Defenders of the Public Domain

Not all problems with government require legislation to solve. One of the emerging problems of the 21st century is the demise of the public domain. For example, patents, particularly business method patents, are being issued for a lot of ideas that don't deserve legal protection, for the simple reason that they don't actually meet the legal standard for a patent but slip past harried patent examiners.

There is a process for the public to challenge proposed patents before they are issued, but the immense volume of patents, and very low probability of one being relevant to the average person means that this public notice process has little practical effect. The main users of the public notice process are established large industries who can focus on a very narrow class of patents sought by their competitors, e.g. in the area of pharmacuticals, or agricultural implements, and have patent law firms on retainer anyway, for their own inventions.

The trouble is that business method patents, in particular, and an increasing number of other kinds of patents (e.g. gene patents) have a far wider impact on people unlikely to be able to put a patent law firm on retainer. The solution? The same sorts of groups that have organized the open source movement should come together to form a private non-profit group that I'd suggest be named "Defenders of the Public Domain". This group might lobby Congress, but its main activity would be to monitor the Patent and Trademark Office public notice process and the Federal Circuit Court of Appeals docket. It would challenge dubious patents and trademarks with possible wide applicability, and would file amicus briefs in patent cases in favor of the public domain. Even a few high profile wins would discourage would be entrapreneurs from bringing weak claims.

It is an effort that could perform well at many scales, based upon donor support. Ideally, it might cultivate support from a coalition of universities and colleges, because many dubious patents attempt to privatize unacknowledge prior art developed in academia. At times, the ACLU might provide some support. But, it could start small, perhaps half a dozen staff, and build up over time as it gained fame with its early successes. Any independent voice for the public domain would be better than the status quo in which there is no really well organized interest group doing so.

Shoring Up The Racist Asshole Vote?

What are the Republicans thinking?

The new Senate minority has restored Trent Lott to a leadership position as its first act. You will recall that he left the post of majority leader after being shamed out of it as a result of his racist comments.

Meanwhile President Bush's third major post-election action (after ditching Rumsfield and renominating Bolton) has been to renominate Michael Wallace of Mississippi, rated unqualified for the appeals court by an American Bar Association panel, for the Fifth Circuit in New Orleans, after his nomination has already died in the Republican controlled Senate. Bush did this without even consulting his Republican judiciary committee chair, Arlen Specter, who has declared the renomination DOA. The ABA rated him unqualified largely on the basis that Wallace is a racist incapable of treating people who come before him fairly.

Do the Republicans think that the 2006 election was punishment from an electorate that didn't believe that they were racist enough?

Do they believe that the fact that the only close Senate race they won, in Tennessee, resulted in a loss for black Democratic candidate Harold Ford, shows that playing the race card is the only strategy that works for them? Do they believe that their success in the Michigan anti-affirmative action ballot measure and on numerous anti-gay ballot measures showed that this was a winning issue for them? Are they surprised that the successive Powell and Rice appointments to Secretary of State have not produced electoral returns for them?

Did they somehow not notice that Republican George Allen's safe lead in the Virginia Senate race collapsed in significant part on the strength of the fact that he stuck a deer head in some black guy's male box and was a proud pro-Confederate, pro-KKK guy in his college days?

I hope that they do. Because, Republicans, the reasons you lost ground in 2006 have everything to do with corruption, a failed war in Iraq, record budget deficits, increased spending across the board, and a failure to address the economic concerns of middle America.

Nobody thinks you aren't racist enough. You got only 10% of the Muslim vote (enough to make a difference in some races and a big decline from previous elections), you got very little of the Jewish vote, the Catholic vote shifted against you by 16 percentage points, you got less than 10% of the black vote, and you got less of the Hispanic vote than you did in the last election. There are lots of gay men out there who wish that they could vote Republican, but don't because you favor burning them at the stake. You have become the first party in half a century to be in the minority in Congress while having a majority in the South. Your 527s played TV ads playing the race card in almost every single race this year. The voters don't doubt your racist credentials.

And, what was the Bolton renomination about? Shoring up the asshole vote? Our Ambassador to the U.N. was opposed in large measure because he has very publicly shown is utter contempt for the institution of the United Nations. Equally important, in his prior State Department posts, rather than behaving diplomatically, which is what State Department people are supposed to do, he acted like a complete asshole, intimidating people to no end, and getting to the point where the Secretary of State had to detail someone specifically to the job of keeping him from screwing up.

They don't specifically exit poll the racist asshole demographic, but I'm pretty darn sure Republicans have it tied up. If they didn't before this election, they do now. What next?

UPDATE: Bush has also appointed a crisis pregnancy center (i.e. fake Planned Parenthood scam) doctor as head of family planning. The position does not require Senate confirmation.

We Need A Senate That Never Sleeps

Bush can and will try to make controversial recess appointments, unless that is, the Senate chooses not to go into recess ever for the next two years. It is an idea so crazy that it just might work.

Just hold 5-minute pro forma sessions every couple of days. All you need is one Senator to be in the chair. Mikulski and Cardin (MD) and Webb (VA) could take turns coming into town and gaveling the empty Senate chamber to order.

Anything that stops Bush's abandonment of good faith in carrying out his constitutional duties is worth doing.

The New U.S. Senate Judiciary Committee

Moderate Senate Democratic leader Harry Reid of Nevada has delivered for the Democratic Party base on judges and civil liberties with his judiciary committee appointment decisions. When Democrats regain control of the U.S. Senate, controversial conservative judicial nominations from President Bush are likely to die in committee.

Federal judicial nominees have to make it through the U.S. Senate Judiciary Committee before they are considered on the floor by the Senate. Procedural devices can pull a nominee out of committee without its say so, but that requires a supermajority to buck the Senate leadership. Such a move wouldn't necessarily receive the same support from moderate Democrats that a cloture vote on a nominee already reported out of committee to the Senate as a whole with a favorable recommendation. Also, the reduced ranks of the Republican caucus in the Senate makes it harder for Republicans to muster that kind of supermajority.

Also, Democrats are unlikely to invoke the "nuclear option" to stop a filibuster of a controversial conservative federal judge. This would be possible only with Harry Reid's consent and direction and would be a gross breach of Senate norms, something that Republicans would be willing to do, but not Democrats. Thus, even if a judge gets out of committee, it would likely take just 41 votes to stop that judge on the floor of the Senate.

The existing membership of the Senate Judiciary Committee is as follows:

Republicans:
Arlen Specter, Chairman, PA
Orrin G. Hatch, UT
Charles E. Grassley, IA
Jon Kyl, AZ
Mike DeWine, OH
Jeff Sessions, AL
Lindsey Graham, SC
John Cornyn, TX
Sam Brownback, KS
Tom Coburn, OK

Democrats
Patrick J. Leahy, Ranking Democratic Member, VT
Edward M. Kennedy, MA
Joseph R. Biden, Jr., DE
Herbert Kohl, WI
Dianne Feinstein, CA
Russell D. Feingold, WI
Charles E. Schumer, NY
Richard J. Durbin, IL

SCOTUS Blog reports that starting in January of 2007, two new liberal Democrats will join the committee, Ben Cardin of Maryland and Sheldon Whitehouse of Rhode Island, with existing Democratic members of the committee remaining there, and Leahy becoming its chairman.

If the Republicans agree with the allocation to them of eight seats on that Committee, one present member will have to leave the Committee (unless there is no other change in membership on that side). One of their ten members in the last Congress, Sen. Mike DeWine, was defeated for reelection. The lowest member in seniority on the GOP side is Sen. Tom Coburn of Oklahoma, one of the panel's -- and the Senate's -- most conservative members.

Ranking minority member Arlen Specter is the most liberal Republican left in the Senate, and has publicly expressed concerns about the constitutionality of the habeas corpus provisions of the Military Commission Act of 2006, despite the fact that he voted for it (much as John Salazar from Colorado did). Incidentally, two Republican members of the Gang of 14 opposed to judicial filibusters except in "extraordinary circumstances," Mike DeWine and Lincoln Chafee, were not re-elected.

None of the Democrats on the committee are among the Senate's moderates or the Gang of 14. All current members of the Judiciary Committee, for example, voted against Justice Alito both in Committee and on the Senate floor vote on the nomination. The only Democratic Senator on the Judiciary Committee who voted against filibustering Justice Alito was Senator Kohl.

The American Conservative Union give 13 of the Senate's Democratic Senators who are incumbents more conservative lifetime rankings than the Democratic committee member whom they rank as most moderate, Senator Kohl. The eleven are the moderates I listed in a previous post at my blog, and Senator Carper from Delaware and Senator Lieberman from Connecticut are the other two.

Because of the committee's planned 10-8 membership balance, two Democrats on the committee would have to break ranks for the Republicans to prevail in a partisan vote on the committee. One would likely be Senate Kohl, while Senators Biden, Feinstein and Feingold would be the most likely further targets of such efforts. But, none of them will be easy for conservatives to persaude. Meanwhile, it seems likely that Arlen Specter may join Democrats on the committee on some partisan votes, or at least, refrain from exercising what minimal powers he has as the ranking minority member of the committee to thwart the Democrats who control the committee.

The only options left to President Bush to get controversial conservatives appointed to the judiciary in his Presidency are recess appointments, which expire when his Presidency does, and any nominees he can manage to get through the appointment process during the lame duck session (which he is currently attempting), something one would like to hope that even moderate Democrats would oppose, although that is no sure thing. Still, Chafee's decision to put a hold on Mr. Bolton's nomination to be U.S. Ambassador to the United Nations, where he is currently serving as a recess appointee, at least sends a signal that this kind of gamesmanship will not prevail in the Senate.

Cross Posted at Daily Kos.

State Budget 101

Colorado's lame duck Governor, Republican Bill Owens, submitted his final budget to the General Assembly's Joint Budget Committee yesterday. The details are available here.

Over the next few weeks, the Joint Budget Committee will rip it to pieces, revising its details in accord with the priorities of Democratic party legislators and the agenda of Governor-Elect Bill Ritter, a fellow Democrat, to produce a draft of the "long bill" in the 2007 legislative session.

But, neither the total amount of the budget, which is constrained by Colorado's Taxpayer Bill of Rights Amendment (TABOR), as relaxed by Referendum C, passed by voters in 2005, nor the broad outlines of the budget, will be much different. Most of the fights will be over how to spend the roughly $411 million in new funds available to the state compared to last year, some of which are already mandated by rising health care costs and state constitutional mandates related to education spending.

The total budget is $16.9 billion. But, most of it come with strings attached that require the funds to be spent for a particular purpose. The General Fund, which the legislature has more control over, is $7.1 billion, less than half of the total, but this too is highly constrained.

The General Fund

The Governor's general fund budget breaks down as follows:

K-12 Education 42%
Health Care 21%
Higher Education 10%
Corrections 9%
Human Services 9%
Judicial 4%
Other 4%

Amendment 23, the brain child of State Treasurer-Elect Cary Kennedy, sets a floor on K-12 education spending. While this is a large chunk of the state general fund budget, it remains the case that Colorado funds a larger share of K-12 education at the local level through property taxes than many states. About half of property taxes collected in Colorado also go towards K-12 education, although the proportion varies widely from school district to school district in the state. Districts with large property tax bases get almost no state funding. District will little valuable real estate are heavily reliant upon state funding.

Health care spending (public health is a separate line item) is mostly through Medicaid and related programs and is mostly federally mandated (or, at least, subject to strong federal matching incentives). Anyone eligible for the program can enroll in Medicaid, and the number of people the program serves is expected to grow by 5% in the coming fiscal year to about 450,000. The state also has only limited control over how much providers are reimbursed. Medicaid reimbursement levels are currently set at levels so low that the overwhelming majority of physicians in the state no longer accept new Medicaid patients.

Higher education spending, because it is not subject to federal or state constitutional mandates, bore the brunt of TABOR driven state spending cuts in the recent Colorado recession. Governor Owen's budget proposal still leaves higher education 4% short of its funding levels prior to those cuts. Recent "creative accounting" designed to circumvent TABOR has removed college and university tuition from state spending limits. This means that higher education budget cuts can be partially offset with tuition hikes. But, tuition hikes are still subject to considerable state regulation.

Corrections spending (i.e. prisons) is largely determined by Colorado's criminal code and decisions made on a decentralized basis by judges and prosecutors. This currently has Colorado on track to increase the number of people it has in prison by 1,370 in the coming year. Because Colorado has "determinate sentencing" prison officials have only a modest ability to release prisoners early to control overcrowding, by being generous in awarding "good time" to marginally well behaved prisoners, and by resorting to strategies like "double bunking." The state has to pay for the cost of delay in transferring prisoners from local jails to state prisons, but can use these delays to defer prison construction when state prisons are overcrowded. This year's budget debate will focus on how much to spend on private prisons to make up a shortfall of state prison beds.

Human services spending includes welfare programs, prisons for juveniles, and many mental health services. While more flexible than many big budget line items, federal grants for welfare programs and the state's children's code, which controls punishments for juvenile crime, place significant limits on how much this budget line item can be adjusted.

The judicial branch budget involves three main parts -- judges, support staff and probation services. Judges can't be fired or have their pay cut. Probation loads are a function of the same criminal code and decentralized decision making of judges and prosecutors that drives the corrections budget. Support staff was stripped to the bone by TABOR imposed cuts during the recent recession and is now recovering.

While the remaining 4% of the general fund that goes to other programs is small, less than $400 million dollars, this will be the focus of much of the budget debate, as these dollars (e.g. dollars spent to enforce state regulatory programs) have great policy impact, but only minor fiscal impact, which gives legislators greater flexibility in setting policy through the budget.

Special Funds

Where does non-general fund money go? Most of it comes from specific grants, earmarked tax funds and user's fees.

About $1 billion is earmarked for K-12 education. A substantial chunk of this is No Child Left Behind Act federal funding.

About $1.7 billion is earmarked for higher education, largely in the form of tuition and research grant money.

About $2.1 billion is earmarked for health care, mostly in the form of a Medicaid matching grant.

About $1.3 billion is earmarked for Human Services, mostly in the form of the federal welfare dollars such as funds for TANF (temporary aid to needy families).

About $1 billion is earmarked for roads, mostly from gas taxes.

Most of the rest of the earmarked monies come from user's fees like driver's license charges, court fees, license fees, and corporate filing fees.

Neither the Secretary of State's office, nor the state department of transportation, receive anything from the state's general fund.

The only state departments that receive a majority of their revenues from the state general fund are the corrections department, K-12 education, the judicial branch and the state legislature.

Cross Posted at Colorado Confidential.

Cheers To New Think Tank

Paul Kurtz, a leading secular humanist advocate and former neighbor of mine, has founded a new Washington D.C. think tank and lobbying group.

[T]he Center for Inquiry-Transnational, the small public policy office will lobby and sometimes litigate on behalf of science-based decision making and against religion in government affairs.

The announcement was accompanied by release of a "Declaration in Defense of Science and Secularism," which bemoans what signers say is a growing lack of understanding of the nature of scientific inquiry and the value of a rational approach to life.

"This disdain for science is aggravated by the excessive influence of religious doctrine on our public policies," the declaration says. "We cannot hope to convince those in other countries of the dangers of religious fundamentalism when religious fundamentalists influence our policies at home."

While the speakers at the National Press Club unveiling were highly critical of Bush administration policies regarding stem cell research, global warming, abstinence-only sex education and the teaching of "intelligent design," they said that their group was nonpartisan and that many Democrats were hostile to keeping religion out of public policy.

Hurray for the good guys.

Got milk? It not only builds bones, it fights disease.

Everyone associates orange juice, a good source of vitamin C, with resistance to infection. Few people think of milk, a major source of vitamin D, the same way.

But, new studies, having their roots in an outbreak of flu in a hospital for insane criminals that skipped a ward where inmates were on Vitamin D supplements, show that in fact Vitamin D has significant immune system benefits (Science News subscription may be required for link).

On the basis of more than 100 articles that he collected, [John J.]Cannell and seven other researchers now propose that vitamin D deficiency may underlie a vulnerability to infections by the microbes that cathelicidin targets. These include bacteria, viruses, and fungi, the group notes in a report available online for the December Epidemiology and Infection.

Cathelicidin is an anti-microbial agent produced by the human body as part of its immune system.

The Most Important Numbers in Colorado

State House 39-26 Dems +4
State Senate 20-15 Dems +2

Democrats Who Are State Officers Before 2006 Election: 0/5
Democrats Who Are State Officers After 2006 Election: 3/5

Moderate U.S. Senators, Who's Left?

Who are the most moderate Republicans left in the U.S. Senate (according to the American Conservative Union rankings)?

1. Arlen Specter (Pennsylvania) 45 next election in 2010.
2. Olympia Snow (Maine) 50 next election in 2012
3. Susan Collins (Maine) 55 next election in 2008.
4. Ted Stevens (Alaska) 64 next election in 2008.
5. Pete Domenici (New Mexico) 74 next election in 2008.
5. Richard Shelby (Alabama) 74 next election in 2010.
7. Gordon Smith (Oregon) 75 next election in 2008.
8. Lisa Murkowski (Alaska) 76 next election in 2010.
9. George Voinovich (Ohio) 77 next election in 2010.
10. Judd Gregg (New Hampshire) 79 next election in 2010.
10. Richard Lugar (Indiana) 79 next election in 2012.

Also notable are conserative Republicans who represent purple states and are up for election in 2008. They include:

Wayne Allard (Colorado)
Norm Coleman (Minnesota)
John Sununu (New Hampshire)

The hot races for Democrats to try to improve their majority in the U.S. Senate in 2008 will be:

Oregon, Colorado, Minnesota, New Hampshire, Maine, New Mexico and Alaska.

Colorado already has a strong Democratic candidate in the form of Mark Udall, running for U.S. Senate. I don't know the state of the other five races, but Alaska is likely to be an open seat, making it more attractive than it might be otherwise.

The most moderate incumbent Democrats in the U.S. Senate are:

1. Ben Nelson (Nebraska) 53 next election in 2012.
2. Robert Byrd (West Virginia) 30 next election in 2012.
3. Ken Salazar (Colorado) 28 next election in 2010.
4. Mark Pryor (Arkansas) 25 next election in 2008.
5. Evan Bayh (Indiana) 21 next election in 2010.
5. Blanche Lincoln (Arkansas) 21 next election in 2010.
7. Mary Landrieu (Louisiana) 20 next election in 2008.
7. Harry Reid (Nevada) 20 next election in 2010.
7. Kent Conrad (North Dakota) 20 next election in 2012.
10. Byron Dorgan (North Dakota) 18 next election in 2010.
10. Bill Nelson (Florida) 18 next election in 2012.

Note that Joseph Lieberman (an "independent Democrat") who next faces voters in 2012, failed to make the list, even though he has been outspokenly conservative on some high profile issues and in symbolically breaking with his party in his independent election run and statements in support of President Bush.

The prospects of Democratic incumbents being replaced by more liberal U.S. Senators in 2008 is dim. Both moderate Democrats facing the voters in 2008 are in red states where moderation is necessary to be re-elected. In short, the moderate wing of the Democrats in the U.S. Senate is firmly entrenched.

Ben Nelson is the man in the middle in the U.S. Senate. He is the only Democrat is who more conservative than any of the Republicans in the U.S. Senate, and when Democrats hold 51 seats in the U.S. Senate, he is the pivotal vote on a wide variety of issues.

The Most Important Numbers Of The Election

Sen House Gov
Dems: 51 232 28
Reps: 49 203 22
D+/-: +6 +29 +6

Creationist Kent Hovind Convicted Of Tax Fraud

One of the most famous advocates of Creationism, Kent Hovind, was convicted of tax fraud in federal court in Florida on November 2, 2006. He is being incarcerated pending sentencing on January 7, 2007, because he is considered a flight risk.

He was convicted of all charges. These included (per the Wikipedia link above):

[T]welve counts of willful failure to collect, account for, and pay over Federal income taxes and FICA taxes under 26 U.S.C. § 7202, forty-five counts of knowingly structuring transactions in Federally-insured financial institutions to evade the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. § 5324, 18 U.S.C. § 2 and 31 C.F.R. sec. 103.11, and one count of corruptly endeavoring to obstruct and impede the administration of the internal revenue laws under 26 U.S.C. § 7212. Twelve of the charges are for failing to pay employee-related taxes, totaling $473,818, and 45 of the charges are for evading reporting requirements by making multiple cash withdrawals just under the $10,000 reporting requirement (smurfing). The withdrawals, totaling $430,500, were placed in 2001 and 2002.

He did not mount a defense at trial and has denied, on cranky grounds, the Court's jurisdiction over him. My ball park guess, based on excerpts from the relevant U.S. Sentencing Guidelins is that he is looking at about 4 years in federal prison, although that may be on the low end of the scale.

The convictions are the culmulation of years of litigation by Hovind against the government, and by the government against him, for a variety of offense, some base, like assault, and some technical, like zoning violations and tax charges.

In Defense Of Writing In Paragraphs

I write long posts on my blog. I write long comments in response to other people's blog posts and comments. Usually, my posts and comments are long enough to need multiple paragraphs.

This style of writing does not maximize the approval you get in forums like Daily Kos where people can rate each other's posts. It also is contrary to every instinct of print journalism, where your headline and first paragraph are everything, and the emphasis is on swiftly conveying the facts to a busy reader.

We live in an era where politics are driven by sound bites and slogans. Maybe this has always been what politics is about, nostalgia for the Lincoln-Douglas debates notwithstanding. I myself frequently find political debate excruciating to attend in person, especially if they have extended question and answer periods from the audience.

One of the reasons I like blogs is that they provide an antidote to this abbreviated, unnuanced, thinly reasoned and fact poor form of political discourse. Politics by sound bite has an inherent tendency to polarize people. Real political discussions, and real political analysis at multiple paragraph lengths, allows you to include the nuances that can build consensus.

In politics nuance matters. South Dakota's Referendum 6, which would have banned abortion in all cases except those where the health of the mother was in danger, would have passed by a landslide if it had included exceptions for rape and incest, which make up a very small percentage of South Dakota abortions.

Colorado's Amendment 42, establishing a minimum wage in the state constitution, would have passed by a much larger margin, and received much wider newspaper endorsement, had it been a proposed statute rather than a proposed constitutional amendment.

A few differences in the definition of instructional expense made the difference between Referendum J, which proposed to force school districts to spend 65% on instruction, impacting just 3 school districts in the state, and Amendment 39, which on the surface proposed the same thing, which would have impacted all but 11 school districts in the state (there are about 178 school disticts in all, IIRC).

Writing in paragraphs builds consensus, and promotes moderation. It creates openings for rational, civil discussion of delicate issues. It allows for greater precision, which in turn, leaves less room for miscommunication. And, miscommunication is common when people don't know or trust each other.

It takes longer to read political analysis that comes in paragraphs instead of on bumper stickers. It also takes longer to respond to that kind of analysis, and it discourages nit picking comments that claim you didn't address some nuance that matters to someone. This may mean that there are fewer participants in the discussion. The best way to provoke discussion, and talk radio hosts know this, is to say at least one thing that your audience members know is obviously wrong and defend it. But, on this blog, at least, it isn't all about ratings. It is also about the quality of the readers that I get, and the quality of the experience that they have reading what I write.

Writing in paragraphs can be an excuse for flabby writing. Certainly, it is easier to write a long speech than it is to write a short one. But, perhaps because of my academic upbringing and biases (I have been a professor myself), I favor thoughtful, if sometimes a little flabby writing, over writing that is terse but vapid.

Veteran's Day 2006

We acknowledged Veteran's Day this year in my home by raising a flag, explaining to my children in a few words what the day meant, and having poppy seed rolls. I didn't have the heart to explain the meaning of the poppy seeds -- a symbol much more potent in Europe and the British Commonwealth than it is in the United States.

Poppies recall the hundreds of thousands of men who died in the poppy fields of Europe in World War I. They have been a symbolic icon of the price of war in Europe and the British Commonwealth for almost a century now. Those deaths still haunt Europe. The losses of two World Wars are still conscious memories in every village and town there. Even half a world away in New Zealand, memories of events from those wars, poppies and all, are more a part of the national legend as Iowa Jima, or Tripolii are in the United States. The stories are told, every year, like a national litany adorned with poppies.

Soldiers, British and American alike, now as then, are dying in poppy fields again. This time, those fields are in Afghanistan, the world's leading producer of opium for the black market. Perhaps, it is time for that symbol to acquire relevance in the United States now.

Eye On South Dakota

South Dakota has received a fair amount of national attention for its ballot measures this election.

Referendum 6, to ban abortion in all circumstances except the health of the mother, failed 44-56. This is still a seriously anti-abortion state. About 44% of voters favored the ban, and a large percentage of those who didn't opposed the measure only because it didn't include exceptions for rape and incest.

Other "liberal" measures failed in South Dakota, but by remarkably small margins for such a diehard red state. A measure to allow medical marijuana failed by only 48-52. A proposed ban on same sex marriage won by only a 52-48 margin. And, South Dakota returned a Democrat to Congress as its at large representative in the U.S. House.

This was a serious red meat election for Republicans in South Dakota, which should have boosted conservative turnout. But, social conservatives showed that while they are a majority, that they aren't the force that they once were in the state.

My Predictions v. The Results

Before the election I made some predictions, mostly, but not all, safe ones. How did I make out? The shorter version is that I misjudged five of sixteen ballot issues, and rated one as less close than it really should have been rated. I was correct on all partisan races where I gave an opinion and on the judicial race where I gave an opinion.

National:
1. Democrats will win a majority of the seats in the U.S. House of Representatives.
True
2. Democrats will win more seats in the U.S. Senate.
True
3. Ohio's next Governor will be a Democrat.
True
4. New York's next Governor will be a Democrat.
True

Colorado:
1. Democrat Bill Ritter will defeat Republican Bob Beauprez by a comfortable margin in the Governor's race.
True
2. Democrat Ed Perlmutter will defeat Republican Rick O'Donnell in the 7th Congressional District race.
True
3. Amendment 38 (Petitions) will be defeated.
True
4. Amendment 40 (Judicial Term Limits) will be defeated.
True
5. Amendment 41 (Government Ethics) will pass.
True
6. Amendment 44 (Marijuana Possession) will fail.
True
7. Referendum G (Obsolete Constitutional Provisions) will pass.
True
8. Democrat John Salazar will defeat Scott Tipton in the 3rd Congressional District race.
True
9. Democrat Diana DeGette will defeat her Green Party opponent in the 1st Congressional District.
True
10. Reform Candidate Eric Eidness will not win the 4th Congressional District race, despite having received many newspaper endorsements and doing well in the polls for a third party candidate.
True
11. Democrat Mark Udall will prevail over token Republican opposition in the 2nd Congressional District.
True
12. Voter turnout will be lower than in a Presidential election year, but will be at levels at least comparable to the 2002 election.
Still Unclear
13. The percentage of votes cast absentee and by early voting in 2006 will be greater than in 2002.
True
14. All judges other than Court of Appeals Judge Marquez will be retained.
True

Denver:
1. Referendum 1B (Financial Reorganization) will pass.
True

Of course, the flip side of the easy predictions, are the races to watch. They are:

Toss Up
Secretary of State
Republican wins with 51.6% of the vote -- CORRECT
State Treasurer
Democrat wins with 50.4% of the vote -- CORRECT
Amendment 39 (School Spending)
Fails 31-69 --- Prediction WRONG
Amendment 43 (Marriage)
Wins 56-44 ---- Prediction WRONG
Referendum I (Domestic Partnerships)
Fails 53-47 --- Prediction not clearly wrong.

Leans Democratic
State School Board District 7
True
State House Control
True

Leans Republican
Attorney General
True
CU Regent At Large
True (but final count could still flip this one)
4th Congressional District
True
5th Congressional District
True
State School Board District 4
True

Leans Pass:
Amendment 42 (Minimum Wage)
True
Referendum E (Veteran's Property Taxes)
True
Referendum F (Recall Deadlines)
False --- Prediction WRONG
Referendum H (Tax Deduction For Illegal Immigrant Compensation)
True -- but should have been rated toss up, was very close.
Referendum J (School Spending)
False --- Prediction WRONG
Denver Referendum 1A (Preschool)
True -- but should have been rated toss up, was very close.

Leans Fail:
Referendum K (Immigration Lawsuit v. Feds)
False --- Prediction WRONG

Likely Democratic
State Senate Control
True

Likely Republican
6th Congressional District
True
CU Regent District 3
True

Likely Retention
Court of Appeals Judge Marquez
True

Robert Gates and Osama Bin Laden

A Daily Kos diary from a regular and respected member of that internet community, LondonYank, makes a credible case that the new nominee to be U.S. Secretary of Defense, played a large and personal role in promoting Osama Bin Laden and his organization.

Sometimes history betrays you. I don't care how reasonable it seemed at the time. If true, these allegations should sink this nomination.

Being Secretary of Defense is a privilege, not a right, and a man who has helped Osama Bin Laden come to power is not the right man for this time and place. His inside knowledge of the man and his organizations may even provide him with a valuable resource to conduct a war on terrorism now. But, his judgment has proven, in hindsight, inexcusably bad on a matter of importance, again, if this allegation is true.

Somebody should, at least, ask the questions that this allegation raises.

Lame Duck Sessions Need To Go

Colorado doesn't have lame duck sessions. The legislature doesn't pass laws between the election and the appointment of their successors. In parliamentary systems of government, the cabinet of the outgoing government becomes a caretaker government generally as soon as the election is announced, and certainly, after the election is over. Congress does have lame duck sessions where it conducts ordinary business after the election, but before their successors take office, but it shouldn't. The concept is fundamentally anti-democratic.

Lincoln Chaffee intervened to stop the latest ham handed effort of President Bush to appoint controversial John Bolton as U.N. Ambassador during the lame duck session, knowing that Bolton is doomed when the Congress takes office.

There is no reason that a Congress should have the power to approve nominations at all after an election and before the newly elected Congress takes office. Recess appointments can handle emergencies that come up in November and December, and would terminate in January. And, there is no reason that non-emergency legislation needs to be passed in this time period either. If the budget isn't done, perhaps they should have the power to pass a continuing resolution until the new Congress takes office, and if we are attacked, perhaps they need to reconvene to declare war, but that is it.

What The GOP Did Wrong: A Republican View.

We just got our ass kicked and everybody damn well knows the reason why. . . .

The Iraq war is a disaster. Not irretrievably so militarily or strategically, where we are surviving a war of attrition in what is essentially a test of political will, but politically - where the rationales and strategies and realistic prospects for the war have not been described to the American people. This is a failure squarely to be laid at the door of the White House and its communication machine. . . .

The ethical emanation coming from the Congress is putrid. It’s on a bipartisan basis, but scrappy underdogs get forgiven for their colorful escapades. People who are allegedly governing don’t.

This Congress’ performance on other issues has been at best uninspired. No decisive action to take control of the nation’s borders. No resolution reached of the knotty questions surrounding immigration policy. No progress on fixing Social Security. A trainwreck prescription drugs bill hated by everyone. Bloated pork bills designed to curry favor with every special interest group in America - how well did that one work out for you, fellows? Currying favor with us religious elements on trivial crap, and blowing us off or dropping the ball on big picture questions. The list goes on.

Damn it all, this has to stop.

We are not electing you people to go to Washington and get rich in sweetheart deals. We are not electing you people because we saw your picture and said “this guy should get invited to every cocktail party in the Beltway”. We send you to our nation’s capital - a place where American soldiers have seen battle and shed blood - in order that you can govern this nation. But most of you don’t even govern yourselves. . . .

If you’re thinking “you know, I really need to start having relationships with teenagers…I wonder who’s on Yahoo Chat tonight”, then ask yourself “have we won in Iraq, fixed Social Security, saved the health care system, made progress in the war on terror, AND secured the borders?” If the answer is “no”, then I suggest that you put down the IM client and get your ass back to work.

From here.

Fire Everyone At The Election Commission

This time around at least, Dennis Gallagher is right:

City Auditor Dennis Gallagher called for the ouster of just about everyone at the election commission and reminded reporters that in June he sent the mayor a letter warning that "a tsunami is coming and we are not prepared."

There are only 21 employees of the election commission, plus three commissioners, and their management of this year's election was so disgracefully flawed, that we could do worse than simply fire the lot of them, accept the resignation of all three election commissioners, and start over.

A majority of election commission employees told the City Council this summer that they didn't want to be a part of the City's civil service system. This means that they can be fired at will. They should be. It is hard to assign blame, but somebody in the commission, probably a lot of somebodies are responsible, and the surest way to reform this part of the city's government is to start with a clean slate. Why risk letting any part of the election commission's "corporate culture" survive?

The election disaster on Tuesday in Denver was not a surprise. Elected officials in Denver were begging Mayor Hickenlooper to make something happen long before the election. He harangued the election commission, but his phenomenal reputation for being able to make things happen, even when he doesn't have the formal authority to do so fell through this time around. Activists have been crying the alarm for many, many months. The primary election has bungled at some of the same places that were trouble points on Tuesday.

The city council seriously considered putting a measure on the ballot to scrap the election commission and replace it with the partisan elected clerk and recorder found in 62 counties in Colorado on this November's ballot. The proposal narrowly failed, but if it had been on the ballot this year, it would have passed overwhelmingly.

My daughter's elementary school class was full of election horror stories on Wednesday. Their teacher was unable to vote on her lunch break as planned, and ended up waited two hours. Another child's parents waiting in line for three hours. Yet another child's parents drove to five different vote centers until she found one with a palatable line. (Some things never change, however. In a mock Governor's election held in her class, one candidate promised her fellow students that if elected, she would provide a pony for every child.)

Denver election officials sabatogued Denver voters by sending them to Arapahoe and Jefferson Counties.

The problem was not unpredictably high voter turnout. Turnout on election day would have been relatively modest in any case because of high absentee voter and early voter turnout.

The problem was not the voting machines themselves. There were enough of them to handle the people who showed up to vote and the vote counts weren't cooked. The vast majority of these machines have been used in multiple previous elections without incident. I used one of the new machines to cast my early vote and it was in a number of ways (a verifiable paper audit trail of every vote cast and better controls against accidentially undervoting) a superior machine to the old ones, although the new machines are slower when the ballot is a long one as it was on Tuesday, are less private, and are harder for people with low vision to use.

The problem was not the vote center concept. Larimer County, the county that invented the idea, had five minute lines to vote on Tuesday.

The confusions associated with the transitition from precincts to vote centers certainly was part of the problem. High profile locations like the Washington Park Recreation Center, Denver Botanic Gardens and District 3 Police Station was favored by a disproportionate share of voters overwhelming them, while some lower profile locations were ignored until the word got out that they were uncrowded.

But, information provided by activists and newspapers over the Internet, conveyed to ordinary voters by campaign and Help America Vote volunteers who were kept in the loop via cell phone, proved a quite efficient way to divert voters showing up at overcrowded vote centers to less crowded ones.

I'm also not at all convinced that the lack of a partisan elected official as the chief election officer was the problem. I don't doubt that all three of our election commission officials had their hearts in the right place.

We cannot say that same of Gigi Dennis, our partisan elected Secretary of State who passed illegal emergency regulations designed to undermine Democratic party union support, failed to conduct the certification process for voting machines properly, and was publicly oblivious of the need to avoid appearances of bias by serving as a publicly named official for a campaign her office was in charge of regulating. Donnetta Davidson was a much better Secretary of State than Gigi Dennis, but she dismally failed in 2004 to get ballots out to servicemen in a timely fashion, depriving many of them of a vote in the Presidential election.

Tracy Baker, who replaced Donnetta Davidson as Clerk and Recorder in Arapahoe County who she was appointed as Secretrary of State after Victoria Buckley's death, was ousted a little while ago for abuse of office and sexual harassment is another example of the problem with having partisan elected officials run elections (particularly in a place where one party is dominant) -- he had to be recalled after yellow dog Republicans put him in office even after it had become clear that the job was way over his head.

Victoria Buckley, whom Donnetta Davidson was appointed to replace after Buckley's untimely death, was so dismal across the board at running the Secretary of State's office that the legislature actually stripped the Secretary of State's office of some of its responsibilities for commercial filings and computer system improvements, and gave them to an independent board instead, one she frequently didn't send anyone to meetings of, even though her office had a seat on that board.

Katherine Harris in Florida, who contributed to the fiasco that the Florida election in 2000 was, and Ken Blackwell, in Ohio, whose performance can be aptly characterized as malfeasant, can be added to the parade of horribles associated with having elections run by partisan elected officials.

I don't have high hopes for Mike Coffman, our Secretrary of State elect. He's already been found in an administrative hearing, upheld on appeal, to have violated Colorado's election laws (something that neither Democratic opponent Ken Gordon, nor third parties, brought up in the campaign), and while being a war veteran is a honorable thing in general, I still have deep concerns about the fact that he was at a base where U.S. soldiers raped a woman and murdered her and her family, and was told that something unusual had happened when he was there that day (at least according to Coffman's account to newspaper reporters) and yet he failed to inquire further. The Secretary of State's job is to actively seek out problems that are lurking unseen, not to wait until they are presented to you the way that a judge might. I'm also deeply concerned by the fact that Coffman's own filings with the Secretary of State's office in his campaign were not all in perfectly in order.

Denver's election commission's problem is nothing more, or less, than pure incompetence of the people involved. It is long standing and pervasive. Tens of thousands of misprinted ballots made their way to voters this year, and one of the races on the ballot was left off. In 2004, a failure to properly supervise the person printing the ballots resulted in absentee ballots going out late. This year, the election commission had to draft 100 city employees to be emergency election judges on election day because they grossly underestimated how many election judges would be needed. There were inadequate supplies of provisional ballots at many vote centers. The voter registration computer systems hadn't been adequately tested or thought out, resulting in massive computer failures that were the main culprint in Tuesday's bedlam.

Now that the election is over, the counting of the votes of the people whose remarkable patience won them a chance to vote on election day has been slow. About 118,000 votes have been counted so far, but there are still absentee ballots being counted. This number is low. Many prior midterm elections in prior years have seen turnout equal to 65% of active voter registrations, which would have been about 178,000 votes cast this year. Even a more modest 60% turnout by active registered voters would have produced about 164,000 votes. Even by that lower bar, 46,000 voters in Denver were discouraged and didn't vote. The number of people who actually voted on election day this year was a record low. The lowest turnout Denver has had of active registered voters from 1986 onwards in a midterm election has been 57%. This year, turn out was well under 50% of active registered voters. The fact that the Election Commission website reports that results are from only 1090 voting machines is also disturbing, because there were suppposed to be 1400 of them in use on Tuesday.

Total turnout in the 2006 by all means of voting combined, was at or near a record low this year, despite huge Democratic enthusiasm about the election, and those who did show up to vote on election day will ill treated because they were forced to wait so long. We know that, at least, 55,000 votes were case before election day. So, election day turnout including absentee votes turned in on election day, was under 63,000, a low number that shouldn't have overwhelming the system.

On election day in 1988, Denver had almost 200,000 people vote at the polls on election day. In 2004, there were about 123,000 people. In 2002, there were 89,000 people. In 2000, there were 112,000 people. In 1998, there were 124,000 people. None of those numbers include absentee ballots returned on election day. In contrast, Denver had just 63,000 votes cast on election day this year, and I know from watching operations at vote centers on Tuesday that a good share of those 63,000 votes were absentee ballots dropped off on election day. No Presidential or midterm election in the years 1986 onward in Denver has had such low turnout, even before adjusting for Denver's smaller number of registered voters back then, and a number of school board and municipal elections have had higher election day turnout. The turnout on Tuesday should not have overwhelmed the system and was not unpredictably high.

The solution to incompetence is not to change the system, although the case for an overhaul of the election commission in some form has now been made. It is to remove incompetent people from their jobs. Once that is done, there is time to think about reform.

Perhaps, we need an nonpartisan election commissioner, or even a partisan one. This election certainly hasn't made the case that the non-political business of recording deeds and issuing marriage licenses and license plates should be run directly by a partisan elected official who reports to no one.

Perhaps, we need the election division director to be appointed, perhaps with the approval of the city council, so that he or she is accountable to a high profile elected official, and can be removed when it becomes clear that he or she is screwing up.

But, the status quo is unacceptable. All three election commissioners should submit their resignations now, and all twenty-one employees of the commission should be fired when the new commissioners take office. And, this time around, we should care less about our election commissioner's motives (any direct or indirect form of political appointment isn't going to threaten voter turnout in Denver with someone who has bad motives), and more about getting a competent person to do the job.

Rumsfield Out and Ruminations On Iraq

A Politically Timed Resignation

Timing and the speed with which the administration has named a replacement (Robert Gates, a former CIA director with Iran-Contra ties) in the wake of Donald Rumsfield's resignation today, suggests that Rumsfield's departure has been planned for months. It was simply timed for after the election to avoid making the President look weak or seem to admit that Iraq has been a mistake.

It is a decision long overdue, made only after multiple prior attempts by Rumsfield himself to resign, a joint editorial from the military newspapers calling for his resignation (no doubt emboldened by inside information that it was going to happen anyway), and a growing consensus even among moderate Republicans, that Rumsfield's management of the Iraq war was dismal.

I suspect that it was also timed as soon as possible after the election, in order to secure a confirmation from the Senate in the lame duck session, and thereby avoid embarassing questions from Democratic Senate Armed Services Committee members. The resignation also defuses Congressional investigations in the new Congress into Rumsfield's failings. All such inquires can now be addressed by saying, "I fired him. What's the point of this hearing?"

The Man Is The Message

What messages is the Bush Administration sending with its latest nomination?

Gates certainly doesn't signal any change from a Bush Administration penchant for secrecy and disregard for the rule of law in the way it handles the "war on terror." Gates is the kind of man that Dick Cheney, the driving force in the administration behind its support for torture and opposition to the rule of law can love.

The Gates nomination may, however, signal a grudging recognition that the Bush Administration practice of ignoring its own intelligence agencies has been counterproductive and contributed to the malaise that has afflicted the Iraq situation.

The Gates nomination is also a nomination that recognizes that the Defense Department now needs professional expertise more than it does political experience. Gates probably even knows the difference between a Sunni Muslim and a Shiite. Political experience was a valuable credential when Rumsfield was appointed and job number one was a bureacratic shake up of the agency that Congress would support. But, politicall experience is no longer a priority now that two regional wars have taken center stage and potential hostilities in Iran and North Korea are foremost in the administration's mind. Joe Lieberman was no doubt considered for the post, but was deemed to be something other than what the Defense Department needed right now.

A Consensus Change In Course?

The jury is still out on whether the Gates nomination will be accompanied by any material change in U.S. military policy. Does the administration want a new course, or merely a new face?

There is a consensus in the community of informed observers of U.S. military policy that there does need to be a change in course. We don't know if Robert Gates subscribes to it.

First and foremost, the Defense Department needs to start acting like it is fighting a war, if that is what it is going to do. Business as usual in the Air Force, Navy, R&D and procurement arms of the Defense Department, while the Army and Marines are patrolling the streets and country roads of Iraq and Afghanistan is folly. So is an insistance that the U.S. military's post-Cold War peace dividend sized force is sufficient to fight two regional wars, both of which will last longer than World War II did. The Army is starved for equipment and personnel and not receiving the resources it needs to do the jobs it has been assigned to carry out.

Secondly, somebody needs to pay attention. Long term planning is a concept inconsistent with fighting a war. The newspapers have been decrying equipment shortages that reduced U.S. Army readiness for months. These pleas seem to have fallen on deaf ears. When problems are discovered, they need to be addressed promptly, not denied. It took years for the military to address shortages of armored humvees and body armor on Rumsfield's watch. Senior military and civilian officers knew for months about the problems at Guatanamo Bay and Abu Grahib, and did nothing but call for more investigation. Somebody needs to be placed in charge of whacking the moles that inevitably pop up in the course of such massive operations.

Third, the Defense Department needs to have a real strategy in Iraq, and it needs to be a strategy that, as a military force of a democratic nation, it can explain to the American people, as well as those charged with carrying it out. While tactics can be carried on in secret, a massive Republic like the United States must develop its strategies in the open.

Will Gates addresss any of these problems? We have no choice but to wait and see.

The Aimless War

The current name for the various conflicts the military faces in the Middle East and Central Asia, and in its "war on terrorism" is "The Long War," a description that aptly captures just how aimless the current strategy of the U.S. military is in responding to these threats. Only a fool enters into a war intending it to be a long one.

Right now, U.S. strategy in Iraq seems to consist of patrolling the streets in an effort to maintain order, trying to root out individual insurgents and kill them, training an Iraqi military as soon as possible, and letting the Iraqis try to govern themselves. This is the course that we have been staying for a couple of years now. It hasn't reduced attacks on U.S. forces or civilians, it hasn't stabilized the Iraqi economy, and self-government in Iraq has been stumbling and less than competent.

No Easy Way Out

The problem, as far minded Democrats have acknowledged for a long time now, is that however misguided the Iraq War was, and however poorly it has been run, that we are there and that leaving in bad order could simply plunge Iraq into even greater anarchy and put a truly noxious regime in place.

Difficulties in establishing self-government are the norm in any newly emerging civilian government. This is particularly true in a country that has been a dicatorship for decades, now being run by members of multiple minorities that were shut out of the political process during that period, who thus has no political experience. There are problems with having a country run by a class of professional politicians, but trying to get monumental tasks completed in a country run by a class of amateur politicians is even harder.

Perhaps Gates is better equipped to recognize that any war, and particularly this one, is simply politics by other means, than Rumsfield. Neither the Iraq war, nor the war in Afghanistan, will end until they are resolved politically. Simply killing insurgents will not end these conflicts, unless you are willing to slaughter every able bodied man in each country and quite a few of the able bodied women and children. At this point, military involvement is treating the symptoms of a political crisis, not providing a cure. But, the patients in these cases have severely diminished abilities to recover on their own while the symptoms are held in check. Every day that ability to recover weakens.

Iraq was a relatively prosperous Middle Eastern nation, despite its relatively small per capita oil resources, because it had a real educated middle class, something neighbors like Saudi Arabia largely lack and import in the form of foreign guest workers instead. That educated middle class has voted with its feet and fled the country for now. Afghanistan lost its educated elites in the 1970s and is only now starting to recover them.

Modern nation states cannot function without managers and professionals, both in the private sector, and in government, to make them work. It takes both knowledge and administrative competency to rebuild infrastructure, run an economy that provides basic goods and services to millions of people who are not subsistance farmers, and to keep government funds from state owned enterprises, international aid and taxes from being squandered.

There aren't easy solutions. Sometimes the Army Corps of Civil Engineers will simply have to do the work itself. Restoring order is essential too. And, the massive U.S. embassy in Iraq is going to have hold the hands of the amateur politicians running Iraq now to point them towards practical solutions to Iraq's political crisis (one created when the U.S. led coalition created a political vacuum by deposing the existing government) without disrespecting the officials to whom we have turned over authority in a way that undermines their ability to govern.

In the Balkans, the U.S. indirectly sponsored training camps for political movement leaders, so that they could be more effective. Perhaps something along the same lines, or some sort of national political conference, could achieve similarly worthwhile ends.

More important than individual political skills, however, is a governmental system that mere mortals are capable of operating. The Swiss are capable of running a complex multi-ethnic political apparatus with hundreds of years of tradition and custom to help them out, and one of the most educated societies in the world. Asking the same thing of Iraq's emerging political class is unrealistic.

There are many more people capable of herding a homogeneous group of politicians, be they Kurdish or Shi'ite or Sunni, who are united by a common set of ideals or non-political leaders, than it is to look beyond narrow political power consideration to build elaborate multi-ethnic coalitions of people who can't agree on anything and have a history of violent conflict that is recent enough to be fresh in everyone's memory. The Baath party was the political symbol that held the idea of Iraq together. Without it, there is no common ground.

No one person is going to craft a solution alone. But, simply recognizing that the problem can't be solved by brute force, and throwing lots of smart people at this part of the problem, would be a good start.

Once there is a strategy in place to get a political solution, the tactics of U.S. forces will be more clear and the force in place can be better matched to missions that will actually support the development of a political solution, which would allow U.S. troops to leave without guaranteeing the immediate collapse of large populations centers into unimaginable bedlam.