Pigford Bounces Around The Blogosphere

Daniel Foster at NRO:

On Jan. 5, 1999, a federal district court in Washington, D.C., approved a preliminary consent decree — essentially a seal of approval for a settlement — granting class-action relief for a wide swath of black farmers. Give or take an unseemly lawyer, it looked like the angels had won. It was a victory bipartisan in the making: Speaker Newt Gingrich had helped push through legislation waiving the statute of limitations for discrimination complaints, allowing the suit to clear a crucial legal hurdle. But the story was far from over, and Pigford v. Glickman would prove the settlement that launched a hundred thousand frauds.

The “Pigford class” — the range of individuals eligible to claim settlement money — originally was defined as

all African-American farmers who (1) farmed between January 1, 1983, and Feb. 21, 1997; and (2) applied, during that time period, for participation in a federal farm program with USDA, and as a direct result of a determination by USDA in response to said application, believed that they were discriminated against on the basis of race, and filed a written discrimination complaint with USDA in that time period.

Both sides acknowledged that the class size wasn’t likely to exceed 2,500. But the seeds of abuse were already sown. Despite the fact that the class was at first strictly limited to those who had “filed a written discrimination complaint” with the USDA, the settlement crucially allowed that most members of the class lacked any documentation of these complaints, purportedly owing to poor record-keeping by the USDA. So the resolution mechanism offered potential claimants two “tracks” toward settlement money. Track B required a higher bar for evidence — the “preponderance” standard traditional in civil actions, demonstrated during one-day “mini-trials” before court-appointed arbitrators — but it came with no cap on potential awards. Track A provided, in the words of the case’s judge, “those class members with little or no documentary evidence with a virtually automatic cash payment of $50,000, and forgiveness of debt owed to the USDA.” Track A claimants would also get their taxes on that debt paid directly to the IRS for them, and priority consideration on their next USDA loan application.

To get their checks, Track A claimants were required to show court-appointed facilitators “substantial evidence” that they had had “communication” with the USDA, a member of Congress, the White House, or any federal, state, county, or local official regarding a discrimination complaint. How “substantial”? According to the consent decree, “something more than a ‘mere scintilla’” — in practice, as little as the corroboration of one’s story by a single individual who was not immediate family. The definitions of “communication” and “complaint” were stretched as well: Under the agreement, even participating in a “listening session” with USDA officials was as good as filing a discrimination complaint. And in cases where there was no documentary evidence whatsoever of communication with the USDA, a popular defense was for claimants to explain that USDA officers would not even give them the forms and applications they requested — in one fell swoop both demonstrating the discrimination and accounting for the lack of a paper trail. Thus could blacks who had never cultivated land they’d owned or rented — who in point of fact might never have mown a lawn or tended to a shrub — claim that systemic racism thwarted their farming careers before they ever started. Such claimants came to be known as the “attempted to farm” class, and by some estimates as many as 92 percent of all Pigford filers marched under their banner.

Conor Friedersdorf at Sullivan’s place:

In the current issue of National Review, Daniel Foster has a long piece on Pigford vs. Glickman. As Wikipedia notes, the Pigford case is “a class action lawsuit against the United States Department of Agriculture (USDA), alleging racial discrimination in its allocation of farm loans and assistance between 1983 and 1997. The lawsuit ended with a settlement in which the U.S. government agreed to pay African American farmers US$50,000 each if they had attempted to get USDA help but failed. To date, almost US$1 billion has been paid or credited to the farmers under the settlement’s consent decree.”

As Salonexplains, the case is a matter of public controversy largely because Andrew Breitbart has become obsessed with it. His allegation is that the payout is rife with fraud and political corruption. I haven’t mentioned the matter before because having witnessed Breitbart’s carelessness with facts, the egregiously sloppy journalism he publishes on a daily basis, and his hubristic, immoral, “ends justify the means” approach to activism, I have serious doubts about his integrity and a strong conviction that his ethical compass is broken. More to the point, I just can’t trust a damn thing he publishes, and having discredited himself on a national scale in the Shirley Sherrod case, a lot of others agree.

But I’ve enjoyed Foster’s work for awhile now, and critical as I’ve been of a couple colleagues he works with at NR, the publication retains the ability to publish solid pieces, especially the ones prepped for print.

Although I can’t personally vouch for the facts in his Pigford story, having never reported on the matter myself, it reads like a solid piece – one that raises serious questions worthy of scrutiny. Alas, it is behind National Review’s paywall, and that presents a problem: As press coverage of the Pigford case increases – Breitbart is touting it singlemindedly at CPAC, and the stories are inevitable – the conversation is starting to focus is on the man whose heat-to-light ratio detracts from a cool-headed assessment of facts more than anyone in America. One purpose of this post is to suggest that we’d all be better off focusing the discussion on the NR piece, paywall or no. Certainly, liberal bloggers writing about the matter should acquire access to it. I’d be curious to see if they have a persuasive rebuttal. If so, I’ll air it here. And if not – if the Foster piece has everything right – the story definitely merits attention.

Here’s a very brief summary:

– Everyone agrees that between 1983 and 1997, the USDA discriminated against black farmers.

– The class action lawsuit made eligible for compensation farmers or aspiring farmers whose interests were harmed due to USDA discrimination. (There were other requirements too, but forget that for a moment.)

– According to Foster’s piece, a 1997 census study found a total of 18,500 black farmers nationwide.

– Yet there are nearly 100,000 claimants in the Pigford case.

There’s a lot more to Foster’s story, and this matter generally. But that gap between the number of claiments and the total number of black farmers in America is what struck me. If accurate it suggests widespread fraud.

A word about the bigger picture.

There are conservative bloggers expressing outrage that Americans haven’t been told more about this story. It’s worth pondering that reaction. It’s understandable: the misuse of public funds is always a legitimate story, and I hope this one gets reported out if that’s what has happened. But the fact that Americans have never heard of the Pigford case before now is most damning because it means we were utterly ignorant of the fact that the federal government was discriminating against thousands of blacks for almost 15 years, and as recently as the late 1990s! That is far more troubling than the possibility that private citizens perpetrated fraud on a poorly conceived settlement (though it doesn’t excuse it).

One narrative taking hold is that the Pigford case is about political correctness – that the fraud is “reparations in disguise,” and is enabled by a mainstream media willing to look the other way rather than inform the public about an injustice. Anyone spreading that narrative ought to remember that although the federal government’s racism against some Pigford claimants has been written about some in the media, it remains an obscure story known to very few people – and most of them didn’t show any interest in the story until it fit into the narrative of PC excess and the left buying off votes.

There’s nothing wrong or unnatural about political adversaries tuning into a story when their opponents may be guilty of corruption. A rare benefit of partisanship is that it creates an incentive to expose bad behavior. And the rest of us shouldn’t care about their motives insofar as it affects how we go forward– if fraud has been perpetrated on a large scale, better that we learn about it if only to prevent the same sort of thing in the future. Had the federal government discriminated for years against black farmers, however, then paid them off efficiently and without fraud, the vast majority of people in the conservative movement – and most of America along with them  – would’ve ignored the whole Pigford matter entirely. Is that the mark of a society overrun by political correctness?

Surely outrage is warranted for the initial discrimination.

Ta-Nehisi Coates:

This is where you see “conservative” effectively becoming a synonym for “white populist.” You would think that the government discriminating against a class of farmers over 15 years, under three different presidential administrations, from two different parties, not in the distant, but recently, would be a pet cause for people disturbed by the overreach of government. In fact those who claim that banner, are disturbed by the remedy applied–not the problem, itself.

I’m reminded of David Brooks, lamenting the fact that Sonia Sotamayor didn’t go to school in the ’50s, while neglecting to mention that her alma mater (Princeton) didn’t even admit women until a decade later. The opportunistic rush to elide hard problems, in order to disparage imperfect, and perhaps even wrongheaded, solutions is an essential feature of modern conservative. In regards to blacks it shows itself in this sense that racism–even government-sponsored racism–isn’t actually a problem, people trying to fix it are a problem.

Mark Thompson at The League:

These concerns are poppycock – it is simply not the case that the discrepancy between the number of claimants and the number of black farmers in 1997 “suggests widespread fraud.”  As mistermix correctly points out, some very rudimentary fact-checking provides the answers to a lot of these concerns.*

For starters, this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers.  Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period.  At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA.  These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans.  We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.”  Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made.  But to the contrary, 30% of claims that were made under Pigford I were ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above.  But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims.  We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans.  Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983?  I think the answer to that is “absolutely.”

None of this is to say that there hasn’t been and will not be successful fraudulent abuse of these settlements.  Where such fraud is discovered, clearly it should be prosecuted.  And no doubt, given the stakes involved, it should not be a surprise if these settlements turn out to be more prone to fraud than most – we are talking about large sums of money readily available with a relatively low burden of proof.  Unfortunately, such a low burden of proof is probably necessary here – unless the overwhelming majority of claims are in fact fraudulent, it’s safe to assume that forcing them to be tried under a higher standard of proof would impose far more costs than they would save.

What is appalling here is the ease with which the information I’ve noted above is readily available, and the utter failure of both Breitbart and Conor (and, I assume, Foster) to cite any of it.  Increasingly, it seems that the role of more high-brow political journalism is simply to, consciously or not, provide intellectual cover for the base’s ill-supported memes rather than seeking truth or attempting to challenge the base.  Instead of talking to the base, they merely parrot it.**

[UPDATE: 1.  In the comments below, Conor acknowledges his error, for which he certainly deserves credit, and which is something that is certainly all-too-rare in the blogosphere.

Mistermix:

After Conor Friedersdorf was thoroughly “fisked”—to use a word he can understand—for pimping an error-filled National Review article that supported Andrew Breitbart’s attempt to start a race war out of a settled case of discrimination, he responded with a little humility:

All I can say is that it was an honest mistake, and while I wish I would’ve raised it in my initial post, I am at least glad that I blogged about this issue because a lot of folks who were wrong in the same way I was now have the benefit of understanding this controversy better. I’ll certainly deploy your arguments as this case gets covered elsewhere.

That lasted about as long as it took the author of the original National Review, Dan Foster, to put up a lengthy defense of his original piece:

The main thing you need to know about that defense is that, at many key points, Foster cites either Andrew Breitbart or Breitbart’s helper, Lee Stranahan, for factual evidence. He many have done independent reporting on his own, but when it comes down to the important facts, he’s citing a person Conor has acknowledged that he can’t trust. But Conor’s more than willing to pimp Breitbart’s story through an intermediary. How is that anything but useful idiocy?

Daniel Foster at National Review:

I think my piece largely speaks for itself (although there was certainly some stuff that had to be cut: the original draft was twice as long as what ended up in the mag), and so I hope Coates and Thompson will read it. But let me briefly try to answer their criticisms, in order. (Apologies: if you haven’t read it, some of this will lack context).Thompson has seven points. Here’s one:

. . . this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers.  Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Okay, the story fully grants that there is statistical evidence of discrimination against black farmers in the relevant time period, so we’re not in disagreement there. To say, though, that “the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs” in the settlement is a bit off. It’s sort of a “when did you stop beating your wife?” question. The settlement meant that the USDA didn’t have to admit, in the legal sense, to discrimination (though we’ll see later that they fell all over themselves to admit it in the moral sense), and that they could avoid the messy process of investigating and adjudicating it. Like many (most, all?) settlements, the USDA traded cash for the risk of legal liability.

Here’s two, four, and five, and seven, which are related:

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period.  At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

[. . . ]

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans.  We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.”  Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

[. . .]

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above.  But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims.  We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans.  Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983?  I think the answer to that is “absolutely.”

As to the number of black farmers, I mention both the 18,500 and 33,000 numbers in my piece; neither jibes with the number of claims that have poured in. The point about the difference between black-owned farms and black farmers isn’t really true either. Take a look at this table from the 1992/1997 Ag census. It does in fact distinguish between black-owned farms and black-leased or -rented farms, and it provides numbers for black tenant farmers. They hew closely to the 18,500 figure. But even if we take the biggest number that Thompson’s multi-step statistical conjecture produces — 50,000 black farmers — we’re still missing half the claimants. It’s also worth noting that the type of loans and assistance the USDA is alleged to have withheld from blacks were for farm operators, not agricultural workers broadly construed. So if that’s what Thompson had in mind in making his distinction then it’s not clearly relevant. Look, I — and parties on both sides of the case — yield that USDA record-keeping makes it difficult to pin down how many black farmers there were at any given time. In fact, much of my article is basically an argument that that problem is what opened the case up to fraud.

Doubling back now to Thompson’s third point:

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA.  These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Aye, there’s the rub. The original Pigford class contained a few hundred farmers, and while the settlement was being negotiated, both sides agreed that when it was all said and done, there would likely be no more than 2,500 or so potential claimants. But trial lawyers and a sympathetic judge wrote the claims process in such a way that almost no proof was required to collect $50,000. Not only did you not have to prove that you were actually discriminated against by the USDA — you didn’t have to prove by a preponderance of evidence that you had even applied for a loan. Again, this is all in the piece and I won’t rehearse it here. But ask whistle-blower Pigford claimants and even advocates for Pigford II about the category of “attempting to farm” claimants, which by some measures account for the vast majority of outstanding claims.

And lastly Thompson’s sixth point:

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made.  But to the contrary, 30% of claims that were made under Pigford Iwere ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Once you’ve read the bit in my piece about the standards of evidence required to collect $50,000 under the settlement you’ll laugh out loud at that last sentence. And if you read Andrew Breitbart’s report, in which he interviews USDA workers who actually rubber-stamped the claims, you’ll see that approval was nearly automatic in a number of jurisdictions.

Now let’s deal with Coates. Here’s the meat of his criticism:

This is where you see “conservative” effectively becoming a synonym for “white populist.” You would think that the government discriminating against a class of farmers over 15 years, under three different presidential administrations, from two different parties, not in the distant, but recently, would be a pet cause for people disturbed by the overreach of government. In fact those who claim that banner, are disturbed by the remedy applied–not the problem, itself.

Indeed it would be extremely worrisome if the federal government under three different presidents and two different parties had discriminated wholesale against black farmers. But the queer thing about the USDA programs at the heart of the Pigford case is that they were locally administered. The USDA bankrolled these loan programs, but they were actually run by hundreds or thousands of county boards in dozens of states, virtually all of them elected by the local farmers. Centralized, top-down, discrimination by the federal government would be awful but plausible; the sheer number and geographic scope of the claims suggests a remarkable universality. Maybe it is the case that a thousand different county boards, independently, thought blacks didn’t deserve farm operating loans. But there are also anecdotes about claims coming out of the Washington, D.C., suburbs; out of Chicago; out of a county in Arkansas where the entire loan board was black. . . .

As to his point about what this case, and my story, says about racial politics in America, I can only reiterate: There was discrimination against black farmers, and it was shameful. But so too is the race-hustling, trial-lawyer greed and fraud that has come out of the settlements. I didn’t even include in the piece stuff about reparations activists and unsavory Nation of Islam types glomming onto Pigford as a proxy for their own goals. E.g. Gary Grant, President of the Black Farmers & Agriculturalist Association (BFAA), which played a pivotal role in expanding Pigford settlements, went so far as to tell Fox News in 2001 that he doesn’t care if all the claimants are really farmers. “If you are an African-American, you deserve $50,000 because your roots are in farming and your folks have already been cheated,” he said. “You are collecting what your grandparents didn’t have the opportunity to.” In 2003, BFAA vice-president Ridgely Muhammad, who moonlights as “minister of agriculture” in the Nation of Islam, wrote on a black nationalist web site that the Pigford settlement illustrated both promise and peril for the reparations movement: the promise of showing how to navigate the “legal flaws in current reparations lawsuits” and the peril of allowing “white ‘do gooder’ lawyers’” to profit from the proceedings. Faya Ora Rose Touré (Rose Sanders until she elected to step away from her “slave name”) is a Selma, Alabama civil-rights lawyer who won an appellate court ruling to extend the filing deadline for Pigford claimants. She has also long been a dogged fighter for reparations, having once gone to court alongside Johnny Cochran to seek compensation from corporations that profited from slavery. Today, she is Shirley Sherrod’s lawyer. And then there is Dorothy Tillman, a former (Obama endorsed) Chicago alderman who during her tenure in public life has made reparations her signature political issue, and who has been recognized by Rep. John Conyers (D., Mich.), Congress’s greatest champion of reparations, for her work for “Black farmers and for justice.” The list goes on.

Breitbart and documentary filmmaker Lee Stranahan, who is working on a Pigford project, tell me they have recently recorded evidence of a black activist giving what Breitbart called a “demented Princeton Review” seminar on how to game the settlement to a packed black church in the South. I haven’t seen the tape so I didn’t run with it and I’ll reserve judgment, but I do know (and again, it’s in the piece) that real black farmers who were really discriminated against are still hurting, because the settlements were structured to spread the money far and wide, and right quick, not to actually bring relief to struggling black farmers who are still working the land.

To paraphrase Coates, the point is this: You would think that a bunch of fraudsters and fringe ideologues using legitimate claims of past discrimination to bilk taxpayer dollars and propagate a divisive program of grievance politics, not in the distant or recent past, but today, would be a pet cause for people interested in overcoming the legacy of racism in this country. In fact those who claim that banner are disturbed by the exposure of that problem — not the problem itself.

Adam Serwer:

Pigford I

As the Congressional Research Service report notes, “as of November 2010, 15,642 (69%) of the 22,721 eligible class members had final adjudications approved.” Foster says you’ll “laugh out loud” at the necessary evidentiary standards for filing under Track A, but someone could have plausibly walked away from reading Foster’s piece believing none of the 94,000 claims would be dismissed, when 31 percent of those in the original settlement were.

The claimants were required to show “substantial evidence” that they were entitled to part of the settlement. This doesn’t fit neatly into an article, so it’s understandable Foster didn’t include it, but I’ll just blockquote it here:

• a copy of the discrimination complaint filed with USDA or a copy of a USDA document referencing the discrimination complaint;

• a declaration by a person who was not a member of the claimant’s family, stating that the declarant had first-hand knowledge that the claimant had filed a discrimination complaint with USDA and describing the manner in which the discrimination complaint was filed;

• a copy of correspondence from the claimant to a member of Congress; the White House; or a state, local or federal official averring that the claimant had been discriminated against (except that, in the event that USDA did not possess a copy of the correspondence, the claimant also was required to submit a declaration stating that he or she sent the correspondence to the person to whom it was addressed);

• a declaration by a non-familial witness stating that the witness had first-hand knowledge that, while attending a USDA listening session or other meeting with a USDA official (or officials), the claimant was explicitly told by a USDA official that the official would investigate that specific claimant’s oral complaint of discrimination.

In his response, Foster alludes to the Big Government report that claims to cite testimony from “USDA workers who rubberstamped the claims.” Adjudicating whether the claims have merit was not handled by the USDA; it’s handled by a court-appointed third party, who is backed up by another court-appointed monitor who double checks the claim. The USDA can provide evidence as to whether or not a particular claim is false, and I’m guessing that might be what he means.

Let me just point out, though, that if 31 percent of the claims are being denied, it literally means they aren’t being rubber-stamped. The reason the terms were so generous was that, as Media Matters points out, folks at the USDA were literally throwing complaints into the trash, making documentation on the government’s end difficult. There’s basically a choice here — you can make it easier to prove a claim and risk that some terrible people will try to defraud the government, or you can make it so difficult that a number of people with legitimate claims won’t be able to prove they were discriminated against. In either case, it’s possible, even likely, that some people who deserve money won’t get it and some who don’t will. But that doesn’t amount to “massive fraud,” nor do I think it discredits the entire process.

Fortunately, if you believe that the old terms were too generous, there are additional fraud protections in the Claims Resolution Act, that further empower the claims adjudicator and gives access to claims information, including the names and address of the claims filers, to the GAO. Not that you’d know that from Foster’s piece. Chances are if/when someone tries to file a fraudulent claim, both we — and Congress — will hear about it.

Around 74,000 people filed claims past the deadline, the vast majority of these were dismissed for not meeting the deadline. The large number of late claims prompted the Senate to pass — unanimously, I might add — a second settlement.

Pigford II

$1.15 billion was approved to address the claims that weren’t handled by Pigford I. The total number of dollars anyone has been paid from this is zero. Every single one of the late claimaints who didn’t squeak through under Pigford I will have to refile, and according to the USDA, not a single claim has been filed yet because the court hasn’t assigned an adjudicator. It’ll be another two to three years before any Pigford II claims are adjudicated.

That’s what makes the allegation of “94,000 phantom farmers” are getting payouts inaccurate. Foster never mentions that only around 16,000 have seen any money at all, while around 7,000 other claims were denied (“the gravy train shows no signs of slowing down”). He’s using the total number of claims filed in the past, leaving the reader with the impression that all of them will be approved, even though all the late filers have to refile. His original piece also leaves the impression, both in his discussion of the evidentiary standards being used for Track A, and the use of the 94,000 number in his conclusion, that everyone is just getting handed a check by the USDA. Just get your friend Carl to say you were a black farmer.

Foster finds the USDA’s widespread, systemic discrimination against black farmers to be inconceivable, because of the scale involved. “Centralized, top-down, discrimination by the federal government would be awful but plausible, the sheer number and geographic scope of the claims suggests a remarkable universality.” I find that to be an astonishing argument. Jim Crow was not a “centralized, top-down affair”; it was a matter of “local administration.” “Local administration” is how segregation worked; it’s how Southern Democrats did things like ensure the benefits of the New Deal would be restricted to whites.

I also had a really visceral emotional reaction to Foster’s original conclusion:

At a December 8 signing ceremony, President Obama heralded Pigford II as the close of “a long and unfortunate chapter in our history.” In a way, one hopes the president is right—that the credulity, or perhaps the shame, of the American government and its taxpayers cannot be strained to accommodate the petty greed of more than 94,000 phantom farmers, and that the con will finally have run its course. But that is unlikely. Two Pigford style class-action suits—one for Hispanic farmers, another for women—with the potential to dwarf current settlements are working their way through the courts. Like so many Pigfords to the trough.

Look, the genteel white populism of this paragraph can’t be explained away. Not only have those greedy black frauds stuck their snouts into your wallet, but the Messicans and womens are on their way. There’s simply no way to credibly pivot from a statement like this, which attacks the very idea of financial restitution for past wrongs, to genuine concerns about farmers who deserved money that didn’t receive it because of the settlement terms.

Historically speaking, according to the Congressional Research Service citing an internal USDA report tracking their practices between 1990 and 1995, the crowd at the trough actually looks considerably less diverse:

According to the commissioned study, few appeals were made by minority complainants because of the slowness of the process, the lack of confidence in the decision makers, the lack of knowledge about the rules, and the significant bureaucracy involved in the process. Other findings showed that (1) the largest USDA loans (top 1%) went to corporations (65%) and white male farmers (25%); (2) loans to black males averaged $4,000 (or 25%) less than those given to white males; and (3) 97% of disaster payments went to white farmers, while less than 1% went to black farmers. The study reported that the reasons for discrepancies in treatment between black and white farmers could not be easily determined due to “gross deficiencies” in USDA data collection and handling.

Shortly afterward, Agriculture Secretary Dan Glickman suspended farm foreclosures and ordered an investigation into the matter. Before then, no one had been particularly bothered by it, for obvious reasons. Some snouts are more welcome at the trough than others.

I have no doubt that some people will try to defraud the government out of money here, nor do I discount the possibility that some have. Frankly, I think the bigger worry is that some people who deserve money will be bilked out of it by people posing as agents or lawyers and promising to ensure, for a fee, claimants get their settlement money. A class-action settlement is a juicy target for con artists. Those people deserve to be in jail. The fact that some people will try does not invalidate the government’s effort to rectify past wrongs.

Finally, I just want to address Foster’s original nut graf:

And in finally securing justice for himself and the few hundred farmers who first joined his class-action suit, he’d unwittingly set off an injustice greater than the one he sought to rectify: one that would involve the waste of billions of dollars, systemic fraud implicating top federal officials, the unseemly electioneering of two presidential campaigns—even murder.

Maybe I’m missing something here, but I don’t see how Foster has proved that billions were wasted or that there is systemic fraud in the Pigford settlement. It’s only “unseemly electioneering” if you pretend there wasn’t substantial bipartisan support for the settlement, or if you think the president is unmoved by racial injustice and merely spends his entire day thinking about how to get whitey’s money. The idea that the settlement itself is responsible for people who planned to defraud the government by making a false claim and murdered a witness they feared might talk is just stupid.  But this paragraph certainly reflects the ideological disposition of most conservatives — that efforts to rectify past racial injustices always create “more injustice” than the original crime.

Publius at Big Government:

At a press conference at CPAC featuring Rep. Michele Bachmann, Rep. Steve King and Andrew Breitbart, black farmer Eddie Slaughter tells his impassioned story about how the Pigford settlement has actually hurt the original and actual victims of discrimination at the hands of the USDA.

Adam Serwer and Daniel Foster at Bloggingheads

Conor Friedersdorf at The American Scene:

This is going to get complicated quickly. My apologies. If you’ve never heard the word Pigford before this may be a post to skip. In my last stint guestblogging at The Daily Dish, I wrote a post about the Pigford controversy, where I basically argued that since it’s inevitably going to be an ongoing matter of dispute, the best way to talk about it is to focus on the reporting published in National Review by Daniel Foster, a writer whose basic integrity as a person I trust, rather than the stuff published by Andrew Breitbart, whose outspokenness on the matter is clearly outweighed by the numerous instances in which he has brazenly injected egregiously misleading information into public discourse.

So often, stories like this turn into conversational train wrecks. I see one coming – and an opportunity to do better. Let’s treat this like a complicated matter, one where even people writing in good faith can make mistakes, making it a perfect fit for the vetting function that comes from honest back-and-forths in the blogosphere.

The vetting started immediately. I’d noted an aspect of Foster’s piece that seemed particularly persuasive to me. Ta-Nehisi Coates, Adam Serwer, and Mark Thompson pushed back hard. I quickly saw that I’d been mistaken in buying into that particular argument, and said so. As is their wont, the folks at Balloon Juice misunderstood and misrepresented my narrow apology.

Meanwhile, National Review posted Foster’s piece online, so that folks no longer had to rely on my poor summary. Foster pushed back against his critics. Serwer went another round. And then the good people at Bloggingheads arranged for a diavlog between Foster and Serwer, which can be seen here. Some of the conversation is tedious through no fault of the interlocutors. This is a complicated story to talk about, especially for an audience that isn’t initiated. Other parts are riveting. It isn’t often that you see two writers with wildly different takes on race in America willing to confront one another and converse in ways that make both of them uncomfortable.

The exchange that has played out is basically what I hoped for when I wrote that initial post urging engagement with Foster’s piece. I’d wager that Foster, Serwer, Thompson and Coates would all write things a bit differently if they could redo this whole exchange. On the whole, however, I think they’ve all conducted themselves rather well: more precisely, whatever their mistakes, they’ve all argued in good faith, with intellectual honesty and a desire to leave the public better informed about the matter at hand. Put another way, if everyone merely rose to the level of imperfect reporting, analysis and argument displayed here, American public discourse would be greatly improved.

But damn, this is a messy, maddening process. Among the writers I’ve mentioned, there were heated exchanges, hurt feelings, occasional suspicions of bad faith, tedious intervals that didn’t make for particularly entertaining journalism… and as a reader, one had to wade through all of it for the payoff of being a lot better informed on the other end… but even being better informed, there wasn’t the satisfaction of easy answers or resolution to all the disagreements.

What I find so wrongheaded about the Balloon Juice approach to this story – and the approach taken by folks who emailed me insisting that I should have never written my initial post – is the glib insistence that merely wanting a robust exchange was tantamount to being Andrew Breitbart’s useful idiot.

Mr. Smith May Not Be Coming To Washington, After All

Greg Sargent:

Here’s a copy of the filibuster reform resolution that Senate Democrats will introduce later today, sent over by an aide to Tom Udall, one of the key Senators driving this campaign.

While the broad outlines of the proposal were already public, the details were being debated by Senators Udall, Jeff Merkley, Tom Harkin and Amy Klobuchar until as late as yesterday. The actual resolution is important, because it will serve as a jumping off point for the debate over reform that will unfold over the next couple of weeks.

Here’s a summary of the main items, also provided by a Udall aide:

Clear Path to Debate: Eliminate the Filibuster on Motions to Proceed

Makes motions to proceed not subject to a filibuster, but provides for two hours of debate. This proposal has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.

Eliminates Secret Holds

Prohibits one Senator from objecting on behalf of another, unless he or she discloses the name of the senator with the objection. This is a simple solution to address a longstanding problem.

Right to Amend: Guarantees Consideration of Amendments for both Majority and Minority

Protects the rights of the minority to offer amendments following cloture filing, provided the amendments are germane and have been filed in a timely manner.

This provision addresses comments of Republicans at last year’s Rules Committee hearings. Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution — it guarantees the minority the right to offer germane amendments.

Talking Filibuster: Ensures Real Debate

Following a failed cloture vote, Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business.

Expedite Nominations: Reduce Post-Cloture Time

Provides for two hours of post-cloture debate time for nominees. Post cloture time is meant for debating and voting on amendments — something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.

Daniel Foster at The Corner:

There’s a lot to like there. I’ve long favored the “talking filibuster” model since it is a) the way the rule was originally designed and b) is a natural check on abuse. No major GOP filibuster of the last four years — think Obamacare — would have gone any differently under a talking filibuster; when the stakes are high enough the minority should be able to rouse a rotation of senators to hold the floor. The end of the filibuster on motions to proceed I’m more ambivalent about. There is certainly an element on commonsense logic here. But filibustering motions to proceed has long been a tool to force the majority to give the minority amendments as a condition for allowing debate to proceed (more on that below). I like that, and I favor a slow Senate in general, just not a glacial one. I’d have to think more about the balance here. Same goes for the limitation on post-cloture debate for nominees.

Making holds transparent just seems like an undeniably good idea, and I suspect it would get broad bipartisan support if brought up as a standalone.

And guaranteeing the minority three germane amendments to all bills could also be really good. For one thing, it probably favors Republicans more than Democrats, since the Harry Reids of the world block Republican amendments not just because they delay final passage, but because they often actually have a chance of passing. That is, it is a feature of our political landscape that there will almost always be more Ben Nelsons than Olympia Snowes — more Democrats willing to vote with Republicans than vice versa. Again, think about how this could have changed the way Obamacare played out. My concern would be that majorities and their parliamentarian gimps would find a way to define “germane” down to nothing. I’d have to look into it.

Allah Pundit:

The threshold worry is that the GOP is still in the minority and therefore stands to lose some leverage if this goes through. True, but that’s meaningless with a Republican House. Anything nutty that Reid passes will die on Boehner’s desk. Think ahead to 2012, when the House will almost certainly stay red and a slew of red-state Senate Democrats will be fighting for their political lives in November. That chamber could flip to the GOP too. If filibuster reform passes now, thereby setting a precedent for the next Congress, and Obama loses his own reelection bid, then the filibuster would be the Democrats’ last means of preventing the repeal of ObamaCare. They could still do it if they’re willing to talk — and talk and talk and talk until the GOP gives up — but this package would weaken their hand. Plan ahead!

As for the particulars, please do read Foster’s thoughtful post. I think he’s right that the “talking filibuster” would be a big enough weapon for a committed minority to kill important legislation on the floor (Democrats had better hope so per my point above about ObamaCare repeal). And the GOP has complained for ages that Reid hogs all the amendment opportunities for Democrats, effectively leaving the party with no options on a bad bill except to filibuster. McConnell grumbled about that in an op-ed just this morning, in fact; under this new package, he’d be guaranteed at least three chances to tempt the Testers and Pryors and Nelsons of the world into siding with the GOP on amendments that could potentially kill the underlying bill. In fact, Foster thinks that because there are likely to be more centrist Democrats in the chamber than centrist Republicans, the ability to dangle amendments at fencesitters in the other caucus would favor the GOP permanently. I’m not so sure about that — between Brown, Snowe, Collins, Murkowski, Kirk and whoever’s elected in 2012, there are actually plenty of RINOs there with maybe more to come — but it’s worth considering.

Doug Mataconis:

I think this analysis is largely correct. This proposal isn’t the elimination of the filibuster that pundits like Ezra Klein and Matthew Yglesias have been advocating for the better part of it year, so it doesn’t totally dilute the rights of the Senate minority to have their voice heard in debate. Instead, these reforms propose doing things like making Senators who want to block debate on a bill stand up and do so publicly, whether by holding the floor via a filibuster, or by eliminating the secret hold. None of these detracts from the rights, or powers, of the minority to have their voices heard, but it does mandate transparency, and to the extent that transparency means that Senators will be less likely to block legislation just for the hell of it, or just to appease their base. It would also seem to encourage more actual debate, which strikes me as a good thing.

Unfortunately, the entire reform effort seems to be in danger

Ezra Klein:

Dan Foster at the National Review and AllahPundit at HotAir.com both agree: There’s really nothing for minority parties to fear in the Democrats’ proposed filibuster reforms. And they’re right about that.

Compare the provisions that say minorities can’t do something to those that say they can do something. In the “can’t” category is (1) can’t uphold a filibuster without having people debating the bill on the floor, (2) can’t place a hold on a bill without disclosing that you’ve done so and (3) can’t filibuster a motion to proceed.

If you read that closely, there’s no basic tool Senate minorities have now that they won’t have if these reforms pass: They can still filibuster bills, they can still place holds. I cannot think of a single piece of legislation that would’ve ended differently in the presence of these rules.

Conversely, the reform package also says minorities can do something: They get to offer at least three germane amendments on every single bill. The majority often doesn’t let the minority do this because the amendments, if sufficiently well targeted, can split the majority party, adding something that, say, conservative Democrats can’t vote against, but liberal Democrats can’t stand to see pass. I can think of a few bills where this power would’ve, at the least, changed the makeup of the final legislation.

Jennifer Rubin:

For ever-hopeful liberal bloggers, Senate Majority Leader Harry Reid’s introduction of a filibuster reform measure yesterday was a sure sign, yes indeed, that the Democrats are serious about filibuster reform. But are they?

Reid could have staged a vote, but instead, as I predicted, that will have to wait until after the Senate returns on January 24. (Only in Congress do you show up for the first day of work and then go on vacation for three weeks). A senior Senate adviser scoffed that if Reid had the votes, there’d be no delay. The only reason to put this off is to come up with an alternative that will allow the Democrats to withdraw the “nuclear option” gracefully.

It seems some Democrats have figured out the downside of lessening the rights of the minority. The Hill reports:

A senior Senate Democratic aide said some of the younger Democratic senators are having second thoughts about filibuster reform because they expect to be in the minority at some point in their careers.

“Believe me, when you’re in the minority, you want the filibuster,” said the aide.

 

The Roof, The Roof, The Roof Is On Fire

Jonathan Cohn at TNR:

The U.S. appears to be the only country in the developed world that forbids its government from accumulating debt without authorizing legislation. And that’s led to some scary moments, including one that the economist Henry Aaron shared with me recently.

During the early years of the Kennedy Administration, Congress passed an increase in the debt ceiling at the last minute. But when JFK went to sign the bill, according to Aaron, nobody could find the document. Treasury Secretary Douglas Dillon wanted to know what would happen if the government reached its debt ceiling and an administration lawyer, after some brief research, reported that “it seems, Mr. Secretary, that you are personally liable for interest on the debt.” Dillon, who was an investment banker, pressed the lawyer: How much would that be? “About $150 million a day,” the lawyer reportedly said, prompting Dillon to deadpan “I can’t last more than three days.”

It’s a funny story because it had a happy ending: Kennedy’s advisors eventually found the bill. And if they hadn’t, they would have gotten together with Congress and found some other way to raise the debt ceiling. That’s because, relatively speaking, they were grown-ups who took governing seriously.

Fifty years later, can we say the same thing? Sometime in the next few months, the U.S. will reach its debt limit and Congress will, once again, have a choice: Raise the limit or let the U.S. default on its obligations. For a while now, Tea Party Republicans like Senator Mike Lee, who unseated the insufficiently conservative Robert Bennett in Utah, have been threatening to vote against the debt ceiling increase unless they win substantial reductions in government spending. Idle threats about refusing to raise the debt ceiling are nothing new, but the Tea Party crowd seems quite serious about it–in part because they’ve promised their base they’re going to do it.

And now it looks like they have company. On Sunday’s “Meet the Press,” Republican Senator Lindsey Graham announced that he, too, was willing to engage in serious brinkmanship over the debt:

I will not vote for the debt ceiling increase until I see a plan in place that will deal with our long-term debt obligations, starting with Social Security, a real bipartisan effort to make sure that Social Security stays solvent, adjusting the age, looking at means tests for benefits. On the spending side, I’m not going to vote for debt ceiling increase unless we go back to 2008 spending levels, cutting discretionary spending.

As many others have noted, the demand of going back to 2008 spending levels is radical and, not coincidentally, highly unrealistic: According to the Center on Budget and Policy Priorities, it’d amount to a one-fifth cut in discretionary spending–forcing cuts that could damage the fragile recovery and starve programs like Pell Grants that most Americans value.

Daniel Foster at The Corner:

Unlikely as it may seem at the moment, I’m becoming more and more convinced that congressional Republicans can get a lot — in terms of spending cuts, entitlement reforms, and the like — in exchange for agreeing to raise the federal debt ceiling at some point in the next few months.

My argument is dead simple.

P1) The debt ceiling won’t be raised without a ‘yea’ vote from Sen. Lindsey Graham (R., S.C.)

P2) Senator Graham said on Meet the Press that

“I will not vote for the debt ceiling increase until I see a plan in place that will deal with our long-term debt obligations, starting with Social Security, a real bipartisan effort to make sure that Social Security stays solvent, adjusting the age, looking at means tests for benefits. On the spending side, I’m not going to vote for debt ceiling increase unless we go back to 2008 spending levels, cutting discretionary spending.”

P3) The debt ceiling must be raised.

C: Graham will get what he wants, or something approximating it. That is, there will be significant revenue-side concessions from Democrats in exchange for support from the likes of Graham and Senate Republicans in his ideological neighborhood.

Don’t buy it? Okay, so which premise is false? P1? Does anyone think 53 Democrats can overcome a filibuster, in a tea-infused Senate, on anything significant, without Lindsey Graham? P3? Does anyone think either party’s leadership will allow a federal debt default?

That leaves P2, which, admittedly, is the shakiest. It rests on us taking a politician at his word. But Graham has been — for good and ill — remarkably transparent about his strategic calculus when it comes to votes. Remember when he publicly, and baldly, abandoned the energy bill he helped write because Harry Reid was going to make his life in South Carolina exceedingly difficult by doing immigration reform first? Graham is a known bipartisan deal-maker, and one of the few Senate Republicans with an open line to the White House. So not only does Graham almost certainly want to make a deal, but he is in a better position than most to know what kind of deal is possible. Indeed, knowing Graham’s style, the hidden premise in his Meet the Press comments is that he has reason to believe Democrats in the White House and in the Senate are willing to negotiate.

Bruce Bartlett:

This morning, CEA chairman Austan Goolsbee warned Republicans against playing games with the nation’s credit rating by refusing to raise the debt limit and creating a technical default. I have been warning people about this problem for more than a year because I know there is a widespread belief among the nuttier right-wingers that a debt default is just what the country needs to force massive spending cuts into effect. Many stupidly believe that the budget would be balanced overnight because the government couldn’t spend any more than the available cash flow from taxes would permit.

Since I first started writing about this danger, some of these nutty right-wingers have been elected to Congress under the Tea Party banner. Since many have never served in elected office before and know virtually nothing about economics or finance, I don’t think they realize that they are playing with fire when they even hint at the possibility of a debt default. They are like children playing with matches.

What I haven’t figured out how to properly convey is that a default triggered by a failure to raise the debt ceiling is of a completely different nature than the sort of default that Ken Rogoff and Carmen Reinhart wrote about in their book. All of those cases were market-driven, where investors refused to buy or refinance a nation’s debt because of fiscal profligacy, irresponsible monetary policies etc. A U.S. default, by contrast, would be 100% self-inflicted based on loss of the Treasury’s legal authority to issue bonds, not because of a lack of market demand for those bonds. The historically low level of real and nominal interest rates on Treasury securities is proof that there is still strong demand for Treasury securities.

I have spent considerable time trying to figure out what exactly would happen in the event that, at some point, the Treasury literally had no cash to pay interest on the debt, redeem maturing securities, pay Social Security benefits and so on. Some people believe that the Treasury has an almost unlimited ability to fudge the problem indefinitely. But I know that there are analysts at the GAO who are very concerned about hitting a hard limit on the Treasury’s legal authority not long after the debt ceiling is breached. The law is very unclear and has never been tested in court.

As far as I am aware, no other country on Earth has the idiotic policy that the United States has of having a legal limit on the amount of bonds the central government can issue. They correctly recognize that the deficit and the debt are simply residuals resulting from the government’s tax and spending policies. It makes no sense to treat the debt as if it is an independent variable.

Tom Maguire:

That whistle you hear on down the tracks heralds an impending train wreck, as Tea Partiers brace for a vote on raising the debt limit sometime in the next few months.

Let’s get a sense of their attitude – some thoughts:

…raising America’s debt limit is a sign of leadership failure. It is a sign that the U.S. Government can’t pay its own bills. It is a sign that we now depend on ongoing financial assistance from foreign countries to finance our Government’s reckless fiscal policies.

Over the past 5 years, our federal debt has increased by $3.5 trillion to $8.6 trillion.That is “trillion” with a “T.” That is money that we have borrowed from the Social Security trust fund, borrowed from China and Japan, borrowed from American taxpayers…

…

And the cost of our debt is one of the fastest growing expenses in the Federal budget. This rising debt is a hidden domestic enemy, robbing our cities and States of critical investments in infrastructure like bridges, ports, and levees; robbing our families and our children of critical investments in education and health care reform; robbing our seniors of the retirement and health security they have counted on.

Every dollar we pay in interest is a dollar that is not going to investment in America’s priorities.

Put him down as “Undecided”.  Ooops, my bad!  That was Barack Obama himself, speaking in 2006.  Put him down as “Present”.  And now, as “President”.  The shoe is on the other foot, sauce for the goose, and away we go.

Republicans will be having a lot of fun with that speech (as they did a year ago) but I hope they eventually suck it up and do the right thing.  Bruce Bartlett worries that they won’t.

Jonathan Bernstein:

First of all, it’s worth mentioning that way back in 2006, long, long, ago, we still didn’t have a 60 vote Senate: the debt ceiling increase passed by a 52-48 vote, with no cloture vote at all because the Democrats didn’t filibuster it.  As far as I can tell from a quick search of the reporting back then, the Democrats did threaten to attach amendments (and wound up forcing at least one recorded vote), but they didn’t use it as leverage (by filibustering or threatening to filibuster) to, say, force a withdrawal from Iraq.

Now, in fact, I don’t know that using the threat of default to win policy victories is irresponsible.  Even bluffing that you’re going to destroy the country if you don’t get what you want…I don’t know that I’d say that would necessarily be irresponsible.  Actually going through with it, though: yeah, that would be about as bad as it gets.  So I’d make a distinction not just between pure posturing and terrible behavior, but between pure posturing, responsible negotiations, and irresponsible negotiations.  And I’ll note that we probably can’t guess which one is going on until the end of the game.

John Cole:

I suppose it is too much to ask that the Democrats run a competent political operation and point out that the Republicans have no actual plan for governance, but intend to simply play chicken with the debt ceiling and hold investigations of the travel office and other crap like that.

If Lindsey Graham wants to go after social security, the Democrats should not do or say a thing until the Republican proposal is in bill form and the details are included. Let them be the party that wants to go after grandma’s income. Let’s see DeMint’s plan for the default of the United States.

Having watched Obama the last two years, I’m reasonably sure the brain trust in charge of the political operation will instead pretend the Republicans are serious and offer more than the Republicans as an opening bid, and then watch themselves get undercut but the douchebag Blue Dogs and flayed alive by the professional left. That’s just how they roll. Morans.

Virginia Is Not For Lovers Of A Mandate

Kevin Sack at NYT:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.

Daniel Foster at The Corner:

Suit was brought by Virginia attorney general Ken Cuccinelli.

“I am gratified we prevailed. This won’t be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution,” said Cuccinelli in a statement.

Cuccinelli has made the extraordinary request that the case bypass the regular appellate order and proceed directly to the highest court, arguing that the Obama administration, too, would benefit from a speedy resolution.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Tom Maguire

Jonathan Cohn at TNR:

Hudson’s ruling is not unexpected. He is a Republican appointee with a history of conservative rulings. Nor is it definitive. Two other federal district judges, Democratic appointees both, have already ruled that the entire law passes constitutional muster. A fourth decision, by a judge in Florida, is expected by year’s end.

Most legal experts expect that, eventually, the case will come before the U.S. Supreme Court. Hudson himself acknowledged as much, writing “The final word will undoubtedly reside with a higher court.”

And how might the five Republican appointees and four Democratic appointees on the Surpeme Court rule? Most court observers I know believe that at least one of the Republican appointees, most likely Anthony Kennedy, would agree with the government that the Affordable Care Act falls well within traditional boundaries of the taxing and interstate commerce powers. (For an example of such logic, see the Michigan ruling from a few weeks ago.)

I tend to think those experts are right, for reasons I’ll get around to explaining one of these days. Then again, I recall hearing similar confidence about another highly anticipated court ruling–one about, oh, ten years ago.

For more on the mandate and some varied opinions on how an adverse ruling by the Supreme Court might affect the Affordable Care Act overall, see Aaron Caroll, Jonathan Gruber, Ezra Klein, and Igor Volsky.

Meantime, if you’re looking for a more generic primer on the individual mandate, I highly recommend this video from the Kaiser Family Foundation.

Orin Kerr:

I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

Ezra Klein:

he real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn’t penalize anyone for deciding not to do something (which is the core of the conservative’s legal argument against the provision). Here’s one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.

Doug Mataconis:

In this particular case, the next step on the appellate ladder would be the Court of Appeals for the Fourth Circuit, which has generally had a reputation of being among the more conservative Courts of Appeal.  However, Virginia’s Attorney General has reportedly been mulling the idea of  applying to the Supreme Court to leave to bypass the  Court of Appeals and proceed directly to the final state of the appellate process. Even if such an application were made, there’s no guarantee it would be granted so the the case may end up in the 4th Circuit anyway, but this strikes me as mistake. It seems to me that a final hearing before the Supreme Court might have a better shot, for Virginia, if it had other rulings against the law from other Courts behind it.

In any event, it’s clear that the Federal Government was unable to overcome much of the initial skepticism that Judge Hudson expressed about the arguments in favor of the mandate in his ruling on the government’s Motion to Dismiss. On the Commerce Clause, Hudson ruled that the requirement that American citizens purchase health insurance or face a penalty to exceed even the relatively liberal bounds of Congressional authority as set forth in case likes Wickard v. Filburn and Gonzalez v. Raich and that failure to act cannot itself be considered an act occurring within interstate commerce. On the government’s backup argument that the mandate and it’s penalty are justified under Congress’s far broader authority to tax for the “general welfare,” Hudson essentially ruled that the taxing power cannot be used to accomplish a purpose not authorized under the specific grants of power given to Congress under Article I, Section 8, and that the Attorney General’s argument is undercut by the fact that both Congress and the President specifically denied during the build up to passage of the Affordable Care Act that the mandate was a tax (a relevant fact because it goes to the question of Congressional intent).

Finally, rather than declaring the entire ACA unconstitutional, Hudson’s decision merely enjoins enforcement of the individual mandate. However, given the fact that mandate is the centerpiece of the entire regulatory scheme, it is hard to see how the rest of the law could survive without it.

This case is obviously going to be appealed, but it’s nonetheless a victory for Virginia, and it’s noteworthy as one of the few times in recent memory that a Court has said to Congress — no, you can’t do that. For that reason alone, it’s a good thing.

Look, Children, It’s A Thing Spoke Of As Myth (An Actual Filibuster, Or Not)

Heather Horn at The Atlantic with the round-up.

Jordan Fabian at The Hill:

Sen. Bernie Sanders (I-Vt.) is railing against President Obama’s tax-cut package in a lengthy floor speech.

Sanders, one of the Senate’s leading liberals, is protesting Obama’s deal with Republicans, which would extend tax cuts on all income that were initially signed by President George W. Bush in 2001 and 2003.

Sanders began his speech on Friday at 10:24 a.m. and was still speaking at 5:31 p.m. Friday afternoon. He has threatened to filibuster the Obama-GOP deal when it is brought to the Senate floor next week.

“You can call what i am doing today whatever you want, you it [sic] call it a filibuster, you can call it a very long speech … ,” read a message posted on Sanders’s Twitter account after he’d taken to the rostrum.

Joe Weisenthal at Business Insider:

Update: Sanders is into hour 8.

Update 2: They’re in hour 6

Update: It’s in its 5th hour, and Senator Sanders is talking again, after having handed the baton to Mary Landrieu.

Original post: The Bernie Sanders filibuster against the tax deal is now in its 4th hour, and currently Louisiana Sen. Mary Landrieu has joined in. They’re railing against the deal, and in general inequality in America >

Just one thought: This is a disaster for Obama.

It’s the first time we can recall that something happening on the liberal side is getting people excited — #filibernie is a hot topic on Twitter right now — and Obama isn’t part of it. In fact, he’s against it.

Allah Pundit:

You’ll be pleased to know that, in his frantic search for subject matter to keep him going, he’s already somehow detoured into chatting about Arianna Huffington. If that’s where he’s at in hour six, lord only knows where he’ll be in hour twelve. Reading aloud from “Jersey Shore” transcripts, probably.

Daniel Foster at The Corner:

Regardless of the merits of Mr. Sanders’ position on the bill, this is my favored brand of filibuster-reform: make Senators actually do it. You’d retain the Senate’s best counter-majoritarian feature but see it reserved only for the most important measures.

Brian Beutler at Talking Points Memo:

It’s a filibuster as filibusters were originally intended — and, as such, makes a mockery of what the filibuster’s become: a gimmick that allows a minority of senators to quietly impose supermajority requirements on any piece of legislation.

Joined at different times by Sen. Sherrod Brown (D-OH) and Sen. Mary Landrieu (D-LA), Sanders has been decrying the Obama tax cut plan for bailing out the wealthiest people in America. “How can I get by on one house?” Sanders railed, sarcastically. “I need five houses, ten houses. I need three jet planes to take me all over the world! Sorry, American people. We’ve got the money, we’ve got the power.”

As a result of his efforts, he’s shot up to near the top Twitter trending topic chart. Filibusters like these were much more common decades ago, before the rules changed and Senators could really run out the clock by holding the floor and talking and talking without pause. Things are different today — and, whatever Sanders does, the Senate isn’t scheduled to hold any votes until Monday, so its practical effects may not amount to much.

David Dayen at Firedoglake:

It’s not a filibuster. Not unless he holds the floor until at least Monday and beyond.

There’s a set vote on the tax cut bill on Monday. Nothing else has been scheduled to move today. Bernie is not really blocking anything. This puts Sanders’ speech into the Congressional record; I’m not sure there’s an additional purpose.

But that’s not to say it isn’t important. Sanders is calling attention to the massive inequality in America, which will only be stratified further by a tax cut bill that raises taxes from current law for 25 million low-income workers and gives millionaires a tax cut of about $139,000 a person. He’s explaining America’s insane trade policies, which have cut out the American manufacturing base and hollowed out the middle class. He’s taking on corporate CEO pay, and the two-income trap, and basically making the progressive critique of an economy bought and paid for by the very rich.

What’s more, he’s picked up support, not only from usual suspects by Sherrod Brown but from conservative Democrat Mary Landrieu, who acknowledged she doesn’t always agree with her colleague but said that he has “done his homework” about the tax cut deal. After slamming the deal as unfair to the poor and to minorities and giving a very cogent argument about inequality, Landrieu hilariously concluded by saying she might vote for the bill, but she’d be “loud” about it. Nevertheless, you’re seeing issues discussed on the Senate floor that almost never come up in any other context. Political theater is sadly one of the few ways to cut through the clutter in America, and that’s what Sanders is up to, I suspect.

Andrew Leonard at Salon:

His epic rant — perhaps one of the most extraordinary critiques of how the American economy has been managed over the last several decades delivered in living memory — is an endless sequence of connecting the dots from one outrage to another. Even as I wrote this paragraph, he segued effortlessly from trade policy to Wall Street.

“But it is not just a disastrous trade policy that has brought us where we are today. The immediate cause of this crisis, and it gets me just sick talking about it … is what the crooks on Wall Street have done to the American people.”

Sanders then delivers a capsule history of deregulation, blasts Alan Greenspan, notes that in the late ’90s he had predicted everything that ultimately happened, but failed to rally legislative support to stop the runaway train — “and the rest is, unfortunately, history.”

From there, a class warfare sideswipe: “Understand, that in this country when you are a CEO on Wall Street — you can do pretty much anything you want and get away it.”

“And what they did to the American people is so horrible.”

On to the bailout! His scorn is so caustic it could disintegrate an aircraft carrier: “We bailed these guys out because they were too big to fail, and now three of the four largest banks  are now even larger. ”

As Sanders’ great oration enters its seventh hour, it is, by its very nature, impossible to summarize. It is a ramble, a rant, a critique, a cry of rage, a wail of despair, and a call to action. And it is amazing. I’ve heard stories of filibusters in which senators read phone books. And I’ve watched with disgust as for years Republicans have merely threatened to filibuster, without ever actually being forced to exercise their vocal cords. But here is Bernie Sanders, seven hours in, calling for the biggest banks to be broken up, voice still hale and hearty, and looking like he could easily go another seven hours.

Give credit to the citizens of Vermont, who know how to elect someone not afraid of speaking truth to power.

David Kurtz at Talking Points Memo:

Sen. Bernie Sanders all-day speech on the Senate floor has ended after about 8 1/2 hours.

“The Moment Of Truth,” In Theaters Near You… Or Not

Derek Thompson at The Atlantic:

The president’s deficit commission released its final recommendation for reducing the debt and reforming the budget this morning. Dramatically named “The Moment of Truth,” the plan offers a mosaic of reforms that promise to cut $4 trillion from the debt before 2020.

The plan would also cap tax revenue at 21 percent, limit spending to 22 percent, and reduce debt as a percentage of GDP to the key figure of 60 percent by 2023.

The 18-member commission will vote Friday on the plan, which requires a 14-person majority to go to Congress. But you don’t have to wait until then to learn the basics. Here is your executive summary, with “bottom line” conclusions to give you a sense of how I see things.

Discretionary/Mandatory Spending 

The goal is clear: cut $100 billion from defense and $100 billion from non-defense spending by 2015. The road there is less clear, because the discretionary budget is a vertiginous array of programs.

So the report keeps things broad. Spending in 2012 will equal spending in 2011. Spending in 2013 will come down to pre-crisis levels, adjusted for inflation. The president will propose annual limits for war spending. Disaster funds will be set up to manage unforeseen tragedies. A new 15-cent per gallon gas tax will pay into a transportation fund so that roads and bridges rely less on general revenue. Agencies will be responsible for their own diets, but in the event that they don’t lose the weight themselves, a new, bipartisan “Cut-and-Invest Committee” will offer guidance.

On the mandatory spending side, the report recommends reforming civilian and military retirement plans, cutting agricultural subsidies, but protecting income support programs.

Bottom line: The commission doesn’t particularly care where the spending cuts come from so long as they draw equally from both security and non-security spending and don’t hurt education, infrastructure or support for low-income families.

Taxes

The name of the game here is: Broaden the base, lower the rates. That means eliminating most tax expenditures (explanation here) that don’t protect the low-income, while slashing tax rates for both individuals and companies.

For individuals, tax brackets move to a new scale of 12%/22%/28% (for comparison: under Clinton, those brackets were 15/ 28/ 31/ 36/ 39.6). Welfare provisions like the Earned Income Tax Credit and the Child Tax credit stay put. Itemized deductions are eliminated and capital gains and dividends are taxed as ordinary income, dramatically raising effective tax rates on rich folks who both itemize heavily and get more income from investments. The mortgage interest deduction [Flashcard here] becomes a tax credit to make it more progressive and the employer health care subsidy [Flashcard here] is capped and phased out slowly.

OK, so the upshot: After-tax income would decline proportionately — between one and two percent — on almost all quintiles except for the richest one percent, who would pay significantly more to Uncle Sam.

Alison Acosta Fraser at Heritage:

As a stalemate appears increasingly likely, what appears to be an updated “chairman’s mark” to guide the commission’s discussions over the next several days was released. Like its predecessor, the report, puzzlingly titled “The Moment of Truth” (as if this will somehow garner enough votes), has some strong elements, both positive and negative.

Overall, this proposal does much the same as the previous report, though it would cut spending deeper and faster, bringing discretionary spending to 2008 levels (adjusted for inflation) and balancing the budget two years earlier by 2035. Rather than wait to phase in cuts, it would reduce spending by $50 billion immediately, by starting “at home” with congressional and federal workforce pay and other common-sense ways to reduce federal spending.

Yet, as if taxes and spending are somehow equal bookkeeping maneuvers, the tax hike is bigger and faster than the earlier version. The commissioners appear to have wasted their opportunity to be truly transformational, such as in health care, by resorting to “pilot” trials of the Rivlin–Ryan Medicare premium support proposal. And notably, again, they leave Obamacare in place, save for one major improvement: the repeal or reform of the massively irresponsible long-term care benefits in the CLASS Act section of the law.

Ed Morrissey:

I’m hoping to get through the entire proposal later tonight, perhaps as an insomnia cure, but none of this sounds either outrageous or surprising.  Raising the retirement age for Medicare and Social Security eligibility should have been done years ago.  The original retirement age for both programs were set at or past the average life expectancy for a good reason — because to do otherwise invites financial ruin.  People live longer and healthier lives and do not need taxpayer support at age 65 any longer, and the systems should recognize that.

The elimination of the two major tax breaks will almost certainly doom this proposal, even though each makes sense in certain contexts.  The ObamaCare debate should have demonstrated by now the market-distorting effect of tax-free employer-provided health insurance, which has kept American workers dependent on employers and less mobile in the marketplace for decades.  However, the elimination of the tax break without real reform in the entire third-party payer system in the US will put those workers at even more risk for financial ruin.  That tax break should only be eliminated if Congress at the same time removes the barriers to interstate sales of health insurance, ends coverage mandates, and strengthens the HSA system — and ObamaCare took the opposite approach, which will make the system even worse as a result.

Similarly, the mortgage tax exemption is another government intervention in the housing and lending markets.  Unfortunately, millions of Americans built that deduction into their current purchases, which means that revoking it should only be done in a revenue-neutral manner.  That would happen if the US adopted a rational flat-tax system, or even a Fair Tax system where people could limit their tax liability by controlling consumption.   The mortgage tax exemption should literally be the last to go in tax reform.  If Congress thought the Tea Party was a serious issue in this last midterm election, just wait until millions of homeowners have thousands more dollars in tax liabilities thanks to this idea of reform.  It simply won’t happen unless Congress eliminates every other deduction and loophole in the tax system.

Under the circumstances, it’s small wonder that no elected official wants to affix his signature to the proposal, no matter how reasonable it might be.   It’s also telling that Bowles and Simpson didn’t write this in legislative language, which means that it will take months before all or even a portion of this makes it to the floor of the House.  There may be some good starting points for debate and action in this plan, but as a coherent proposal, it requires more reform than it demands.

Paul Krugman:

I think it is worth pointing out that like so many proposals from that side of the political spectrum — for this is, very much, bipartisanship as a compromise between the center-right and the hard right — this one involves a fundamental piece of strange logic. Namely, it argues that in order to head off the dire prospect of future cuts in Social Security benefits, we must … cut future Social Security benefits.

Also: in response to the point many of us have made about raising the retirement age — that only the affluent have seen life expectancy rise faster than the retirement-age rises already in the law — the plan promises special exemptions for those with physical hardships.

Let’s think about that. Right now we have a retirement system that has the great virtue of not being intrusive: Social Security doesn’t demand that you prove you need it, doesn’t ask about your personal life, doesn’t make you feel like a beggar. And now we’re going to replace that with a system in which large numbers of Americans have to plead for special dispensation, on the grounds that they’re too feeble to work for a living. Freedom!

Joan McCarter at Daily Kos:

The catfood commission has released the final report [pdf], and will vote on it Friday. It hasn’t substantially changed from the chairs’ mark preemptively released by Simpson and Bowles a couple of weeks ago. It still has the disastrous ratio 2:1 ratio of spending cuts to revenue increases, includes a payroll tax holiday (reducing further Social Security’s take), a regressive tax structure and arbitrary spending caps.

[…]

The question now is what happens next. Yesterday, Reid promised a vote, but with conditions, as David Dayen notes: “the commission must provide legislative language in hand, and they must get at least a majority vote on the commission, which would be 10 votes.” The legislative language condition is not going to be met, unless they find volunteers do translate for free. They didn’t create legislative language and officially cease to exist after today.

The other question is whether they’ll reach 10 votes–a bare majority. Kent Conrad and Judd Gregg have agreed to it, as far as the rest go, I agree with dday that it’s very much in question.

I think the House Republicans, led by Paul Ryan, are no votes. Jan Schakowsky, who came up with her own plan, is also a no. So we’re at 7-4.

What else do we know? Dick Durbin said he’s “studying” the proposal and didn’t have a commitment either way. Durbin did say that raising the retirement age was “acceptable.”

Joining Durbin on the fence is Andy Stern; Senators Max Baucus, Mike Crapo and Tom Coburn; and Democratic Reps. Xavier Becerra and John Spratt. To get 14 votes, they’d have to run the table. I’m not sure they get any of them, and could easily see 7 votes total for passage.

However, bits of this will survive as policy proposals and possibly in next year’s budget. The White House’s renewed commitment to bipartisanship seems destined to end up with Americans having to work longer for less secure retirements, and the wealthy continuing to do just fine.

Daniel Foster at The Corner:

That sounds, more or less, like the same great(ish) taste, now with more fiber. But getting the approval of 14 of the 18 panel members is still an uphill battle, and the co-chairmen have delayed a final vote on the proposal until at least Friday in the hopes of doing some last-minute arm twisting.

Josh Barro at Real Clear Markets:

…the Commission is exceeding my expectations, but perhaps that is because my expectations were always that it would serve a different mission than it purported to. In my view, the probability that 14 commission members would sign onto a consensus report was zero all along; so was the probability that we would get a comprehensive deficit reduction deal out of the 112th Congress, absent a sovereign debt crisis or other economic crisis that forces the hands of elected officials.

Instead, I view the Commission’s purpose as furthering a long-range process: driving an elite discussion about deficit reduction options so that, when the right economic time comes to actually close the budget gap, we have a clear vision of the steps we will need to take-and what compromises politicians will be willing to make. Viewed from this frame, the Commission has been a success, in part because it could not reach consensus and released several reports instead of one. These reports, and political players’ reactions to them, have helped to clarify those questions and identify a path toward budget sustainability.

Ross Douthat:

None of this makes a compromise inevitable, or even necessarily likely. (The fact that Paul Ryan didn’t join the “yes” votes represents a missed opportunity, I think, for the reasons that Allahpundit sketches here.) But if America does manage to pull back from the fiscal precipice, there’s a good chance that we’ll remember the Simpson-Bowles proposals as a significant and clarifying step toward figuring how to make that pullback work.

Felix Salmon:

I’m fascinated by the various headlines reporting the deficit commission’s 11-7 vote.

Some treat the plan as some kind of independent entity which was lobbying for votes: the WSJ runs with “Deficit Plan Fails to Win Panel Support,” while Reuters plumps for “Deficit-cut plan falls short, offers framework” and Fox News has “Deficit Commission Report Fails to Advance to Congress.” The Washington Post goes long: “Deficit plan wins 11 of 18 votes; more than expected, but not enough to force action.”

Other headlines concentrate on the panel as the key actors, and the range of views here is very wide. Bloomberg says bluntly that “Debt Panel Rejects $3.8 Trillion Budget-Cutting Plan,” in line with the FT’s “Panel reject US budget deficit plan”. Politico is a bit softer — “Debt panel falls short on votes” — while NPR is positively upbeat: “Majority Of Deficit Commission Endorses Plan; Not Enough To Make It Automatic.” Ezra, too, looks on the bright side, plumping for “The fiscal commission succeeded — sort of.”

My feeling here is that the second group is probably better than the first: the news here should properly focus on the deficit commission and what it has failed or succeeded in doing. It was the commission which was charged with putting a bipartisan plan together, it was the commission which faced the very high hurdle of getting 14 votes (a 78% supermajority), and it was the commission which ultimately didn’t manage to get there.

Michael Crowley at Swampland at Time:

So there are two ways you can look at this outcome. One is that failing to win a supermajority is clearly a disappointment, and means that Congress won’t feel strong pressure to take action on the plan. Another is that winning a majority wasn’t an obvious outcome, and is certainly better than the embarrassment–and sense of futility–that would come with not winning a majority. Ezra Klein, for one, thinks the vote–and some encouraging words even from the plan’s opponents–good enough to give the plan credibility if Obama wants to run with it. (One option would be to build some of its elements into his 2011 budget proposal.) Look for Obama’s take when he returns from Afghanistan.

One thing the commission clearly did accomplish was to focus attention on the medium-to-long term debt threat and ways of mitigating it. That was the basis for Bowles’s claim, at a press conference earlier this week, that the panel had achieved “victory” regardless of the final tally. Of course, not everyone agrees on the importance of having that conversation right now, especially with the economy still bleeding on the emergency-room floor. Now that the panel is folding up its tent, we’ll see whether Obama and leaders in Congress agree.

The Pepto And The Dry Run

Richard Esposito, Christine Brouwer and Brian Ross at ABC News:

Two men taken off a Chicago-to-Amsterdam United Airlines flight in the Netherlands have been charged by Dutch police with “preparation of a terrorist attack,” U.S. law enforcement officials tell ABC News.

U.S. officials said the two appeared to be travelling with what were termed “mock bombs” in their luggage. “This was almost certainly a dry run, a test,” said one senior law enforcement official.

A spokesman for the Dutch public prosecutor, Ernst Koelman, confirmed the two men were arrested this morning and said “the investigation is ongoing.” He said the arrests were made “at the request of American authorities.”

Frank James at NPR:

NPR’s Carrie Johnson has a bit more information from law enforcement officials on the detention of the two men in Amsterdam from a United Airlines flight from Chicago:

“One of the men is from Yemen. Another man who joined him lives in the Detroit area.

Officials say the Yemeni man taped cell phones, watches and other items together in his suitcase. But that doesn’t necessarily mean he had a dangerous intent.

Under Dutch law, the men can be detained while the investigation continues.

She also passes along the following statement from U.S. law enforcement:

“Suspicious items were located in checked luggage associated with two passengers on United Flight 908 from Chicago O’Hare to Amsterdam last night. The items were not deemed to be dangerous in and of themselves, and as we share information with our international partners, Dutch authorities were notified of the suspicious items.  This matter continues to be under investigation.”

The Jawa Report:

The test involved traveling separately to Chicago’s O’Hare airport with a fake bomb or two in a suitcase (not to mention a box cutter and three large knives). The suitcase was then checked onto a flight to Dulles, with connecting flights to Dubai, and finally Yemen. The two suspects having met up at O’Hare, boarded a flight to Amsterdam instead. The luggage with the fake bombs was recovered at Dulles when it was realized that the suspect who checked it had not actually boarded the flight from Chicago to Dulles. The Chicago to Amsterdam flight being rather long, there was at least time to notify the Dutch who were happy to arrest the men upon landing. I assume the fly team has already been dispatched to Schiphol to collect these gentlemen and return them to the USA. The fake bombs were first discovered at the airport in Birmingham, where al-Soofi boarded his flight to O’Hare. He was allowed to proceed, suggesting either incompetence or brilliance on the part of federal officials – I’m not sure which. In addition to the objects in his luggage he was carrying $7,000 in cash and arrived at the airport wearing bulky clothing out of season…

John Schulenburg at Gateway Pundit:

What’s shocking about this is that before he even got to Chicago he was stopped in Alabama for “further screening” because of “bulky clothing” and then upon further investigation of his checked baggage, they found all sorts of shady things including 7 grand in cash,  a cell phone taped to a Pepto-Bismol bottle, three cell phones taped together, several watches taped together, a box cutter and three large knives.

Daniel Foster at The Corner

Weasel Zippers

Allah Pundit:

When they saw the cell phone taped to the Pepto Bismol bottle, did they … run a test to make sure it was Pepto in there or did they just wave it through? And if they were so concerned about the contents that him checking his luggage on one flight and boarding another in Chicago triggered a panic response, why on earth did they let him fly with that bag at all? It’s not like a jihadi would refuse to remotely detonate a suitcase in the cargo hold just because he’s aboard the same plane.

Basically, it sounds like this guy wanted to see just how many red flags he could send up and still be allowed to board an intercontinental flight. Answer: Quite a few, as it turns out. Which was also true of Flight 253, of course, another attempted terror attack that involved a bomber trained in … Yemen, the new number-one hot spot of international terrorism. Stay tuned.

UPDATE: Justin Elliott at Salon

Liberaltarians Are So 2006

Will Wilkinson:

Of Matt Yglesias’s sensible approach to regulation, Conor Friederdorf writes:

Being someone who understands progressives, Mr. Yglesias makes the case for deregulation in terms likely to appeal to his colleagues on the left. What would be nice is if more people on the right could be similarly persuasive. Of course, capitalizing on common ground or winning converts on individual issues requires an accurate understanding of what motivates people with different ideologies, so it isn’t surprising that a Yglesias fan invoked Cato in that Tweet. It’s a place where several staffers are daily deepening our understanding of where liberals and libertarians can work together.

I’m glad Conor recognizes the value of the work some of us at Cato have been doing to make productive liberal-libertarian dialogue and collaboration possible. Alas, all good things must come to an end.

Via the Kauffman Foundation

Brink Lindsey Joins Kauffman Foundation as Senior Scholar

Economic researcher and author to contribute to Kauffman’s growing body of work on firm formation and economic growth

KANSAS CITY, Mo., Aug. 23, 2010 – The Ewing Marion Kauffman Foundation today announced that Brink Lindsey has joined the Foundation as a senior scholar in research and policy. Lindsey will use his expertise in international trade, immigration, globalization and economic development to identify the structural reforms needed to revive entrepreneurial innovation, firm formation and job creation in the wake of the Great Recession.

…

As for me, my official last day at Cato is September 15. Expect more blogging and sketches.

David Weigel:

The libertarian Cato Institute is parting with two of its most prominent scholars. Brink Lindsey, the institute’s vice president of research and the author of the successful book The Age of Abundance, is departing to take a position at the Kauffman Foundation. Will Wilkinson, a Cato scholar, collaborator with Lindsey, and editor of the online Cato Unbound, is leaving on September 15; he just began blogging politics for the Economist.

I asked for comment on this and was told that the institute does not typically comment on personnel matters. But you have to struggle not to see a political context to this. Lindsey and Wilkinson are among the Cato scholars who most often find common cause with liberals. In 2006, after the GOP lost Congress, Lindsey coined the term “Liberaltarians” to suggest that Libertarians and liberals could work together outside of the conservative movement. Shortly after this, he launched a dinner series where liberals and Libertarians met to discuss big ideas. (Disclosure: I attended some of these dinners.) In 2009 and 2010, as the libertarian movement moved back into the right’s fold, Lindsey remained iconoclastic—just last month he penned a rare, biting criticism of The Battle, a book by AEI President Arthur Brooks which argues that economic theory is at the center of a new American culture war.

Did any of this play a role in the departure of Lindsey and Wilkinson? I’ve asked Lindsey and Wilkinson, and Wilkinson has declined to talk about it, which makes perfect sense. But I’m noticing Libertarians on Twitter starting to deride this move and intimate that Cato is enforcing a sort of orthodoxy. (The title of Wilkinson’s kiss-off post, “The Liberaltarian Diaspora,” certainly hints at something.)

Ilya Somin:

There are two big problems with Weigel’s insinuation. First, Cato has not changed or even deemphasized any of its positions on those issues where they have long differed with conservatives including the war on drugs, immigration, foreign policy, and others. If they were trying to move “back into the right’s fold,” one would think they would pulled back on these positions at least to some noticeable extent. Yet a quick glance at Cato’s website reveals recent attacks on standard conservative policies on Afghanistan, and the “Ground Zero mosque,” among other issues.

Second, it is strange to claim that Cato got rid of Lindsey for promoting a political alliance with the left at the very time when Lindsey himself recently disavowed that very idea, stating that “it’s clear enough that for now and the foreseeable future, the left is no more viable a home for libertarians than is the right.” If Cato objected to Lindsey’s advocacy of an alliance with the left, one would think they would have purged him back when he was actually advocating it, not after he has repudiated it. Wilkinson does still favor liberaltarianism, but apparently only as a philosophical dialogue. He holds out little if any prospect of an actual political coalition between the two groups.

Both Lindsey and Wilkinson have done much important and valuable work, and Cato is the poorer for losing them. At this point, however, there is no evidence that their departure was caused by a “purge” of liberaltarians intended to bring Cato “back into the right’s fold.”

CONFLICT OF INTEREST WATCH: I am a Cato adjunct scholar (an unpaid position). However, I am not an employee of Cato’s, and have no role in any Cato personnel decisions. In this particular case, I didn’t even know it was going to happen until it became public.

Daniel Foster at The Corner:

I won’t speculate on what’s going on at Cato. But, as much as I respect Brink Lindsey, both he and Wilkinson often expressed contempt for conservatism andconservative libertarians — Cato’s base, as it were — that probably didn’t help their causes. In Lindsey’s case, it was tempered by a kind of anthropological aloofness; in Wilkinson’s, less so.

American libertarianism is queer in that it can admit both rationalists and conservatives in the Oakeshottian senses. Reading Wilkinson it becomes clear that he is a classic rationalist. He derives his libertarianism a priori — a set of propositions on a chalkboard. Contrast with, for example, the average tea partier, who gets his as a uniquely American historical inheritance — a full-blooded tradition. Like most rationalists, Wilkinson thinks this is not just silly and sentimental but pernicious (one of his biggest bugaboos is patriotism).

And so, holding the same set of basic principles, but with different reasons, sends these two kinds of libertarians in two very different directions: the rationalists off toward liberaltarianism; the conservatives the classic Buckley-National Review fusionism.

Matt Welch at Reason

Alex Pareene at Gawker:

Various libertarians (and, to a much lesser extent, liberals) have wondered, as Lindsey did in that 2006 piece, why libertarians so often align themselves with conservatives instead of liberals. Considering the number of anti-libertarian policies the conservative movement fights for, it seems slightly odd that libertarians would act as an arm of that movement. But I think the answer is sort of obvious: While some outlets, like those leather jacket-wearing rebels at Reason, just tend to go after whoever’s currently in power, most of the big libertarian institutions are funded by vain rich people. And these vain rich people care a lot more about tax policy (specifically a policy of not having to pay taxes) than they do about legalizing drugs or defunding the military-industrial complex. And if they’re keeping the lights on at Cato and AEI, they want Cato and AEI to produce research that relates more to hating the IRS and the EPA than to hating the NYPD or the FBI.

And Cato was born as a Koch family pet project. As in the Koch family that is bent on the political destruction of Barack Obama.

Anyway, Lindsey and Wilkinson aren’t saying anything about their departures, but, as Dave Weigel writes, it looks for all the world like “Cato is enforcing a sort of orthodoxy.”

A libertarian influence on the Democratic party in the realms of law enforcement, drug policy, and civil liberties would definitely be a good thing. But the big libertarian institutions are not really amenable to working with liberals.

Steve Benen:

But what’s especially interesting to me is how often we’ve seen moves like these in recent years. David Frum was forced out at the American Enterprise Institute after failing to toe the Republican Party line. Bruce Bartlett was shown the door at the National Center for Policy Analysis for having the audacity to criticize George W. Bush’s incoherent economic policies.

In perhaps the most notable example, John Hulsman was a senior foreign policy analyst at the right’s largest think tank, the Heritage Foundation. Hulsman was a conservative in good standing — appearing regularly on Fox News and on the Washington Times‘ op-ed page, blasting Democrats — right up until he expressed his disapproval of the neoconservatives’ approach to foreign policy. At that point, Heritage threw him overboard. Cato’s Chris Preble said at the time, “At Heritage, anything that smacks of criticism of Bush will not be tolerated.”

A few years later, Cato seems to be moving in a very similar direction.

Intellectually, modern conservatism is facing a painfully sad state of affairs.

John Quiggin:

These departures presumably spell the end of any possibility that Cato will leave the Republican tent (or even maintain its tenuous claims to being non-partisan). And Cato was by far the best of the self-described libertarian organizations – the others range from shmibertarian fronts for big business to neo-Confederate loonies.

On the other hand, breaks of this kind often lead to interesting intellectual evolution. There is, I think, room for a version of liberalism/social democracy that is appreciative of the virtues of markets (and market-based policy instruments like emissions trading schemes) as social contrivances, and sceptical of top-down planning and regulation, without accepting normative claims about the income distribution generated by markets. Former libertarians like Jim Henley have had some interesting things to say along these lines, and it would be good to have some similar perspectives

Chris Bodenner at Sully’s place:

With Lindsey and Wilkinson out, perhaps there’s a chance for Nick Newcomen, the Rand fan who drove 12,000 miles with GPS tracking “pen” to scrawl the message above?  If nothing else, his ideological chops are unassailable.

UPDATE: Heather Hurlburt and Daniel Drezner at Bloggingheads

Arnold Kling

Tim Carney at The Washington Examiner

Tim Lee here and here

James Poulos at Ricochet on Lee

UPDATE #3: David Frum at FrumForum

Number 14… Number 14… Number 14

Heather Horn at The Atlantic with the round-up:

On Monday, Senate Minority Leader Mitch McConnell became the latest Republican to call for a reexamination of the Fourteenth Amendment and the issue of “birthright citizenship.” Senators Lindsey Graham and Jon Kyl have also recently spoken out against the policy of granting automatic citizenship to all born in the U.S., even if they are the children of illegal immigrants. The birthright citizenship issue, though, doesn’t split quite along party lines. In the ensuing debate, several conservatives have come out opposing the proposed revision. Some maintain, though, that the Republican senators have a point.

Alex Altman at Swampland at Time:

The relevant facet of the 14th Amendment, which ensures due process and equal protection, states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” While proponents of repeal say the language–specifically the phrase, “subject to the jurisdiction thereof”–is ambiguous, judicial precedent is stacked against them. That’s one reason why the notion of revisiting the citizenship clause may be more of a political gambit than a realistic proposal. Bills challenging the citizenship provision have been proposed multiple times in recent years without success–former Rep. Nathan Deal, who’s running for governor of Georgia, submitted such an idea last year, and Rep. Ron Paul did so in 2007 without success. “Anchor babies,” as critics of birthright citizenship have dubbed children born to illegal immigrants, have long been a subject of scorn for conservatives. But a constitutional amendment requires the backing of two-thirds of both chambers of Congress and ratification by 38 states–which is highly unlikely, to say the least.

It’s unclear how far the party is willing to push the issue, or whether conference members are on the same page. A GOP aide told the Washington Post’s Greg Sargent that “nobody is talking about an all out repeal of the 14th Amendment,” and that McConnell merely supported holding hearings to revisit the concept of birthright citizenship. But the topic has sparked a pitched battle in the Senate, as The Hill reports, and Senators like Graham and James Inhofe seem to have their minds made up.

A majority of Americans support Arizona’s new law, and in the short term a hard-line stance on illegal immigration may give Republicans a boost. As a long-term political strategy, however, attacking birthright citizenship is an easy way to alienate the nation’s largest and fastest-growing minority group. In one recent poll, 49% of respondents supported birthright citizenship, while 46% said the law should be tweaked. But that poll found nearly 80% of Latinos are in favor of the provision–a figure that’s surprising only because it wasn’t greater. Many conservatives have argued the GOP risks kneecapping itself with the Hispanic electorate. “If the Republican Party embraces ending birthright citizenship, then it will be assured losing Latino and ethnic voters — and presidential elections for the foreseeable future,” wrote Cesar Conda, former domestic policy adviser to Vice President Dick Cheney.

Mark Krikorian at The Corner:

Would it be cynical of me to think that McCain’s “little jerk” is just trying to burnish his tough-on-immigration bona fides?:

Sen. Lindsey Graham (R-S.C.) announced Wednesday night that he is considering introducing a constitutional amendment that would change existing law to no longer grant citizenship to the children of immigrants born in the United States.

Yeah, right. So the guy doesn’t want to do what’s necessary to actually stop illegal immigration, but he wants to make sure that the children born to all the illegals he helps bring here become U.S.-born illegal aliens? I’m afraid, though, that his rationale, whether he actually believes it or not, is in fact one shared by a lot of immigration hawks:

“People come here to have babies,” he said. “They come here to drop a child. It’s called ‘drop and leave.’ To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”

I don’t like illegals having U.S.-citizen kids any more than anyone else, but there’s no evidence suggesting that this “drop and leave” stuff is true — anything’s possible, I suppose, but it’s just an assertion at this point. My own sense is that most illegal alien women who have kids here (accounting for nearly 10 percent of all children born in the U.S. each year) didn’t come for that purpose; they came for jobs or to join relatives, and one thing led to another, birds-and-bees style, and they had kids. There are no doubt some people who dash across the border illegally to have kids, but they just can’t amount to a large share of the problem. Nor does the problem of “birth tourism” require a change in the Constitution — we just need to permit (and require) our consular officers to reject visa applications from pregnant women, inviting them to re-apply once they’ve given birth in their own countries.

The phenomenon of citizen-children of illegal aliens is a symptom of too much illegal immigration, not a cause. Comprehensive immigration enforcement — abroad, at the borders, and in the interior — plus deep, permanent cuts in future legal immigration (which is the catalyst for illegal immigration) are the solution, because when we have less illegal immigration, we’ll have fewer kids born to illegals and the problem goes away. I’m afraid that if the citizenship issue makes progress, the libertarians will co-opt us, backing the citizenship change as a way of diverting attention from real immigration control.

Krikorian responds to e-mails

Daniel Foster at The Corner:

When I first read this anonymous Huffington Post story suggesting that Sen. Jon Kyl (R., Ariz.) had signed on to the wholesale repeal of the 14th Amendment, I thought it was a gross mis-characterization, sloppy at best, a bold-faced lie at worst:

On Sunday, Sen. John Kyl (R-Ariz.) became the highest-ranking Republican to call for the repeal of the 14th Amendment to the U.S. Constitution. Appearing on CBS’ Face the Nation, Kyl said that he opposes allowing children of undocumented immigrants to be granted U.S. citizenship and wants Congress to hold hearings on the matter.

But it turns out the blogger was just aping CBS News’s write-up of Kyl’s appearance on Face the Nation. That post contains the same non-sense about Kyl wanting to repeal the 14th Amendment:

Sen. John Kyl, R-Ariz., said today that Congress should hold hearings to look into denying citizenship to illegal aliens’ children born in the United States, as the fight over immigration widens into the explosive “birthright” issue.

Kyl told CBS’ “Face the Nation” that he supports a call by fellow Sen. Lindsey Graham, R-S.C., to introduce a new amendment to repeal the 14th Amendment of the Constitution.

This is absurd. Here’s the text of the 14th Amendment, in full:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

[…]

What Kyl, Graham and others have tentatively embraced is an amendment that would clarify the first sentence of section 1 — and indeed, there is a credible argument that “subject to the jurisdiction thereof” already excludes individuals who are here illegally, meaning that one might be able to end birthright citizenship for the children of illegal aliens by statutory as opposed to constitutional action.

Neither Kyl nor Graham,  nor any other elected Republican I know of, has talked about repealing the Due Process or Equal Protection clauses — which are prime constitutional underwriters of so much legislation favored by progressives. Nor, of course, has anybody talked about reestablishing the 3/5 Compromise or limiting suffrage for African-Americans.

Michael Brendan Dougherty at The American Conservative:

Of course, Graham was one of the most enthusiastic supporters of Comprehensive Immigration Reform in 2007. Back then dropped babies weren’t his concerns, rather he wanted to “tell the bigots to shut-up.”

There is no good reason for immigration restrictionists to soften up to Graham now. Overturning birthright citizenship doesn’t bring order or justice to America’s decades long problem of illegal immigration. There may be good reasons to think that overturning it would do little reverse illegal immigration, and much to prevent assimilation.

In any case, Graham’s re-framing of the immigration issue in one of the silliest and most counter-productive possible and his chosen method signals that he is not serious. Constitutional amendments are almost impossible to pass, especially in this age of gridlock and ideological sorting of parties. In other words, this is a stunt, just as his former denunciation of “bigots” was a stunt.

John Sides:

Everyone knows this controversy by now. Here is the bill. Here is Mitch McConnell yesterday. It’s highly unlikely that this push to end birthright citizenship will go anywhere, but it’s worth probing public opinion on this question and on an underlying question: what should be the boundaries of the American national community?

Some quick searching did not turn up many polls on birthright citizenship per se. Rasmussen recently asked whether children of illegal immigrants should be citizens. In their sample, 58% of respondents said no, and 33% said yes. It would be interesting to know whether this is an objection to birthright citizenship per se or essentially an objection to illegal immigration.

Now to the broader question. In 2004, the General Social Survey asked a battery of questions on potential qualifications for being American. This was the preamble:

Some people say the following things are important for being truly American. Others say they are not important. How important do you think each of the following is…

Here is the average importance that respondents accorded to each qualification.

On average, respondents saw all of these qualifications are more important than unimportant. However, they also saw some qualifications as more important than others. In general, the more important qualifications reflect things that an immigrant can achieve: speaking English, becoming naturalized, respecting American institutions and laws. More exclusive criteria, and ones that immigrants cannot change (or change easily), are less important: being born in America, being Christian, or having American ancestry.

How might we interpret these results in light of the debate over birthright citizenship? Here are two possibilities.

First, Lindsey Graham and other opponents of birthright citizenship could take heart. Look, they might say, the public doesn’t even think being born in America is as important as other things. Given the importance accorded to American citizenship, we could make native-born children of immigrants go through the naturalization process and Americans would still see them as American. No harm done.

Second, some might object to that interpretation as a violation of the “spirit” underlying American public opinion. Americans’ sense of their national community is more inclusive than exclusive. Shifting American law in a more exclusive direction is not in this spirit. Why not recognize that more important than birthplace is speaking English, loyalty to the United States, and respect for its laws? And why not take heart that immigrants do learn English and are no less patriotic than native-born Americans?

Jill Lawrence at Politics Daily:

Senate Republican Leader Mitch McConnell is playing down his party’s new scrutiny of the 14th Amendment, which among other things confers U.S. citizenship on anyone born in the United States. McConnell on Thursday portrayed calls for hearings on the amendment as simply an attempt to examine what he calls the “unseemly” business of foreigners showing up just in time to have their babies, then going back home.

“I’m not aware of anybody who’s come out for altering the 14th Amendment,” McConnell said at a breakfast sponsored by the Christian Science Monitor. He said the push for hearings stems from a Washington Post story about foreign businesses that supply visas to expectant mothers. “This is the kind of thing that irritates Americans quite a lot,” he said. “I don’t think having hearings on an obvious unseemly business is a threat to the 14th Amendment. What’s wrong with looking into this? The Post did.”

McConnell added that “the remedy for it is not yet clear. But I am not advocating revisiting the 14th Amendment and I don’t think any others have. I think the view is, why don’t we take a look at this?”

UPDATE: Doug Mataconis

UPDATE #2: Via Andrew Sullivan,

Will Wilkinson

Tim Lee

More Wilkinson

John J. Miller at The Corner

There Are Cordoba Guitars And Cordoba Houses, Part II

John McCormack at The Weekly Standard:

The Anti-Defamation League, which describes itself as “the world’s leading organization fighting anti-Semitism through programs and services that counteract hatred, prejudice and bigotry,” released a statment this morning opposing the building of the 13-story mosque near Ground Zero.

“In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain – unnecessarily – and that is not right,” says the ADL. Full statement here:

We regard freedom of religion as a cornerstone of the American democracy, and that freedom must include the right of all Americans – Christian, Jewish, Muslim, and other faiths – to build community centers and houses of worship.

We categorically reject appeals to bigotry on the basis of religion, and condemn those whose opposition to this proposed Islamic Center is a manifestation of such bigotry.

However, there are understandably strong passions and keen sensitivities surrounding the World Trade Center site.  We are ever mindful of the tragedy which befell our nation there, the pain we all still feel – and especially the anguish of the families and friends of those who were killed on September 11, 2001.

The controversy which has emerged regarding the building of an Islamic Center at this location is counterproductive to the healing process.  Therefore, under these unique circumstances, we believe the City of New York would be better served if an alternative location could be found.

Marc Tracy at Tablet:

The Anti-Defamation League has issued a statement opposing the construction of the Islamic community center a couple blocks from Ground Zero in lower Manhattan. (Earlier this week, a community board recommended that the Landmarks Preservation Commission allow the project to go through.) The release goes out of its way to grant Cordoba House’s organizers good intentions and to condemn the bigotry of some who oppose it. So what is the problem? “The controversy which has emerged regarding the building of an Islamic Center at this location,” the ADL argues, “is counterproductive to the healing process.”

It adds:

Proponents of the Islamic Center may have every right to build at this site, and may even have chosen the site to send a positive message about Islam. The bigotry some have expressed in attacking them is unfair, and wrong. But ultimately this is not a question of rights, but a question of what is right. In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain—unnecessarily—and that is not right.

Founded in 1913, the ADL, in its words, “fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects civil rights for all.” Except when it does the precise opposite.

Jeffrey Goldberg:

I have explained my support for the Lower Manhattan mosque project before, but let me restate two points:

1) The organization behind the project, the Cordoba Initiative, is a moderate group interested in advancing cross-cultural understanding. It is very far from being a Wahhabist organization;

2) This is a strange war we’re fighting against Islamist terrorism. We must fight the terrorists with alacrity, but at the same time we must understand that what the terrorists seek is a clash of civilizations. We must do everything possible to avoid giving them propaganda victories in their attempt to create a cosmic war between Judeo-Christian civilization and Muslim civilization. The fight is not between the West and Islam; it is between modernists of all monotheist faiths, on the one hand, and the advocates of a specific strain of medievalist Islam, on the other. If we as a society punish Muslims of good faith, Muslims of good faith will join the other side. It’s not that hard to understand. I’m disappointed that the ADL doesn’t understand this.

Greg Sargent:

This is basically a concession that some of the opposition to the mosque is grounded in bigotry, and that those arguing that the mosque builders harbor ill intent are misguided. Yet ADL is opposing the construction of the mosque anyway, on the grounds that it will cause 9/11 victims unnecessary “pain.”

But look: The foes of this mosque whose opposition is rooted in bigotry are the ones who are trying to stoke victims’ pain here, for transparent political purposes. Their opposition to this mosque appears to be all about insidiously linking the mosque builders with the 9/11 attackers, and by extension, to revive passions surrounding 9/11. To oppose the mosque is to capitulate to — and validate — this program.

On this one, you’re either with the bigots or you’re against them. And ADL has in effect sided with them.

Paul Krugman:

So let’s try some comparable cases, OK? It causes some people pain to see Jews operating small businesses in non-Jewish neighborhoods; it causes some people pain to see Jews writing for national publications (as I learn from my mailbox most weeks); it causes some people pain to see Jews on the Supreme Court. So would ADL agree that we should ban Jews from these activities, so as to spare these people pain? No? What’s the difference?

One thing I thought Jews were supposed to understand is that they need to be advocates of universal rights, not just rights for their particular group — because it’s the right thing to do, but also because, ahem, there aren’t enough of us. We can’t afford to live in a tribal world.

But ADL has apparently forgotten all that. Shameful — and stupid.

Update: Times staff briefly removed the link to the ADL statement, because it seemed to be dead — but it was apparently just a case of an overloaded server, and I’ve put it back.

Charles Johnson at Little Green Footballs:

Humorist Will Rogers once said about the repeal of Prohibition, “Repeal is all right, but the wrong people are for it.” In this case, the wrong people are against Park51, and if Abe Foxman and the ADL can’t keep their personal feelings out of the issue, they should have just kept quiet instead of handing the Bigot Brigade a public relations gift. What a disgrace.

Adam Serwer at American Prospect:

Let’s be clear. This is not about the proposed Islamic Center. There is already a masjid in the neighborhood, and it’s been there for decades. This is about giving political cover to right-wing politicians using anti-Muslim bigotry as a political weapon and a fundraising tool. By doing this, the ADL is increasingly eroding its already weakened credibility as a nonpartisan organization.

I learned a very important lesson in Hebrew School that I have retained my entire life. If they can deny freedom to a single individual because of who they are, they can do it to anyone. Someone at the ADL needs to go back to Hebrew School.

J Street:

Today, J Street President Jeremy Ben-Ami released the following statement:

The principle at stake in the Cordoba House controversy goes to the heart of American democracy and the value we place on freedom of religion. Should one religious group in this country be treated differently than another? We believe the answer is no.

As Mayor Bloomberg has said, proposing a church or a synagogue for that site would raise no questions. The Muslim community has an equal right to build a community center wherever it is legal to do so. We would hope the American Jewish community would be at the forefront of standing up for the freedom and equality of a religious minority looking to exercise its legal rights in the United States, rather than casting aspersions on its funders and giving in to the fear-mongerers and pandering politicians urging it to relocate.

What better ammunition to feed the Osama bin Ladens of the world and their claim of anti-Muslim bias in the United States as they seek to whip up global jihad than to hold this proposal for a Muslim religious center to a different and tougher standard than other religious institutions would be.

Joe Klein at Swampland at Time:

During the high-tide of anti-semitism, and then again during the civil-rights movement, and often since, the Anti-Defamation League transcended its Jewish origins to stand as a courageous American voice against prejudice. But now, it’s making a mockery of its original mission and, in the process, it has sullied American Judaism’s intense tradition of tolerance and inclusion.  I miss the old ADL and so does America. Foxman should be fired immediately. (Meanwhile, hooray yet again for Michael Bloomberg.)

Peter Beinart at Daily Beast:

Had the ADL genuinely tried to apply its universalistic mandate to the Jewish state, it would have become something like the Association for Civil Rights in Israel (ACRI) or B’Tselem (full disclosure: I’m on B’Tselem’s American board): Israeli human rights organizations that struggle against all forms of bigotry, and thus end up spending a lot of time defending Muslims and Christian Palestinians against discrimination by Jews. But the ADL hasn’t done that. Instead it has become, in essence, two organizations. In the United States, it still links the struggle against anti-Semitism to the struggle against bigotry against non-Jews. In Israel, by contrast, it largely pretends that government-sponsored bigotry against non-Jews does not exist. When Arizona passes a law that encourages police to harass Latinos, the ADL expresses outrage. But when Israel builds 170 kilometers of roads in the West Bank for the convenience of Jewish settlers, from which Palestinians are wholly or partially banned, the ADL takes out advertisements declaring, “The Problem Isn’t Settlements.”

For a long time now, the ADL seems to have assumed that it could exempt Israel from the principles in its charter and yet remain just as faithful to that charter inside the United States. But now the chickens are coming back home to America to roost. The ADL’s rationale for opposing the Ground Zero mosque is that “building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain—unnecessarily—and that is not right.” Huh? What if white victims of African-American crime protested the building of a black church in their neighborhood? Or gentile victims of Bernie Madoff protested the building of a synagogue? Would the ADL for one second suggest that sensitivity toward people victimized by members of a certain religion or race justifies discriminating against other, completely innocent, members of that religion or race? Of course not. But when it comes to Muslims, the standards are different. They are different in Israel, and now, it is clear, they are different in the United States, too.

More Goldberg

Mark Thompson at The League:

I don’t have any real problem with those who take offense at the decision to build this project a few blocks from Ground Zero, and particularly those who take such offense having had deep ties to New York on 9/11/01.

What I do have a problem with is those who have determined that this is an appropriate issue for political activism, and particularly those supposed advocates of “small government” who view it as appropriate that government would step in here to restrict the property rights of a private organization.  What I do have a problem with is those who claim to advocate for “states rights” and federalism insisting that it is the job of the federal government to make sure that what is effectively a zoning decision of the New York City government is overruled.  What I do have a problem with is those who are using this proposed building to stir up anti-Muslim sentiment by branding it a “9/11 Victory Mosque,” and who presume to know more about Muslims than Muslims themselves and in the process create an “inescable trap” wherein all Muslims are either lying about not being jihadi terrorists or are just “bad Muslims.”

Jennifer Rubin at Commentary:

The left continues to feign confusion (it is hard to believe its pundits are really this muddled) as to the reasons why conservatives (and a majority of fellow citizens) oppose the Ground Zero mosque. No, it’s not about “religious freedom” — we’re talking about the location of the mosque on the ash-strewn site of 3,000 dead Americans. The J Street crowd and the liberal defenders of the mosque seem very bent out of shape when Americans want to defend the sensibilities of their fellow citizens and when they look askance at an imam whose funding appears to come from those whose goal is anything but religious reconciliation. Again, no one is telling Muslims not to build or pray in mosques; we on the right are simply asking them not to do it in the location where Islam was the inspiration for mass murder.

It is interesting that the word mosque is not employed by those excoriating the mosque opponents. As a smart reader highlights, why is it described as a “cultural center”? Pretty dicey to articulate exactly what position the left clings to — namely, that we must allow a mosque at Ground Zero. Well, when you are that precise, it does highlight the vast gulf between the left’s perspective and that of average Americans.  (And for the record, my objections to J Street obviously aren’t limited to the Ground Zero mosque. And I certainly do believe “you are either for us or you are for them” — when it comes to Israel and to America. That this notion disturbs the left tells you precisely why it is estranged from the vast majority of Israelis and Americans.)

Dan Senor is not confused in the least. He pens an open letter to the Ground Zero mosque imam, which gets to the heart of the matter. Recalling the 9/11 attack “committed in the name of Islam,” he explains:

We applaud and thank every Muslim throughout the world who has rejected and denounced this association. But the fact remains that in the minds of many who are swayed by the most radical interpretations of Islam, the Cordoba House will not be seen as a center for peace and reconciliation. It will rather be celebrated as a Muslim monument erected on the site of a great Muslim “military” victory—a milestone on the path to the further spread of Islam throughout the world. …

Rather than furthering cross-cultural and interfaith understanding, a Cordoba House located near Ground Zero would undermine them. Rather that serving as a bridge between Muslim and non-Muslim peoples, it would function as a divide. Your expressed hopes for the center not only would never be realized, they would be undermined from the start. Insisting on this particular site on Park Place can only reinforce this counterproductive dynamic.

This is not some right-wing, extremist view. It represents the views of a large majority of Americans and of mainstream Jewish leaders like Malcolm Hoenlein — as well as Juan Williams. But the left – which has become obsessed with universalism and finds particularism and nationalism noxious – thinks it unseemly for Americans to look after the interests of Americans, and Jews to look after Jews (as to the latter, we can only be grateful that so many pro-Zionist Christians do as well).

Peter Wehner at Commentary

Jonathan Chait at TNR:

Joe Lieberman comes out against building an Islamic Center in lower Manhattan:

“I’ve also read some things about some of the people involved that make me wonder about their motivations. So I don’t know enough to reach a conclusion, but I know enough to say that this thing is only going to create more division in our society, and somebody ought to put the brakes on it,” he said. “Give these people a chance to come out and explain who they are, where their money’s coming from.”

Sounds like he’s deeply troubled by the hilariously elongated chain of guilt-by-association constructed by critics.

Meanwhile, former Bushie Dan Senor writes:

9/11 remains a deep wound for Americans—especially those who experienced it directly in some way. They understandably see the area as sacred ground. Nearly all of them also reject the equation of Islam with terrorism and do not blame the attacks on Muslims generally or on the Muslim faith. But many believe that Ground Zero should be reserved for memorials to the event itself and to its victims. They do not understand why of all possible locations in the city, Cordoba House must be sited so near to there.

A couple things are striking about this argument. First, Senor claims that “Ground Zero should be reserved for memorials.” But the Muslim center is not being built on Ground Zero. It’s being built two blocks away, in a site that doesn’t feel especially connected to Ground Zero. Senor is suggesting that nothing but memorials should be built within (at least) a two block radius of Ground Zero. Forgive me for feeling skeptical that such a standard is being applied to any other proposed construction.

Second, there’s a very weaselly relativism at work here in his not-prejudiced plea to relocate the center. Senor is arguing, I support freedom of religion, and I believe that your group doesn’t support terrorism, but other Americans don’t feel this way. Of course this is an argument for caving in to any popular prejudice or social phobia whatsoever. Hey, I’m happy to let a black family move into the neighborhood, but other people here think you’re probably crackheads who spray random gunfire at night, so in order to prevent racial strife you should probably live somewhere else.

Justin Elliott at Salon:

Mayor Michael Bloomberg, who has emerged as the unlikely but passionate defender of the planned Muslim community center near ground zero, today traveled to Governors Island off the tip of Lower Manhattan to deliver a stirring plea for sanity in what he called “[as] important a test of the separation of church and state as we may see in our lifetimes.”

The Daily News’ Adam Lisberg reports that Bloomberg choked up at one point as he delivered the speech surrounded by religious leaders of different faiths, with the Statue of Liberty in the background.

Rather than attack the bigotry of the opponents of the so-called “ground zero mosque,” Bloomberg made several positive arguments for building the center. He traced the struggle for religious freedom in New York and affirmed the rights of citizens to do as they please with their private property:

The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question: Should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here.

It’s worth noting that three Jewish leaders  — Rabbi Bob Kaplan from the Jewish Community Council, Rabbi Irwin Kula from the National Jewish Center for Learning and Leadership, and Cara Berkowitz from the UJA Federation — were present with Bloomberg during the speech, despite the Anti-Defamation League’s opposition to the project

Chris Good at The Atlantic:

Few events in recent memory have called up the resonant ideological debates of 9/11 as forcefully as the mosque being planned near the former site of the World Trade Center in Manhattan. It appears these are debates we will keep having, as New York City’s Landmarks Preservation Commission has voted to let the Cordoba Initiative and the American Society for Muslim Advancement proceed with their plans. Along with those plans will come more discussion of religious freedom, taste, and the specter of a Western/Muslim cultural World War

Ann Althouse:

Writes the NYT, reporting the city’s 9-0 vote against designating the building on the site a landmark. Now, as a matter of freedom of religion, it really was crucial not to let religion (or political ideology) affect the question whether that building should be classified under the law as a landmark, thus limiting the property rights of the owner. The requirement of neutrality in decisionmaking like that is fundamental to the rule of law.

One by one, members of the commission debated the aesthetic significance of the building, designed in the Italian Renaissance Palazzo style by an unknown architect.

That is clearly the way it had to be done. But what should not be lost, in understanding that, is that the owner’s freedom means that the owner has a choice. The owner is certainly not required to build a Muslim center and mosque on that site. Because it is a choice, it’s not wrong for the community to ask: Why are you making this choice? Why are you doing something that feels so painful to us? The community isn’t wrong to plead with the owner to choose to do something else with that property. It’s not enough of an answer to say we are doing it because we have a right to do it.

UPDATE: Will Wilkinson

Allah Pundit

Greg Sargent

William Kristol at The Weekly Standard

UPDATE #2: Dorothy Rabinowitz at WSJ

Alan Jacobs at The American Scene

Conor Friedersdorf at The American Scene

Joshua Cohen and Jim Pinkerton at Bloggingheads

Mark Schmitt and Rich Lowry at Bloggingheads

David Weigel and Dan Foster at Bloggingheads

UPDATE #3: Alex Massie here and here

UPDATE #4: Fareed Zakaria in Newsweek, his letter to Foxman

Abe Foxman writes a letter to Zakaria

Steve Clemons

UPDATE #5: Christopher Hitchens at Slate

Eugene Volokh

UPDATE #6: Jillian Rayfield at Talking Points Memo

UPDATE #7: Charles Krauthammer at WaPo

Jonathan Chait at TNR

John McCormack at The Weekly Standard

UPDATE #8: Joe Klein on Krauthammer

Michael Kinsley at The Atlantic on Krauthammer

UPDATE #9: More Krauthammer

Kinsley responds

UPDATE #10: Adam Serwer at Greg Sargent’s place

Steve Benen