Tuesday, May 20, 2014

California June Ballot: Statewide

We Californians have a pretty thin primary ballot this go-round, but here are my summaries and recommendations on the two propositions:

41: Yes. Prop 41 is a $600 million bond initiative for housing low-income and homeless veterans, but in a certain light it's not even new spending. In 2008 the voters approved $900 million in bonds for a similar purpose, but that money remains unborrowed. Under that measure, Prop 12, the Department of Veterans Affairs (CalVet) was to use the money to make low-interest loans to veterans buying houses and farms. But right after that the economy collapsed, and CalVet never drew on any of the Prop 12 money, because not only were people not buying houses, but the interest rate that had previously been below market became above market. Now, the Legislature has voted unanimously to rededicate 2/3 of that unused bond authority to affordable, transitional, or sustainable housing for veterans, prioritizing extremely low-income veterans (under about $14,000/year income).

Note the difference: before, the idea was to help veterans buy houses; now, it's going to build housing (by distributing the money to local government, nonprofits, or private developers) and then rent it out to veterans at whatever they can afford (which might be nothing). Multifamily rather than single-family housing is targeted. I'm pleased that the minds behind this proposition seem to have taken as a guiding principle that you address homelessness foremost by simply getting homes for people, after which helping them becomes a lot easier. The focus has shifted from the Platonic ideal of a person with a job in the suburbs to a realistic assessment of people's situations and what is likely to be most effective for people in the most need.

$600 million is a lot; is it too much? No, not really. According to HUD's Annual Homeless Assessment, in January 2013 there were 15,179 homeless veterans in California (see page 40 of the link). Divided out, that's less than $40,000 per person, which at a quickly-Googled national average construction cost of $125/square foot could theoretically build a 320-square-foot apartment for each homeless veteran. But that doesn't take into account housed but extremely low-income veterans (perhaps with unaffordable or irregular housing) who would also be among the beneficiaries, or veterans' families. Also, in practice, zoning and land-use issues, as well as the difficulty of finding enough localities and organizations to take on the work, may well leave some money on the table. So $600 million is arguably insufficient for solving the entire problem - but it could go quite a long way.

I'll admit I'm not exactly thrilled about the focus on veterans. They have a high, and valid, moral demand on public empathy and the public purse, but I don't see that as significantly higher than that of other homeless and low-income people, whom society has seriously neglected in other ways. Generally dividing the poor into worthy and unworthy is an illegitimate enterprise, and focusing on veterans is arguably a version of that. But even if this measure provided housing for veterans and nobody else (which is impractical), it would benefit everyone by easing demand for rental and supportive housing overall. In practice, it's only required that 50% of the funds end up housing veterans with extremely low incomes (though all programs must be targeted to them), so a good portion of the benefit will spill over to other homeless and low-income.

Finally, the actual impact on the state budget would be the need to pay off the bonds at $50 million a year for 15 years - very affordable considering the rest of the budget, and that the legislature is determined to find room for it.

42: Yes. Last year there was a fracas where the Governor almost signed a bill that declared it "optional" for local governments to comply with certain aspects of the Public Records Act: responding to requests in some way within 10 days, actively assisting people find the information they are looking for, making electronic data available in any requested format it exists in (i.e., searchable formats!). They weren't trying to end these practices as such, they were just being rather reckless about them - the state constitution requires the state to reimburse local governments when it requires them do things, and this was one of those things, and I presume (I haven't found any inside scoop) they thought those reimbursements were something that could usefully be cut, because local governments would follow the rules anyway. As a bandage, the bill would have required local governments to declare publicly if they were choosing to abandon those rules.

Of course there was an outcry, although only after the bill was passed as budget trailer language - a bill printing out as 57 pages full of dull provisions implementing the budget decisions for the year, usually passed in some haste. The Governor held back after the outcry, and this proposition came into being. It says that as a constitutional matter, local governments must follow the public records and public meetings laws, whether or not the state pays them for their expenses.

This is mostly a no-brainer - so much so as for it to be unclear why it needed to be on the ballot in the first place. The amount of money at stake is tiny; the state could have backed down, or negotiated something with the localities. But it's still a decent proposition in isolation. (Nobody came forward to oppose in the voter guide, so one Gary Wesley wrote some halfhearted paragraphs, but evidently the task was so boring he used some of the space to write about highway tolls.)

My only tiny reservation is that the Brown Act on public meetings, one of the laws that would be written into the constitution, may overreach a bit - in my limited access to city government, it imposed so many restrictions on public meetings that it made it hard for councilmembers to even maintain contact with each other. But my experience is limited, and the Act enshrines basic public access to meetings in a dozen different ways.

Sunday, November 4, 2012

The rest of the propositions, in brief

In my series on the major California propositions, I've previously analyzed and made recommendations on Prop 30 (yes), Prop 31 (no), and Prop 35 (no) in this space. Election Day is nearing, and I felt less need to go into the others in detail, so I've ended the long analyses. Below are the others, both for the state and for my own county.

State measures

32: No. A transparent assault on the ability of unions to conduct political campaigns. Pretends to be about getting money out of politics, but in fact bans paycheck deductions for political purposes purely in order to target unions - the ban doesn't matter to corporate interests because they can use profits; for unions, deductions are all they've got. For all their faults, unions are an indispensable voice of working people in a political structure that now ignores them wherever possible. (And for the record, in case anyone's wondering, the dues paid by non-members in unionized workplaces legally have to be reduced to avoid subsidizing any political activity.)

33: No. Says it's about letting the car insurance industry give discounts to people with continuous coverage regardless of who it's with; in fact, the intent is to let them jack up prices on all the others (possibly as much as tripling!) and try to poach the less risky, higher-income continuously-covered policyholders from each other. Exempts people laid off or on military service, but does not exempt those with long-term illness, those who shift to public transportation, those unemployed for more than 18 months, even (as I read it) those fired for cause rather than laid off (why should that rate you more expensive insurance?) and any number of other good reasons not to have continuous coverage. Those affected will be disproportionately low-income, and it will make it even more difficult for them to retain car insurance. Finally, regardless of its content, nobody should ever vote for a proposition that's 99% financed by a single billionaire whose business it regulates.

34: Yes. Anyone who honestly studies the death penalty, even if they don't agree it's immoral in theory, will see clearly at this point that our judicial system is not reliable enough to avoid applying it to the innocent, and that it's ridiculously expensive to implement. Commuting all their sentences to life imprisonment saves at least $100 million a year (going to $130m later on) without harming anyone.

The only argument against 34 I've seen from the left is that some death-row prisoners are against it because they'd lose their state-funded appeal and habeas corpus representation, and lose the chance of clearing their name. The way I see it, they get the extra assistance because they've been sentenced to death, and the obligation is less pressing when their sentences are commuted to life. If non-death-row prisoners deserve representation on appeal as well as trial, they should all be so entitled whether or not they were originally sentence to death, and that should be considered as a separate issue. Finally, I don't see how this objection will ever stop being applicable; we need to rip the band-aid off and stop perpetrating more injustice.

36: Yes. No life sentences for third-strike bread-thieves. More easy money through by being more rational and humane as a society.

37: Weak yes. GMO labeling is very far down the list of social priorities. Labeling in general seems to do little to spur consumer action, and I doubt genetically-modified organisms pose health threats; however, they represent a big ecological leap we have taken without full scientific evaluation, and it seems to enhance the problems of monoculture, pesticides, and economic dependence by farmers on Monsanto and its like. So I feel a little more attention to the issue might not come amiss. I automatically categorize all industry complaint about the expense of labeling as insubstantial whining: food is subject to a great deal of computerized tracking already. I don't think this will be effective, but don't think it will be harmful either.

38: No. See my post on Prop 30 and why Prop 38 is a weak substitute.

39: Yes. It raises revenue by closing an exemption in the tax code for multistate corporations - definitely a group that can stand to bear more taxation. A drawback is that it dedicates a lot of the resulting funding to clean energy programs - more ballot-box budgeting that makes the budget more and more difficult every year. Clean energy is good, but I want the Legislature to have the option to allocate the money where it's most needed. I was tempted to vote no, on the same principle by which I voted no on the Prop 29 tobacco tax. However, unlike 29, which specially dedicated all its revenue, this would leave behind a fair amount (in the hundreds of millions) to the general fund. At this crisis point, every little bit helps.

(For intellectual consistency, since I went after Chris Kelly in my post on Prop 35, I should mention that this seems to be a vanity measure as well - 94% of its funding is from hedge fund billionaire Thomas Steyer. However, I can set that aside when it results in a better proposition.)

40: Yes. The citizen's redistricting commission has done a good job, and a yes vote will keep its work in place.

Alameda County measures

A1: No. Funding for the Oakland Zoo is nice in theory, but I don't think it's anywhere near a priority; there's little political space now for new taxes, and I'd like to see what there is going to essential services. I'm also concerned that it's self-dealing: the nonprofit that contracts to the City of Oakland to run the zoo is the writer and campaigner for the measure, and the money would go directly to them. There is an outside oversight committee, as usual, so it wouldn't precisely lock the city into using the contractor as the East Bay Express has implied, but it still seems fishy.

B1: Yes. 1-cent dedicated sales tax for ten years to fund continued and expanded transportation projects. Sort of ballot-box budgeting, but a better type as they go, as the money goes to the AC Transportation Commission, which is a commission of elected city, county, and transit-agency officials - so properly coordinated with other public efforts. Effectively only a half-cent increase, because it would replace a similarly dedicated half-cent tax (Measure B). It is planned to go 48% to public and specialized (elderly/disabled/etc.) transit, 30% to roads, 9% highway efficiency and freight development, 8% to bicycle and pedestrian works, and 5% to sustainable land use and transportation projects. Desperately needed: the state and nation are eating seed corn by underfunding transportation infrastructure, our highways are falling apart, and as the car-dominant era ends one way or another we need public transit to grow into. Of course, the sales tax is regressive; in an ideal world this investment would be funded by a progressive tax. But counties are unable legally to levy income taxes; so if the levels that can won't step up, we'll have to do as much as possible ourselves. Then too, public transit and other car-alternatives primarily benefit the low-income, so like with Prop 30, the benefits will be progressive. 

Saturday, November 3, 2012

No on Prop 35: the analysis

This is the third in a continuing series of blog posts analyzing the major propositions on the November 2012 California ballot. Prop 30, Prop 31.

As election day nears, I'm skipping through to a proposition people probably need the most education on: number 35.

Proposition 35 is largely about sex trafficking. Its biggest provision is to significantly increase penalties against sex trafficking and sexual exploitation, with longer jail sentences and fines up to the seven digits, with fine money dedicated to law enforcement and victim support. Other provisions are meant to facilitate enforcement and convictions: removing sexual history of the victim or mistaking a minor's age as defenses and requiring traffickers to register as sex offenders.

Obviously sex/human trafficking is indefensible. However, that doesn't mean it needs an initiative combating it. The same ideas could be taken up by the Legislature. To that question Californians Against Slavery's website says, for one reason, that they mean to raise awareness, which is a joke: the ballot is an inappropriate forum for "raising awareness," not to mention an inefficient use of their funds. The other cited reason is that the Legislature has failed in the past to pass similar measures.

To see why the Legislature might have done so, let's turn to the substance of 35. There are a number of reasons to take pause.

Just in principle, we have been trying harsh sentencing for 30 years, and it does not seem to solve social problems - just put more people into prison (spending boatloads of money into the bargain) while the problems fester. But certainly many people think sex exploitation is a different animal from other crimes, so I'll pass this argument by.

Getting instead into details, 35 is a complicated bill which seems to greatly expand the definition of exploitation and trafficking beyond how we commonly understand it. The progression goes like this (h/t to Greg Diamond):

- First, they had the bright idea to make it a felony to force a minor for the purpose of not just prostitution, but a long list of Penal Code section references for various sex-related offenses: procuring, child pornography, stripping, etc. All of this is labeled "human trafficking" and punishable by 8-20 years and a large fine.

- Second, the following is also human trafficking:
Any person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518.
So not necessarily forcing someone into prostitution, but just persuading them, would be punishable with 5-12 years! And that doesn't just mean with the threat of force: a subsection below the quoted text raises the sentence to 15-to-life if the inducement is done with "force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury." Meaning that simple persuasion in its ordinary sense, with no threats or deceit at all, falls under the quoted definition for a 5-12 sentence.

This means just one person suggesting a minor engage in prostitution, or pornography, or stripping, even if the persuader isn't involved in or profiting from the enterprise in any way, even if they're just a friend - they would become a serious felon, and a designated sex offender with all that entails. The same would go for a man patronizing a prostitute who he doesn't know is 17. (And many of the offenses in the long list are just misdemeanors in themselves.)

What on earth is the point of this? Why widen the net to people not involved in criminal enterprises at all, to conduct that may be bad but is not coercive or exploitative? This appears to be an especially mindless example of "tough on crime" thinking: with the offense description as broad as possible, that prosecutors can go after whoever they think is the bad apple, and put them in jail practically on the state's say-so.

It's either that or at least very bad drafting. Or both, because the last Penal Code section in the list, 518, is not sex-related at all, but is the crime of extortion: "the obtaining of property from another, with his consent... induced by a wrongful use of force or fear." So if Prop 35 passes, people recruiting minors into non-sexual extortion plots would be sex offenders as well. (Did they mean that kind of scheme where a minor gets someone into bed so a confederate can "discover" and blackmail them? If so, they should have said so.)

A problem with initiatives is that if there are drafting errors, the Legislature will have difficulty fixing them as they are discovered in practice. This is at least a statute, not a constitutional amendment, so the Legislature can amend it, but only "in furtherance of its objectives." Again, this is open to a lot of interpretation. We could well expect lawsuits depending on precisely what amendments the Legislature may decide on -- an even greater waste of time.

I have an idea why the text is so broad and clumsy: because Californians Against Slavery went off on their ego-boosting journey without actually trying to learn about trafficking and what would be useful in combating it. Their head, Daphne Phung, apparently got started in the movement by watching an MSNBC Dateline report in 2008. And John Vanek, former head of San Jose PD's human trafficking task force, says that they have gone about their work with little to no interest in what the rest of the community combating trafficking has to say:
California Against Slavery and Chris Kelly could have invited a broad cross-section of anti-trafficking professionals and asked, as a multidisciplinary group, what changes to current law would be most productive to aid survivors, prosecute offenders, train all elements of the justice system, and raise public awareness. But they chose not to.... If they had done so, Prop 35 might be endorsed by agencies like CAST (Coalition to Abolish Slavery and Trafficking), Asian Pacific Islander Legal Outreach, Polaris Project, ATEST (Alliance to End Slavery and Trafficking), the California Partnership to End Domestic Violence, the California Coalition Against Sexual Assault, and the Not For Sale Campaign; all organizations active in providing direct assistance to victims, advocating for legislative change, or both. Community Solutions, a provider of services to survivors in the South Bay Area is publicly opposed to the initiative.
And if CAS and Chris Kelly had asked for broader and informed input, maybe organizations like the SAGE Project and Chab Dai USA would still be endorsing Prop 35. Instead, both organizations have rescinded their endorsements. The Los Angeles Times, San Francisco Examiner, Sacramento Bee, Fresno Bee, Santa Cruz Sentinel, Riverside Press-Enterprise all oppose Prop 35, a result of their concerns over the way the initiative is written.
Finally, just surmising, this initiative appears to be on the ballot largely because of one person's political ambitions. Out of its $3.7 million raised, $2.4m of that comes directly from Chris Kelly, former Facebook chief privacy officer and unsuccessful primary opponent of Kamala Harris; Kelly has little distinguishing himself as a politician apart from a brief earlier foray into politics in the 90's and, now, a large fortune. There's a distinguished history of aspiring politicians getting behind uncontroversial initiatives, like Schwarzenegger with after-school programs in 2002. Why should Kelly worry about what those in the field think, if it's just something to pin on his lapel during his next race?

Kelly's vanquisher, AG Harris, has convened a statewide workgroup on human trafficking which brought in all the experts and stakeholders left out by Kelly's CAS, and apparently is set to recommend a number of changes in criminal and civil law. I say leave it to them, and vote no on 35.

Friday, October 26, 2012

No on Prop 31 - the analysis

This is the second in a continuing series of blog posts analyzing the major propositions on the November 2012 California ballot. The post on Prop 30 can be found here.

We Americans: we tend to care about constitutional structures almost as much as we do about the actual issues.

Everyone has ideas about how to improve government by tinkering with the Constitution, congressional procedures, or whatever's handy. Term limits! End the filibuster! Don't pay legislators if they don't pass a budget! Make them send their kids to public school! We seem to have inherited the notion of checks and balances so thoroughly that we keep assuming one more check or balance will put everything right again. 

This is very arm's-length for me. I prefer, in my efforts, to push more directly for what I want done. When you get enough of society and elites on your side substantively, procedural issues don't matter so much.* But the same goes for bad policy and bad governance: they have a way of skirting or making irrelevant procedures meant to contain them. (Term limits didn't make politicians impartial citizens, it transferred power to lobbyists and staffers.)

A lot of Prop 31 is a grab bag of these policies, tinkering around the edges rather than offering real reforms. It also contains two ill-advised shifts in the locus of power.

The grab bag first:

1. Pay-as-you-go budgeting, where any new spending over $25 million has to be offset by increased revenue, and vice versa with tax cuts needing decreased spending. This is fairly meaningless since a balanced budget is already required by the Constitution - it just means you have to match up every change one direction with one in another direction, rather than do them all at once.

2. Require 3 days of publicity for bills and amendments before they're enacted. Nothing wrong with this; nothing big would come of it either. (This is about big bills getting pushed through at the last minute, but I doubt the sunshine of 3 days will do much except at the margin.)

3. Let the Legislature budget for 2 years at a time. A decent idea; more long-term thinking is always welcome. But with state revenue as volatile as it is, corrections will probably always be urgently needed at the one-year-in point.

4. Regular objective-setting and performance evaluation for all state programs. Fine in principle; will very likely devolve into an ineffective box-checking ritual. As I read it, for example, the Department of Parks and Recreation could pass the constitutionally-mandated evaluation by scribbling in at the beginning of its budget, "The Department met the objective of achieving a quality environment by continuing to maintain 280 park units," and having the Legislature approve the statement.

This is what I mean about arm's-length measures. You can't write a constitutional amendment requiring policymakers to be good at their jobs. If you think programs are working badly, instead of devoting millions to writing propositions, it makes more sense to actually work to bring the problems and potential fixes to people's attention.

So all of the above are fairly weak changes. Now here are the two big troubling bits of 31.

1. In a fiscal emergency, the Governor can call a special legislative session to take immediate action. If the legislature doesn't pass a fix within 45 days, the Governor can unilaterally reduce spending wherever not constitutionally or federally required, up to the projected shortfall amount.

Our governmental structures generally reflect a belief that overall budgets - like laws - are too big a deal to be decided by one person; it should be a popularly-elected body doing the work, or sometimes, in California's case, the public itself. In this situation, the Governor would suddenly be able to make a budget unilaterally. That's a lot of power.

It wouldn't be so bad if this power were only to be used in true fiscal emergencies, where the state is literally running out of cash and the Governor vitally needs to take prompt action of some kind. But the existence of the emergency is declared by the Governor. And all the Governor has to do for this declaration is to estimate that revenues will drop substantially below spending, or spending will rise substantially above revenues, in the current fiscal year. What is "substantially"? How reliable does the estimate have to be? The text gives no answers. But reasonable people can disagree about the exact state the budget is in, and this would give the Governor a strong incentive to make estimates erring on the side of disaster in order to claim the new power.

Do you trust a hypothetical Governor from the party you oppose to wield this power legitimately? If not, it's probably a bad idea to give the power to anyone.

2. This last provision is even more ambitious. Prop 31 would allow local government entities to get together to form a "Community Strategic Action Plan," in order to provide all their services in a more collaborative, efficient way.

All well and good. I myself think California has far too many special districts: there are school districts, utilities districts, transportation districts, park districts, hospital districts, even mosquito abatement districts and street lighting districts. It would be nice to bring all these services within a unified, inclusive planning process. And the proposition reallocates some state funding to go preferentially to localities doing this, making it likely that everyone would take part.

Of course there's a catch. It goes as follows:
If the parties to an Action Plan... conclude that a state statute or regulation... impedes progress toward the goals of the Action Plan... the local government entities may include provisions in the Action Plan that are functionally equivalent to the objective or objectives of the applicable statute or regulation.
In short, these Action Plans allow local governments to rewrite state law. The text goes on to say that unless both houses of the Legislature reject the proposal within 60 days of its submission, the rewriting will go into effect.

A lot of state programs are run on the ground by local governments in California with state money; I'm sure there are many counterproductive morasses of laws and rules that make it hard for them to actually achieve their goals. But once more, this is a tremendous shift in the locus of power. Normally, for state law to change, there needs to be a lot of support: both houses and the Governor's signature. Under this provision, initiative shifts to the locality, because the change is made automatically unless the Legislature can pull together enough support to stop it. If the two houses disagree, or if someone important blocks the rejection bill in one house, the change goes forward. (Also, the Governor loses any veto power.)

The big two laws mentioned in the debate over Prop 31 as targets for circumvention are the California Environmental Quality Act and the California Clean Water Act. (That's not always meant critically; CEQA in particular is disliked by many in business for slowing down projects.) But the text is so vague, and the power conferred so broad, it seems to open up infinite possibilities. Here are some further outcomes I can think of:
  • Foster care and adoption is a service administered at the county level. Currently, state law requires same-sex couples to be eligible to adopt. Localities could try to reverse this. The overall purpose of adoption programs, they could say, is to do the best for children, and we have determined that only heterosexuals are fit parents.
  • Undocumented immigrants are ineligible for many state services. San Francisco could make them eligible under an Action Plan; they could even say it would be a more efficient use of funds by forestalling future spending on things like preventable health conditions or poverty-based social problems (and if it doesn't, they might have some of the bonus money given for setting up an Action Plan).
  • If a locality believes the completely spurious link between autism and vaccinations, its public health departments could stop vaccination campaigns and school districts could abandon vaccination requirements. The goal of such requirements, after all, is improved health...
Besides the shift in the locus of power, another core problem is that Prop 31 assumes state laws can only be judged on the efficiency they achieve, when in fact quite a lot of them rest on collective value judgments or determinations of fact. And there are enough laws on the books that for every scenario anyone has suggested, there are probably hundreds more possible. Devolving this much power to localities is halfway to splitting the state into pieces, and while California's constituent parts are very diverse, I think the state still works better as a single unit than otherwise.

There are also a great many short-term practical problems with the idea. It would automatically mean dozens of lawsuits trying to clarify the initiative's intent, draining more money and attention away from pressing issues. There may be a massive loophole: the California Budget Project points out that there are some periods when the Legislature is in recess for significantly longer than 60 days and therefore would have trouble even considering an Action Plan's law-revision. Finally, policy chaos would be especially rife for laws where the devil is in the details, and the Legislature could fail to notice the true impact of a proposed minor-seeming change.

For all these reasons, I will vote no on Prop 31 as a misguided exercise in reform almost for its own sake.

Sunday, October 21, 2012

Yes on 30 - the analysis

This is the first in a series of blog posts analyzing the major propositions on the November 2012 California ballot.

Proposition 30 doesn’t require a lot of analysis to get to the main points. It does three basic things:

1. Raise sales taxes by 1/4 of a cent for four years.
2. Raise income taxes on the top 3% of the population, more for higher-income within that range, for 7 years.
3. Use that money to prevent massive spending cuts next year that would otherwise be necessary.

There’s debate over whether it truly dedicates those funds to education, which is an irrelevance (more on that later). The question is, are we in such a budget hole that we truly need to raise this money, or is Sacramento making it up to get more tax money out of us? In fact, the situation is just about as dire as they make it out to be.

The Californian voter is of two minds: she wants common, key social programs funded; but at the same time, she is unwilling to trust that the state government can do this properly and efficiently. Unfortunately, since Prop 13 was passed in 1978, the political structure has tended to exacerbate these contradictions rather than move toward any kind of middle ground. This is not so much 13’s property tax limitations - although those were excessive - but mostly the requirement of a two-thirds legislative vote (or majority public vote) for taxes to be increased. If the average voter is asked if he favors a rise in taxes, he will of course say no. If asked if he favors more spending on education, health, social services, infrastructure, law enforcement, he will usually say yes. So the Legislature properly represents the average voter when it increases spending on vital public goods, but lacks the power to balance that out by correspondingly increase taxes. And so our budget is in a perpetual state of crisis - real, not manufactured, because the services Prop 13 defunds are important services that the average voter in fact wants to keep (with some exceptions), but this preference is structurally blocked from being implemented.

Let’s look at some figures to show what position this state is in. 





State General Fund usage, 2009-10 (2011 CalFacts, Legislative Analyst’s Office)

We spend a majority of the money we have on education, another quarter on health and social services, and another eighth on public safety (especially prisons) and the courts. “Everything else” - a relatively small chunk - includes debt interest, highways, and the environment.

“Ah,” people say, “but everyone doing this work is overpaid because of the unions.” No, not really. Public salaries seem higher than private on average, but a lot of that reflects (a) that public jobs are higher-skill on average than private (when you match up skill-to-skill, public positions often pay less) and (b) that private employers have been concertedly and unjustifiably pushing their workers’ salaries down for decades to enhance profits at the top, so it’s a bad comparison anyway. Also, public employees have not grown in step with the level of services they’re supposed to provide, so their salary doesn’t reflect that they’re being overworked. According to the LAO, in 2008-09 there were 20.8 students per teacher in California, compared to 15.3 nationwide. And that was before some of the recent cuts.

Are there inefficiencies through excessive administration? Certainly there's room for improvement there. But the vast majority of spending is direct provision of services - teachers in classrooms, healthcare and childcare for those who need it, police on the street. There is simply no getting away from that.

The tax structure we have, and which we haven’t been able to rejigger thanks to Prop 13, also makes us very sensitive to economic booms and busts:

The above chart is mine, from state data, and accounts for both inflation and population change: there are huge swings as the economy grows and shrinks, much greater than the economic shifts themselves. This is due to a lot of things, but the point is that we have been having to cut and cut for decades, and the insufficiency of funds is especially acute now. Here’s how it’s impacted K-12 funding, for example:



Funding per K-12 pupil, inflation-adjusted dollars (LAO)

Another situation hurting the budget is three-strikes and the reigning “tough-on-crime” fallacy it’s a part of. In 1981, corrections made up 2.9% of the state budget; today, it’s 10.5%, or $9.6 billion. Even if this at all improves public safety (crime might be down, but I doubt it was the only reason or the only way), it’s at too high a price - both by crowding out more useful social investments, and by keeping the low-income and people of color in a development trap.

Here are some of the sacrifices we’ve made over the years to keep up with the anti-tax constitution:

1. UC, once a rare example of a world-class university system accessible to anyone no matter their income, has gotten more funding cuts than any other part of the education system, and is close to being indistinguishable from an Ivy League school that middle-class families struggle to afford. Berkeley’s Boalt law school now costs more, without aid, than Harvard Law. Fees at CSU and the community colleges have risen less, but they are more acutely felt and similarly unjustifiable.
2. Medi-Cal, meant to provide healthcare to those who can’t afford it, pays such low rates to doctors and other health providers that one-third of enrollees have trouble finding appropriate specialists who will even treat them. It also doesn’t cover routine dentistry for most adults - a great example of penny-wise pound-foolish policy, as it means cavities turn into dangerous abscesses.
3. Our crucial infrastructure is slowly falling apart, with few prospects for the money needed to properly maintain it. Most of our highways are coming to the end of their useful life, and over a billion in needed maintenance for state parks is backlogged.
4. CalWORKS, temporary assistance for the unemployed, pays families in need significantly less than the poverty level.

We are not in a situation of government pretending it can’t cut the fat. There is a collective understanding by about 75% of us that we, as a society, need to at the very least help people and families on their way up the ladder with services like education and childcare, while also maintaining a social safety net so that not having a good job doesn’t lead to misery, starvation, and death as it once did. We are at the knife-edge: any more cuts, and we will complete our transition to being a banana republic, where the rich get richer, the middle are squeezed, and the poor have no hope.

From time to time, there are propositions attempting to square the circle by forcing the Legislature to guarantee funding to given priorities, or raise taxes to go into a special fund for designated (popular) services. These have not worked: they only make it harder to create a balanced budget. Some existing propositions are so complicated in what they allow the Legislature to do that only a few consultants fully understand them! Propositions to guarantee funds -- ballot-box budgeting -- are like tying a hand behind the Legislature’s back and then being disappointed it can’t juggle. (That’s why I also recommend no on Prop  38: it’s more of the same.)

Californians don’t like taxes; fine. Perhaps Prop 13 helped Sacramento understand that. But we need a new way forward, in which we consider taxes not as an abstract bogeyman in isolation but as a means of paying for the services we all support. In that sense, Prop 30 isn’t that bad as a stopgap, because it at least puts the true choices in front of us. Do we want lower taxes, or do we want to preserve public education? Because we can’t have both at once.

One objection to Prop 30 is that it raises the sales tax, which is a regressive tax hurting the low-income (as they spend the most on necessities). This is not untrue, but it’s not a dealbreaker for me either. First, the taxes it raises are a lot more progressive than California’s existing tax system: right now, the bottom 20% actually pays more in state taxes as a percentage of income than the top 20% (see this analysis - the rate-gap is wider in most other states), but 90% of Prop 30 revenue will be from the high-income. Second, it makes sense to have some kind of shared sacrifice - the top 5% has a lot of money, but everyone needs to pitch in to some degree. Third, the income tax increase lasts 7 years, the sales tax increase only 4. Last, the current proposition represents a laudable compromise between center and left: Jerry Brown’s original plan had a half-cent increase, a rival proposition had none, and they split the difference and merged their proposals. I would prefer a more progressive tax structure, but the increase is something I can live with for now.

In the long run, we have a lot of things to do to restore California to its former glory: work out a sane method for consistently selecting taxation and spending levels; end the war on some types of people who use some types of drugs; fix the pension problem; continue to reduce administrative spending; stop spending away the surplus during booms (like Schwarzenegger did). This will take a long time. In the meantime, unless we want to become Texas-on-the-Pacific, we must approve Prop 30.

Saturday, October 20, 2012

Celebrate! Hoist your cat boxes to an indeterminate height in the air!

This post is another strike on those who go around wielding handed-down made-up grammatical rules that don't reflect how English is conventionally used (and used regardless of register or setting).

One rule that you often encounter is that "myself," "yourself," and so on should not be used as intensified pronouns - that they are in fact reflexive pronouns, and should either be used reflexively ("I told myself that...") or alternatively in the fixed apposite form ("I myself"). An example of this being applied; elsewhere in a grammar book.

But why can't it be both a reflexive form and an intensifier? No real reason. Where does this rule come from? Who knows, but certainly not usage.

Some Shakespeare:
Why do you rate my Lord of Suffolk thus?
Although the duke was enemy to him,
Yet he most Christian-like laments his death:
And for myself, foe as he was to me,
Might liquid tears or heart-offending groans
Or blood-consuming sighs recall his life,
I would be blind with weeping, sick with groans,
Look pale as primrose with blood-drinking sighs,
And all to have the noble duke alive.
(King Henry VI, Part 2 3.2)
Could I repair what she will wear in me,
As I can change these poor accoutrements,
'Twere well for Kate and better for myself
(Taming of the Shrew 3.2)
Or the King James Bible:
If thou count me therefore a partner, receive him as myself.
(Philemon 1:17) 
Granted, circa-1600 grammar is not always our grammar: Shakespeare also uses "myself" as a sentence's subject quite a lot, which, while evidence for the historical flexibility of the word, would certainly seem strange now:
Myself hath often over-heard them say,
When I have walked like a private man,
That Lucius' banishment was wrongfully,
And they have wish'd that Lucius were their emperor. 
(Titus Andronicus 4.4)
But there are more examples, much more recent than Shakespeare:
Several of the ultra-popish bishops, then resident in Madrid, had denounced the Bible, the Bible Society, and myself.
 (The Bible in Spain, George Henry Borrow, 1843)
They would not believe it at first; then, as excited as myself, all three of them set out with my on my return.
("Chloroforming the Apache Kid," Emma Allen, in Everybody's Magazine, 10(5), May 1904)
Gertrude Stein thought about it and then did it. She spent a part of the summer over it and Bradley as well as she and myself thought it alright. 
(The Autobiography of Alice B. Toklas, Gertrude Stein, 1933)
Also, consider: what function does "myself" play in the phrases "I myself" and "you yourself"? It's an appositive word, but used for emphasis, implying it's that very same intensified pronoun that for some reason we can only use in appositive form. A silly and unfounded restriction.

We really need a single, descriptive term for the people I described in my first paragraph, who object to sentence-ending prepositions and "very unique" and singular "they" and try to distinguish "that" from "which." Not "prescriptivist," as that brings up irrelevant issues. I propose "grammaraster," by analogy with the insufficiently-used "poetaster," "criticaster," and "medicaster" - one who conceives oneself as being a grammarian, but really is just parroting dead would-be Dracos.

Sunday, July 1, 2012

On reading NFIB v. Sebelius


A lot has been said on this already. Still, I felt the urge. Mostly miscellaneous reactions, with some larger thoughts at the end.

In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder... Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government. (Roberts, pp. 2-3)
As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers... Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. (Scalia, Kennedy, Thomas, and Alito, p. 3, hereafter "joint dissent")

True historically; completely irrelevant for practical purposes, and one of the many, many legal fig-leaves that make constitutional jurisprudence so ridiculous. The reinterpretation of the Commerce Clause in 1937 to allow the New Deal to continue was indeed a big change in our polity, allowing the federal government to regulate almost anything, and to be clear, it is good that happened. When the Constitution was established, the US was half a nation and half a customs union; at least since 1865, we've been a single nation, and it's time for us to grow up and act like it. Considering everything the federal government does today, if it does not have plenary power, it's by convention and shared norms only - we like keeping power diffuse to some extent, but true direction is ultimately provided from DC.

Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” (Roberts, p. 4)

Transparent bullshit. In 1790 the total US population was 3.5 million; today, 29 of the 50 states have more people than that, and those 29 states have 89% of the population. Raw population figures aren't as meaningful as they might be, but culturally, too, the state governments today are pretty distant from the people, I suspect just as distant as the federal government was back in the day (leaving out the issue of how much more limited the voting population was then). We've adapted, we've drawn closer through technology, things turned out well enough, and as mentioned above, we're one nation.

Also, modern constitutional law reflects a new understanding of the states as just as likely to violate individual rights as the feds, as witnessed by our slowly imposing the Bill of Rights as obligations on the states too.

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. (Roberts, p. 20)

And here's the Big Bad - it's painfully obvious how this argument was thought up on the spot to enact a politically desired outcome. As Ginsburg later points out, it's identical to the old court saying "mining is not commerce, manufacturing is not commerce," etc., explicitly in order to reject all social legislation that passed their desk.

Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. ...That is not the country the Framers of our Constitution envisioned. ...The Government’s theory would... permit Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” (Roberts, p. 23)
If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws... spare neither sex nor age, nor high nor low, nor sacred nor profane.” (Joint dissent, p. 8)

There's a rhetorical bait-and-switch going on here. Roberts and the joint dissent both adumbrate horror stories of a suffocating totalitarian government dictating our entire lives, to make one feel worse about accepting the mandate. But that's a libertarian heartstring they pull - that the government should let people do what they want as long as they aren't hurting anyone else. It doesn't make sense in this context of the boundaries of federalism. Everyone accepts that the states can mandate insurance purchase - or even broccoli purchase! - through plenary power, so the only question here is whether the federal government can do it too. And there's no reason to see the federal government's holding of any given power as more injurious to freedom than the same power in the hands of a state government (despite what Roberts started off with about "distance").

Speaking morally rather than legally, the individual mandate pales besides the other things government can do to us. It can take a third of our incomes, make us buy car insurance (the "if you drive a car" proviso is a technical distinction that provides no comfort for those so compelled), take our children away from us, lock us up, execute us, draft us to kill and die abroad - in 1790 Congress even mandated that all free white males 18-45 purchase expensive muskets and ammunition! Except regarding fundamental rights, government intruding into our daily lives is not something the Constitution forbids; it is our responsibility through politics to see that it is used judiciously.

I suspect one of the reasons so many upper-middle-class white men could get so up in arms about the individual mandate is that, due to their socioeconomic advantages, they rarely if ever had to feel the sting of the true coercive power of the state. The law, in its infinite majesty, etc.

It is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain, except death and taxes”). (Roberts, pp. 41-42)

Has it come to this, where little jokes are quoted and soberly used as indications of the prevailing understanding of the era? Not that Roberts is drawing any false conclusions in this section, it's just a very uninspired use of a quote everyone knows.

The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage. (Roberts, p. 54)

I am really shocked that Breyer and Kagan joined in the Medicaid opinion. I can only imagine the states were whispering in their ears, because the federal government has every right to condition its own funding for states to carry out a given program on the state's compliance with that same program. The labeling of the expansion as a new program rather than a modification to an existing one is ridiculous pettifogging that has the potential to tear open a lot of how the federal government routinely funds and updates things. As it was popularly conceived in 1965, Medicare was for the elderly, Medicaid was for the poor - period. The ACA's changes are to make it better carry out its original mission, especially important considering how much more health care costs now. In 1979, a family health insurance policy cost 16% of a minimum wage worker's income; today, it's 100%. And that clause "an element of a comprehensive national plan to provide universal health insurance" strongly smacks of political disdain for free government-provided coverage.

At bottom, my colleagues’ position is that the States’ reliance on federal funds limits Congress’ authority to alter its spending programs. This gets things backwards: Congress, not the States, is tasked with spending federal money in service of the general welfare. And each successive Congress is empowered to appropriate funds as it sees fit. When the 110th Congress reached a conclusion about Medicaid funds that differed from its predecessors’ view, it abridged no State’s right to “existing,” or “pre-existing,” funds... In fact, there are no such funds. There is only money States anticipate receiving from future Congresses. (Ginsburg, pp. 59-60)


As Ginsburg puts well, it was the graciousness of the federal government that let states be nearly-equal partners in Medicaid in the first place (rather than making it a federal program like Medicare), and in talking about the "economic dragooning" that depriving them of Medicaid funds would be, Roberts is echoing the puffed-up entitlement on the part of many state officials in now seeing that funding as their God-given right.

The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.” (Ginsburg, p. 13)
I'm glad that Ginsburg repeatedly mentions the "separately incompetent" concept - that line comes from text that the Constitutional Convention voted to send to their Committee of Detail to turn into precise language, and it was that committee that then came up with the specific list of enumerated powers - that is, those were the powers that were thought needed to address the cases the states were not equipped to deal with on their own. A loose reading of the Commerce Clause is therefore not merely reasonable on its own, but also is arguably within original intent (if you're the type of person who cares about such things).

As others have said, it's excellent that Ginsburg both coined "broccoli horrible" (p. 29) and quoted Bork to smack down Roberts and the joint dissent (p. 30).

Now for the Ugly.
If [the ACA's Medicaid] offer is "exceedingly generous," as the Federal Government maintains, why have more than half the States brought this lawsuit, contending that the offer is coercive? And why did Congress find it necessary to threaten that any State refusing to accept this "exceedingly generous" gift would risk losing all Medicaid funds? (Joint dissent, p. 45)

First question: Obviously, they're partisan fuckheads who will probably mostly take the money, but wanted to prove a point and get more leverage with the federal government. Second question The joint dissent seem to have greatly misunderstood something about the ACA - it did not institute such a penalty. The penalty exists, of course, but it was already in the Medicaid statutes. Section 1902 of the Social Security Act lists the basic features a state's Medicaid program has to meet, including minimum eligibility standards, and Section 1904 says that if a state is out of compliance with 1902, part or all of their funding can be withdrawn (with notice and fair hearing). Congress just amended 1902 to add the Medicaid expansion population as eligible; the penalty for noncompliance followed automatically. So it's a perfectly tenable proposition that Congress thought the offer too generous for anyone to pass up, as Medicaid expansion was a sidebar to the whole debate.

The joint dissent in general reads as... I'm not sure if "bitter" is the right word, because if it had been the majority opinion (which seems to have been a possibility narrowly averted) I would have said "gloating". Pompous and unbecoming, at any rate. Lots of barely-veiled wingerism, like:

The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. (Joint dissent, p. 14)

--and of course that ridiculous Hamilton quote about the "hideous monster", and so forth. But it's also striking how they want to have their cake and eat it too:

Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. ...With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance. (Joint dissent, pp. 9-10)

That's in service of saying that the mandate was not "necessary" under the Necessary and Proper Clause to regulate interstate commerce. Ginsburg responds that such measures would not be sufficient, which is likely true. But then later in the severability section they observe that:

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid. That result follows from the undoubted inability of the other major provisions to operate as Congress intended without the Individual Mandate and Medicaid Expansion. (Joint dissent, p. 55)

In figuring out whether Congress would have passed the law without the mandate, they spend several pages discussing how the mandate interacts with the other portions of the law: without it, it would be impossible for insurance companies to sell community-rated policies to all regardless of pre-existing conditions, the exchanges wouldn't work, the economic balancing wouldn't work, etc. So the entire law has to fall - just what they wanted politically. But in the process of achieving that they've made hash of their previous denial of the mandate's being necessary to regulate commerce. And aside from Constitutional arguments (they would, if pressed, then fall back on the "inactivity" distinction), they've shown how economically significant the choice of going uninsured is, and how vital it is for this to be addressed if Congress wants to assure universal coverage without eroding the role of private insurance (which, unfortunately, is the current consensus).

In short, Roberts and the joint dissent have clearly shown their lack of concern for grounding the Commerce Clause in anything resembling reality, because they've circumscribed it with an arbitrary distinction in a way that makes it impossible for Congress to respond to a problem of universally-admitted national importance.

Single-payer would, admittedly, have survived this decision. But now that the Court has introduced something into constitutional law developed with the specific intent of tearing down health reform, so the true precedent is that they'll do so again if or when the next big social legislation comes along, however Constitutional.