election Law Blog) that the Attorney General has sued the Santa Cruz County Elections department for failing to comply wiht the Americans with Disabilities Act. Attorney General Lockyer's suit claims that 72% of the county's polling places had barriers to access for the disabled.

I find this statistic to be incredible. Over the years that i lived in Santa Cruz, I worked as a poll worker in the following polling places:

• the College 8 community room at UCSC;
• the Porter College community room at UCSC;
• the Baobab Lounge at UCSC;
• a Lutheran Church in central Santa Cruz County;
• a natural history museum in the Seabright area of Santa Cruz;
• an episcopal church in downtown Santa Cruz;
• a church on the eastside of Santa Cruz.

Of these sites, all three churches and the museum had easy handicapped access and closeby parking. The polling places at UCSC were all accessible, but they had no parking nearby, and could require some effort to get to the building; but that would have been the case for any polling places at UCSC, where parking is a contentious issue and buildings are often a fair ways from parking lots.

This is anecdotal evidence, of course. But 100% of the polling places I worked in were fully handicapped accessible, and every mandatory poll worker training I went to informed me of the procedure for having poll workers take ballots to people's cars if they were for some reason unable to make it into the polling place. While I can imagine that in the more rural areas of the county, handicapped accessibility may be a problem, I simply don't believe the allegations in Lockyer's lawsuit: my experience of over ten years volunteering in Santa Cruz County polling places conflicts with the statistics he is using.

Proposition 76 is a complex initiative that attempts to make a series of highly technical changes to the budget process in the hopes that doing so will help solve the state's persistent budget problems. It is also the centerpiece of Governor Schwarzenegger's agenda for the special election. Unfortunately for the voters, it contains some good ideas, some ideas which appear to be about fixing the problem but are in fact about something else entirely, and some ideas which are questionable. The mixture of ideas makes it difficult to determine how to vote; the complexity of the initiative makes the political rhetoric surrounding it useless in helping make that determination.

AN OVERSIMPLIFIED SUMMARY OF THE INITIATIVE

Proposition 76 would make the following changes to state law:

• It would prohibit the state's General fund from borrowing money either from the Transportation Investment Fund or other special funds;
• It would change the rules for what happens when there is no budget on the start of the fiscal year, preventing shutdowns of state government;
• It would provide that shortfalls in the constitutionally mandated spending on schools would not need to be repaid in subsequent years, and make some highly technical changes in the rules for how the mandated spending floor is determined;
• It would change the rules that determine the maximum spending ceiling for the state government;
• It would grant the governor the power to unilaterally cut spending where he sees fit, under certain circumstances.

THE GOOD: INTERACTION WITH SPECIAL FUNDS

One of the things that makes California's budget process is the proliferation of special funds in which revenue from a specific source is theoretically dedicated to a specific expenditure. According to the Legislative Analyst, there are hundreds of these whose expenditures are responsible for roughly 20% of the state's annual expenditure. Usually these special funds are created by ballot initiative, with voter expectation that the money will be spent as directed in the initiative.The highest profile example of this is the state's transportation fund, in which revenue from gasoline taxes are theoretically set aside for expenditure on transportation infrastructure projects.

In recent years, when the state's general fund has experienced a budget deficit, the state has papered over the deficit in part by borrowing money from the special funds. In theory the money borrowed from the general fund is supposed to be repaid, but such repayment is often either delayed, fractional, or both. Moreover, the ability of the general fund to borrow this money means that the targeted expenditures may not happen in any given year, if the state decides the general fund needs the money more.

Proposition 76 would explicitly prohibit such borrowing, creating a firewall between the general fund and these special funds. This is a good thing: if the voters are going to create special funds, they have a reasonable expectation that the money in those special funds will be spent as they have directed, not used as a slush fund to provide backup financing for the general fund. Without the firewall that Proposition 76 would erect, the entire notion of a special fund is in fact meaningless, and most people voting for initiatives that create such special funds have always assumed that firewall to exist. This provision of the proposition inserts a common-sense barrier between different accounts which should have been placed there decades ago.

POSSIBLY A GOOD IDEA: IMPROVEMENTS TO PROPOSITION 98

In 1988, the voters of the state of California passed a ballot initiative which ensured that the public schools would receive a minimum amount of funding from the state general fund. (The schools also receive money from local property taxes; the precise nature of school financing in California is incomprehensible even to trained accountants). The guarantee provided that the public schools would receive 39% of general fund revenues in 1988-89, and then a minimum amount based upon that quantity, indexed for growth in school attendance and per capita income. However, in years in which the percentage growth of per capita income is less than one percent more than the growth in general fund revenues, a different guarantee is used; the 1988-89 baseline is indexed based upon growth in attendance and per capita general fund revenues. When the latter guarantee is used, or when the legislature declares an emergency and suspends the initiative, the difference between the amount actually funded and the amount which should have been funded (under the first guarantee) is recorded as a loan to the state, which is supposed to be repaid in subsequent years.

Proposition 98 has been derided since 1988 as depriving the state of flexibility in spending, and thereby making the entire budget process more difficult; but that was the goal of the intiative - to take public school funding off of the table for discussion when expenditure needed to be cut. The intent was to ensure that school funding remained stable, and it has largely succeeded in that. I say largely and not entirely because the legislature remains able to suspend the guarantee, because school funding can vary depending on which guarantee is used in any given year, and because the creation of large implicit loans results in an enormous state debt to schools, the repayment schedule for which becomes a heated political issue in nearly every budget cycle.

Proposition 76 attempts to remedy two of these. It remedies the uncertainty by eliminating entirely the second test; if Proposition 76 passes, the public school funding guarantee will always be based on per capita income and not per capita revenue growth. (Note that, while this is very good for the schools, it is not entirely clear that this is a good idea: if revenue growth remains significantly below per capita income growth, the total percentage of the state budget allocated to the public schools will slowly increase). The proposition remedies the problem of creating large implicit loans by ending the practice; in the future, if this measure passes, when Proposition 98 is suspended, the state does not incur a debt to make up the shortfall in the future.

There's much to be liked in these provisions; the current system is excessively complicated and the new system would simplify it, and appears to be simplifying it in a way which is in line with the intent of Proposition 98 (by permanently adopting the higher of the two possible baselines). The measure would also prevent the accumulation of an enormous implicit debt owed to the schools by the general fund. But, at the same time, that opens the door for abuse; if the legislature ever finds itself regularly suspending the guarantee of Proposition 98, there is no longer a penalty. And the permanent adoption of the higher level guarantee, particularly when combined with other provisions of the intiative, creates a serious risk that over time the percentage of the budget available for things other than education will shrink precipitously.

THE UNFORTUNATELY NECESSARY: CHANGING THE RULES FOR LATE BUDGETS

Under current California law, the legislature is required to adopt a budget by July 1 of any given year. It rarely does. When it doesn't, the state is not authorized to pay for anything (not having a budget) except for those things which courts have ruled that it is required to pay for; the result is a partial state government shut down. The intent behind this is, in essence, to hold a gun to the legislature's head: if it doesn't comply with the constitutional provision requiring a budget by the start of the fiscal year, its members must pay the political price of defending responsibility for a partial government shutdown.

The trouble is, the threat hasn't been getting results; the legislature regularly misses the deadline, and state government is as a result regularly thrown into chaos. Proposition 76 would change that by replacing the current rule with a different one: until a budget is passed, the state would be presumed to be operating under a budget identical to the one of the previous year, and spending would be authorized at the previous year's level.

The obvious drawback to this is that there is no longer a real threat to hold over the head of the legislature; there is no substantial penalty for failure to produce a budget on time. But given that the current penalty isn't producing its desired result and is regularly getting invoked, the current system is worse than the one this initiative would replace it with. It's an unfortunate admission that budgets are going to be late, and that as a result we have to have a better default than shutting down the state government every time it happens.

THE DUBIOUS: HANDING MORE POWER TO THE GOVERNOR

California's General Fund is required to be in balance when the budget is passed. If the budget subsequently falls out of balance (because revenue is lower than expected or expenditure is higher than expected), the Governor is allowed to declare a fiscal emergency and summon a special session of the legislature to modify the budget. If the legislature has failed to do so after 45 days, it is prohibited from either (a) considering other business, or (b) adjourning, until it has come to an agreement. This has been politically impractical in recent years, as a substantial minority have banded together to block any tax increases (which must be approved by a 2/3 majority), while a slim majority has rejected most spending cuts. Emergency budget rebalancing has turned into a protracted game of chicken in which the minority attempts to force unpalatable cuts on the majority, which meanwhile tries to bribe the minority into accepting tax increases.

Proposition 76 would take the issue away from the legislature: if it had failed to produce a rebalanced budget after 45 days, the Governor would be empowered to make whatever cuts he wanted (with some limitations) to the General Fund, in order to bring the budget back into balance.

Leaving aside, for the moment, the question of whether or not cutting the budget is properly an executive rather than a legislative task, this measure has two almost certainly intended political effects: it increases the power of minorities in the budget rebalancing negotiations (because a stubborn minority can always refuse to deal, threatening to kick the issue to the governor instead); and it enshrines a built-in bias in favor of cutting spending rather than increasing taxes. The governor cannot unilaterally raise taxes; he may only unilaterally cut spending. When combined with the existence of a sizeable minority opposed to any tax increase, anywhere, for any purpose, this provision serves to bolster that minority's strength in the negotiations for budget rebalancing; all they have to do is hold firm to their refusal to entertain the notion of tax increases, and the governor will be required enact budget cuts over the will of the legislative majority.

Proponents of this provision will defend it by pointing out that we need to live within our means, and that this is a value-neutral provision for ensuring that: when the budget falls out of balance mid-year, if the legislature is unable to fix it, the governor will restore the balance. They're right to an extent; we do need to live within our means. But this is hardly value neutral; when combined with the 2/3 majority requirement for tax increases and the presence of a committed minority opposed to all such, it enhances that minority's strength, frustrates the will of the legislative majoriuty, and reduces the incentive to forge a political compromise. Those who know that, if they stand their ground and refuse to negotiate, the governor will be forced by law to give them the budget cuts that they can't obtain through legislative agreement have no incentive to negotiate and a great incentive to hold out.

This provision is something of a trojan horse; embedded in an ostensibly neutral reform of the budget process, it instead changes the structure of that process in order to make things easier for those who want a particular policy outcome and harder for those who don't.

THE MISLEADING AND BAD: Reducing the state spending limit

If that were the only part of the initiative which took sides in the political debate instead of neutrally reforming the process, the initiative might still be a good thing. There are many good ideas in it, and those good ideas may well outweigh this particular biased structural change. But, crucially, it isn't the only part of the initiative in which partisanship hides in the cloak of neutrality.

California law provides, through a complicated formula, a maximum cap on the amount the state can spend in any given year. The quantity is determined by indexing forward from a base year, using as an index a calculation based on (a) population growth and (b) state GNP growth. According to the Legislative Analyst, the limit is somewhat substantially above current spending - the cap is not providing a constraint.

Proposition 76 would change the method by which the cap is calculated. In addition to the existing cap, it would add a new cap, in which spending would be constrained to the previous year's spending adjusted by the average of the increase in revenue over the preceding three years.

The intent is to ensure that the state never overspends; increases in revenue could not be spent immediately and must be, instead, saved as a hedge fund against a rainy day. That's a reasonable intent, in itself; it's a clever trick designed to force the state government to save money during boom times, and it would probably be quite effective.

This mechanism would, of course, delay the impact of tax increases: the full amount of new taxes could only be spent several years after they go into effect. That might reduce public or legislative support for new taxes - neither the legislature nor the electorate tend to like schemes which impose pain upfront in exchange for benefits later. But that isn't the real problem.

The problem with this proposal is this: if current spending is significantly below the spending cap, and this rule would allow increases in spending at a rate lower than that allowed by the current cap (which it would), this rule permanently lowers the spending cap. As years pass, it would constrain the state's options more and more; each year, the gap between the spending cap under the old rule and the spending cap under the new rule would increase. Government would be permanently limited.

Perhaps government should be limited; that's a conversation for another time. My objection is this: that's a policy decision, a political agenda, which has nothing to do with the ostensible purpose of this measure. It is not necessary to reforming the budget process; it uses reforming the budget process as an excuse to pursue a partisan ideological agenda. It is a trojan horse.

Logrolling - the combination of unrelated proposals into an amalgamation which pleases nobody - is sometimes necessary in the Legislature. It is not necessary in a ballot initiative, and in fact borders on the deceitful. A measure presented as a policy-neutral change to the budget process should not contain, embedded within it, a measure to permanently reduce the amount the state can spend. That is a seperate issue.

I can see this being a tough call for many: even if you object to the procedural logrolling, the good things in the initiative may outweigh the bad. But for me, it is clear: ballot initiatives should not encompass multiple subjects, and this one is a clear attempt to pursue a conservative political agenda behind a smokescreen of neutral budget reform. It deserves to be rejected at the polls.

No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

Nine Senators voted against this. The Bush administration has threatened to veto it.

No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment .... ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States"

Just what is wrong with Senators Allard (Colorado), Bond (Missouri), Coburn (Oklahoma), Cochran (Missouri), Cornyn (Texas), Inhofe (Oklahoma), Roberts (Kansas), Sessions (Alabama), and Stevens (Alaska)? These men are on the record, on the floor of the Senate, as opposing a ban on the use of cruel and inhumane treatment of prisoners. They should be ashamed of themselves. And the voters of those states, the men and women who sent these men to office, should be ashamed of themselves as well.

UPDATE: These Senators are objectively pro-torture.

It's been entertaining over the last day or so reading the unbelievably bad arguments people are making in favor of, and in opposition to, Miss Miers' nomination to the Supreme Court. It's enough to make me doubt the sanity and wisdom of the blogsphere, if truth be told.

Conservatives seem to have fallen into three different camps, liberals into two. One of the conservative camps and one of the liberal camps ought to be able to make common cause, although they will each have to consider whether or not it is in their overall interests to do so on this issue. The rest are going to find that it's basically impossible to talk to each other.

The first strand of thinking among outraged conservatives appears to be "Where is our Scalia? Where is our Thomas? How do we know that Miss Miers is really a conservative?" What most of those taking this position are really arguing is "we can't bring ourselves to support her unless we know she'll decide things the way we want her to decide them", exactly the sin they w