31 January 2006

Fair and Balanced

John Accola and (recently married Oberlin alumni) David Milstead get some well deserved praise for their coverage of the JOA between the Denver Post and Rocky Mountain News from Richard Martin at New West Boulder, accompanied by some deep thoughts about the long heralded but slow to arrive demise of the printed newspaper.

Martin notes that:

Certainly it has preserved two distinct editorial voices, with the Post hewing slightly left and the Rocky providing a conventionally conservative editorial page. That, to me, is one of the least significant results: With the cacophony of "voices" we're subjected to constantly from talk radio, cable TV and the Internet, the op-ed pages of major metro dailies matter less than they ever have.

In terms of actual reporting, most media types I've spoken to still consider the Rocky to be the more feisty and enterprising of the two papers, with the Post producing the more elegant (or stuffy, depending on our point of view) writing and features. The competitive spirit clearly lives on, at least in the Rocky's newsroom. Are readers better off with two papers instead of one? Sure.

I'm not convinced that this state of affairs will stay that way. The Post has been moving to the right since at least the 2004 Presidential election season when it made a very odd half hearted endorsement from its editorial page that seemed to reflect the paper's transitional state, while the Rocky has been bringing some strong liberal leaning columnists on board, and has, in the interest of being "feisty," turned from the yellow tabloid journalism reflected in its layout, to good old fashioned American style journalism crusading for social change, a decidedly liberal affair. This tension (plus the fact that the Rocky carries the liberal Doonesbury social commentary strip, while the Post carries the conservative Mallard Fillmore cartoon gig), have been tugging at me for some time and I may yet make the transition from Post to Rocky the next time my subscription comes up for renewal.

British Aircraft Carriers Are Cheap (Or Are They?)

Budget estimates for the next American aircraft carrier run about $14 billion for a ship similar in size to the 97,000+/- ton carriers that are the centerpiece of the American Navy today. (Some general background on Naval issues can be found here.) Compare what the British plan to spend:

The two 50,000-metric-ton conventionally powered carriers now under development for Britain's Royal Navy are expected to cost a minimum of $2.5 billion each.

Aircraft not included.

But, a British conventionally powered carrier looks a lot more like an American amphibious assault ship like the Tarawa and Wasp class amphibious assault ships. The American ships typically carry six Harrier STOVL fighters and a couple of dozen helicopters, while the British carriers currently carry eight Harrier fighters and a dozen helicopters, which is a complement of aircraft that the American ships could accommodate instead. Like the American Tarawa LHA class ships and the Wasp LHD class ships, which are both about 40,000 tons each (v. 50,000 for the British ships), the British ships will be conventionally powered rather than nuclear powered. The American amphibious assault ships are also closer in cost. "The projected price-tag for the last of the Wasp class is approximately $1.8 billion." This ship, the LHD-8, is scheduled to enter service in 2007.

The aircraft carriers of Italy, Spain and Thailand are all quite similar to the British ones. The aircraft carriers of Russia, Brazil, France and India are larger than the British ones, but have about half the capacity of the American CVNs. All of these countries have just a single carrier. Britain currently has three.

The United States has twelve CVNs (soon to be eleven, the Kitty Hawk is due to be replaced in 2008 by the George W. Bush and budget planners are seriously considering retiring the John F. Kennedy sooner than planned without a replacement) and five Tarawa (one of which will probably be retired when the eighth Wasp class ship is completed next year) and seven Wasp class ships. The U.S. Navy would like to begin construction on a first replacement for the Tarawa class ships called the LHA(R) in 2007, but doesn't even have specifications for the proposed ship yet.

American CVN aircraft carriers, in contrast, which are nuclear powered and run about 97,000 tons, can carry up to about 85 aircraft, mostly more conventional fighter aircraft, although they are usually not filled with the maximum possible compliment of aircraft (fighters don't come cheap). Typically, at least forty fighter aircraft are carried, along with about thirty other supporting aircraft, anti-submarine/anti-surface ship planes, and helicopters. The argument for having this large class of ships is that for only twice as much ship, you get four times the capacity to carry aircraft, and that a nuclear powered ship can have a thinner supply line than a conventionally fueled one. But, prices apparently track aircraft carrying capacity more closely than they do the raw number of tons in the ship.

Substituting a larger number of Wasp/British carrier type ships, for a plan to maintain the status quo in the U.S. Navy is one issue being seriously considered by Congress. Building two, three or even four smaller "Harrier carriers" would be cheaper than building one full sized American CVN carrier, and the STOVL version of the F-35 called the F-35B which the smaller carriers would carry, is also projected to be less expensive than the simpler F-35C version designed for CVNs.

The linked story has a lot about Chinese ambitions to get an aircraft carrier, but that is for another story.


This story was linked at Murdoc Online, a military blog, where readers posed a number of questions. Some go beyond the scope of this post by cutting to the chase on the issue of whether or not this is a good idea, rather than simply comparing the facts about the options, as this post does, without really taking a position one way or the other. But, one question that did come up concerns the cost of the aircraft and questions about how many crew each option would involve. I posted a comment there to respond to those questions and reprint it here for my regular readers:

A Nimitz class carrier has a crew of about 5900 people (ship's crew and air crew combined). A Wasp class ship has a 1146 member crew in addition to 1893 Marines. Something on the order of 600 Marines are probably air crew, most of them are probably not (carried aircraft require on average about 20-30 crew each). Thus, the crew of a Wasp class vessel configured simply to be a mini-carrier instead of a full fledged troop ship, would probably be about 1750.

By comparison, an Invincible class British VSTOL carrier has a crew of 1089. The combined air and ship's crew for an Italian Harrier carrier (exclusive of their version of non-air crew Marines) is about 880. Spain's Harrier carrier has a crew of 764. France's Charles De Gaulle (which is intermediate in aircraft capacity) has a crew of 1950 exclusive of troops, which is still a third of the crew of a Nimitz. India's VSTOL carrier has a crew of 1550. Thailand's Harrier carrier has a crew of 601. Brazil's Sao Paulo carrier (transferred from France) has a crew of 1800-1900. Even Russia's Kuznetsov Supercarrier has a crew of 2,586, about half of that of an American Nimitz class carrier.

All crew data from here for sake of consistency.

Thus, you could staff at least three (and maybe four) mini-carriers with the same number of crew it takes to staff one supercarrier, a lower ship acquisition cost, a comparable aircraft cost per aircraft.

Global Security.org pegs the costs as follows: "Current program estimates peg the recurring JSF unit flyaway costs at $37 million for the Air Force conventional takeoff and landing variant, $46 million for the Marine Corps short takeoff vertical landing variant and $48 million for the Navy carrier version, in 2002 dollars." I relied on this as my source.

Wikipedia, relying upon the Asia Pacific Defence Reporter, September 2005, pegs the cost at $45 million U.S. for F-35A, $60 million U.S. for the F-35B and $55 million U.S. for the F-35C. The F-35C is a somewhat larger and more robust plane than the other two which is why it is more expensive. Apparently, cost overruns have disproportionately run up the F-35B costs in the last couple of years. Still, certainly, aircraft price is not a big factor in the small v. large debate.

Federal Debt Details

The federal government borrows money on all sorts of terms. The Federal Reserve sets rates on the shortest term obligations and just raised the symbolic overnight federal funds rate to 4.5%. The ten year bond rate is 4.53%. This is a record small spread of just 0.03%; usually the ten year bond is well above the short term rate (on the theory that you can lock in a long term return which might go down and because you have tied up money with the federal government for you, or your successor in interest, for a longer period of time).

The questions are (1) when will the historical spread return (this is such an anomolous situation it is hard to see it being sustainable), (2) why is this spread so narrow now (is Greenspan simply taking political heat for his successor beyond reasonableness, or does the market believe that long term interest rate prospects look bleak as the economy slows), and (3) if a historical spread returns will long term rates go up (and hence crimp the mortgage market which tracks ten year bond rates) or will short term rates fall (in turn reducing the prime rate and priming the pump of consumers influenced by adjustable rates and credit card terms)?

The Treasury Department has also, after a long hiatus, started issuing 30 year bonds again, because, well, the United States government is broke and spending like a drunken sailor and we need to issue every possible kind of debt.

Bad Day For Partial Birth Abortion Ban of 2003

The Partial-Birth Abortion Ban Act of 2003 was ruled unconstitutional today in the United States Court of Appeals for the Second and Ninth Circuits. It was held unconstitutional in July in the Eighth Circuit and has also been held unconstitutional by U.S. District Court judges (i.e. federal trial court judges) in New York and Nebraska.

The government has sought review of the Eighth Circuit ruling in the U.S. Supreme Court, a matter that has been fully briefed, and Justice Alito will be part of the decision to grant or deny certiorari in that case. My guess is that any grant of certiorari will be limited to the issue of a remedy, and that a complete denial of certiorari is likely until there is a circuit split on this issue.

Hat Tip to How Appealing.

Antarctica Is No Tax Haven

According to the U.S. Tax Court, Antarctica is not a foreign country.

Why does this matter? The general rule is that Americans must pay taxes on their worldwide income under Internal Revenue Code Section 61, but, "the amount received by such individual from sources within a foreign country or countries which constitute earned income attributable to services performed by such individual" is tax fee, under Internal Revenue Code Section 911, subject to certain limitations.

Why? An international treaty states that Antarctica is a sovereignless region. According to the Tax Court, this means it isn't a foreign country for tax purposes, even though the U.S. Supreme Court has ruled in non-tax cases that Antarctica is a foreign country.

This isn't necessarily a horrible ruling. The Section 911 tax exemption was based on the idea that you would be paying taxes where you live, which Americans in Antarctica do not (then again, governmental services in Antarctica aren't so hot either, so maybe it is a fair deal). This will also probably be a relevant precedent NASA sends astronauts to the Moon again, or to Mars, and they try to escape paying taxes while working there. (One also wonders if a reporter working in Guantanamo Bay, Cuba has to pay taxes on the income he earns while working there.)

The Moral of the story: If you want to avoid paying U.S. income taxes on your earned income, go someplace nice, like the Caymans.

The case is: Dave Arnett v. Commissioner, 126 TC No. 5, Dkt. No. 8866-03, 1/25/2006.

Hat tip to tax publisher RIA.

Capital Gain and Dividend Tax Cuts For Whom?

Who benefits?

Who benefits from tax cuts for capital gains and qualified dividends (subject to a top rate of 15% compared to 35% for ordinary income like interest and earned income)?

The benefits of these rates cuts are far more skewed to the wealthy than one might expect, because while 50 million households have some stake in the stock market, most households have the bulk of their holdings in retirement accounts and other tax free accounts, which account for about 40% of all household stock market holdings. Corporations don't get a preferrential tax rate for capital gains either. And, the Federal Reserve has found that these tax cuts don't impact overall stock prices (thus, they don't indirectly benefit tax preferrenced account holders).

About 54% of all capital gain and dividend income flows to the top 0.2% of households, those making $1,000,000 a year or more. About 78% of capital gain and dividend income flows to the top 3% of households, those making $200,000 or more per year.

About 11% of all capital gain and dividend income flows to the 86% of households making $100,000 or less. About 4% of capital gain and dividend income flows to the 64% of families making less than $50,000 a year.

For those making less than $100,000, capital gain and dividend income makes up an average of 1.4 percent of total income. For those making over $100,000, this income accounts for 12.2 percent of total income on average; for those making over $1 million, the share rises to an average of 31.4 percent.

Even among elderly taxpayers capital gains and dividend income is highly concentrated:

[M]ore than three-quarters goes to elderly households with incomes over $100,000, which represent 8.5 percent of all elderly households. Moreover 30 percent of this income goes to the 0.2% of elderly households who have incomes over $1 million. In contrast, the 73 percent of elderly households with incomes below $50,000 receive only 8 percent of the capital gain and dividend income that goes to the elderly.

A Tax Preference Even At Ordinary Income Rates.

Moreover, even when taxed at ordinary income tax rates, capital gains already receive a tax preference.

Consider a simple example. Suppose that you have a taxpayer who is already in the 35% tax bracket due to earned income or pension payments. This taxpayer has two choice. Invest $1,000,000 in a corporate bond paying 6% interest each year (which is reinvested each year in corporate bonds paying the same rate), or invest $1,000,000 in the non-dividend paying stock of that same corporation which happens to appreciate at a 6% annualized rate over a five year period and is sold at the end of that five year period. Which choice results in a higher tax bill?

Let's start with the interest (net of 35% income taxes paid each year):

Year 0 $1,000,000
Year 1 $1,039,000
Year 2 $1,079,521
Year 3 $1,121,622
Year 4 $1,165,365
Year 5 $1,210,814

Now, lets consider the capital gains:

Year 0 $1,000,000
Year 1 $1,060,000
Year 2 $1,123,600
Year 3 $1,191,016
Year 4 $1,262,477
Year 5 $1,219,847 (after taxes at a 35% ordinary income tax rate).

Thus, the investment upon which a capital gains tax is paid already comes out $9,033 ahead of the ordinary income investment, even at the same tax rate, over five years. This is a 4% greater profit.

Also, if a capital gain asset is not sold until death, the capital gain is entirely tax free. In the case of capital gains from real estate this is often possible, as gains may be rolled from one parcel of investment real estate into another, using a device called a "1031 exchange", cash flow meanwhile can be obtained by borrowing money from lenders who know that the capital gains asset is there to satisfy the loan, without actually selling the asset and incurring a capital gains tax prior to death (when the tax is forgiven).

An Expensive Perk.

So, how much do these tax preferences cost the public? A lot.

In 2006, the preferrential rates on capital gains is projected to cost (Table 469) the U.S. Treasury about $28.4 billion. The Treasury will lose another $28.8 billion that year due to the fact the capital gains tax accrued at death are not taxed. The Administration has refused to score the dividend tax cut as a tax expenditure at all, claiming essentially, that dividends shouldn't be taxed in an ideal world. But, the cost about $7.2 billion per year more.

Thus, preferrential rates for capital gains and dividends cost the federal goverment about $35.6 billion, and if you add the cost of making capital gains accrued at death tax free, the total cost of these preferences is $64 billion a year. Several billion dollars more per year of capital gains cuts are found in provisions targetted at narrower markets such as investment real estate, gains on small corporations, coal sales, certain agriculture sales, and the like. There is also, of course, the huge tax benefit that comes from the exclusion of capital gains on the sale of a residence.

By comparison, the charitable deduction reduces federal revenues by about $39.9 billion per year, the per child tax credit costs the Treasury about $32.8 billion a year, partially excluding Social Security benefits from taxation costs about $27.6 billion a year, and all of the major education deductions and tax credits combined reduce federal revenues by about $9.8 billion.

What would that money buy? For comparison purposes, in 2005 (Table 462), the Department of Homeland Security's budget is about $33.3 billion, the Energy Department budget is about $22.2 billion, the Interior Department has a $9.4 billion budget, the Commerce Department has a $6.3 billion budget, the Justice Department has a $21.2 billion budget, the State Department has an $11.9 billion budget, the Judiciary has a $5.7 billion budget, and the cost of administering the Social Security System (apart from the actuall checks themselves) is $55.8 billion. The CIA budget was believed to be about a $30 billion in 1998.


The economic case that a capital gains tax cut is beneficial are very weak. The big businesses that are supposedly encouraged to invest by this tax boon don't even receive the tax break and aggregate stock prices (and hence the cost of capital) aren't materially impacted by capital gains and dividend tax rates.

The distributional case against it is very strong. This is one of the main reasons that: "The government imposes taxes in such a way that the distribution of income is more unequal than if the government imposed no taxes at all."

These tax boons for the rich need to be eliminated, and there are cheaper and more economically reasonable ways to address the "double taxation" of corporate profits that preserve the progressive tax system in this country.

30 January 2006

Semi-Over The Counter Emergency Contraception

House Bill 1212 is a bill that would allow pharmacists in Colorado to prescribe emergency contraception (i.e. big control pills packaged so that it can prevent a pregnancy if taken shortly after unprotected sex). It is sponsored by State Representative Boyd (whose District includes part of Jefferson County) and State Senator Veiga (whose District includes West Washington Park), both Democratic women.

This would eliminate the cost and delay of having to see a doctor before receiving emergency contraception. The Federal Drug Administration's advisory board has already voted overwhelmingly to make this drug available over the counter. The only concern expressed by a politically motivated FDA director was that young minors might use it improperly. Some states allow EC to be sold over the counter. This bill would strike a middle ground between true over the counter Status, and prescription drug status, not too different from Sudafed.

Unlike last session's bill, which would have required emergency room doctors to inform rape victims of the EC option, this bill compels no one to do anything. It is purely voluntary. And, if the word gets out that certain pharmacies provide the service, they could meet the demand.

The Governor says: "The use of emergency contraception is a deeply personal decision and victims are entitled to receive detailed and balanced information for that decision. We will be reviewing Rep. Boyd's bill to see how it addresses the Governor's concerns."

Representative David Schulteis (R-Colorado Springs) says: "This morally irresponsible proposal would give pharmacists the power to potentially terminate a human life, a power that no single individual should have. . . This authority should not belong with pharmacists, and would put many in an uncomfortable moral position that goes against their own religious beliefs."

Make no mistake. When David Schulteis' lips are moving, he's not telling the truth. Emergency contraception doesn't cause abortions any more than birth control pills do. It is the very same drug and works the very same way. Banning birth control pills is not anywhere near the mainstream of popular opinion. Doctors are free to prescribe EC now and routinely do. Any claim that pharmacists aren't up to this task is pure politics, Schulteis certainly doesn't have any doubts about pharmacists ability to step in when what they are doing is forbidding their customers from getting these same drugs.

Digby On Historic Trends

Do you know how many votes the Republicans managed to get when uber wingnut Antonin Scalia was confirmed? 98. And Democrats had a majority. We didn't have to even think about a filibuster. We couldn't defeat Clarence Thomas and we had a majority, a huge push from women's groups and a very dramatic set of hearings that went into the wee hours of the morning. . . .

When it became clear that the vote was going against the filibuster, Diane Feinstein, a puddle of lukewarm water if there ever was one, decided to backtrack and play to the base instead of the right wing. That's new folks. Given an opportunity to make an easy vote, until now she and others like her (who are legion) would always default to the right to prove their "centrist" bonafides. That's the DLC model. When you have a free vote always use it to show that you aren't liberal. That's why she was against it originally --- a reflexive nod to being "reasonable."

Obama had to choke out his support for a filibuster, but he did it. A calculation was made that he needed to play to the base instead of the punditocrisy who believe that being "bold" is voting with the Republicans. Don't underestimate how much pressure there is to do that, especially for a guy like Obama who is running for King of the Purple. The whole presidential club, including Biden joined the chorus.

The last time we had a serious outpouring from the grassroots was the Iraq War resolution. My Senator DiFi commented at thetime that she had never seen anything like the depth of passion coming from her constituents. But she voted for the war anyway. So did Bayh, Biden, Clinton, Dodd, Kerry and Reid. The entire leadership of the party. Every one of them went the other way this time. I know that some of you are cynical about these people (and ,well, they are politicans, so don't get all Claud Rains about it) but that means something. Every one of those people were running in one way or another in 2002 and they went the other way. The tide is shifting.

From here.

Others have noted that Alito will have less support for his final confirmation vote (UPDATE: The vote on January 31, 2006 was 58-42) of Justices who were ultimately confirmed than any Justice other than Thomas, whose final approval vote was 52-48. "Thomas, however, did gain more Democratic support: 11 votes, compared to Alito's four. Alito fell 20 votes short of the favorable votes to confirm Chief Justice John G. Roberts, Jr., in September."

I'd like to think that our party has received a wake up call. Maybe some of them have. But, I don't think it will really get through to politicians like Lieberman and Salazar until they feel the pain of truly losing the support of their base. This doesn't have to wait until the next election. If Salazar sends out his usual fundraiser invitations and requests for contributions and finds that the well has run dry, he may get the message.

Hello, Colorado Democratic Party donor class! This means you. Don't send Ken Salazar any money. Not this year. Not next year. Don't return his phone calls. Don't show up to his events. Don't invite him to speak at your events. A couple of years in the wilderness might help him see the light.

Reclaiming Justice

Democrats have lost big battles in defense of our ideals.

George W. Bush has been permitted to detain people at his whim, to engage in extraordinary rendition, to torture prisoners, to bypass the Courts to obtain wiretaps, to use the secrecy of the White House to deceive the public, and more with impunity, while courts fumble around unable to act to stop him. The protection against cruel and unusual punishments has been virtually eliminated by a serious of bad Supreme Court rulings. Protections against wrongful conviction through habeas corpus have wilted in the face of bureacratic obsessiveness. Juries have been skewed by a doctrine that allows only pro-conviction biased jurors (the "death qualified") to sit in capital cases. The federal courts charged with enforcing civil rights in areas like employment and reigning in corporate violations of laws designed to protect workers and consumers have been flooded with judges who don't believe in the laws that they are charged with enforcing. It has become harder and harder to hold government officials liable for violations of civil rights.

What can Democrats do to reverse these trends? Here are twelve pieces of legislation that could improve the situation, without amending the constitution, and without judicial appointments, without executive action, and without an impeachment proceeding. This may take time, particularly when veto threats loom, but it is a reasonable agenda. All twelve measures are independent of each other. Any one, or any major subpiece of one, can be enacted without impeding the rest of the agenda.

1. Remove harsh and redundant federal criminal laws, especially for drug offenses, from the statute books, in the course of a codification of fedreal criminal law.

Just because Congress has the power under the interstate commerce clause to do anything under the sun, doesn't mean that it should. Limit the federal role in drug enforcement to transportation of drugs across international and state boundaries and agreements to do so. It is not the place of the federal government to enforce laws against street corner drug dealing. Similarly, it is not the place of the federal government to stop what are almost always intrastate bank robberies. The FBI crime labs can still play a supporting role for strapped local departments, but the prosecutions should be local and investigations should be led by local authorities. Federal crimes should involve either truly interstate commerce or uniquely federal crimes (e.g. immigration offenses).

Issues like medical marijuana and physician assisted suicide should be left expressly to local discretion.

Even where federal crimes do belong on the books, unreasonable mandatory minimums (and rules for intepreting who is a habitual offender and when consecutive v. concurrent sentences shall be handed down) should be moderated, in the interest of controlling the budget and in the interest of serious crimes having longer sentences than less serious crimes, as part of an overall codification of all federal crimes.

Of course, federal crimes or harsh sentences under them, can be repealed piecemeal as well, but it may make more sense as part of a general codification.

2. Repeal the U.S. Sentencing Guidelines in their entirety.

The guidelines as originally adopted are fundamentally unconstitutional, are now merely advisory and confuse the issues. The crack-powder cocaine disparity is the single largest source of racial basis in the state or federal sentencing law and has no good justification. The system is broken and needs to be jettisoned.

3. Reduce the civil diversity jurisdiction of the federal courts, not in narrow policy directed moves, but on a large scale as a matter of policy.

The place to begin is by declaring every business a citizen of every state where it has a permanent office. This removes diversity jurisdiction in the vast majority of cases involving interstate companies.

There is also no reason to retain diversity jurisdiction in cases that involve incidents that are clearly associated with a single state, such as automobile accidents. The only cases that should remain in federal court on the basis of diversity jurisdiction are cases that are necessarily multi-jurisdictional, such as large multi-state class action cases.

Alternately, a high dollar threshold could be placed on diversity cases. The current cutoff is $75,000. This could be increased to $300,000, for example.

4. Reduce the civil federal question jurisdiction of the federal courts in cases involving only private parties, not in narrow policy directed moves, but on a large scale as a matter of policy.

There is also no reason to keep in federal court cases involving the disputes between purely private parties who reside in the same state, even if they arise under federal law. For example, there is no reason that an employment discrimination case or minimum wage case involving only employees and employers should be tried in federal court, rather than in state courts.

Instead, the federal courts should be reserved for cases involving foreigners, the United States as a party, someone's violation of constitutional rights under color of state law, or a handful of other narrow exceptions where uniformity is desirable like copyright cases.

Alternately, a high dollar threshold could be placed on ordinary federal question cases. There is currently no cutoff. This could be increased to $300,000, for example.

5. Require the parole of individuals who have received the most excessive sentences under existing laws.

Enact legislation allowing for early parole of persons in certain classifications, for example, people who have served at least 10 years for a non-violent offense and had violent felonies before being arrested for their current offense, and define "violent" to include only cases in which an actual injury occured or a specific individual was threatened with violence.

Individuals who have served more than 50% of their term for a crack cocaine offense should also be entitled to parole.

6. Create a private right of action to enforce the Geneva Conventions and other treaties.

This shouldn't be a controversial law. People held in violation of the Geneva Conventions should be able to enforce their treaty rights in court. Indeed, there should be a private right of action to enforce almost all treaty rights which the United States violates.

These suits should be brought in the United States District Court for the District of Columbia, regardless of where the suits arise, and should extend to both release (habeas corpus) and money damages. Suits with more than three named Plaintiffs should be heard by three judge panels and appealable directly to the United States Surpeme Court.

7. Create an exclusionary rule of evidence gathered in violation of treaties.

Where rights of criminal defendants under international treaties are violated, an exclusionary rule applying to evidence obtained in violation of those treaties should apply, since any evidence obtained in violation of an international treaty is per se obtained in an unreasonable manner.

8. Enact an anti-kidnapping statute.

Congress should make it a crime for any employee of the United States, including those under military or intelligence authority, to kidnap an individual from a country with whom we have an extradition treaty, and should bar the prosecution or detention of any such person by the United States or at the direction of the United States or its agents.

9. Broaden liability under Section 1983.

As it stands now, governmental entities are liable for civil rights violations committed by their employees only if there is an institutional policy to violate civil rights. Instead, the standard should be the same that applies for most tort suits brought against private companies. A governmental entity should be vicariously liable for all civil rights violations of their employees, or at the very least, for all civil rights violations of employees who are not discharged from employment when the governmental entity is placed on notice of the civil rights violations, since not firing an individual, in effect, ratifies their conduct.

Moreover, governmental entities should be held liable for all violations of civil rights, not just clearly established ones, a limitation inserted to protect individuals who might not have counsel available to them as almost all governmental entities do. This would shift the focus for governmental entities from enacting policies in the Board room, to implementing policies that actually work.

10. Defund the prison at Guantanamo Bay.

Congress should terminate all appropriations for the Guantanamo Bay detention facilities and should order anyone detained there to be presented to a U.S. federal judge for disposition of his case, with anyone found not to be a bona fide prisoner of war released to their home country, if possible, and if not, into the United States.

A private right of action should be conferred on taxpayers to enforce this legislation.

11. Repeal the War on Terrorism declaration.

Now that the war in Afghanistan is over, there is no reason for a declaration of war to fight international terrorists. Existing civil law is sufficient. The eliminates any "war powers" justification outside of Iraq.

12. Simplify habeas corpus law.

At the very least, the 1996 Prisoner Litigation Reform Act and the 1996 Anti-Terrorism and Effective Death Penalty Acts should be repealed.

The New Court In A Nutshell

Chief Justice John G. Roberts, Jr., b. 1955, Roman Catholic, Conservative
Justice Samuel A. Alito, Jr., b. 1950, Roman Catholic, Arch-Conservative
Justice Clarence Thomas, b. 1948, Roman Catholic, Arch-Conservative
Justice David H. Souter, b. 1939, Episcopalian, Liberal
Justice Stephen G. Breyer, b. 1938, Jewish, Moderate Liberal
Justice Antonin Scalia, b. 1936, Roman Catholic, Arch-Conservative
Justice Anthony M. Kennedy, b. 1936, Roman Catholic, Moderate Conservative
Justice Ruth Bader Ginsberg, b. 1933, Jewish, Liberal
Justice John Paul Stevens, III, b. 1920, Protestant, Liberal

And, who appointed those judges? With two exceptions, Republicans. Ford (Stevens); Reagan (Scalia, Kennedy); G.H.W. Bush (Souter, Thomas); Clinton (Ginsburg, Breyer); G. W. Bush (Roberts, Alito).

The Lawyers Were Unanimous

All the honest conservative lawyers in the White House have been purged, in favor of those who favor untrampled executive power and care not at all about liberty or any other American values. Vice President Cheney, and his staff, have been instrumental in the process.

More Bad Immigration Judges

It appears that a large share of the immigration bench is rotten. The immigration courts are a disgrace to our system of justice and everyone knows it.

Which Class of Motor Vehicle Is Safest?

Total Occupant Fatalities Per 100,000 Miles (2004):

Compact Cars 17.76
Compact Pickups 16.87
Subcompact Cars 16.85
Midsized SUVs 16.16
Standard Pickups 13.87
Fullsize SUVs 12.34
Fullsize Cars 12.16
Midsize Cars 11.49
Minvans 11.05
Large Vans 9.34

High fatality rates for SUVs and Pickups are driven by rollover accidents. For the record, I drive a midsize car.

Filibuster Fails

Today's vote was the vote that counted, the only one in which Democrats had any chance of prevailing. Instead, Democrats whimped out and failed to support their principles. Alito may very well fail to get 60 votes tomorrow, but that vote doesn't matter. He needs only 51 votes to win then, and everyone knew in advance of this vote that he had those 51 votes lined up.

Republican and Democratic senators on a 72-25 vote agreed to end their debate, setting up a Tuesday morning vote on Alito's confirmation to replace retiring moderate Justice Sandra Day O'Connor. . . . At least 53 of the Republicans' 55-member majority and four Democrats - Byrd, Tim Johnson of South Dakota, Kent Conrad of North Dakota and Ben Nelson of Nebraska - already publicly support Alito's confirmation. Chafee, independent Sen. Jim Jeffords of Vermont, and most of the rest of the Democrats are expected to vote against Alito.

From here.

The 19 Democrats who betrayed their party are as follows:

Akaka (HI)
Baucus (MT)
Bingaman (NM)
Byrd (WV)
Cantwell (WA)
Carper (DE)
Conrad (ND)
Dorgan (ND)
Inouye (HI)
Johnson (SD)
Kohl (WI)
Landrieu (LA)
Lieberman (CT)
Lincoln (AR)
Nelson, Ben (NE)
Nelson, Bill (FL)
Pryor (AR)
Rockefeller (WV)
Salazar (CO)

Another 24 Democrats and 1 Independent, Jim Jeffords, supported a filibuster of Alito. I have particular scorn and ridicule for those of the 19, like Senator Salazar who will vote against Alito tomorrow, but failed to vote the right way when their vote would have really counted, today. You are not just wrong, you are hypocritically wrong.

UPDATE: The final vote on Alito on January 31, 2006 was 58-42. Thus, if every Democratic Senator who voted against Alito had had the courage of his convictions (thus, even if Republican Senator Chaffee hadn't), a filibuster could have been sustained. Democrats lost this battle for lack of will, not for lack of Senators opposed to the nomination. The Republicans, who have successfully filibustered judges themselves in the past, will not return the favor. The only Senators to cross Party lines were Ben Nelson, Tim Johnson, Robert Byrd and Kent Conrad, who voted Yes for Alito, and Chafee, who voted No.

Ken Salazar (D-CO), welcome to the permanent shit list. You are a Democrat in name only. You receive no further support from me, and I encourage other Democrats to do likewise. We have better candidates to put our efforts into getting elected. I am very angry and not in a mood to forgive and forget anytime soon. Democrats didn't expect this kind of fuck you slap in the face from someone they worked hard to support in 2004. (And I offer a Mea Culpa Maxima to all those Mike Miles supporters who held out for a real Democrat, won at the State Convention, and then were defeated in the primaries, whom I failed to help.)

A chronology showing the Democrats mistakes on the path to defeat can be found here. Senator Salazar figured prominently in many of the most important steps by which he undermined our party, such as the "Gang of 14" pledge.

The future looks dark, as set forth in a People For The American Way report. Yes, Kennedy is now the swing vote. But, Alito will be as bad as Scalia and Thomas and sends the Court in a dramatically worse direction on multitude of issues where Justice O'Connor had provided some measure of moderation. It is a sad day for America.

Detainees Still In Limbo

SCOTUS Blog notes that the "Detainee Treatment Act of 2005" has thrown the status of various U.S. detainees held without clear legal authority on the President's say so in Guantanamo Bay, including some who have been determined by the administration not to be enemy combatants, into limbo. Oral arguments on the impact of the Detainee Treatment Act of 2005" on pending cases will be heard in March.

The Missing Children of DPS

An opinion piece in the Rocky has some good ideas, but the most critical fact it highlights is this one:

Somewhere between 12,000 and 18,000 school- age kids in Denver attend non-DPS schools.

A cornerstone of any plan to restore the Denver Public Schools to fiscal and academic health has to be to win back the trust of the parents who are willing to incur great sacrifices now to send their children elsewhere. Driving kids to a neighboring district or paying private school tuition is a heavy burden for parents. The fact that parents vote with their feet against the district, despite these burdens, is the most powerful proof that DPS needs to change if it is going to thrive.

Humor On The Eve of The Alito Vote.

Jan. 28, 2006 - Thomas Wilburn just scored the biggest payday of his life. The unemployed 28-year-old telemarketer from Scarborough, Maine, sold Senator Robert Byrd (D-WV) the Brooklyn Bridge for $150,000, according to several eyewitnesses.

"I didn't think he would go for it," said Wilburn. "I mean, the deed was handwritten on notebook paper, for Christ's sake.

"But after I read that Senator Byrd actually believed that (Supreme Court nominee) Sam Alito was a man of his word and trusted him not to support a power-hungry president, I had a feeling the Senator might be interested in a prime piece of real estate like the Brooklyn Bridge."

The story is continued by diarist AmericanFactotum at Daily Kos.

Auraria Remembered

The Denver Post appropriately takes a moment to recall the Auraria neighborhood that preceeded the current three college campus near downtown Denver, and examines the compensation that was provided when it was built, and has been provided to descendants of those who lived there afterwards.

Auraria is one of those urban planning decisions that falls into the close call categories. Putting the University of Colorado Denver campus, Metropolitian State College and the Community College of Denver on a single downtown campus has without a doubt added vitality to the respective educational institutions and has provided one pillar of many that provide a foundation of the continued vitality of Denver's downtown. It is also well situated to serve one of the largest concentrations of potential full time employee/students in the metro area, which is the population of students the campuses are designed to serve, and is at a hub of the metropolitan area's transportation networks, making it accessable to many more people.

But, the neighborhood that the campus replaced was not seriously blighted, and its elimination has hurt the neighboring Lincoln Park community greatly. Compensation was provided for the sacrifices made by those who owned homes there, and while it was not overly generous, it also wasn't meager. The loss was not so much to the individual property owners as it was to the community, what was lost was the "going concern" value of the neighborhood as a functioning organic urban unit of its own.

Growth in greater Denver's urban areas at the moment, fortunately isn't about destroying existing, functioning neighborhoods with big government projects using the power of eminent domain. It is dominated by infill, much of which replaces uses that have departed the sites now being developed for good like Stapleton (formerly a city airport), Lowry (formerly a military airport), Gates Rubber (formerly a factory), old Elich Gardens (formerly an amusement park), Fitzsimmons (formerly an Air Force base), the Post Properties community in Uptown (formerly a hospital), the South Platte neighborhood (formerly a railyard), LoDo (formerly skid row), Cinderella City (a former mall), Belmar (a former mall), Southglen (a former mall) and the redevelopment of the University Hospital complex. Where existing viable housing is being replaced, it is being done through private transactions, at negotiated fair market value prices, on a lot by lot basis. Much of downtown Denver's redevelopment is replacing parking lots with high rises.

Of course, the infill trend is as much a product of good fortune as good planning. Detroit and Buffalo don't have the luxury of having a real estate market so hot that there are developers ready to seize upon every vacant spot in the city. But, one wonders if rust belt communities couldn't learn from Denver's experience with successful infill to revitalize themselves. Large abandoned parcels of land are not just failures, they are also opportunities.

The Fickle Muse

Sunday morning, cold winds blew across the barren brown heath that our city's parks become in January. Cheeseman Park, often brimming with activity, was abandoned to a few dogs and their guardians. The streets were still. And, the well was dry.

Every morning I wake up brimming with ideas. Those that don't make it into this blog, end up in my leather bound journal, on my hard drive, on the backs of business cards, or simply stewing until they are ready to be used. Every evening, the race is on to find the glints of insight hidden in some off the beaten track set of government statistics or journal abstract list, and the inevitable call of sleep. Well, most of the time anyway.

Sunday wasn't like that. It was like being in an unsettling horror move ("The Forgotten" comes to mind) where everything looks similar but something is missing. The idea factory had shuttered its doors. On Sunday, I woke up, and the ideas were simply gone. Completely. Poof. I looked, I observed and I saw nothing, thought nothing.

Fortunately, I don't blog for a living. I could function as an attorney perfectly well without having more than one new idea every week or two. Indeed, I know many excellent attorneys who never do. I interviewed once with a fellow whose office is at Exposition and Colorado Boulevard who does nothing but real estate closings, day in and day out, ten and twelve hour days. He takes the paperwork with him when he goes to his condo in Vail, skiing a few hours in the morning and then returning to the grindstone for the rest of the day. He put off his honeymoon off for a year because he was too busy. The least unusual twist produces a referral to someone else. A boundary dispute, refer it out. An easement question, refer it out. An unresolved lien, refer it out. He does nothing but plain vanilla, residential real estate transactions in large subdivisions all day long. I am sure that he is a wealthy man, that he makes very few mistakes, and that he provides his clients a good value for their money, while maintaining the highest level of professional ethics. But, I could never have that kind of practice.

Waking up with the muse departed is absolutely terrifying. The usual kicks in the pants to the creative faculties, like reading, the newspaper, and other small comforts were useless. Indeed, I could barely move myself to even look at the front page. I couldn't move myself to care. I didn't have a fever, didn't feel ill, didn't seem notably afflicted in any other way, but my wife suggested that I was probably coming down with something, and I slept away the afternoon, despite having had exceptionally good evenings of sleep both of the previous evenings. Today, the muse has returned from this mysterious vacation and all is well. But, I can relate to someone who makes their living writing and then suddenly sees their muse depart not just for a day, but for weeks or months.

28 January 2006

1000 Posts.

Party time here at Wash Park Prophet! I hope you've enjoyed it. Policy and technology will continue to be the mainstays of this blog, along with some local color.

What better way to celebrate than with a smigeon of good news. From the 2006 appropriations bill for the Departments of Health and Human Services, Education and Labor (H.R. 3010):

Sec. 519. (a) None of the funds made available in this Act may be used to request that a candidate for appointment to a Federal scientific advisory committee disclose the political affiliation or voting history of the candidate or the position that the candidate holds with respect to political issues not directly related to and necessary for the work of the committee involved.

(b) None of the funds made available in this Act may be used to disseminate scientific information that is deliberately false or misleading.

While it is sad that it is necesssary, it is nice to see that even a Republican controlled Congress can occassionally display some very modest backbone.

Have a nice weekend!

Sneaking Troops Onto Shore

There are a variety of proposals to sneak U.S. soldiers onto a hostile shore. Some, such as a mini-sub designed for the purpose are out of control in the cost department (the first one will cost about $446 million). A prototype 60 ton Stiletto landing craft appears to be on track to doing a comparable job at a lower price, about $12 million for the first unit. It is a glorified catamaran, designed to operate in shallow waters, with little wake, even in rough seas, and eject a small boat to get a dozen troops ashore or to provide a base for a couple of small reconnaissance drones.

U.S. Military Gets New Pistols

One of the earliest and most consistent complaints of troops in the Iraq War has been dissatisfaction with the standard issue 9mm Beretta pistol, which the U.S. military adopted in 1985, but has had little opportunity to evaluate in a wartime setting until the Iraq War. There have been many complaints, the most important of which has been that the pistol isn't powerful enough to stop an opponent at close range. The Beretta replaced a pre-World War I era M1911 .45 caliber (11.4 mm) pistol which was more powerful but also had its own problems associated with its very old design.

Now, the Defense Department led by the Marines and Special Operations forces, who have more autonomy in purchasing equipment, has decided to put out a bid for a new off the shelf .45 caliber "joint combat pistol" for troops to replace the 9mm Beretta. A buy of about 645,000 of them is planned and they could start to be available to some troops as soon as 2007 in a best case scenario.

The United Airlines Bankruptcy Plan

United Airlines will leave bankruptcy shortly with a new stock symbol UAUA, tens of thousands of fewer employees, about 100 fewer planes, lower pay for rank and file workers from pilots to flight attendants to ground crews (about 20% lower for most, with pilots taking a particularly hard hit) and no defined benefit pension plan. It will also charge more for many extra convenience services, will have a discount division out of Denver called TED, and will make greater use of regional jets.

United has not made a profit in 22 quarters (five and a half years) and does not even have an operating profit for its most recent quarter, although it is close. It also still has a cost structure higher than its discount airline competitors. Its plan for exiting bankruptcy assumed much lower fuel prices ($50 a barrel oil) than those that in fact face it right now ($68 a barrel).

I took a moment to look at who gets what now that it is all over in its reorganization plan, the official summary of which is here. It took their lawyers seventeen pages, but the gist takes far less effort:

Claims owed to airports and ground facilities during the bankruptcy will be paid inh full (DIP Facilities claims), as will all secured claims (i.e. those with collateral) and priority claims (e.g. certain claims for taxes and unpaid wages). All stock will be cancelled, with the stockholders taking nothing. Subordinated debt will get nothing (the "TOPrS" claims which get nothing are guarantees involving subordinated debt).

Most creditors will get a share of UAUA stock proportional to their claim, which United claims is worth 4%-8% of what they were owed. "Convenience class" unsecured claims (probably mostly smaller trade creditors) and certain retirees get cash rather than stock. Holders of municipal bonds related to the Chicago O'Hare Airport, and the Pension Benefit Guarantee Corporation get somewhat more favorable deals.

Who are the unsecured creditors? According to the consolidated list of the top twenty unsecured creditors filed when United originally filed for bankruptcy, about $3,342 million of the debt (92%) owed to the top twenty creditors was owed to bond holders, about $120 million (3%) was owed to "trade creditors" (i.e. firms providing goods and services to the company who bill United rather than insisting upon immediate cash payments), and $162 million (4%) involved some manner of claim with the Indiana Government.

Why do I mention this? I think that there is a good justification for providing a generalized priority for trade creditors (i.e. creditors who have in the recent past provided goods or services to the company payable shortly after the benefits are rendered), who are not in the business of lending money, generally provide credit for short time periods only, and have a time horizon considerably shorter than the duration of a long bankruptcy like this one (and whose cooperation is frequently necessary to any long term reorganzation) over long term bond creditors, who have generally carefully analyzed the long term prospects of the business, consciously decided to make a credit decision and usually have a longer term time horizon. Trade creditors also tend to be much more numerous than long term creditors, so a priority that could largely remove them from the bankruptcy process would also greatly reduce the adminstrative costs associated with the bankruptcy.

For example, if trade credit received a 100% priority (and I wouldn't actually propose a rule quite that generous), in this case, and the stock distributed now ends up being worth 6% of the claims in the aggregate, trade credit could be paid 100% on the dollar, and long term debt would get 3% instead of 6% of the amount owed to them.

In the eyes of the trade creditors, this is a huge difference and would greatly reduce the risk associated with extending short term credit to economically fragile entities (which might in turn make it easier for such entities to avoid bankruptcy in the first place), while for long term creditors, the difference would be a drop in the bucket difference in the economic decision to lend in the first place.

27 January 2006

Super Slab Dead

Plans to build a twelve mile wide, couple hundred mile long, privately owned toll road and transportation corridor, parallel to I-25 across the Front Range, using an obscure provision of Colorado law that allows private road companies to use the power of eminent domain have been quashed. The legislation is supported by wide majorities in both the House and the Senate and the Governor has gone along with the plan, despite vetoing a similiar bill last session. Under the compromise language, toll roads can still be built using the power of eminent domain, but that power is lodged in the Colorado's Department of Transportation, whose approval of the plan is required before land can be condemned for a toll road. Residents in the path of the proposed Super Slab project had vehemently opposed it.

Texas recently approved and built a similar project.

Estate Tax Unlikely To Die

The federal estate tax is currently scheduled for repeal in 2010, and then reinstatement in 2011 with higher rates and smaller exemptions than are in place now. No one believes this nutty scenario is actually going to happen, but this status quo and a budget deficit projected by the CBO to exceed $400 billion in 2006 have given Democrats leverage in the debate over the future of the estate tax. The uncertainty also wrecks havoc on people in my profession, estate planning, who are forced to read tea leaves to plan a mere four years in advance.

A compromise now seems all but certain, and the outlines of a deal are shaping up. It will exclude more estate entirely from the estate tax, and lower rates, although the exact dimensions of the deal are unclear. According to Bloomberg, via the Tax Profs Blog,Charles Grassley, the Iowa Republican who chairs the Senate Finance Committee (the most crucial strangle point for estate tax legislation right now):

If we could get a $5 million exemption with a 15 percent rate, I think that would be a decent compromise. That's not going to satisfy the president, but I think that that's the best I can do in the United States Senate in order to get the votes to get it passed.

Right now the exclusion amount (which Grassley suggests would go to $5 million) is $2,000,000 at death and $1,000,000 for gifts, and it is scheduled to increase to $3,500,000 at death (but not for gifts) in 2009. The $1,000,000 gift exclusion would remain, but the estate tax would vanish in 2010 under current law. The exclusion upon both death and for gifts would revert to $1,000,000 in 2011 if the status quo remains in place (the gift and death exclusions interact; every dollar used to exclude a gift from taxation reduces the value of inheritances that can be left tax free at death). The top estate tax rate is currently 46%, and is scheduled to fall to 45% for 2007-2009, disappear in 2010, and return to 55% in 2011 (estate tax rates start at 37%).

Democrats are willing to bargain for lower estate tax rates and higher exemptions, but aren't big fans of estate tax cuts which are proto-typical classic tax cuts for the rich. But, they do tend to favor a higher exemption and a higher top rate, while Republicans are more concerned about lower the highest estate tax rate. Estates between $1,000,000 and $5,000,000 generate only a very small portion of estate tax revenues, but account for a large share of all estate tax filings. A very large share of estate tax revenues comes from a small number of estates in the $100,000,000 and up range. Thus, a substantial increase in the exclusion doesn't change revenues very much, while even modest reductions in rates have a big revenue impact.

Back in September, a report on the negotiations over the estate tax stated:

Sen. Grassley reports that compromise efforts are progressing, with the “boundaries” of a “nebulous” deal likely encompassing a $4 - $6 million exemption and a 15% - 35% tax rate. Primary Republican negotiator Jon Kyl (R-Ariz) is sticking with his call for an $8 million exemption and 15% tax rate.

Given that Grassley is still in negotiations and that the pressure from Democrats and deficit hawks is to make estate taxes take a heavier bite, I think that the $5,000,000 is a pretty safe guess of what the ultimate exemption deal will be, and that 15% is more of a floor than a sure bet on what the ultimate legislation will contain as a top tax rate.

My personal philosophy is that the estate tax is a tax in lieu of an income tax for purposes of administrative simplicity, on the inheritance income of wealthy heirs, similar to the tax imposed upon lottery winners, so I would favor a tax rate equal to the highest individual income tax rate, currently 35% and think that a $5,000,000 threshold would be a reasonable one, because it reduces the cost of collecting the tax (public and private alike) so much, while having only a modest revenue impact. This would still be a major tax cut from the $1,000,000 and 55% status quo for 2011, and from the $2,000,000 and 46% in place right now, but would also keep a reasonable estate tax in force.

Any reform should also include the reinstatement of the state estate tax credit, which allowed states to receive a cut of federal estate tax revenues without imposing any planning burdens on taxpayers and without engaging in any material efforts to collect their share. Its elmination has produces a huge morass of state level estate taxes to replace a relatively simple federal one.

The Democrats concern about rising inequality in our economic doesn't come from nowhere. The benefits of economic growth in the past couple of decades have not been shared equally.

UPDATE: A few tidbits from a Congressional Research Service report to Congress dated January 13, 2006 and entitled "Economic Issues Surrounding the Estate and Gift Tax: A Brief Summary":

The tax provides 1.2% of federal receipts.

There are 2.4 million deaths annually, but only 0.6% of estates file returns and only 0.3% pay estate taxes. Prior to the 2001 tax cuts, 2% of estates paid an estate tax. More than 95% of businesses and farms will never be affected by the estate and gift tax, and many of those that do have sufficient liquid assets to pay the tax.

Denver Business News Shorts

The Tattered Cover Bookstore has announced that on June 25, it will move from its location across from the Cherry Creek Mall in Denver to the Lowenstein Theater on East Colfax Avenue near East High School (although it is looking for a small satellite store at a new location in Cherry Creek North). The Fourth Story restaurant above the store will close before then. Twist and Shout Records, which is currently located in two storefronts across the street from each other at Alameda and Logan in West Washington Park will join the Tattered Cover at its new location. The Denver Film Society had initially planned to join these two businesses from its Tivioli location on the Auraria Campus but has backed out of the deal. Tattered Cover, the metro area's leading independent bookstore, also has a location in LoDo on the 16th Street Mall near Union Station, and in Highland's Ranch.

A 55 story condo tower is planned for 14th and Lawrence Street in LoDo. The project is immensely expensive, costing $165 million for just 200 units (which means that each condo must sell for an avearge of more than $825,000, just to break even), and will change the Denver skyline. Given the size of the lot, 25,000 square feet, the number of stories, and the number of units, each unit will likely be several thousand square feet in size, comparable to a Cherry Creek townhouse or a reasonably large single family home. UPDATE: "The units, which will range in size from about 1,200 to 7,000 square feet, will be priced from the mid-$500,000s, although 10 percent of them would have to be affordable under the city's inclusionary housing ordinance."

Chipotle, the McDonald's owned Mexican fast-casual Burrito chain, has gone public and double its share price on the first day, one of the most successful public offerings in years. The offering is of a minority of the shares, with McDonalds and the original ownership group together still controlling the chain. The West Washington Park Chipotle's in the Alameda and Logan strip mall that is about to loose Twist and Shout is one of the chain's earlier stores and is a great favorite of area police officers, despite substandard parking availability. The first store opened in 1993 near D.U., and had fourteen stores when it was purchased by McDonalds in 1998. It now has 480 stores. There is speculation that McDonalds will also spin off "Golden, Colo.-based Boston Chicken Inc., which operates the homestyle meat-and-potatoes Boston Market restaurants", which it purchased when the chain was in financial distress and is also in the fast-casual market, to focus on its core fast food market. But, Chipotle has been considerably more successful than Boston Market financially.

Also in local Wall Street News, First Data, one of the largest public companies based in Denver, will spin off its Western Union money transfer division into a seperate business, while keeping its credit card processing business in the original company. Congressman Tom Tancredo made a fool of himself a year or two ago by proposing a new tax on international money transfers (designed to penalize immigrant families) which would have almost entirely impacted First Data, his own Congressional District's biggest company (something neither he nor his staff was apparently aware of). The tax proposal crashed and died.

Congratulations to the Three Kings Tavern, having their grand opening today, previously mentioned here and here on this blog, for appearing on the front page of the Denver Post (in the part visible through newspaper box windows) and on the entire top half and the center of the 7 Days weekend entertainment section of the Post with a custom graphic. Westword has also profiled the new business. You can't buy that kind of advertising for any price.

Dewey v. Truman Moment in Palestine

The exit poll results in the Palestinian elections were wrong. Hamas has won an outright majority with 78 out of 132 seats (67 seats is a majority), the late Yassar Arafat's Fatah Party won 43 seats (down from a prior 68 seat majority), and minor parties won 11.

The Hamas model is reminicent of 19th century American political machines, providing libraries, sports clubs, finding jobs for people, and otherwise serving as a functional organization that provides social services, as well being involved in illegal activity (terrorism for Hamas, organized crime for the old political machines). This gives it a powerful grass roots presence that Fatah, a more conventional political party, couldn't match.

Israel and Bush Administration diplomats can't be pleased. The world will see how this decision plays out.

26 January 2006

Cloak and Dagger Laws

The 9th Circuit issued a disturbing opinion today. It was not disturbing because it affirmed that it was constitutional to require airplane passengers to present identification to board airplanes. It was disturbing because material portions of its ruling relied upon the reader trusting the judge's secret review of the binding legal order in question without actually telling us what that order said. This is not a secret document, it is a secret government regulation, and the parts that were secret were necessary to the court's holding. Transparency is far better proof against the forces that would undermine our society than secrecy. A nation with secret laws is not a nation of laws at all.

Somebody Save Me.

Polls are out in the open Governor's race in Colorado, with every plausible combination of candidates but Ken "he's on my shitlist" Salazar and Alice Madden, from Rasmussen. Daily Kos seriously goofed it (as shown in the comments to its post). The real numbers (1/17/2006):

Beauprez (R) 38
Hickenlooper (D) 43

Beapurez (R) 39
Ritter (D) 38

Beauprez (R) 43
Lindstrom (D) 32

Holtzman (R) 36
Hickenlooper (D) 46

Holtzman (R) 39
Ritter (D) 35

Holtzman (R) 39
Lindstrom (D) 31

This has to encourage Hickenlooper and discourage Ritter. Ritter has been running on electability and gravitas. But, Hickenlooper, who is more appealing to the Democratic base than Ritter, also has far greater popularity. If you deeply want to ban abortion, you want the real thing, not Ritter, whom you aren't sure that you can trust.

Holtzman is still the slight underdog in the vicious Beauprez-Holtzman race on the GOP side of the fence.

If Lindstrom is surprised at his poor showing, he isn't politically savy enough to be in this race at all; he is a yellow dog that only yellow dog Democrats will vote for until they get to know him better, and the battle for rank and file Democratic hearts and minds has to be well in place by late March when the caucuses are held.

Madden, by the way, is almost certainly, like Lindstrom, well below Ritter or Hickenlooper in name recognition and in head to head poll match ups at this point. It would be almost a lost cause for her to run at this point. She's a good legislator, but to run for Governor you simply must have widespread name recognition even before you set foot on the campaign trail.

The idea behind the Salazar for Governor scenario, for its proponents, is for Salazar to run for a job he wanted more than Senator in the first place, to run Bill Ritter as Attorney General (a natural succession from his post as Denver DA that can also keep his Gubinatorial hopes alive), appoint his own successor in the Senate (likely Boulder Congressman Mark Udall) leaving open a safe Democratic seat to be filled in a by-election in the 2nd CD (State Representatives and Gubinatorial dreamers Alice Madden and Gary Lindstrom comes to mind). The party could then recruit Andrew Romanoff, who got statewide campaign operations experience in the C and D campaign, name recognition as Speaker of the State House, and is soon to face term limits in the State House anyway, to fulfill his political aspirations by running for U.S. Senate against Wayne Allard (should he choose to run again) in 2008.

This has the virtue of putting a pro-choice candidate with a proven ability to win a statewide election and handle an executive branch office in the Governor's race, of putting a more reliably Democratic individual in the highly partisan U.S. Senate, of not sacrificing any Congressional seats (or strong candidates for close seats), and of not wasting any of the party's first string candidates. Cary Kennedy could run for State Treasurer (the only Democrat in the race at the moment), Senate Majority Leader Ken Gordon could run for Secretary of State, and perhaps State Senator and former Speaker of the State House Jennifer Veiga could serve as Lt. Governor (an apprenticeship for bigger things which also provides statewide name recognition), now that State Senate President Joan Fitz-Gerald is likely to hold onto her post for the moment.

Salazar for Governor proponents also doubt that ability of relatively inexperienced Mayor Hickenlooper to sustain his popularity in a statewide race. A Hickenlooper run, of course, would have far less of a cascading effect on the rest of the politcal pyramid. Many worthy candidates ran last election (e.g. Penfield Tate), and many worthy, but little known, candidates would likely run again.

Salazar himself, is urging the party to avoid a primary in the race, uniting behind one candidate swiftly. Hickenlooper has still not made up his mind, Ritter has taken a Governor or bust stance, and Lindstrom gets nothing but cold water from Salazar's statement.

Verdict: Criminal Justice System Broken

The Mercury News in Santa Clara County, California ("the heart of Silicon Valley" as promoters like to proclaim), has very little good to say about all of the players in the local criminal justice system (with the possible exception of private defense attorneys), despite the fact that it isn't atypical of the national norm. What is rotten in Santa Clara county, based on the 700 cases audited?

In one in three of the cases reviewed, the criminal trial had been marred by questionable conduct that worked against the defendant. In a small number of egregiously flawed trials, people were wrongly convicted. . . .
• In nearly 100 cases, prosecutors engaged in questionable conduct, including withholding evidence, defying a judge's orders or misleading juries. . . .
• In 100 cases, defense attorneys failed their clients by neglecting to do even the most basic independent investigation or to raise objections to questionable prosecution tactics. . . .
• In more than 150 cases, judges failed to oversee trials impartially and repeatedly failed to properly instruct juries. . . .
• In more than 100 cases, the 6th District Court of Appeal upheld verdicts even while acknowledging trial errors, deeming them ``harmless.''. . . . The 6th District Court, which upholds 97 percent of all convictions, also publishes only 2 percent of its rulings -- the lowest percentage in the state -- which means its work is relatively hidden.

One of the most interesting recommendations is the newspaper's call for establishing "regular, proactive spot checks of criminal cases to look for problems and for patterns of flawed performance. They should establish better training for lawyers and judges, and they should be more aggressive in disciplining professionals who fail to meet standards."

Denver Likely To Close Some Schools

Denver just closed four schools, but it is likely to close more in the near future. It has seventeen schools that are half empty or worse. It has 2 million square feet more space and 14,000 fewer students than neighboring Jefferson County's school district. It is also facing a $22 million budget deficit for the year due to a shift of students from traditional public schools to charter schools and elsewhere.

Byers School (formerly Denver School of the Arts on Pearl a little North of Alameda) is already sitting vacant, and Lincoln Elementary in West Washington Park, which has the lowest enrollment in the District, are both on likely to be on the chopping block.

Universal Service Charges

My local phone bill every month from Qwest, includes 66 cents of Universal Service Fund Charges (10.2% of something), and 43 cents for the Colorado part of that bill (2.9% of in-state monthly telecommunications charges for local, wireless, paging, in-state long distance and optional services). "Where does it go?", I wondered. And, the internet being the wonderful thing it is, I could look it up. The answer:

The federal part goes, according to the FCC:

56% to the "high cost" program (i.e. rural phone companies)

29% to schools and libraries

What Benefits Are Available Under the Schools and Libraries Program?

Eligible schools and libraries receive discounts on telephone service, Internet access, and internal connections (i.e., network wiring).

The discounts range from 20% to 90%, depending on the household income, level of students in the community, and whether the school or library is located in an urban or rural area.

How Does the Schools and Libraries Program Work?

A school or library must develop a technology plan that demonstrates the relationship between the information technology to be supported and the school's curriculum or library objectives. The school or library then provides notice that it seeks services.

Vendors bid to provide the desired services to the school or library. After the school or library selects a vendor, it files an application with the Universal Service Administrative Company (USAC) for approval of its request for discounted service. USAC is the entity that is charged with administering the Universal Service Program.

After USAC approves the school or library's application, the vendor provides the services to the school or library at discounted prices. Generally, the vendor is then reimbursed the amount of the discount from the Federal Universal Service Fund.

14% to help low income customers

What Benefits are Available Under the Low-Income Program?

Link-Up America helps qualified low-income consumers to initiate telephone service. This federal program offsets one-half of the initial hook-up or connection fee, up to $30.00. The program also includes a deferred payment schedule for these charges.

Lifeline Assistance Program provides certain discounts on monthly service for qualified telephone subscribers. These discounts can be up to $10.00 per month, depending on your state.

Residents of Native American Indian and Alaska Native tribal communities may qualify for enhanced Lifeline support (up to an additional $25.00 in support beyond current levels) and expanded Link-Up support (up to $70.00 in additional support beyond current levels).

0.5% to rural health care providers

What Benefits Are Available Under the Rural Health Care Program?

Public and non-profit health care providers in rural areas can receive discounts on monthly telecommunications charges, installation charges, and long distance Internet connection charges.

Rural health care providers are using funds from this program for a variety of patient services, such as transmitting x-rays from remote areas to be read by health care professionals and experts in urban areas.

Eligible entities include:
Post-secondary educational institutions offering health care instruction, including teaching hospitals and medical schools;
Community health centers or health centers providing health care to migrants;
Community mental health centers;
Not-for-profit hospitals;
Dedicated emergency departments in for-profit hospitals;
Rural health care clinics; and
Consortia of health care providers consisting of one or more entities described above.

The state portion also goes to rural areas (and has since 1995):

Some rural areas of Colorado are very expensive for the telephone companies to serve. Yet, the rates the companies are allowed to charge for basic local service do not reflect these higher expenses. If every rural customer were charged the full and actual cost of providing telephone service, many would be unable to afford the service.

In the past, some telephone companies were allowed to charge more for some services - such as in-state long-distance, advanced features such as call waiting and call forwarding, and access fees that long-distance companies pay to connect to the local network - to keep basic local rates affordable for all customers. However, those subsidies are no longer appropriate in a competitive market.

To ensure that all customers continue to have access to affordable basic telephone service under competition, the Colorado Legislature in 1995 authorized the Public Utilities Commission to establish a universal service fund. Money from the fund is used to reimburse companies that serve areas with high costs. This allows local phone rates to remain reasonably comparable across the state.

Many of these programs I have real doubts about, for example, why should be subsidizing the maintenance and construction of land lines in rural areas with a regressive tax, where most new phone lines are for exurban ranchette developments? Does it really make sense to impose a regressive tax on local phone service (more so than either the state income tax, state sales tax or property taxes which would otherwise pay for such investments) as a means of paying for putting internet access in schools? Does it make sense to impose a special tax and spending program in order to help doctors get modest discounts on their phone bills, when those doctors are typically the best paid people in their communities? Does it make sense to go through the process of collecting funds with a regressive tax and then implementing a means test program with the associated paperwork for a lifeline phone program that saves someone $30 once and up to $120 per year?

I have grave doubts about the degree to which it is all worthwhile. Admittedly, at $13 a year, give or take, it isn't really worth much time worrying about, but it does seem unnecessary.

Religious Schools Teach Math Poorly.

In one of the most convincing challenges to conventional wisdom about school performance yet made a study has determined that:

Contrary to common wisdom, public schools score higher in math than private ones, when differences in student backgrounds are taken into account. . . .

The researchers looked at achievement and survey data from NAEP's [National Assessment of Educational Progress] 2003 national sample of 190,000 fourth-graders in 7,485 schools and 153,000 eighth-graders in 6,092 schools. The schools in the sample were categorized by NAEP as public (non-charter), charter and private, with the private schools broken down further by Catholic, Lutheran, conservative Christian and "other private."

NAEP is considered the only nationally representative ongoing assessment of U.S. academic achievement, and is often referred to as the "gold standard" of school performance data. . . .

Using a statistical analysis known as hierarchical linear modeling, the Lubienskis found that regular public schools scored "statistically significantly higher" than private and charter schools at the fourth-grade level. With 10 points roughly considered a grade-level difference in achievement, the regular public schools were trailed by 11.9 points by conservative Christian schools, 7.2 points by Catholic schools, 4.2 points by Lutheran schools, 5.6 points by all other private schools, and 4.4 points by charter schools.

At the eighth-grade level, the regular public schools were trailed by 10.6 points by conservative Christian schools and by 3.8 points by Catholic schools.

Lutheran and charter schools led regular public schools by 1.0 and 2.5 points, respectively, and all other private schools were 2.3 points below regular public schools, but all of these three gaps were determined to be statistically insignificant by the researchers.

To determine differences in students' backgrounds, the researchers used NAEP survey data related to the students' socioeconomic status, which included their eligibility for free or reduced lunch and their access to learning resources in the home, such as books and a computer. The researchers also incorporated survey data on students' race and ethnicity; gender; disability and limited English proficiency.

The more religious content a private school has, the more it impairs math learning. Secular private or charter schools (which are also, by necessity secular), and relatively mainline religious schools, which tend to have less religous content than conservative Christian or Catholic schools, teach math about as well as public schools.

The average student at a private school does better on standardized tests because they exclude poor students. This is the only reason for the difference. The full paper can be found here.

Hamas Wins Votes In Palestine

An exit poll by Bir Zeit University in Ramallah showed Fatah winning 63 seats in the 132-member parliament with 46.4 percent of the vote, and Hamas taking 58 seats with 39.5 percent. Smaller parties received 11 seats, according to the poll of 8,000 voters in 232 polling stations. The poll had a one-seat margin of error.

A second survey showed Fatah beating Hamas 42 percent to 35 percent.

Either way, the group known for both its terrorism efforts and its grass roots charity efforts, will be the number two party in the Palestinian legislature, and neither party will have a majority, requiring them to turn to independents or each other to stay in power. One would think that this would suggest a move towards Palestinian militancy at an institutional level.

From here.

Prime Poetry

Read "Let Us Now Praise Prime Numbers" here.

My E-Mail to Ken Salazar

Your unwillingness to support a filibuster of the nomination of Judge Alito to the United States Supreme Court was the last straw.

While I have supported you in the past in your runs for attorney general and then for U.S. Senate, with my time, my money and my enthusiastic endorsement of you, I cannot do so again, and will urge other Democrats I know to do likewise. It was a mistake to vote for you in the primary in 2004. I regret my vote for you then. If recall votes were possible for U.S. Senators in Colorado, I would start circulating the Petition tomorrow.

You have betrayed your political base on an issue that Democrats, including you, have campaigned on for years, the conservative takeover of the U.S. Supreme Court. You know that Alito is an appalling choice for reasons that you yourself have outlined, and will symbolically vote against him. But, when push comes to shove, even once you already knew that there were 51 votes in favor of Alito from Republicans, you refused to go to the mat on the issue and take the only step which Democrats could possibly have used to defeat the lifetime appointment.

This is not some minor point that Democrats should ignore and go onto other business for. This is the single most important decision that the Senate will make, probably in the entire session. What a disappointing political figure you have turned out to be.

25 January 2006

Daily Kos Diary Retreads: Military Justice

Before I established this website, I did almost all of my non-Colorado politics blogging, and a lot of my Colorado blogging as well, at Daily Kos in my diary. It is still there (I have put a link in the sidebar) and has entries going back to the 2004 Presidential Primary season. I was looking through them today, and am still pleased with what many of them had to say. I also found it interesting, as I sorted through them, to compare the timeless ones (many on policy issues) from the dated ones (most on breaking political developments).

After reading them, I decided to add a new category of posts to this blog, Daily Kos Diary Retreads, that call attention to some of my better or more important post there, or pull together themes that have been developing for some time. I'm going to start with the theme of military (in)justice. This theme has carried over into this blog most recently with my post:

Murder By Torture, No Big Deal which notes a sentence of $6,000 fine, reprimand and two months of the military equivalent of house arrest.

At Daily Kos, I noted the case of Colonel Pappas, who authorized the torture methods used at Abu Grahib prison in Iraq, who was given a reprimand and fined $8,000. A soldier who drowned an Iraqi civilian who had told the soldier that he couldn't swim, was sentenced to 45 days in jail and a $12,000 fine. Another man who was responsible for Abu Grahib prison torture policies was put forward for a promotion. And, "Two-thirds of U.S. soldiers charged with serious crimes like rape of fellow service members or unjustified killings of prisoners are allowed to give up their uniforms, rather than face criminal punishments."

The Demise Of The Three Party System

A Mongolian lawyer who is in the United States studying to get her MPA and learn about the American political system before returning to her home country to work for the Mongolian parliament asked me today to describe the differences between the Republicans and the Democrats in the United States. It wasn't difficult.

When I was growing up, in the 1980s, the United States was a two party system in name only. There were really three parties, the Northern Democrats, the Southern Democrats and the Republicans. Northern Democrats and Southern Democrats parted ways on defense spending and many social issues, where they joined Republicans. This is no longer true. The United States now has a very pure two party system, and in all but a handful of policy areas there are well defined Democratic and Republican positions.

Of 28 votes in the House and Senate last year, identified by Congressional Quarterly as the key roll calls for the session, majorities of the two parties opposed each other on all but seven.

In the House, the subjects that provoked disagreements included immigration rules, stem cell research, surveillance and interrogation policies, arms sales to China, the Central American Free Trade Agreement (CAFTA), the Endangered Species Act, energy, and the intervention in the Terri Schiavo case.

In the Senate, the parties split on class-action lawsuits, bankruptcy protection, CAFTA, the USA Patriot Act, the budget, defense appropriations, energy, and the nomination of John Bolton to the United Nations.

The variety of subjects indicates the broad dimensions of the parties' differences. They embrace social, cultural, economic and foreign policy issues. The only notable area of agreement between the parties was on the big transportation bill, loaded with pork-barrel projects for both Republicans and Democrats. . . .

On the roll calls where the parties divided, nearly nine out of 10 Republicans and Democrats voted the party line. The average House Republican was loyal 90 percent of the time; the average for House Democrats and for both parties in the Senate was 88 percent.

Republicans have been about that united since taking over. Democratic discipline has been trending upward, especially in the House, where it averaged 81 percent in the first four years of minority status, compared with 87 percent in the latest four years.

What once was a clear regional split among Democrats, with the Dixie contingent voting often in a conservative bloc with Republicans, has diminished if not disappeared. Last year Southern Democrats in the House were only nine points lower in their loyalty to the party position than Northern Democrats; in the Senate, the difference was eight points.

In all of Congress, only two people voted more often with the opposing party than with their own on the party-splitting roll calls. Sen. Lincoln Chafee, the Rhode Island Republican, and Sen. Ben Nelson, the Nebraska Democrat, opposed their party's majority about 53 percent of the time.

Given that Democrats in both the House and the Senate are loyal to their party on average 88% of the time, and that there is a nine point spread in the House and an eight point spread in the Senate, that means that Northern Democrats are profoundly loyal to their parties, voting the party line well over 90% of the time.

MyDD has calculated slightly different numbers that more closely match my intuition for party loyalty in the U.S. House, using different votes, although many of the trends are similar:

All Democrats: 82.5%
All Republicans: 96.1%
DLC: 79.0%
Democrats, non-DLC: 83.3%
Blue Dog Democrats: 54.3%
Non-Blue Dog Democrats: 88.3%

Bingo. Caucus disunity has a name-o. Outside of the Blue Dogs, Democratic Party loyalty on the important, party differentiating votes in the House is comparable to Republicans: 88.3% to 96.1%. Further, Blue Dog Party loyalty, 54.3%, is massively lower than that found either in the DLC, 79.0%, or among non-Blue Dog Democrats, 88.3%. Overall, the thirty-five members of the Blue Dog coalition account for 44.9% of all Democratic Party defections over these ten votes / issues, even though they only make up 17.2% of the caucus.

Only half of the blue dogs are from the South. (My DDs analysis is confirmed here using a larger sample of votes and a more rigorous analytical approach).

Thus, while remnants of the three party system I grew up with remains in existence, it is ceased to be a clear North-South divide (many Blue Dogs come from New York and California), and the conservative Democratic faction is getting smaller and smaller.

The handful of moderate Republicans and conservative Democrats in Congress are unpopular in their own parties, and often face challenging election battles. Pennsylvania Republican Arlen Specter, and Connecticut Democrat Joseph Lieberman both face difficult election battles this year. Prominent Dixiecrats have, one by one, been picked off by Republican challengers in races where voters show that they want the real deal, rather than a knockoff, if they are going to cast a conservative vote. A few Rockefeller Republicans have held out in New England, but they are a dying breed. They will be replaced by Democrats no later than when the incumbents retire.

Moreover, given the extent of leadership control in the House, there is no point in bucking the party line. The majority party doesn't need the cooperation of the minority, and as a result offers nothing in return for cooperation. Furthermore, increasingly gerrymandered Congressional districts have made appealing to the base the only sensible policy in the vast majority of congressional districts. Colorado is virtually unique in having at least two out of its seven CDs (28%) that are genuinely competitive (the 3rd and the 7th), and that is primarily because its redistricting was done by a court after the legislature failed to agree on a plan since one party held the House and another held the Senate in the state at the time.

Because state boundaries are set in stone and larger than Congressional District boundaries, gerrymandering them beyond the status quo is impossible and given the Senate's traditions (such as the filibuster, the two-thirds majority requirement for treaty approvals, holds, reliance on unanimous consent for many procedural purposes, and the power of Senators in a state to veto judicial appointments in their state), the majority in the Senate more often seeks the support of a few Senators from the minority to ease the passage of legislation in exchange for substantial concessions, and members tend to be more moderate. It is no surprise that the most prominent moderates in Congress are almost all in the Senate. But, as noted above, even the Senate has grown more partisan in recent years.

As the process that has been called "realignment" (i.e. putting Republicans in conservative districts, especially in the South, and Democrats in liberal districts) has run its course, we are approaching in the United States, levels of party discipline historically not seen outside the parliamentary systems of countries like the United Kingdom and Canada, where failing to suport you party on key votes can lead to new elections.

Growing partisanship is not all bad. A three party system, in which neither political party has any realistic chance of truly controlling political power, doesn't leave voters with much of a choice. The mushy middle is always going to thwart really change. In a true two party system, the public has a clear choice to make, and the party that is elected can bring about real political change. Equally important, the public can assign responsibility to and depose the party in charge when it fails to send the country in the right direction.

Increasingly Democrats are looking at the political environment and saying our nation is so deeply off course that only bold change is going to be sufficient. But, this is only possible in a two party system and only when the other party is sufficiently off balance for the public to throw the bums out, and the replacement has the party discipline to carry out their own agenda. We'll see what happens in 2006.