Friday Talking Points [352] -- Always Twirling For Freedom!

[ Posted Friday, July 3rd, 2015 – 17:35 PDT ]

It's officially a holiday since tomorrow's the nation's birthday and all, but since this column took a vacation last week, we thought we'd better get a new column out today. After all, it's been an eventful two weeks!

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Candidate Fatigue

[ Posted Thursday, July 2nd, 2015 – 16:43 PDT ]

This week, the 18th and 19th people running for president announced their candidacies. Chris Christie became the 14th Republican candidate running, while Jim Webb became the fifth Democrat to enter the race. These announcements won't even be the final ones of this election cycle, as everyone fully expects both Scott Walker and John Kasich to also throw their hats into the Republican ring. I have to admit, though, that the sheer number of candidates has worn me down. I have what could be called "candidate fatigue" at this point. It's tiring even keeping track of this big a pack, and even though the campaign has barely begun in earnest, I'm already exhausted.

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Obama Poll Watch -- June, 2015

[ Posted Wednesday, July 1st, 2015 – 16:43 PDT ]

A volatile month

June was a busy month for President Obama's job approval ratings. Lots of things were happening during the month, good and bad, and Obama's approval rating swung through an initial steep decline, but then at the end of the month experienced a spectacular recovery. What July will bring is anyone's guess, in other words. Obama wound up down for the month when the monthly averages were calculated, but they could very easily go right back up again in July. Here's our updated chart.

Obama Approval -- June 2015

[Click on graph to see larger-scale version.]

June, 2015

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Nonpartisan Redistricting Wins

[ Posted Tuesday, June 30th, 2015 – 16:59 PDT ]

The Supreme Court issued their last rulings of the season yesterday, and I thought one ruling kind of got short shrift by the media. Granted, there were other big rulings on the same day (the court usually saves their biggest cases for last, but this year they actually released the two biggest decisions last week) involving E.P.A. regulations and the death penalty, but the redistricting case -- to me, at least -- was more important.

I have to admit I'm biased, because I live in California. While the case before the high court only directly involved Arizona, California likely would have been affected soon after. Which is why I'm breathing a sigh of relief that the court ruled the way it did. California has a similar system as the one in question in the Arizona case, and I both voted for it and strongly support it.

At the heart of the case was a voter revolt over gerrymandering. Gerrymandering is, of course, the practice of cleverly drawing districting lines so that your political party benefits, far out of proportion to actual voter support. Pennsylvania, for instance, voted for President Obama twice -- by 55 percent in 2008 and 52 percent in 2012. The state has voted for Democrats in all six of the past presidential elections, in fact. But their delegation to the House of Representatives is composed of 13 Republicans and only five Democrats. That's pretty lopsided, and doesn't even come close to representing the state's partisan divide. If the state's voters accurately reflected their House delegation, 72 percent of Pennsylvania's voters would have voted Republican.

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From The Archives -- SCOTUS Optimism

[ Posted Friday, June 26th, 2015 – 16:49 PDT ]

Program Note: I'm on vacation today and Monday. Due to the breaking news this morning, I thought I'd run this column again, despite the fact that it originally ran only three weeks ago, on June 8. Call it my own personal victory lap if you will.


For political wonks, June is not the month to celebrate grads, dads, and brides, but instead the biggest SCOTUS month of the year. SCOTUS (for the un-wonky) stands for "Supreme Court Of The United States." June marks the end of the Supreme Court's yearly session, and it is when all the biggest decisions get handed down.

This year, there are many important decisions we'll be hearing about all month long, but the biggest two (or the two with the biggest political overtones, at any rate) will likely be held back until the very end of the month. They are Obergefell v. Hodges and King v. Burwell. The first will settle once and for all the question of marriage equality for same-sex couples, and the second will determine whether millions of Americans will lose their health insurance subsidies or not.

Now, guessing which way the court will rule is always a risky proposition. Some even call it a fool's game. Nevertheless, I'm going to go out on a limb today in a burst of (perhaps) foolish optimism, and predict that both decisions will actually be good news. We've already seen a flurry of "sky is going to fall" stories (especially over King) from liberals in the media, and my guess is that this trend is only going to increase, the closer we get to the end of the month. So I thought one article from a more optimistic perspective might be appreciated -- even if my guesses turn out to be utterly wrong, in the end. That, of course, is always the risk you run when going out on a limb during SCOTUS season. Time will tell whether I'm right or wrong, but for now, here's my take on these two cases, seen mostly through the lens of politics.


Obergefell v. Hodges

This is almost a case study (pun intended) of how the Supreme Court really likes to decide very contentious social issues in as gradual a fashion as they can get away with. The Obergefell case is going to be the culmination of the process begun by two earlier cases, United States v. Windsor and Hollingsworth v. Perry. These previous cases legalized some gay marriages and threw out a state-level "defense of marriage" law (which had been passed by Californian voters) as unconstitutional. However, the Supremes declined to unequivocally state that marriage was a constitutional right for gay couples across the land. What this meant was that each of the two decisions had very limited effect, at least at first.

The lower courts, however, saw which way the Supreme Court was heading, and they began striking down "heterosexual only" marriage laws in state after state. This has brought gay marriage to around three-fourths of the states, but it is not yet universal across all of them. After dozens of state laws were struck down, finally one federal court ruled for such laws, which set up the confrontation which brought the case back to the highest court in the land.

This was all pretty much by design. John Roberts didn't want to impose gay marriage on the whole country all at once, when (at the time) only a relative handful of states had legalized it. So the decisions were written very narrowly, to give the country time to get used to the idea, and to offload much of the contentiousness on the lower courts.

This is a fairly normal way for the high court to partially dodge a contentious issue, it must be stated. What is astonishing is how fast the whole process played out. The two previous court decisions were handed down in June of 2013, and at the time I guessed that it'd be at least five years before the Supreme Court would revisit the issue. Instead, it has been only two years -- lightning speed for the judiciary on any such politically contentious issue.

But no matter the intervening gap, it's pretty easy to see what's going to happen in Obergefell. John Roberts can now act in a much more bold fashion, secure in the knowledge that the court will only be changing laws in a small number of states. Of course the Supreme Court is supposed to be all about the law, and never about politics, blah, blah, blah. But this is simply not reality, and probably never was. Justices know that there are real-world implications from what they decide, and this is most important to the Chief Justice, since his name is on the court (e.g., the "Roberts court" or the "Warren court").

This is why I predict a 6-3 victory for marriage equality. Not only will the "swing vote" (Anthony Kennedy) side with the liberals on the bench, but Roberts himself -- mindful of being seen "on the right side of history" -- will also somehow find a way to proclaim a constitutional right for same-sex couples to be married. This may generate a political backlash, but the legal question of marriage equality will be completely settled forevermore.


King v. Burwell

This case may determine the ultimate fate of the Patient Protection and Affordable Care Act, a.k.a. "Obamacare." The case hinges on a typo, in essence. On one page of the law, the language refers to only "the state" when discussing who is eligible for subsidies for health insurance bought on the exchanges set up for that purpose. It didn't also say "or the federal government's exchange," in other words.

Even one Republican on the drafting committee for the law has publicly stated that this was nothing more than a typo or oversight in the language being drafted. It was not intentional -- it was never supposed to be a way to punish states who didn't set up their own exchanges.

So the Supreme Court has two easy ways to rule on the case. They could either say "the letter of the law is the law, period," and by doing so put in jeopardy subsidies for over six million American families, or they could say "when you read the entirety of the law, it is obvious and clear that this is nothing more than a typo," thereby upholding the subsidies and keeping Obamacare intact. These are going to be the main arguments both for and against the decision, whatever it turns out to be. It all depends on how many votes each one of those arguments will get.

There is plenty of precedent for both arguments. There are too many cases to even bother citing where the court ruled that the overall intent of the law is the determining factor, not one badly-worded phrase. Many of these decisions were quite conservative in nature, in fact (the liberal side lost the case, to put it another way). So any of the justices could come up with a rationalization for voting either way, really.

Since there are two clear legal paths for them to follow, I have to assume that politics will play an enormous role in which way each individual justice votes. This may sound pessimistic to some readers, but I prefer to see it more as accepting the reality of the situation.

All is not lost, however, by admitting this. As with many cases, it likely means there are four solid votes in favor of preserving Obamacare subsidies for all, and three solid votes against. Kennedy and Roberts are the two unknowns.

But, once again, I'm taking an optimistic view. I think that there's a strong possibility that Kennedy will vote with the conservatives, but I also think that John Roberts is going to surprise a whole bunch of people by becoming the deciding vote in favor of upholding the subsidies. Roberts has already had one chance to disembowel Obamacare, and -- importantly -- he chose not to take it. The legal reasoning he had to use to justify this was pretty strained, in the earlier National Federation of Independent Business v. Sebelius case. In King, however, he can use very straightforward reasoning that has plenty of legal precedent behind it, which will only make it easier for Roberts to side with upholding Obamacare.

Roberts knows that if he guts Obamacare, his court will long be remembered for dismantling a president's signature political agenda item. History has not been kind to Supreme Courts who have done so, for the most part, because it is seen as so nakedly political.

If Roberts were an actual ideologue bent on overturning Obama's signature law, then why didn't he do so already? The earlier case would have completely obliterated Obamacare, and yet Roberts chose not to do so. This is why I am optimistically predicting he will, once again, choose not to do so. Roberts knows the legal reasoning behind the challenge to Obamacare is weak. In fact, it would overturn a long list of precedents and set a new standard that will be very hard to justify in other (less political) cases.

So my prediction for King v. Burwell is that the court will rule 5-4 in favor of interpreting the law as being equal for all U.S. citizens, no matter what state they may reside in. I could even see this one going 6-3 as well, but have a sneaking suspicion that Kennedy will vote with the conservatives on this one. The court has already declined once to kill off Obamacare by judicial fiat, and I don't think it's going to do so on King either. Of course, I could always be wrong, so we'll just have to wait a few weeks to see what SCOTUS actually does decide. For now, I remain cautiously (and, perhaps, foolishly) optimistic.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


Obama's Legacy

[ Posted Thursday, June 25th, 2015 – 14:46 PDT ]

President Obama has been having a pretty good week. Actually, to be perfectly accurate, President Obama's legacy has been having a pretty good week. At the end of all presidencies, everything they've achieved and failed to achieve is lumped together under this term, so that historians can debate about the president's legacy for decades to come. It's a normal part of the American cycle. This week, Obama won a preliminary victory in Congress and he just won a resounding court confirmation of his biggest legislative victory to date, the Patient Protection and Affordable Care Act (which has become the eponymous "Obamacare"). Next week, the Supreme Court is expected to declare marriage equality for all, in every state. As I said, a pretty good week all around, legacy-wise.

In fact [warning: this paragraph is intended for regular readers of this column], if tomorrow was a working day for me, I would definitely be handing Obama the Most Impressive Democrat Of The Week award, without even really considering anyone else for the honor. This is a sideways method of reminding folks that I'll be on vacation both Friday and Monday, so while I will try to post some re-run columns for everyone to enjoy, original columns won't resume until next Tuesday. OK, end of program note -- and my apologies for just cramming it into the text like this.

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Bobby Jindal Becomes 13th GOP Candidate

[ Posted Wednesday, June 24th, 2015 – 16:30 PDT ]

Bobby Jindal, the governor of Louisiana, just became the 13th Republican candidate for president. Whether this will prove to be lucky or unlucky remains to be seen. Even though the field is already incredibly crowded, Jindal will not be the last Republican to announce -- there are at least two other contenders who will likely jump in (Scott Walker and Chris Christie), with the possibility of a few more longshot candidates as well. The more crowded the field gets, the harder it is going to be for any one of them to stand out, which is precisely Jindal's main problem.

It's hard, after all, to differentiate yourself when there are so many other candidates who are so similar. Jindal's going to be looking for the evangelical vote, but Mike Huckabee may have more luck. Jindal's the first Indian-American to make a presidential bid, but there are two other children of immigrants running (Ted Cruz and Marco Rubio), who might pull in a larger share of the electorate due to being Latino. And there are plenty of other state governors running, some with much more successful state economies to brag about. So it's going to be extremely hard for Jindal to be seen as unique among all the other diverse candidates.

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New Corporate Politics?

[ Posted Tuesday, June 23rd, 2015 – 17:04 PDT ]

Large corporations are getting more involved in politics. Whether that is seen as a good thing or a bad thing depends upon the political issue involved and the side the corporation takes (and, of course, the side you're personally on). Conservatives cheer when corporations take a stand on abortion, liberals cheer when a corporation stands up for gay or civil rights. But it does seem like we're entering into a new era of corporate political behavior, or (since they're apparently people now) perhaps "corporate citizenship" might be a better term.

Now, don't get me wrong. I'm not talking about corporate campaign cash, or at least not directly. I'm not talking about the effects of the Citizens United decision, to put this another way. I'm talking instead about a more subtle thing than the outright purchasing of politicians or super PAC groups. I'm talking about corporations acting for what are essentially moral reasons.

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Mississippi's Flag Is Worse

[ Posted Monday, June 22nd, 2015 – 17:17 PDT ]

So vexillology is in the news. Vexillology (as fans of The Big Bang Theory should already know) is the study of flags. A spirited debate is taking place about South Carolina's law which dictates that the Confederate battle flag be prominently displayed on the grounds of the statehouse. This flag used to fly over the statehouse dome, but was moved to a Civil War monument the last time this debate raged, as a form of compromise that was deemed politically acceptable at the time.

It's an important debate to have. The state government is honoring a flag which many see as a racist symbol -- one used by those against civil rights since the 1940s (the "Dixiecrat" campaign of Strom Thurmond was the real launching point of the Confederate battle flag into the world of politics). Those against flying the flag, from President Obama on down, are arguing that the flag should be moved "to a museum" instead of flying in a place of honor on the statehouse grounds. The argument is that the flag is so offensive to so many that the state's government should not legitimize it by flying it at the people's statehouse.

I happen to agree with this argument, but I am astonished that those making it are currently giving the state of Mississippi such a pass. Here is the official state flag of Mississippi:

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Friday Talking Points [351] -- Racist Domestic Terrorism

[ Posted Friday, June 19th, 2015 – 17:30 PDT ]

It's been a rollercoaster week in the political world, beginning with Hillary Clinton shifting the gears of her campaign by holding her first big rally, which was immediately followed by the man we're going to call "Jeb! Bush!" finally officially announcing his own candidacy.

For those who are wondering, yes, we here at the Friday Talking Points editorial board are indeed seriously contemplating making our own executive editorial decision to call him "Jeb! Bush!" throughout the entire campaign season. Jimmy Fallon actually made a good suggestion on The Tonight Show this week, that we all (in an imitation Regis Philbin voice) scream "Jeb!" whenever discussing the candidate out loud (another editorial idea we are endorsing). Earlier in the week I toyed with "Jeb?" (which has got to be the shortest headline I've ever written in nine years of blogging), or possibly "...Jeb..." but neither truly captures the ridiculousness of the exclamation mark. So we're thinking of just doubling down on exclamatory punctuation and calling him "Jeb! Bush!" in the upcoming months. Let us know your thoughts in the comments, as always. If it gets too annoying, we'll stop, how's that?

After Jeb! Bush! and Hillary's rallies, the entire world of late-night comics loudly praised all that they hold holy, when the news broke that Donald Trump was semi-officially entering the Republican presidential race (note: he still hasn't filed his official paperwork). The jokes just write themselves!

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