Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

27 June 2015

The Vindication of Same-Sex Marriage, and the Chief Justice’s Cautionary Note


[For a post on what may, in the long run, be far more important issues, click here. For brief comment on the Supreme Court’s decision upholding Obamacare’s subsidies, click here.]

Although not gay myself, I was overjoyed at the Supreme Court’s vindication of same-sex marriage throughout our nation. A significant minority of us Yanks now will feel more accepted and welcomed, able to live their lives as they wish, with due public recognition of their loves, aspirations, economic and human value, children, and families.

It always seemed unconscionable to me that a gay or lesbian soldier could die fighting for my freedom yet not have freedom to the same degree as I. And it seemed all the worse that the reasons for the difference were doctrines of ancient Scriptures and particular religions in which far from all of us Yanks believe.

If there’s a constant theme in our national history, it’s this: when individuals in general and minorities in particular are better off, we are all better off. The more we Yanks respect and honor each other, and the more we treat each other equally, the closer we come to Paradise on this Earth. Isn’t that just the Golden Rule?

But I have to admit I got it wrong. Several weeks ago, based on questioning in oral argument, I predicted that Chief Justice Roberts and Justice Kennedy would both vote to uphold a same-sex marriage right, for a 6-3 majority. I was wrong. Only Justice Kennedy did, leaving the right hanging precariously by the thread of a 5-4 majority.

John Roberts is not only our Chief Justice, but, in my view, among the smartest and most original of all. He’s also the second youngest, after Justice Kagan. So he’s going to be with us for a long time. He will have the power to shape the docket and (within voting blocs) assign opinion writing for the foreseeable future. With his powerful intellect and his pragmatism, he’s a force to be reckoned with for a long time to come.

So when Justice Roberts, who I thought would vote with the majority, didn’t, and also read a blistering dissent from the bench, it’s worth while to ask “why?” What moved him to dissent so vehemently from expanding civil rights?

The first thing to note is that Justice Kennedy’s thoughtful and inspiring majority opinion did not go Justice Roberts’ way. Here, in its entirety, is the question in oral argument that made me think Justice Roberts would see a right to same-sex marriage:
“I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
That’s a straightforward equal-protection argument: Tom is being treated unequally because of his gender. But, as Roberts noted in his dissent, Kennedy’s majority opinion did little with the equal-protection argument. It relied almost entirely on the idea that marriage is a fundamental right of “liberty,” which gays and lesbians cannot be denied.

So was the loss of Justice Roberts’ vote just a failure of judicial diplomacy—a failure to reason the way Roberts wanted to reason? Probably not.

The dirty little secret of equal protection, which few but lawyers know, is that it doesn’t apply to everyone. There’s a valid practical reason for that. We may all, in Tom Jefferson’s words, be created equal, but we are all self-evidently not equal. A high-school dropout would have tough time doing the job of a Ph.D. in engineering or economics, and I would have a tough time playing basketball with LeBron James.

So constitutional equal-protection doctrine doesn’t assume that all individuals are equal. It looks to see whether the law treats definable groups of people differently without just cause.

And then there’s another qualifier. A group asking for equal protection has to be one that deserves it. Why is that? Because we humans form innumerable groups and groupings. Would you want bankrupt people to be able to sue every time the law treats them differently from others? bakers? vegetarians? white supremacists?

Probably not. So constitutional equal-protection doctrine focuses on so-called “protected groups.” At the moment, these are defined by race, ethnicity, national origin, and religion (which is also protected by our First Amendment). Even women, as a gender, don’t quite make the cut. They are different because their biology is different—men can’t get pregnant or bear children—so they are treated as a group of their own, with special protections all their own, but not quite the same as other protected groups.

Now you can see how hard it would have been to answer Justice Roberts’ simple question with changes in the law. The good Justices would have had to admit gays and lesbians into the highly selective list of groups already acknowledged as having equal protection under our Constitution. Apparently, that was a bridge too far.

Such a ruling would ipso facto have invalidated numerous state laws that permit or require discriminating against homosexuals in such varied fields as employment, housing, medical care, teaching, families, adoption, etc. While such a masterstroke might be desirable as a matter of justice, this case was about the specific subject of marriage. The Supreme Court never sweeps that broadly, and it never will, let alone on a subject, like this one, is which society is self-evidently immersed in a difficult and incomplete transition.

Anyway, it’s not clear whether more attention to equal protection would have garnered Roberts’ vote. He did state explicitly, in his dissent, that disparate legal treatment of gays or lesbians, with regard to specific practical and economic benefits (which might include hospital visitation rights and intestate succession) could get his attention. But he devoted barely more space to equal protection than did Kennedy.

The thrust of Justice Roberts’ dissent was different. He felt that, by changing the definition of marriage to include same-sex couples, the majority had vastly overstepped the bounds of proper judging. Although expressing some sympathy for excluded gays and lesbians, he would have preferred to leave such culture-changing decisions to voters and legislatures. His vehement dissent was an impassioned plea for judicial restraint.

That plea was not entirely practical. There’s no such thing as a national referendum, and there’s no legal mechanism for having one. If polls of public opinion are correct, advocates of same-sex marriage would win such a referendum by a substantial majority, and we would be done with this issue, once and for all, entirely without the Supreme Court’s intervention.

But that cannot be. As both the majority and Robert’s dissent acknowledged, and as is fact, marriage is a matter of state law, not federal law. So rule by legislatures means rule by state pols. The result, today, is eleven states accepting same-sex marriage by popular or legislative vote, five by judicial fiat in state courts, and the other 34 accepting it not at all. Now the Supreme Court’s decision will force all to accept it.

In reality, as distinguished from theory, creeping acceptance without that decision would have taken decades, maybe a century or more. A majority of the justices, and a majority of the nation—with no hope of a national referendum—do not want to wait. In a nation that is just now thinking of taking down the Stars and Bars, 150 years after the Confederacy’s unconditional surrender at Appomattox, that is understandable. Sometimes, at least, cultural progress ought to flow faster than molasses in winter.

But no one should minimize or ignore Justice Roberts’ warnings. Expansion of so-called “substantive due process”—the fundamental rights that no legislature can take away—will indeed cause a backlash, just as Justice Roberts predicted in his dissent.

A few years ago, I might not have believed this. But in the past few years I have discussed politics at length with two women, both of whom cast their votes for president primarily on the issue of abortion, for “pro life” candidates. One is a brilliant professor of law, a “graduate” of a major federal regulatory agency. The other is a dear friend. Both cast their votes on abortion, ignoring the nation’s welfare, needless and terrible foreign wars, and their own economic interests as members of the middle class.

Now that gay marriage, like women’s right to an abortion, is a fundamental right recognized by the Supreme Court, it will be a political gift for the right wing that keeps on giving. Right-wing pols will use it, persistently and profitably, when their economic, social and practical policies are bankrupt, just as they have used abortion in opposing “Obamacare” and the Obama presidency generally.

Justice Roberts’ specific legal admonitions are, in my view, overblown. He likened the Supreme Court’s decision on gay marriage to the infamous Lochner decision—the most notorious of several by which our pre-war Supreme Court overturned and tried to block FDR’s New Deal reforms.

But in analogizing Lochner, Roberts left his pragmatism and common sense behind. In that case, the Court had struck down limits on workers’ weekly hours, saying that those limits infringed the workers’ liberty: their freedom to bargain.

That view, of course, was not only impractical; it was diabolically cynical. Workers then, like many now, had little “freedom” to bargain without the law’s help; the business owners who employed them held all the cards and all the bargaining power.

Today, gays are among the ones without power. They are the ones outside, in the cold, looking in the window at the warmth and benefits of marriage that the rest of us enjoy. No one, least of all the Kennedy majority, would have the temerity to suggest that, by giving up their “rights” to be discriminated against, they are losing something. In short, no one today would be so cynical as to turn gays’ supposed “rights” against them as did the Court’s majority against the workers in Lochner.

So, too, was Roberts’ analogy to abortion weak. As I’ve analyzed before, abortion is a unique issue because it involves the supposed right to life of a putative human being: the fetus. The most difficult cases of abortion, especially those involving rape, incest, or the life or health of the mother, pit the rights of an incontrovertible human being, the mother, against the fetus’ less clear rights. Therefore most people’s antipathy to abortion varies in direct proportion to their belief that the fetus is alive and a human being, and that life begins at conception.

Medical science can tell us whether the fetus is viable outside the mother, although even that conclusion changes regularly with advances in medical science and technology. Only philosophy or religion can tell us whether the fetus is “alive” in a way that law and society ought to recognize, and when. Since there is no consensus on those issues—and should not be in any society that values freedom of religion and belief—we don’t have consensus on abortion and likely never will.

The same-sex marriage question is entirely different, and much less fraught. There is no arguably separate person, like the fetus, whose rights same-sex marriage violates. There are only two consenting adults who want the same rights to public and legal recognition of their love, dignity, stability and continuity that opposite-sex couples have.

What drives most opposition to same-sex marriage is a simple desire to control others’ behavior and legal status because of one’s own personal religious or other beliefs. That is a pallid cause in general, let alone compared to trying to prevent an allegedly sentient and helpless human being from being murdered.

We can hope that, with time, men and women of good will will recognize these points and not insist that others live by their own beliefs. Isn’t the thing that makes our nation work so well, and the essence of our Bill of Rights, the notion of “live and let live”?

It’s surprising, to say the least, that as smart and practical a man as Roberts did not recognize these distinctions. He is, after all, the only one among the justices to have recognized the “mandates” of Obamacare as a tax, not a penalty, a method designed from the very beginning to raise revenue and lower premiums for health insurance.

But however inept and impractical Roberts’ analogies to Lochner and to abortion may have been, his warning of a backlash is both sound and prescient. As much as we might like to, we progressives cannot dismiss the needs or the votes of religious people. We should now bend over backwards to accommodate their legitimate religious beliefs, even, perhaps, to let a few small businesses discriminate, at least where gays and lesbians have real market alternatives.

Don’t get me wrong. Big businesses like Apple, Google, Verizon and Southwest Airlines cannot be allowed to discriminate because they are part of the fabric of daily life. Although law doesn’t treat them all equally as such, they all serve as public utilities in very real ways. But if there are three family-owned bakeries in a small town, and only one is uncomfortable serving weddings of gays and lesbians, it would be politic not to force it to do so. “Live and let live” works both ways.

If we don’t show such tolerance, the right wing will demagogue this issue effectively, as they have done so brilliantly with other “social” issues at the dawn of this new century. They will use it to elect leaders who will steal the substance of our nation, demean our traditions of genuine liberty, and take us into wars that we have no legitimate need to wage. We should never forget Dubya or how that execrable president got elected.

The last thing the gay and lesbian community, or their sympathizers like me, should want to do is to gloat over this justifiable but still controversial victory. We should be satisfied that justice has been done, and move on, with humility, love and sympathy, even for those who think their beliefs have been assaulted.

We should live and act the truth: Friday’s decision assaulted no one’s liberty. It restricted only the authority of some to impose their religious beliefs on others. It recognized that yet another group, long subject to misunderstanding, oppression and discrimination, has the right to live as they want, and as God made them.

It’s worth noting that nowhere in Justice Roberts’ vehement dissent did he contest the majority’s view that homosexual orientation is genetic and involuntary. Nor could he. As Justice Kennedy noted, “sexual orientation is both a normal expression of human sexuality and immutable.”

Although not moral judgment in itself, sometimes good science, aka close contact with reality, must serve as the basis for proper moral judgment. So Pope Francis recently advised us with respect to global warming—perhaps the greatest threat to our species’ health, happiness and survival that it has ever faced.

The Supreme Court is a unique institution. Alone among the branches of our government, its members must write voluminous opinions, on various subjects, and sign them, every year. Of course their highly educated, elite clerks help them. But the justices themselves write or review the opinions, circulate them, negotiate them, amend them, sign them and must stand behind them.

No other branch of government is like that. No other branch of government requires leaders to lay bare the essence and details of their reasoning in such a public and permanent way.

In that branch, Chief Justice Roberts stands above the rest. His opinions are more cogent, more original, and often more brief—a mere 21 pages to uphold Obamacare’s subsidies. Although his pragmatism may come and go, as in his analogies to Lochner and abortion, he has what may be the High Court’s most incisive and original mind. We ignore his warnings, and his vehement dissents, at our peril.

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24 June 2015

First-Amendment Extremism and the Fairness Doctrine


[For brief comment on the survival of Obamacare’s subsidies, click here. I first wrote this post over a month ago, but subsequent events seemed more important. Today, it has obvious application to the hate speech and hate groups that helped “inspire” the Charleston Massacre.]

The trouble with absolute freedom
The Fairness Doctrine and its practical benefits
Defamation law: an open floodgate
Conclusion
    In culture and politics, the only absolute truth is that there is no absolute truth.
The trouble with absolute freedom

Twenty-two years ago, in late spring 1993, I was a Fulbright Fellow teaching patent and licensing law in Moscow, in Russian. Toward the end of my fellowship, the cultural attaché at the US Embassy in Moscow insisted that I attend a conference outside my usual fields of research and teaching.

The title of the conference was “Power, Law and the Press” (власть, закон, и прессы). Its focus was the general question of freedom of speech and of the press, the same question that motivated our Yankee First Amendment.

The conference took place at the House of Journalists (Дом Хурналистов)—a sort of faculty club for journalists from all over Moscow, a holdover from Soviet days. Attending were twenty-one Russians, two Germans, and myself. The organizers had hired an English translator for the Germans and me, but by that time my Russian was good enough that I didn’t need her. I participated in Russian.

During that golden time, our Yankee relationship with Russia was extraordinarily good. Russia was shedding its confining skin of Communism and emerging from seven decades of cultural isolation and stagnation. Its intelligentsia and even some of its leaders looked to the West in general, and to us Yanks in particular, for answers.

When my turn came to speak, the scene was like that old E.F. Hutton “pin drop” ad. There was absolute silence. Every face in the room was intent on mine.

Explaining our First Amendment and how seriously we Yanks take it was easy. Answering hard questions was not.

A rather aggressive red-haired Russian reporter pressed a point. He recounted what he said was a not uncommon tragedy in Russia’s turbulent Caucasus region. Ethnic Group A commits an atrocity—a mini-pogrom—against Ethnic Group B, killing seven innocent people. The press accurately and faithfully reports the event. The next day, people from Ethnic Group B commit a similar atrocity against Ethnic Group A. The process continues until the fire of hatred burns itself out or until the security forces move in.

Wouldn’t it have been better, my questioner asked, for the press to have suppressed the report of the first atrocity?

I was serving as an informal cultural ambassador, and a commandeered one at that. So I was acutely aware that complete honesty was not just the best policy, but the only one. I answered “yes.”

I quickly followed up that simple affirmative with a discussion of the press’ responsibility and discretion. Our private Yankee publishers, I assured the attendees, would voluntarily withhold the report of the first atrocity if they suspected that a second like event might occur. I could see the questions and skepticism in the other attendees’ eyes, but the conversation turned to other topics.

The experience left me with a burning, unanswered question: What if the private press is not responsible and has no discretion at all?

What if the press, far from suppressing hatred and unreason, promotes it? What if it hires bullies and ranters as “reporters” and “pundits”? What if it takes the worst prejudices and the most unreasonable and violent instincts of what used to be called the hoi palloi, and magnifies, amplifies and promotes them, in a gigantic echo chamber, systematically and deliberately, virtually every day? What if its primary motivation for doing so is simply making money and gaining power for its owner?

What if its secondary motivation is empowering a twisted ideology that can only be described as apotheosis of the bully, in domestic, economic, foreign and military affairs? And what if it achieves inordinate success in doing so, to the point of corrupting, cheapening, and coarsening our entire culture? to the point of dominating an important electronic medium, cable TV?

What, in short, should we Yanks do with Fox?

The traditional answer is “nothing.” We can’t do anything because the media must be free, free even to subvert our culture and society. We can’t do anything for the same reasons that we can’t do anything about “hate speech,” as long as it doesn’t stoop so low as to explicitly promote imminent murder or violence against the objects of hatred. The only antidote to bad speech, says conventional wisdom, is good speech, even if the bad speakers are very bad and have powerful megaphones and lots of money.

Strangely enough, not every advanced culture has come to the same conclusions. Germany has a law against hate speech. If you deny the Holocaust in Germany, you can go to jail.

Having cast off its Nazi psychosis long ago, today’s Germany is hardly a totalitarian state. Its genuine and highly public repentance for its near-genocide is unique, not only among nations today, but in human history. (Compare, for example, Turkish resistance to merely acknowledging the Armenian Genocide.) Modern Germany’s leader, a female ex-physicist, is an object of universal admiration and respect.

Today’s Germany also has maintained a thriving economy in trying times. It’s the global leader in switching to non-nuclear sources of energy that don’t threaten our species’ long-term survival. (France leads in nuclear energy.) Somehow, it’s hard to believe that modern Germany, in refusing to mimic our Yankee First-Amendment, has revealed a fatal flaw in culture or structure that ultimately might subvert its future or cause a relapse of its Nazi psychosis.

I know, I know. Allowing government to decide what speech is good and what is bad would be a very dangerous thing. That’s a reliable and well-trodden road to tyranny. But there are other paths to promoting better speech besides having government bureaucrats or self-interested pols censor it.

The Fairness Doctrine and its practical benefits

Human history’s most effective rule against “bad” speech involved no censorship at all. On the contrary, it relied on the general principle that the antidote to bad speech is good speech, or at least more speech. It was our so-called “Fairness Doctrine,” which Ronald Reagan abolished.

The Fairness Doctrine was simplicity itself. If someone published an attack on a politician running for office, the pol attacked had the right to publish a rebuttal, in the very same medium, and for free.

That approach had (and still might have) four virtues. First, the object of the attack could respond in the very same medium that had published the attack. That virtue would be salubrious today, when citizens and voters have self-sorted into rival camps that read and view only their own partisan propaganda. The Fairness Doctrine would at least give them easy access to opposing views.

Second, because the response to an attack had to be aired for free, it gave publishers an economic incentive toward moderation and diplomacy and away from abrasiveness and sensationalism. Right now, they have precisely the opposite incentives. Being extreme, immoderate and abrasive increases their audience and their income. “Shock jocks” get rich without consequence, just like bankers in 2007-2008.

Third, the Fairness Doctrine did not involve government at all, except as a “referee” to determine what was an “attack” and therefore which pols were eligible for the benefits of the doctrine. In no way did government evaluate, approve or condemn the content of speech, let alone censor, modify, mandate or rewrite it. The speech responding to an attack was entirely the product of the pol attacked.

Finally, a new Fairness Doctrine today might put the kibosh on the avalanche of negativity that has come to characterize our public discourse. (The term “negative ad” is just a euphemism for “attack.”) If private, profit-making media had to air responses to every negative ad for free, the frequency of their negativity would fall abruptly. Negative ads might vanish overnight, except when an attack were sufficiently important as to warrant the financial risk, for example, in revealing provable corruption or gross errors of policy judgment.

Defamation law: an open floodgate

A second approach to curtailing “bad” speech is the the law of defamation. It, too, relies on the acts of aggrieved private parties (plaintiffs), not government. Government plays only a minor role, when a court serves as referee in determining whether the speech was false and uttered with the requisite intent.

Yet for two reasons, defamation law today is inadequate to stem the torrent of rancid lies and half-truths that has come to characterize our public discourse. First, defamation laws work far, far too slowly. The pace of judicial proceedings was always too slow to have an appreciable effect on elections, or even on politics in general. By the time a defamation lawsuit could be adjudicated, the next election cycle had come and gone.

In today’s Twitter society, in which public opinion can form and grow entrenched in a few hours, defamation law is laughably inadequate. Think, for example, of the alleged “gang rape” at the University of Virginia and the permanent damage that a badly researched and edited story did to that institution’s reputation. The University might win a libel lawsuit, but there will still be vast swathes of the American psyche in which its reputation may never recover.

Second, our current defamation law is slanted, if not to protect lies, at least to protect very bad reporting. Before holding any publisher liable for defaming a public figure (including most politicians), it requires that the publisher have published an untruth about him “recklessly.”

Under this peculiar standard, a proven falsehood about a pol isn’t defamation if its publication was an honest mistake, even a stupid mistake. The publisher of the falsehood must have acted in disregard of whether it was true or false, or the falsehood itself must be proven deliberate.

How many journalists really act that way? More to the point, how many could be induced to admit to having acted that way, even by skillful cross-examination in court? Wouldn’t Fox’ bullies all swear on their mothers’ graves that they had been trying hard to be “fair and balanced,” if only because their corporate slogan says so?

So what our Supreme Court really did in New York Times v. Sullivan (the case that established the “recklessness” standard) was to give the press a free pass for propagandizing us. Fox’ corruption of our once-basic social values—accuracy, impartiality, reason, temperance and politesse—followed as night the day.

Our defamation law is not entirely a free pass. The Court has never decided whether a pattern and practice of prejudice, bias and antipathy can prove “recklessness” and make a falsehood actionable defamation.

That why the City of Paris’ lawsuit against Fox is so important. If Paris can establish a rule that a pattern and practice of lies and half-truths implies recklessness in publishing a particular untruth, the cloak of legal immunity and practical impunity that private propaganda machines like Fox and political “operatives” like Rove and Luntz now have will begin to unravel.

But even that expedient is likely to be too little, too late, and too slow.

Conclusion

When our Founders drafted our First Amendment, their greatest fear was the government censorship that their British forbears had occasionally tried to impose on a developing democracy. They feared government control of political discourse and wanted to insure that government could not control or inhibit private speech, especially about politics and government.

Those Colonial days were very different from ours. Private business was weak and tiny. Virtually every American institution that you might characterize as a “business” today was about the size of a typical modern start-up company. No one dreamed of vast continent- and globe-spanning corporate empires involving tens or hundreds of thousands of employees, and even larger numbers of customers. No one dreamed that eventually private business would surpass government in economic power, or that a single private business called “Apple” would have more economic power than France.

No one dreamed of modern technology, either. At that time, political discourse was by word of mouth, posters, books, and pamphlets. Period. Except for the first, all involved the “cool” medium of writing. The very process of putting thoughts into words, sentences and paragraphs—or of reading and understanding them—required the mediation of our higher reasoning centers. No one dreamed that political discourse and even “news” would some day come in fleeting images and sound bites that bypass our higher reasoning centers and produce a false simulacrum of actual experience. No one dreamed how easily that simulacrum could be manipulated to foment shock, fear and hatred, and so to persuade and delude.

In that innocent, Colonial era, no one dreamed of the kind of visual-visceral propaganda begun by Nazi propagandist Josef Geobbels, continued by Stalin and Mao, and now perfected by Fox. No one dreamed of Fox’ seminal advance: turning delusion into entertainment and using it primarily to make money, but also to propagate a simplistic philosophy of “might makes right” that would attract ordinary people.

Nor did anyone dream that incessant personal attacks, using gut-grabbing imagery and sound, would replace rational discussion of issues in political campaigns. Our Founders would have been astonished at how routine such attacks have become, the rawness and lack of reason in them, their resemblance to puerile name-calling, the expense they entail, and the fact that an entire profession of visual-aural liars has arisen to prepare them.

Fox is not a government propaganda machine. It’s private. So are the myriad political “operatives” and producers of attack ads that now constitute the vast bulk of “discourse” in our political campaigns. No Founder anticipated that such a grave threat to rational, useful and civilized discourse could come from the private sector. Nor did any Founder foresee that eventually the private sector would drown government in a bathtub and become the dominant force in society, far more powerful and ubiquitous than government.

Today Fox and the attack-ad makers are just as single-minded, just as capricious and unreasonable, and much more effective, than the government propaganda machines of Hitler, Stalin and Mao. If we allow them to continue on their present course, they will drive us Yanks into Alexis de Tocqueville’s nightmare: a society governed by the worst impulses of the mob, fostered, magnified, and promoted for purposes of profit and control. Ancient Rome will have had nothing on us!

If you doubt this, just read this article about what some apparently sane retirees in our Yankee Mid West believe. You might blame their bizarre convictions on the Internet. But given their age and the media propensities of their demographic cohort, Fox is by far the more likely culprit.

Applied with understanding and finesse, our First Amendment has been a net benefit for our society. We have avoided the errors of nations like Russia, Iran and China, which seek to control their people by controlling what they know. That sort of paternalism always impedes a society’s flexibility, creativity, innovation and social cohesion. It can also impede education and even basic business.

But absolutism and extremism are pretty much the same thing. Our unthinking and reflexive reverence for absolutely free speech has now produced an extreme result. We have sat idly by while powerful private apostles of intolerance, hatred, belligerence, intransigence, unreason and impulsiveness have corroded our society to the point of paralysis, boorishness and dangerous risk-taking. If we Yanks let them continue, we are ultimately courting oligarchy, fascism, or (when and if the 99% wake up to how badly they’ve been duped) even revolution.

If we Yanks don’t find some way to stop them, our future is clear. Our media and the Internet that we Yanks invented will continue to devolve into a cesspool of lies, hatred, bizarre conspiracy theories, and vulgarity, rather than the uplifting sources of education, enlightenment and reasoned discussion that many had hoped for. Public discourse will degenerate into name-calling and obsession over emotionally charged irrelevancies (aka “social issues”), while powerful private interests provoke real wars and steal the nation’s economic substance. William Randolph Hearst, with his San Simeon castle outdoing European royalty, will be a piker compared to tomorrow’s media and media-favored plutocrats.

Some day centuries or millennia hence (if our species survives that long) a future version of our Founders will understand our self-defeating absolutism and correct it, with reality, practicality and consequences firmly in mind. If they make the mistake of having a written constitution like ours, which, unlike the Brits’ unwritten one, is soooo hard to change, something like the Fairness Doctrine will surely be part of it.

Footnote 1. I taught at the Moscow State Institute of International Relations, commonly known by its Russian acronym “MGIMO” (МГИМО). That institute was, and still is, the feeder school for Russia’s Ministry of Foreign Affairs and security services (now the FSB). It offered a five-year program of higher education for Russia’s elite, requiring fluency in two foreign languages for graduation. If one of the languages was Asian, the program lasted six years.

I was told that I was the first American law professor ever to have taught there. Needless to say, I was an object of curiosity, and I was ever conscious of my role as informal cultural ambassador.

Footnote 2. One of my proudest “souvenirs” of that fellowship is a little pamphlet containing a transcription of the proceedings of that conference, in Russian. The editors generously corrected my errors in Russian grammar and word choice, making me seem like the polished international expert I was trying to be.

Footnote 3. His striking red hair was not the only unusual thing about this reporter. He wore “street clothes” while everyone else wore a business suit. But the most unusual thing was his personality: aggressive to the point of abrasiveness.

One of the things that had most surprised me about living in Moscow then was the high level of politeness, diplomacy and “people skills” among my colleagues there. After some thought, I divined the reason: decades of midnight knocks on doors, the Terror and its gulags had knocked the rough edges off of most Russians, especially the smart ones. The ones who were too slow, abrasive or stupid to learn tact and diplomacy simply didn’t survive, professionally or even physically.

For example, I once asked the chair of my department whether I had an accent in Russian. He answered no, but that my speech had its “particularities.”

The red-haired man, in contrast, could have been a journalist from Chicago or New York. I wonder to this day how he has fared, and whether he still lives, in Vladimir Putin’s Russia.

Footnote 4. Maybe such a free pass was appropriate in 1964, when New York Times v. Sullivan was decided. We had a different country back then. President Johnson was still in office, working on civil-rights legislation, and serious escalation of the War in Vietnam was just beginning.

We Yanks got our news from Walter Cronkite (one of the best journalists in human history) and his rivals at the other two television networks. Each of them was dedicated to serious, impartial journalism. None had yet taken on the role of national propagandist or entertainer. No one of them would ever even have thought of making news entertaining; it was supposed to be informing. Their reporting on the Vietnam war, its escalation, and rising protests against it was largely straight news, without bias, “spin,” or even comment.

That was a much more innocent time. Today we have rich and powerful private institutions, some masquerading as “news” media, whose self-evident purpose is to push voters in one direction or another by distracting and deluding them. A free pass for them is no longer self-evidently the wisest policy.

Roberts Court Upholds Obamacare’s Subsidies

By now, the whole nation knows that Obamacare still lives. It owes its life, in large measure, to our Chief Justice. Evidently John Roberts has decided to be a judge in the tradition of Solomon, rather than in the scholastic tradition of an ecclesiastical court.

The Chief Justice wrote for two-thirds of the Court—a supermajority. Like his earlier, lone opinion upholding Obamacare’s mandates, his ruling on the subsidies is a triumph of incisiveness and common sense, a monument to pragmatism.

His reasoning on the minutiae of statutory language is not important. For it derives entirely from the statute’s byzantine complexity and execrable drafting—points that Roberts himself makes several times, albeit perhaps more diplomatically.

No one will ever study the Affordable Care Act for competent drafting of legislation. Roberts himself does better by describing the statute’s essence and history in a mere handful of pages, as compared to the statute’s 900.

But Justice Roberts’ ruling does much more. It has three features that make it a masterpiece, well worth careful study by future generations of law students and jurists.

First, before assaying to interpret the statute, Roberts carefully analyzes what it is trying to do. He describes the three-legged stool of modern efforts to reform private health insurance. They are: (1) guaranteed coverage for all applicants (not excluding pre-existing conditions) and community premium ratings (not charging sick people more), (2) mandates for coverage (so that (1) doesn’t lead to people waiting to insure themselves until they are sick), and (3) subsidies to make insurance more affordable and thus further broaden the risk pool.

Next Roberts summarizes the recent history of reform efforts in America. He describes the “death spiral” of higher premiums and reduced enrollment that reform efforts without points (2) and (3) experienced. He even goes so far as to note percentages increases in premiums and declines in enrollment, and the exodus of insurers from certain states. Then he describes the “breakthough” of Massachusetts’ law, which has all three legs of the stool. He compares it closely to “Obamacare,” implicitly dinging Mitt Romney, who, as a candidate for president, made a lame attempt to distinguish it.

Only then, having described the practical and instrumental machinery of the statute, does Justice Roberts try to interpret it. He doesn’t rely on semantics alone. He wants to know what Congress thought it was doing before he looks at the words. That simple act speaks volumes about the proper relationship between Congress and the judiciary and the proper relationship between pragmatism and abstraction in judging.

Second, Justice Roberts looks at the consequences of a decision one way or the other. Favoring the plaintiffs might acknowledge that literal meaning of the phrase on which they repeatedly grasp, which limits subsidies to “an Exchange established by the State.” But excluding subsidies from exchanges established by the federal government (upon a state’s default) would, among other things, “push a State’s individual insurance market into a death spiral.” To confirm this point, Roberts cites expert studies predicting premium increases of 47% or 35% and enrollment drops of 70% and 69%, respectively.

Of course, these consequences matter only because Congress, in passing “Obamacare,” wanted to avoid them. But isn’t that the whole point?

Roberts thinks so. Here are the key sentences from his peroration:
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Finally, there is his method of interpretation. The Chief Justice eschews literalism, pointing out, again and again, how it makes no sense whether in the large, or as applied to specific provisions.

When confronted with an argument based on “diving several layers down into the Tax Code,” he had this to say:
[I]n [the plaintiffs’] view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub-sub-sub section of the Tax Code. We doubt that is what Congress meant to do. Had Congress meant to limit tax credits to State Exchanges, it likely would have done so in the definition of ‘applicable taxpayer’ or in some other prominent manner. It would not have used such a winding path of connect-the-dots provisions about the amount of the credit.” [footnote omitted]
In other words, Chief Justice Roberts reads the Affordable Care Act as would an honest person trying to determine what someone else’s imperfect speech was trying to say. He did so in light of the full instrumental and historical context of that speech, just as would any honest interpreter.

In contrast, the dissenters, led (of course!) by Justice Scalia, took the phrase relied on by plaintiffs as a gigantic “gotcha.” They elevated it to the level of scripture although it not only perverted the entire thrust of the new law, but created numerous difficulties with interpretation in detail. The dissent elevated form over substance, literalism over purpose, semantics over meaning.

Justice Scalia’s dissent recalls nothing so much as the scene in Hamlet (Act 5, Scene 1), in which the Danish prince speaks with the gravedigger. After hearing the gravedigger take many of his remarks literally and wrongly, Hamlet exclaims, “My, how absolute the knave is!”

Unlike the gravedigger in Hamlet, Justice Scalia and his fellow travelers are neither untutored nor stupid men. So if not the dullness of stupidity, what drives them to choose absolute literalism over sense?

Could it be ideology? Could it be that they, not their antagonists, are the real judicial activists, hiding behind a screen of literalism and infidelity to Congress’ purpose that has no conceivable rational justification but politics?

At least now we can be assured that the Chief Justice is not their fellow traveler. He has twice given us strong signals that he will just call balls and strikes, as he promised in his confirmation hearings.

More than that. In interpreting Congress’ work product, at least, he will be a good social engineer and try to make its products work. As he said about the statute’s guarranteed issue and community rating requirements, they “only work when combined with the coverage requirement and the tax credits” (i.e., the subsidies). Today, as we lament one of the do-nothingest Congresses in American history, having a High Court that wants to make its rare output work is something to be grateful for.

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20 June 2015

The Charleston Massacre



[For a brief teaser on Charlie Rose’s interview with Putin yesterday, click here. For a post on some constitutional infirmities of fast track, click here. For an apparently too late comment on why the TPP’s “pay for rules” provision must go, click here. ]

Guns and racism. It’s a tragically powerful combination. You would think one of the traditional homes of the Ku Klux Klan would know that.

As the President said, the community’s response to the massacre—among both black and white—offers some hope. There are a lot more good people than racist butchers, everywhere. They’re generally in a lot higher places.

And there’s a lot more neighborliness in South Carolina, where black and white live and work cheek by jowl, than there are in other many places in our nation. In some places whites can grow up without ever knowing a real “black,” except through crime dramas and derogatory caricatures on Fox. So someday things may change.

In the meantime—in the here and now where most people live—there’s a lot of unnecessary suffering. What causes it? Many things. But two under-appreciated factors stand out: (1) the hidden reason for our Yankee love affair with guns, and (2) the pernicious lie that we live in a “post-racial” society. Let’s take them one by one.

Now that many states have adopted “open carry” laws, we Yanks are unique in human history. We’re the only great world-spanning empire in which personal weaponry has played a big part in daily civilian life among all classes. We Yanks are something new under the Sun, and it’s not necessarily a good “new.”

There are only two weak precedents in human history, and both were nothing like us. One was the city-state of medieval Venice, and similar entities from the Dark Ages. The other was our own Wild West.

We Yanks all know about our Wild West from video myth and legend. Medieval Venice, not so much. But if you recall Shakespeare’s Romeo and Juliet, you may know what precipitated the tragedy of the “star-crossed lovers.”

A kid from a rival clan killed Romeo’s friend (Mercutio) in a spur-of-the-moment duel. Then Romeo killed that kid (Tybalt) in revenge. The kids involved were all about fourteen years old. From this you might conclude that, in medieval Venice, it was customary for males, including adolescents, to carry lethal personal small arms and be trained in their use.

In Venice and other medieval societies, there was a class aspect, too. Only the upper classes could afford to buy rapiers, let alone the weeks or months of training needed to get good at using them. So, in addition to making clan feuds lethal and encouraging lethal duels over “honor,” personal weaponry had a policing aspect, too. It kept the rich safe from the hoi palloi.

But this aspect of medieval Venice did not survive into modern Italy. Nor did our own Wild West survive into the nineteenth century, let alone into our modern nation. Both cultures grew up.

Why? There’s an under-appreciated and very practical reason, which has little or nothing to do with politics. It takes a lot of time, training and effort to get good at using small arms. It’s a skill—or a sport, if you will—and it takes both native talent and lots of practice.

The stakes of practice are much higher today. Unlike rapiers, today’s small arms can kill innocent bystanders some distance away. If you can shoot straight, you might be lucky enough to kill or wound your assailant, but how many innocent bystanders might you hit in the process?

What maintains our irrational Yankee love affair with guns, in the face of this bald reality, is a widespread puerile fantasy. It holds that the average suburban Joe, who takes target practice at a gun range twice a month, can match the skill of the police, or of a hardened criminal, whose livelihood and often whose life depend on how he uses his weapons.

We won’t even mention the hand-to-hand combat that often accompanies small-arms struggles. Does going to a shooting range a couple of times a month make you a master of martial arts, too? Even if you’re an out-of-shape couch potato, as many gun enthusiasts are?

Myths don’t have to reflect reality, or even to make sense. All they have to do is fulfill an emotional need. And the myth that guns in civilians hands keep crime at bay and the government honest does that beautifully.

If you’re a young, uneducated macho male, not good at doing much of anything, our modern society hits you hard. Your labor is not worth much. You can’t take it out on women because of equality, women’s liberation, and anti-harrassment rules. You can’t take it out on helpless minorities, both because minorities are not so helpless any more, and because the KKK has fallen out of favor.

But you can indulge in the fantasy that, if ever accosted by a mugger, you could be a hero. Or, if you’re lucky enough to have a girlfriend—which most lone-wolf assailants most definitely don’t—you can imaging saving her from unspeakable crimes with your personal skill in weaponry. Modern video games and movies reinforce this young male fantasy endlessly.

It’s not an idle fantasy. It’s hard to break because it plays so cozily with young, male pride. It’s a perfect fit to the emotional needs of males from 14 to 39, as well as those who’ve never grown up. Our Yankee gun industry has built so well on this fantasy that, we are told, it now supplies 40% of the world’s non-military, personal small arms, although we Yanks comprise only 4% of the world’s population. A ten-time multiplier is not bad, not bad at all, if you’re in business.

Racism may be even more potent. Unlike using a weapon to kill one’s neighbor, tribalism is part of our biological evolution. We evolved as a species in small clans, of about thirty or fewer members. If you came across a member of another clan, you were usually competing with him for territory, food, or reproduction. We had, and still have, to overcome that part of our biological evolution with social evolution, if we are to survive as a species, let alone prosper.

Like the puerile macho fantasy of dominance over imaginary attackers, racism, too, can serve a deep need for pride. If you’re down at the bottom of the totem pole and can’t get a job, you can still look down on others who differ from you in race. You can even blame your own troubles on them.

The Nazis understood this point. They managed to kill about 6 million people putting it into practice. But that still wasn’t enough to give them victory. Probably it never will be. For if you’re mean and nasty enough, your scapegoats aren’t the only ones who will fight you. Disgusted and revulsed bystanders will, too. The poor Nazis managed to get just about everyone else in the world to gang up on them, notwithstanding the high reputation of German culture before the Nazi era.

We all have anti-social impulses. What young male, in his heart of hearts, hasn’t fantasized about jumping the small, weak-looking ugly guy and taking the beauty beside him? What human hasn’t fantasized about killing someone who hurt him, killed or injured a loved one, or injured his pride or livelihood?

Yet we suppress these anti-social impulses because we are civilized. We each, individually, gain more than we lose. Our social evolution supersedes our instincts and even our biological evolution, letting us cooperate in ways that small clannish tribes never could have imagined. We can fly through the air, communicate around the globe in an instant, and begin to understand how we came to be and how to fix what ails us. No single human could possibly do this alone; we’ve got to cooperate.

Up to now, social evolution, like all evolution, has gone mostly at random, in fits and starts. For example, it took our bloodiest Yankee war even to begin to think about actually putting our national credo (“all Men are created equal”) into practice. After ten millennia of recorded history, and a couple of centuries after John Stuart Mill, we’ve finally started to figure out that making individuals happier makes us all better off.

So now we’ve got to start taking social evolution seriously. We’ve got to start working on it consciously, deliberately and systematically.

We begin by wiping out the dangerous fanstasies that we live in a “post-racial” society and that more guns in more civilians’ hands can keep us safe.

Fortunately, we have some good teaching aids. One is our President. I voted for him twice in small part because I though he would teach us something about race in America. Little did I know that, even if you’re president (and a pretty good one at that!), if you’re “black,” or even coffee-colored, you have to face racism every day.

That knowledge, which tens of millions of old whites like me have gained from six years of dismal observation, should motivate us to jump-start our social evolution and expunge the sources and symbols of racism, beginning with the Confederate flag. South Carolina Congressman Jim Clyburn was onto something when he said we need to consider the wider context and nurturing culture behind an apparent “lone wolf’s” atrocity.

“No man is an island,” said John Donne. It’s hard to become a lone-wolf killer by osmosis. You need “inspiration.” It’s time we got serious about our national social evolution and went after that terrible inspiration, just as we pursue the sources of terrorism among our people, whether their inspiration is domestic or foreign.

As for guns, it’s going to take a while for us Yanks to grow up. The young male myth of puissance from firearms is deeply embedded in our culture. But it might help to notice that ancient Rome had no police force. Soldiers and ex-soldiers protected themselves from crime by the own skill with weapons, and the aristocracy had trained guards and slaves.

Some time during the Renaissance, the Western World discovered the police force. Since then, every nation, include the poorest, has adopted it. It’s simply a matter of division of labor and specialization—a vital part of our human social evolution. It makes no more sense for lawyers, accountants, merchants and ordinary workers to practice weekly at the shooting range than it does for all these folks to do their own computer programming or to learn to take out their own appendices, just in case.

Sooner or later, we Yanks will figure this out. As Winston Churchill once said, we always do the right thing, after exhausting all the alternatives. But the person who discovers how to debunk the seductive myth of dominance through firearms will speed the process along. He or she might even win a Nobel Peace Prize.

Forenote: Rose v. Putin, Great Interviewer v. Russian Communicator

Something important happened yesterday. Charlie Rose interviewed Vladimir Putin before a multi-ethnic, international audience at an economic summit in St. Petersburg. Both men deserve credit: Rose for doing a fine job with the interview, and Putin for submitting to such a public interview by a foreign journalist from a sometimes adversarial nation. (As you may have noticed, sharp journalism is not something Putin has come to expect from his own controlled media.)

Both media progress and geopolitics won big. Rose redeemed himself from his execrable dialog with Iran’s then-president Mahmound Ahmadinjed eight years ago, which was more a harangue by Rose than an interview. This time, Rose was thorough, subtle, diplomatic and respectful. Putin got a chance to explain the disasters he has helped cause in Syria and Eastern Ukraine and to push for dialogue to improve the situation. His appeal for a political solution was apparently sincere, as was his speech en famille over a year ago.

The note is just a teaser. From what I could hear of Putin’s Russian, I was not impressed with the simultaneous translation of his apparently impromptu remarks. I’ll wait until there’s a Russian transcript or Russian clip I can listen to before commenting. But the very fact that Putin made the effort belies the notion that he’s resolutely after war and conflict. So far, so good.

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15 June 2015

Why the TPP’s “Pay for Rules” Provision Must Go


[This post is a follow up and continuation of a single-page series of posts on the TPP debacle. It appears separately here because, I think, it holds the key to getting the TPP adopted.]

In an earlier post, I waffled on the narrow issue, because in the big picture, something like the TPP is a necessity, as least for those of us who aren’t Chinese. But the current draft’s still-secret “pay for rules” provision is, as far as we know, an abomination in just about every way.

How so? Let me count the ways.

1. It’s far, far too broad.
2. Nothing rounds its sharp edges.
3. It’s unnecessary.
4. It sends China a horrible message.
5. It won’t be hard to get rid of.
6. It’s a bastard spawn of secrecy.

1. It’s far, far too broad. One of the first things you learn in law school is to gauge the breadth or narrowness of a law or rule. In fact, the Law School Admission Test (LSAT), which most Yankee law-school applicants take to enter law school, tests applicants’ ability to gauge breadth.

“Pay for rules” is not just broad. It’s sweepingly, ridiculously, viciously, infernally broad.

Here are some of the many laws it could force governments to pay for having on their books: (1) minimum-wage laws, (2) maximum-hour laws, (3) child-labor laws, (4) working-condition laws, (5) workplace-safety laws, (6) laws regulating dust and air pollution of the workplace, (7) country-of origin labeling laws, (8) trademark laws, (9) laws requiring accurate labeling of the ingredients of food, drinks, and cosmetics, (10) laws requiring the disclosure of genetically- modified ingredients, (11) laws requiring the disclosure of fats, saturated fats and trans-fats, which are known to cause heart disease, (12) laws limiting bacteria, viruses, prions and other pathogens in food and drink, (13) laws requiring the disclosure of common allergens, (14) laws requiring that synthetic chemicals, especially those used in food and drink, be tested and certified for purity, (14) laws limiting or forbidding contaminants, including known toxins and carcinogens, in food and drink, (15) laws limiting pollutants and effluents from industrial plants, (16) laws limiting carbon pollution, which causes global warming, and (16) laws requiring warning notices on hazardous products, including tobacco products and dangerous machines and appliances.

Think I exaggerate? Every one of these laws has the potential to reduce the profits of corporations that produce and sell things. Conceivably, even laws against fraud and false advertising, inaccurate labeling, unfair competition and bullying (antitrust or competition law), could be causes of suits for damages.

2. Nothing rounds its sharp edges. Under our Anglo-American system of law, known as “the common law,” judges could, conceivably, inject some common sense into this absurdly sweeping provision. But this particular provision does not permit common-law judges, or any regular judges, to apply it.

The “pay for rules” provision is designed to be applied in private, secret “tribunals,” similar to what our Yankee business knows as “arbitration panels.” The “judges” will likely include “experts,” i.e., self-interested parties, in the very business or industry raising the complaint. Talk about conflicts of interest!

As is usual in arbitration, appeals will be limited to the vanishing point. There will be no precedent. That is, a good decision in one case will have no effect on the next.

In short, it will be the Wild West out there. Nothing in substantive rules or procedure will limit a private tribunal’s power to reward a business, and punish a government, for the government’s having the temerity to adopt rules that make its people’s lives less harsh.

3. It’s unnecessary. The purposes of the TPP, in roughly this order, are: (1) to facilitate trade in services and intellectual property, (2) to add a counterweight to China’s growing economic power, and (3) to reduce the few remaining non-tariff trade barriers.

“Pay for rules” does absolutely nothing to advance the first two purposes. As for the last, it does nothing to distinguish legitimate, people-protective rules from disguised trade barriers, because it’s so broad. So it fails to advance any of the the TPP’s purposes.

There are still a few disguised trade barriers, to be sure. But there are a lot more rules whose characterization as “trade barriers” is in the eyes of the beholder. They include such trade-neutral rules as Europe’s privacy regulations and requirements for GMO-ingredient disclosure, and near-universal rules for country-of-origin disclosure.

The proper way, if any, to “negotiate away” laws suspected of being disguised trade barriers is to bargain them one by one, trading one country’s allegedly nonsensical rules against another’s. That way, everything is on the table. This way sweepingly burdens legitimate people-protective provisions: it trades disguised burdening of salubrious labor, consumer and environmental protections for disguised trade barriers. That’s something no one with any humanity or common sense should want to do.

4. It sends China a horrible message. If China eventually joins the TPP, “pay for rules” will send the wrong message and hurt China’s people. One of the goals of the TPP is to set the rules for trade and commerce in Asia. We’d all like to see the TPP eventually become a commercial necessity, so much so that China joins, just as both China and Russia have joined the WTO. In this way, the world’s leading (mostly English-speaking) rule-makers will have brought outliers into a mutually acceptable rule-of-law regime—an economic “new world order,” if you will.

The problem with “pay for rules” is that it sends the wrong message and would make China’s people worse off.

Most of what’s wrong with China today derives from China’s government’s Hell-for-leather stampede toward rapid economic development at all cost. Justice, let alone health and safety, for China’s 1.3 billion people has gotten trampled in that stampede. Why? Because China’s businesses and government have adopted the mantra of cowboy capitalism: profit and expansion above all.

“Pay for rules” would enshrine that mantra in positive law. It would reinforce every negative corporate instinct toward miserable working conditions, adulterated food, drink and drugs, unsafe buildings for work and living, and a killer environment. Don’t we want the TPP to send exactly the opposite message?

In a strange way, “pay for rules” would also make China’s own alternatives to the TPP, whether bilateral or multilateral, more attractive to our trading partners. Might at least some of them prefer a trade treaty that doesn’t burden the rules they pass to protect their own people with possible payments of damages for lost profits? We want to offer the best alternative trading rules, not the most dangerous ones, don’t we?

5. It won’t be hard to get rid of. Not having been at the table myself, I of course can’t be sure. But every instinct I’ve acquired in forty years of international study, teaching and practice of law tells me this bastard clause can only have come from us Yanks. Our own corporate lawyers and lobbyists likely spawned this monster.

I know of only two nations in which “profit over people” is a religion. One is our own, at least among the right wing and its lackeys. The other is China. And China is not a party to the TPP negotiations, at least not yet.

Other foreign lawyers and trading partners just don’t think that way. Not only that. As every lawyer who’s ever studied or practiced in Asia knows, Asians are nowhere near as litigious as us Yanks. They might think of putting melamine in milk to increase their profit, but they don’t think of suing to increase their bottom line. Only we Yanks think like that, because we have too many lawyers with too little to do.

So chances are the “pay for rules” abomination is something our Yankee negotiators imposed on our trading partners, not vice versa. That being the case, our partners will heave a sigh of relief if we ask them to strike it, and accede readily. Then the TPP and its otherwise useful purposes can move on.

6. It’s a bastard spawn of secrecy. No one with the least appreciation of probable consequences, let alone common sense, would have proposed such a ridiculously broad, sweeping and damaging provision in public. No one would even have attempted such blatant overreach, with such tenuous relationship to the TPP’s legitimate purposes. Such an abomination could only have come in the dead of midnight secrecy, from a table around which representatives of real people were absent or marginalized.

The lesson for future trade negotiations is patent: be less secretive and more open. At least take key Senate leaders, majority and minority, into youse confidence. Doesn’t the Senate eventually have to give its “advice and consent,” anyway?

* * *

This is a time for supporters of the TPP, of which I am one, to reflect and regroup. It’s a time for overreachers, caught with their hands in the cookie jar, to blush, confess, repent, change course, and back down. It they don’t, the TPP may fall, and a useful attempt to influence the big picture—this century’s global economic order—may fail.

Some might say “That’s a shame!” Some might call it poetic justice. But smart pols do what they have to do to reach the greater good. Didn’t someone once say that politics is the art of the possible? Jettisoning “pay for rules” is step one toward putting the TPP into effect.

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13 June 2015

The TPP Debacle


[For an analysis whether fast track is constitutional, click here. For a coda-update on the proper limits of progressive opposition to the TPP, click here.]

Imagine you were prime minister of Great Britain almost a century ago, in the inter-bellum generation 1919-1939. Imagine you were also a prophet of sorts, gifted with extraordinary political and economic foresight.

Imagine you knew, in your mind of minds and heart of hearts, that the twentieth century would be the American Century. Imagine you understood that, although the sun then never set on the British Empire, America would come to dominate the world, scientifically, technologically, industrially, commercially, economically, culturally (through cable TV, movies, the Internet and mobile devices), and yes, militarily.

What would you do?

When a big dog gets much bigger than the rest, what can the little dogs do? If they’re smart, they group together. They group for three purposes: to resist the big dog’s dominance, to improve their own chances of surviving and prospering, and to influence the big dog’s behavior for the common good.

Actually, canines don’t form very sophisticated groups. We call them “packs.” In contrast, we primates group well: grouping is part of our evolution, both biological and social.

Yet Britain missed its chance. It didn’t form or lead a group. It continued its traditional snobbishness and rivalry with Continental Europe, which subsist today. It led the charge in ostracizing and collectively punishing Germany, the Continent’s big dog, after World War I.

So how does Britain fare today? It’s still a leader of sorts, at least in culture and intellectual life. Its newspapers, including The Guardian and The Economist, are still some of the best in the world. Its two great universities, Cambridge and Oxford, are still world class. And it still produces movies and TV shows that many in the world watch, even outside the English-speaking world.

But in most other ways, Britain is involuting into an aging and respected global irrelevancy. It’s turning away from Europe. Scotland is breaking off.

At the outset of our new century, it’s hard to think of any remnants of the great British corporations like those that once “discovered” and developed parts of the so-called “New World,” including America. The only ones I can think of that matter now in the global arena are Rolls Royce, which still makes good jet engines, and BP, the big oil company best known for polluting our Gulf. Imperial Chemical Industries, which dominated the twentieth century, has split up, sold off, and internationalized. Land Rover and Jaguar are parts of foreign corporations. Today, in the twenty-first century, Britain is aptly described as America’s “poodle.”

Now think for a moment about what you know, in your mind of minds and heart of hearts, is going to happen in this, our new century. China is becoming the big dog, despite its archaic and dismally inefficient writing system. Everyone’s economists predict it. The daily newspapers report it. And everyone knows it in his bones.

It’s not just population, although people matter. Nor is its the Chinese people’s legendary work ethic, which other cultures share, especially in Asia. It’s also governance. China’s government may not be pretty. It may not be soft. It may not be democratic. But it’s effective.

The seven-member committee that rules China is probably the best, most experienced, most cooperative and most expert national ruling body of any in the world. All in all, it probably has the most power, and the most real expertise, to effect constructive change and avoid stupid mistakes. It differs radically from our Congress and most democratic parliaments, in which the overwhelming majority of members are lifelong professional politicians or lawyers—jacks of all trades and masters of none.

China has other advantages, too. As a culture, it never came close to adopting a muscular, proselytizing religion like Christianity or Islam. Today those religions so trouble America, Europe and the Middle East. And China, unlike America, is not riven by a mindless ideological split. It’s busy making its government work, along with its industry and its people, for the greater good.

Meanwhile, we Yanks are busy arguing about how “big” government should be. Like Jonathan Swift’s fictional ideologues disputing which end of a boiled egg to flatten, we vexatiously dispute abstractions while letting our infrastructure decay to the point of economic drag, not to mention embarrassment. China, which has jettisoned Communism in all but name, has a single religion, making money, and a single ideology, pragmatism.

Finally, China is the only major industrial nation besides Germany that is not now mired in debt. It has debt problems domestically, but it has over $2 trillion of foreign reserves on which to draw. No other industrial nation, let alone the world’s already second-largest economy, has that advantage.

Now we can easily bring this essay’s opening scenario current. Just change “America” to “China;” change “Britain” to “America;” and change the geographic focus from Europe to Asia. Then you have a precise analogy to what is going to happen to us Yanks in the twenty-first century, unless we are smarter than the Brits in the twentieth.

Indeed, it’s already happening. Nothing or no one can stop it. The best we can do is retard it and ameliorate its effects on the little dogs. And the only way they—including us Yanks—can do so is to drop borrowed British pride, suppress our Yankee “exceptionalism,” and form or join a group, in economic partnership with other little dogs.

That’s the big picture. And that’s what our President, with his inveterate grasp of the big picture, understands.

It’s odd, really. Everyone expects Barack Obama to perform miracles of persuasion. All expect him to open his arms like Moses, take Congress and the multitudes to his bosom, and persuade the blind.

But professors are teachers and sometimes prophets. They are not miracle workers. Already Barack Obama has performed three miracles: (1) getting elected (twice!) by a clear popular majority in a consummately racist nation, (2) saving our economy, and (3) passing improvements to national health insurance against the adamant opposition of a great political party and human history’s most bizarrely effective propaganda machine.

Changing the course of millennial global history is beyond even his capacity. So is persuading pols who live to beg for money and think in bumper stickers, when they think at all.

Woodrow Wilson, another college-professor president, was similar. He tried mightily, but in vain, to persuade the victorious World War I Allies not to punish a defeated Germany collectively, not to drive it into an economic, social and political corner. He failed.

The result was precisely what he predicted. A second global war came, much more horrible than the first. When it ended, 50 million people lay prematurely dead, worldwide, and the world had been transformed forever.

I know, I know. In its current form, the TPP won’t do much for labor rights or environmental protection. It doesn’t even retard, let alone prevent, nationalist currency manipulation. It doesn’t magically make the world a better place.

But realism suggests that our Yankee power to do all that is declining as rapidly as global warming is accelerating. Despite our dreams of global leadership and empire, the ground is already sifting under us, far more rapidly then we imagine.

As I’ve outlined in another recent post, we live not just in a new century, but in a new millennium. Just as nation states replaced the secular power of organized religion in the Second Millennium (at least in the West), corporate industrial and commercial power are replacing nation states as the foci of economic power and activity in the Third. Their doing so is a crucial and necessary step in our human social evolution.

Our biological evolutionary paradigm is rule by a single alpha male in a clan of about thirty members. Slowly but surely, our corporations are letting us retain this biological evolutionary model while rationally governing a global economy of going on seven billion individuals, each with a high and growing level of training and specialization in what he or she does day to day. The spread of corporations is just a consequence of increasing sophistication and division of labor in human technology, culture and economy.

At the moment, our Yankee corporations dominate this global transition. Amazon, Apple, Cisco, Google and (yes, still!) Microsoft dominate the Internet, which we Yanks invented and gave to the world. In advanced medical equipment, GE shares the world with Siemens. In advanced heavy equipment, GE shares the world with Siemens and the Japanese zaibatsu and the South-Korean chaebol.

But our dominance is waning as we watch. If you want to see the trend, look at consumer electronics, which Japanese and Korean corporations dominate. Or look at foreign oil-and-gas companies, like those in OPEC, which increasingly dominate the global economy outside the United States. Or look at aircraft, for which Airbus is neck-and-neck with Boeing in making big planes, while Canadair and Embraer nibble around the edges of the markets for smaller, regional planes.

Let’s be frank. It’s deplorable that our pols and trade negotiators have not made greater effort to preserve and spread the hard-fought gains of labor, consumerism and environmentalism during the West’s last century. They should try harder to do just that.

This big strategic blunder was not the President’s. Nor was it his trade negotiators’. The blunder belongs to the corporate executives, lawyers and lobbyists who “negotiated” TPP’s current terms in their closed rooms. Deprived of political input—and apparently devoid of common sense—they fell for classic overreaching. They drafted provisions that make governments pay for enacting rules to make their people’s lives easier, healthier, safer and happier.

Like most democratic pols, our pols are jacks of all trades and sometimes not too bright. But few of them would have fallen into such an obvious trap of hubris and overreach. So now the corporate poobahs will have to go back to the drawing boards and renegotiate the “pay for imposing rules” provisions. They will have to eliminate them, or at least restrict them to rules that are self-evidently counterproductive or unnecessary. Maybe the corporate poobahs who now rule the world collectively can learn a thing or two from common pols after all.

Yet while we seek to correct their error of overreach, we must never forget, as they did, the primary goal of the TPP. It’s to address the rise of China, and to keep it peaceful, productive and restrained, as the Brits and European powers failed to do with our Yankee dominance of the twentieth century.

We are addressing an historic and inevitable shift of economic power and focus to Asia. That part of the world has never been a big center of progress in labor, consumerism or environmentalism.

Yet Asia can learn. As recently as the 1960s, air pollution in Tokyo and Osaka were so bad that Japan’s ubiquitous vending machines offered “sips” of oxygen to weary, coughing commuters. Today, the air in those cities is no worse (or much better!) than the air in leading cities of America or Europe. Our trade negotiators should try harder to preserve and advance the goals of labor, consumers and environmentalists, if only because businesses need workers who can afford to buy what they sell (Henry Ford’s law), and CEOs and managers have to breathe the air, drink the water, and eat the sometimes tainted food, too.

If you want to see the future, go to a new city district in the southeast of Seoul, the whole of which didn’t exist twenty years ago. Now it’s a model of twenty-first century progress.

Five lanes of traffic, in each direction, thread between gleaming, glass-and-steel high-rise buildings of the kind once known as “skyscrapers.” The cars are all of recent vintage, mostly Korean. Their polished and waxed surfaces gleam in the sun.

Oddly, the district is known as “Tehran Alley,” because Tehran, Iran’s capital, is a sister city of Seoul. But it looks nothing like Tehran or anything in the Middle East. It looks more like Fifth Avenue in New York in its heyday, in the 1950s, but without today’s potholes. Its anchor is twin-towered Co-Ex, a convention center with two world-class hotels that is a small city in itself.

Where are all the foreign embassies, the symbols of governmental power? They are in another part of Seoul altogether. They are huddled near Gwanghwamun, the ancient capital’s medieval gate. The modern “embassies” of real economic power today are all clustered around Tehran Alley. They are the gleaming skyscrapers of every multinational corporation in the world, Yankee, European, Japanese, Middle Eastern, and Chinese. We Yanks and the Brits can take pride that most of their names and logos are in English and in the Roman alphabet, one of the world’s two best.

Already the transition to corporate power is most of half a millennium old. The Brits and the Dutch started it when their “East India” companies developed the so-called “New World.” We Yanks grasped the baton in our American century, running harder and faster with it than any nation in history.

Now it’s China’s and Asia’s turn. Corporate rule is a game any nation or people can play. In the seventy years of Pax Atomica, it has spread to every continent and virtually every nation but the poorest. In just the last forty years alone (a mere two generations) it has wrought economic “miracles” in Japan, South Korea, Thailand, China, and now Vietnam. The “miracles” are spreading even to parts of Africa and the Middle East.

This is the course of human social evolution. There is no going back. With only 4% of global population, we Yanks cannot long continue to dominate it unless we combine with others to share the burden and help make the rules. God knows that making good rules is a thing that the Brits and (until recently) we Yanks have excelled at.

Of course we must try harder to retain, and to spread to others, the human and social values of labor, consumerism, and environmentalism that we Yanks have pioneered. But we must also keep our eye on the ball. If we let this chance slip through our fingers while our and our allies’ prestige and collective corporate power are at their peaks, we may well end up like Britain.

A century hence, or even half a century, we Yanks, too, may be isolated, insecure, fearful, lamenting a dilapidated infrastructure, and deeply in debt with no way out. (Speaking of decaying infrastructure, have you ridden the London Underground recently?) New York, like London today, may be a butler to bankers and oligarchs. In our universities, movies and centers of culture, we, too, may some day be nursing idle dreams of past glory.

That’s what the President, in his usual big-picture way, is trying to avoid. And that’s why our Congress and trade negotiators must try harder to preserve our national values without losing sight of the big picture, lest we Yanks and even English-speaking culture, in our turns, become global irrelevancies.

Coda: Clarity in Opposition

The TPP debacle illustrates an increasingly common defect in our national politics. We Yanks often fail to be clear in opposing each other’s political initiatives.

Until quite recently, that was the case with many progressives’ opposition to the TPP. Many opposed the initiative from the beginning merely because corporate interests were for it.

That’s not a good enough reason to oppose anything. Corporations, after all, are responsible for the vast majority our national wealth and creature comforts. Although they can and do do stupid things, they are not the people’s enemies.

Second came word that corporations were largely responsible for drafting the treaty’s current version, and in secret. The secrecy raised hackles and suspicion, the more so in what is supposed to be an open society. But secrecy alone is not enough to justify opposition, only wariness.

Third was the notion that the TPP does not mandate foreign improvements in protecting labor, consumers and the environment. While lamentable, that, too, is no reason to oppose the TPP. Improving those things was never its purpose. Anyway, most of our trading partners would reject attempts by us Yanks to impose our own values on their societies as foreign meddling. So the “may” improve language of the current draft is probably the best we could hope for in a treaty designed and intended for other purposes.

What did and does justify opposition was the final, telling point. A provision of the current draft apparently allows corporations to sue for damages in private arbitral tribunals—not even national or state courts—whenever labor, consumer and environmental rules reduce their profits.

This provision wouldn’t just keep the TPP from helping us spread our own environmental values abroad. Rather, it would allow corporations to push us backward by making our existing, as well as future, protective rules costly. In the worst case, it might motivate dilution, retraction or non-enforcement of rules against child labor, adulterating or counterfeiting foods, food ingredients and drugs, and increasing pollution and global warming. It might do the same for rules making workplaces, cars and appliances safer.

This “pay for rules” provision was and is a case of clear and present corporate overreach. It’s also completely gratuitous. It has no logical or practical relationship to the TPP’s primary purposes: facilitating trade in services and intellectual property, and creating a collective counterweight to China’s big dog.

It seems little more than a nasty “zinger” that corporate lobbyists tried to sneak over in the dead of midnight secrecy. Retroactively, it also seems a monstrous strategic blunder, justifying all the suspicion and paranoia with which many progressives reacted to the treaty, and, more generally, often react to any corporate initiative. It was a dumb thing to propose, and it would be a dumb thing for the Senate to advise and consent to.

The point here is not to criticize progressive opponents of the TPP. The very secrecy of the process made their job of loyal opposition much harder than it should have been. But now that some members of Congress have taken the trouble to vet the still-classified document, opposition should focus on this zinger and the secrecy that made it possible, not the fact of corporate authorship or interest. (Any other zingers that emerge from the darkness of secrecy of course should also be fair game.)

So the “pay for rules” provision must go. Or it must be strictly limited to rules that are self-evidently not good. We should all thank Senators Sanders and Warren, and Congressman Peter DeFazio(D., Or.) for doing their jobs, penetrating the secrecy as much as possible, and alerting the public to this zinger.

Yet at the same time, we progressives should try hard not to mimic the GOP, let alone the Tea Party, in its mindless, unfocused opposition to Obamacare. Right-wing opposition to that initiative was never intended to perfect it or to provide a substitute, but to vilify, embarrass and stymie the President, who had made it a centerpiece of his tenure in office. Opponents never identified a single specific provision to which they objected; they just objected to the President being president and having the temerity to try to govern the nation that he was twice duly elected to lead.

We progressives should never stoop so low. Instead, we should point out how low the President’s opponents have stooped and how counterproductive and un-American their opposition has been.

As for the TPP itself, we so far have identified two and only two flaws. The first is the “pay for rules” provision, which must go, substantially or totally. The second is the process of absolute secrecy that, from the beginning, has fomented distrust and suspicion while clouding and often preventing rational discussion. In retrospect both seem political blunders on the part of the treaty’s proponents, and the zinger only seems to make the secrecy worse.

Do we really want to make governments pay for rules that outlaw child labor, require overtime pay, or require food labels to state accurately what’s in the food? I don’t think so. But as we progressives fight these blunders, we must take care never to allow the voting public to confuse us with rabid, know-nothing opponents of Obamacare. We are better than that.

Is Fast Track Constitutional?

When bad things happen unexpectedly, there’s often an unseen cause. So it may be with the noxious “pay for rules” provision of the current draft of the TPP. Its mere existence, let alone its near acceptance by Congress, opens a whole can of worms.

Let me begin with a dose of humility. Although a retired law professor, I am not a constitutional scholar. Apart from my erstwhile trade, my sole claims to expertise in this matter are: (1) being unusually inquisitive and disinclined to swallow conventional wisdom whole, (2) having a probing mind, and (3) having had a reputation for being a pretty good legal draftsman. In addition, a quick Internet search has convinced me (but not beyond a reasonable doubt!) that fast track has not yet undergone constitutional scrutiny.

Maybe that’s because fast track is so complicated. If you want a summary of all the many legal complaints that might be made against it, read this post by Public Citizen.

This blog tries to keep things simple. It tries to probe the essence of things, not to increase already burdensome complexity. So what I’m after is a simple answer to a simple question: is fast track consistent with the basic structure of government, including the separation of powers and checks and balances that our Founders set up? Is it true to the basics, never mind the details?

Here’s where things, as in Alice in Wonderland, get curiouser and curiouser.

What jogged my thinking was Senator Warren’s recent complaint that fast track would allow the next president to push through treaties without filibusters. Filibusters? Doesn’t the Constitution explicitly require a two-thirds vote in the Senate to advise and consent to any treaty? And doesn’t a filibuster require only a lesser vote, namely, 60% instead of two-thirds? When a senator as smart as Warren, also a law professor, says something that confusing, you can bet the confusion extends far beyond her.

So let’s start with the basics. Article II, § 2 of our Constitution gives the President “the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .”

That seems pretty clear, doesn’t it? Approving treaties is one of the very few things for which our Constitution explicitly requires a super-majority vote. And that vote, being two-thirds, is beyond even filibuster territory. It’s serious stuff.

Why did our Founders require for treaties the biggest majority anywhere required in our Constitution, the same as for impeachment? Because, when they drafted our Founding document, our nation was still a small fish in a bid pond. Some years earlier, we had spent six years in a draining war for our independence from what then was the mightiest empire (Britain’s) in the Western world. George Washington, our first president, reminded us of our status as the runt among empires when he warned us of “foreign entanglements.”

And “entanglements” are exactly what treaties are. Like legislation, they can last forever. But, being “out there” in the much larger world, and involving changeable cultures quite foreign to us, they can involve many more—and much less foreseeable—unintended consequences.

Today, for example, we contemplate the possibility of nuclear war with Russia if we have to honor our NATO treaty obligations to defend Poland. We contemplate similar gut-wrenching choices if we have to defend Japan against China. Stuff doesn’t get much more serious than that.

Maybe that’s why our Founders gave our Senate the power to advise and consent, and excluded our House. They knew that the Senate would be the “cool,” deliberative body—the smart ones, if you will. The House would be the “hot” body, often driven by passions and prejudices of the moment, as it is today.

As we contemplate the Tea Crazies and the Hastert Rule, which gives a less-than-30% minority of the House veto power over legislation, we have to admire our Founders’ foresight and wisdom. They knew what they were doing, even without foreseeing Denny Hastert’s recent fall from grace.

So why, pray tell, does the House participate in voting on fast track at all? Does approval of a majority in the House, even with a possible veto by a less-than-30% minority, make up for the lack of the two-thirds vote in the Senate, which our Constitution explicitly requires? Curiouser and curiouser.

Insofar as procedure is concerned, Article I, § 5, clause 2, gives “[e]ach House [authority to] determine the Rules of its Proceedings . . . .” So the Senate could, by mere majority vote, decide not to allow amendments while considering whether to advise and consent to any treaty put forward by the Executive. But why does the House get a vote on that? Why does it vote at all?

Then there’s the whole matter of deliberation. Our Founders wanted our “cool” and “elite” deliberative body, the Senate, to consider and debate “foreign entanglements.” Apparently they wanted to exclude the House rabble entirely. At least they said so as clearly and explicitly as they did anything in our Constitution. Like a valid will that disinherits a troublesome child, the “advice and consent” clause is awkward and painful but clear and enforceable.

But if the Founders intended that, didn’t they also intend the Senate to take such weighty matters seriously? Did they really want to let the Senate be forced to vote in haste, within short time limits, on a draft treaty shrouded in secrecy until the very moment of its presentation for “advice and consent”?

No, it’s not just hard—it’s impossible—to square the history of this draft of TPP with the deliberative, near-consensus procedure that our Founders set up for “foreign entanglements.” In fact, it would be hard to imagine a scenario more at variance with the odd scheme of separation of powers (“disinheriting” the House), our checks and balances, or the self-evident yearning for careful deliberation by an elite legislative body that our Constitution embodies.

To be sure, the Constitution’s requirements may not maximize “efficiency” in getting treaties signed. It is possible to imagine a scenario of “horribles.” Drafts might bounce pass back and forth among our Executive, the Senate, and putative foreign partners to the point of exhaustion, until the foreigners got tired of us and sought other, less troublesome, nations with which to deal.

But isn’t that scenario really a straw man? The preventatives are obvious. Get the Senate, or at least its committees, involved early. Inform its key members of the discussions as they happen. Let them see early drafts and comment on them, and take their comments seriously. Take the Senate, or at least its leaders, into the Executive’s confidence. In other words, try to act as if our nation were actually the transparent, open, chips-on-the-board polity it is supposed to be.

Let me be clear. I think Barack Obama is our best president, by far, since JFK, maybe since FDR. I support Obamacare 150%. I believe that something like the TPP will be useful, if not necessary, to avoid isolating our increasingly fragile economy and to counter China’s growing power. So I’m about as big a fan of the President and (among progressives) of the TPP as you will find anywhere.

But I also believe that our over-lawyered, over-lobbied government has gotten far too complex, devious and secretive for its own good. We have a yawning ideological gulf between our parties in large measure because they no longer trust each other. Obamacare had and has such a hard time because it was and is far too complex, and because a president who promised to put the negotiations on C-SPAN ended up acquiescing in congressional secrecy, prolixity and deviousness (calling a tax a “mandate”).

We Yanks have to return to simplicity. We must restore openness. We need to abandon the ridiculous notion that something as important and world-changing as the TPP can be negotiated in secret by self-evidently self-interested parties and end up winning the public’s understanding, let alone support. We ought not to be suprised that this bastard procedure spawned a zinger like “pay for rules.”

We need, in short, to go gack to the wisdom of our Founders, or at least to obeying the most basic rules they gave us, such as that for “advice and consent.” Then maybe, just maybe, we Yanks can muddle through.

Footnote 1. In his brief statement of opposition to the present draft of the TPP, DeFazio proved to be an articulate, cogent and persuasive spokesman, of the sort that used be common in Congress but now is rare. If you want to heal your chagrin at our system of government, give his statement a watch. (Reading the words alone doesn’t do it justice. Set the timer at 4:48.) After you do, you may follow me in beginning to believe that, notwithstanding the Tea Party, there is still intelligent life in our House.

Footnote 2. The Constitution only requires a two-thirds vote of senators “present,” leaving open the theoretical possibility that two thirds of a quorum could approve a treaty. That boils down to as few as one-third of the Senate’s membership, or 34 votes, as Article I, §5, clause 1, sets a quorum as a majority of membership.

Yet it’s hard to imagine any senator who is sentient and mobile (even with assistive devices) failing to appear for a vote on a treaty as important as the TPP. He or she would be abdicating his or her responsibility to constituency and nation, in one of the two most important decisions (the other being impeachment) that senators ever make. Even Congress’ all-but-abandoned power to declare war requires only a majority vote.

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