Don't Worry, That's Just the Sound of the Sixth Amendment Dying. We Have 26 More.

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Likewise, Article I, Section 9 of the U.S. Constitution, tells us, in part:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Together, these Constitutional provisions are meant to protect citizens from arbitrary, indefinite detention by the government. If the government chooses to arrest you, it must have and state a reason for doing so consistent with the law (your privilege of habeas corpus) and to conduct a public trial of your case in a timely fashion and to provide you with the means of mounting an effective defense.

Got it?

Now, there's this. President Obama is set to sign the 2012 National Defense Authorization Act. Amidst provision to authorize and fund the activities of the United States military for the year, the law authorizes the United States military to arrest and detain anyone suspected of terrorist activities, including a United States citizen, anywhere in the world, including within the United States, indefinitely without notifying him of specific charges against him, providing him with the assistance of counsel, or holding a public trial in the civilian judicial system.

Moreover, the Senate's original bill contained language precluding the application of it's indefinite detention provisions to United States citizens. However, that language was removed at the request of President Obama.
Senator Lindsay Graham of South Carolina explains exactly how all this will work out for people suspected of terrorist activities:

When they say, "I want my lawyer." You tell them, "Shut up. You don't get a lawyer."

By the way, the sound at the end of the video is the Sixth Amendment dying.

There are obvious constitutional objections to the whole system of indefinite detention that could be raised in federal courts, and I am hopeful the courts will find that Americans' Sixth Amendment rights (and their right to habeas corpus) preclude the application of the new law to American citizens for activities conducted within the United States. However, I do not pin my hopes on the judiciary.

Like James Madison, I believe that the only effective protection of individual liberty over the long run is the public's careful stewardship of its own rights. Indeed, Madison initially opposed the adoption of the Bill or Rights, in part, because he feared that the enumeration of some right in the constitution would be an ineffective guarantor of personal freedom.

[E]xperience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.... Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to. ... Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. ... The difference so far as it relates to the point in question — the efficacy of a bill of rights in controuling abuses of power — lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community. [Emphasis added.]

Our rights to be protected from abuses of the criminal justice system will not and cannot be fully protected from courts that are as much a part of the state as Congress and the president. Instead, our rights and liberties can only be effectively protected by ordinary political action. In my mind, this is the principal importance of the tea party movement: creating a political discourse concerned about the boundaries of freedom and the state. Reasonable people may, of course, disagree about the precise point of demarcation between legitimate and illegitimate uses of public authority, but it is crucial that reasonable people remain conscious of the principle that such demarcations exist and that they take action to connect their beliefs about the appropriate role of government to their votes, contributions, and other political activities.

Professor Gingrich

Yesterday, Brian Bolduc published an essay called, Professor Gingrich," at National Review Online. The title got my hopes up for an account of Gingrich's actual academic career at West Georgia College, but, alas, the item merely recounted Gingrich's time teaching a course called "Renewing American Civilization" at Reinhardt College in 1995 while he was Speaker of the House. The course may as well have been entitled, "Explore the Mind of Newt Gingrich." According to Bolduc's account:

His purpose was to determine why, in the past, “America worked” and how, in the future, it could work again. After learning the five pillars of American civilization — historic lessons, personal strength, entrepreneurial free enterprise, the spirit of invention and discovery, and quality — the class would apply them to four areas: the Information Revolution, the economy, the culture, and citizenship in the 21st century....

His syllabus was just as eclectic as his lectures: The required reading comprised the Federalist Papers, Alexis de Tocqueville’s Democracy in America, Alvin and Heidi Toffler’s Creating a New Civilization: The Politics of the Third Wave, Don Eberly’s Building a Community of Citizens: Civil Society in the 21st Century, and Drucker’s The Effective Executive.

He approached his subject with the cataloguing fervor of a taxonomist. Yes, there were the five pillars of American civilization. There were also four layers of planning. And four words of effective leadership. Seven key aspects of personal strength. Three big aspects of entrepreneurship. Seven welfare-state cripplers of progress. 

(If you're keeping score that's 560 different ways to apply a unique aspect of personal strength to a word of effective leadership for one layer of planning to support a pillar of American civilization.)


Bolduc's article is fine for what it is, but it doesn't actually tell me much about "Professor Gingrich" when he was actually Professor Gingrich at West Georgia College from 1970 until 1978. Accounts of his time as an academic are sparse.

We know he didn't write much. According to Google Scholar, his only scholarly writings are his M.A. thesis on early twentieth century French diplomacy, his doctoral dissertation on Belgian education policy in the Congo (4 citations), and a coauthored paper on the role of school principals in managing educational change (1 citation).

In fact, Gingrich seems to have spent most of his time at West Georgia College running for Congress. He lost two races against incumbent Democrat Jack Flynt in 1974 and 1976 before winning a seat in 1978 after Flynt's retirement.

For obvious personal reasons, I am curious about Gingrich's time as a professor, though. Yet, the record, such as it is, though, leaves me with many more questions than answers. Did Gingrich attempt a career in academia, or did he only use the college as a perch from which to pursue his political ambitions? What did he write and teach about? How did his experiences as a professor and scholar shape his politics and personality?

Positive Affect, Web Searches, and Poll Support: Herman Cain and Barack Obama Edition

In our paper, Desperately Seeking Sonia?: Latino Heterogeneity and Geographic Variation in Web Searches for Judge Sonia Sotomayor, my coauthor, Sylvia Manzano, and I investigated heterogeneity in Latinos' support for President Obama's nomination of then-Judge Sonia Sotomayor to the Supreme Court. In particular, we were curious whether Latinos of Puerto Rican ancestry were more supportive of her nomination than Latinos of different nationality. The structure of Latino support for Sotomayor's nomination promised to provide some insight into an important debate about Latino politics in the United States.

In the context of the literature on Latino identity politics, Judge Sotomayor’s nomination to the Supreme Court suggests two competing hypotheses about identity-based attachment to the nominee. One stream of literature suggests interest in the nomination should be relatively consistent across the larger Latino community in the US. The second suggests shared origin-specific attachments to Judge Sotomayor should catalyze greater interest in the nomination among Puerto Ricans compared to other Latino origin groups.

The issue also relates to the usefulness of the President's political calculations in nominating a Latina of Puerto Rican heritage, in part, to generate support among a Latino population that is principally Mexican-American.

The case study is perfect for these issues, but, data were a problem. There were no commercial or academic surveys of which we were or are aware that involved the kinds of sample of Latinos we would have needed to investigate the issue directly at the individual level. What to do? We climbed out on a limb:

Leveraging interest as a proxy for positive affect allows us to utilize publicly available data on state-level web search volumes to explore the relationship between population composition and orientations towards Judge Sotomayor. Here we measure interest in Sotomayor’s nomination by the relative volume of web searches in each state involving the term “Sotomayor” using data provided by Google’s Insights service. Google Insights tracks web searches that use the company’s search engine and provides users with comparative data on the relative volume of searches involving designated terms by city, U.S. state, or country (Google Insights for Search 2009). The system eliminates repeated queries from a single user over a short period of time, so that the level of interest is not artificially influenced by these searches. Geographical units are assigned search term-specific search density scores which theoretically range from zero to one hundred. The unit with the highest search volume for a designated term—relative to the volume of all Google searches, in all languages—is assigned a score of 100. Other units receive scores that reflect their relative search volumes proportionally to the observed maximum. So, a score of 50 indicates that a geographical unit produced half as many Google searches for a specified term than the unit with the greatest search volume relative to the number of total searches in each unit.

Data on internet search volumes are increasingly used by social scientists in fields such as public health and economics to investigate phenomena for which standard survey data may not feasibly be collected (Askitas and Zimmerman 2009). Internet search volumes for relevant search terms have been found to correspond to disease prevalence, home sales, auto sales, and unemployment (see Goel et al 2010 for a review). For example, Choi and Varian (2009) have found a correspondence between Google search values for terms such as “jobs” and “unemployment & benefits” are strongly associated with claims for initial unemployment benefits. This research suggests real-world events, such as a spike in unemployment or the nomination of a Supreme Court justice, produce some predictable or equilibrium level of web search volume among the internet-using population. Our claim is that variance in relative web search volumes related to the Sotomayor nomination across geographical units is an indicator of differential interest in and attachment to her elevation to the Supreme Court. To the extent that this variance is positively associated with the relative sizes Latino and Puerto Rican populations (controlling for other factors related to web searches related to the Sotomayor nomination), we may infer that Judge Sotomayor’s ethnicity and national origin primed heightened affective responses among co-ethnics.

That's right. We used state-level data on Google search volumes as a measure of some state-level aggregation of positive affective attachment to Sotomayor.

As many reviewers in various venues pointed out, that's a hefty substantive assumption. Fair enough. We do our best to justify it it terms of the limited literature on web searches and searching for information more generally as well as by being as careful as we can internally, trying to introduce statistical controls for raw political support and opposition, for example. I think the assumption is fair (correct even), but the larger issue of whether we searches mean support is still out there.

It has also occurred to me lately though that the Republican presidential primary gives me a nifty chance to explore the meaning of web search volumes in terms of political support and, by extension, the assumption in my collaborative analysis of the Sotomayor nomination.

So, on a whim this morning, I ran Herman Cain's poll numbers from various survey organization listed on pollingreport.com from August 31 through the most recent GOP primary survey (listed under the website's "GOP field") on November 20 through Stimson's dyadic ratio extraction algorithm (WCALC5) to produce an aggregate measure of Herman Cain's daily national GOP poll support. I also went over to Google Insights and captured the national web search volume index scores for Herman Cain (which are available at weekly intervals). The two time series are illustrated below.




The blue line shows Cain's Stimsonized poll standings, and the red line show's his Google Insights index score for the same period. The series correlate at 0.85 (treating the unsmoothed weekly Google Insight index scores as daily data). Taking account of only one lag, there is no evidence that either series Granger causes the other. Taking account of two lags, there is some evidence that the Stimsonized poll series Granger causes the web search series. It seems more right to me that people would search for information about a candidate they newly supported rather than develop support for a candidate on the basis of web searches. Nevertheless, the funky time-structure of these data make it hard to come to strong conclusions about whether one series causes the other.

The important thing up front is that the two series are basically the same series. Herman Cain's poll support and web search interest during the period of his rapid rise and decline in the GOP primary fields are substantially the same. Whether support causes searches (the claim in the Sotomayor paper) or searches cause support, support and searches are closely tied at the aggregate level.

We win, right?

Sadly, not so fast.

The Cain poll series dries up (for now) on November 20. Cain's Google Insights index, however, keeps going. The Cain poll series (for as far as it goes) and the Cain Google Insights time series (though last week) are illustrated below.


In the period of Cain's rise and initial descent, web search volumes were a very good indicator of his public standing. Over the last two weeks, as interest in Cain has shifted from curiosity about his quirky tax plan to interest in his sex life, web search volumes have taken on a new meaning and will be, it is fair to guess, not positively related to his poll standing during the period in which his scandal is "alive."

As a way to investigate the intuition that web search volumes indicate approval except when they don't (i.e. there is some event that temporarily attracts attention to a politicians that is separate from "normal' attention to him or her), I compared President Obama's approval ratings with Google Insights index scores for "Barack Obama."

So, I compared Obama's average weekly approval ratings from Gallup from the weeks 2009 April 6-12 through 2011 November 28-December 4 were in my spreadsheet with weekly Google Insights search index scores for "Barack Obama" for April 2009 through December 2011. The period observed is the entire Obama administration minus the first quarter of 2009, when both his approval ratings and search index scores are zany because of his recent inauguration. (I'll probably get the data later, but my first instinct was to drop the honeymoon.) The two time series are illustrated below.



For those of you keeping score at home, those time series correlate at 0.69. To get at the idea of "normal" web search activity versus "unusual" activity, I will work with the two unusually visible spikes in the Google scores. The first occurs in early September 2009 around the President's speech to a joint session of Congress at the height of the debate over the proposed health care reform legislation. The second, even more evident spike is coincident with the death of Osama bin Laden in May 2011.

The correlation between the President's Gallup approval rating and his Google Insights index score for the eleven weeks which are included, in whole or in part, in September 2009 and May 2011 is 0.23. Bootstrapping a correlation coefficient for 500 random draws of 11 weeks out of the remaining time returns an estimate of r=0.75, with a standard error of 0.16. Thus, the correlation between the Google data and the Gallup data of 0.23 for the "unusual weeks" is well outside of the 95% confidence interval around the estimated correlation 0.75 for the "normal weeks."

Once again, though, it is clear that with some sensitivity to changes in political context which may alter the meaning of expressions of interest in a topic through web searching for some periods of time, there is a close correspondence between aggregate positive affect and aggregate web search activity.

The take away here is that web search volumes can be a useful source of information about people's political attachments and interests, but they must be used with great caution since the impetus for searching can change (quickly) through time. Web searches as data may be the easiest to use, therefore, in cross-sectional analyses like those in the Sotomayor paper when the danger of changes in the meaning of web search volumes over time is minimized by the analysis of a short time frame.

Learning the Bill of Rights Video Contest Winners

This semester, as an extra credit assignment, I held a little contest in my sections of Introduction to American Politics. Students were invited to form teams of no more than four member to produce short videos (no more than five minutes) "demonstrating an original and useful way to remember...which particular rights are protected by which particular amendments" in the Bill of Rights. I received over twenty entries. The winning video and the runner-up are posted on YouTube and embedded below. I hope you (and your students) find them as useful and fun as I have.

Winner: "Bill O' Rights"



Runner Up: "Silent Movie"

The Attitudinal Model and Laurence Tribe's Crystal Ball

In February, I wrote about Harvard Law School Professor Laurence Tribe's essay claiming that people who predict a closely divided vote along partisan or ideological lines in a Supreme Court decision about the constitutionality of the Patient Protection and Affordable Care Act (Health Care Reform or Obamacare, if you prefer) misunderstand the Supreme Court and constitutional law. Professor Tribe wrote, in part:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. 

Professor Tribe's complete confidence in the constitutionality of the PPACA should provide little comfort for supporters of the law. Digging around in Lexis-Nexis for some lecture material, I ran across Professor Tribe's evaluation of the prospects for the success of then-Governor George W. Bush's federal claims against the effort to complete a partial recount of votes in Florida in 2000:

Laurence H. Tribe, a constitutional scholar at Harvard University who is leading Mr. Gore's legal team in the federal courts, said that he had expected the Bush appeal to the Supreme Court but that it would fail.

"This appeal will not be hard in the least to defend, because the federal questions are frivolous," Mr. Tribe said. "There is no plausible basis for arguing that there is a federal constitutional flaw in the carefully reasoned way in which the Florida court deliberated."

That's from The New York Times, p. A1, November 23, 2000, "Bush Takes Appeal to the U.S. Supreme Court" by Adam Purdum. 


In contrast, in their 1993 book on the attitudinal model, political scientists Jeffrey Segal and Harold Spaeth predicted:

if a case on the outcome of a presidential election should ever reach the Supreme Court...the Court's decision might well turn on the personal preferences of the justices.

Claims that justices act, in part, on the basis of their political predispositions in general or that they will do so in a case considering the PPACA are neither "distressing" nor "crude," as Professor Tribe writes. Rather, they follow naturally from decades of political science research on the extralegal influence on the behavior of Supreme Court justices. Those interested in predicting and, later, understanding the results of PPACA litigation before the Supreme Court should avoid Professor Tribe's casual dismissal of "politics" as an influence on the business of the Court.

Elizabeth Warren and the Road

Elizabeth Warren is a serious scholar of bankruptcy at Harvard, but, off-campus, she has become a partisan hack and a candidate for the U.S. Senate in Massachusetts. Her preferred metaphor for her political style is "throwing rocks" at Republicans. It is possible, I suppose, that Warren has not thought about or does not understand her own trope. A thrown rock, though, is actually dangerous. People get hurt and killed by them all over the world. Picking that as the preferred description of your mantle is at least tasteless and petty.

Watching video of Elizabeth Warren rail against entrepreneurs, though, makes me think her rock throwing self-image is surprisingly apt. Warren argues that the state's role in coordinating the provision and maintenance of public goods entitles the community to take whatever it wants from those who benefit from using them:

There is nobody in this country who got rich on his own — nobody.

You built a factory out there? Good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police-forces and fire-forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory — and hire someone to protect against this — because of the work the rest of us did.

Now look, you built a factory and it turned into something terrific, or a great idea. God bless — keep a big hunk of it. But part of the underlying social contract is, you take a hunk of that and pay forward for the next kid who comes along.

Warren's allegory of the road shows her deep misunderstanding of the relationship between the individual and the state and offer a window into a political philosophy which requires individuals to justify keeping their earnings and property rather than requiring the state to justify taking from the individual for some legitimate public purpose.

First of all, the gal who built the factory also probably helped pay to build that road she uses to pay to bring her goods to market. And, since she is rich, she probably paid a lot more toward its construction than the rest of us poor schlumps. Also, her use of the road for commercial purposes doesn't stop the rest of us from using and benefiting from the road we all paid for. Anyone gets to use the road, subject to limitations like speed limits and weight restrictions that keep it safe to use and in good order, for whatever purpose she wants. In fact, we all got together (figuratively) and agreed to build the road in the first place because we would all be better off by building it. The community is entitled to collect a tax to create and preserve the road, but fact that someone uses the road doesn't entitle the community to tax them.

Warren wants the prior provision of the public good by the state to justify the prospsective taxation of those who benefit from it. That formulation of the case of the road is exactly backwards.The right way to look at it is that prior tax collections were used to provide a public good from which we may all enjoy benefits. The community has a right to make a social choice to tax individuals to enure the maintenance of the road, but it does not have a general claim to a "hunk" of the benefits obtained by using the road. That may seem like a subtle distinction, but Warren's version of things implies that the state has a claim on my property restricted only by its perception of the size of the "hunk" I am allowed to keep for myself. The alternative grants the state a limited and discrete claim on my property.

Mike Munger makes the same point much more colorfully:

If I need security, I get a dog. If a group of us need security, we might sign a contract and get a really big, strong dog. Let's call it...I don't know... GOVERNMENT. It's big, stupid, poops in places it shouldn't and wastes a lot of time sleeping and licking its "Representative Wiener", because it can.

But, suppose that big smelly dog also does a reasonably good job protecting my house, and yours. We build factories, we create wealth, we do a lot of useful things.

And it's true that we needed the dog, for security, so we could concentrate on things that idiotic, lazy dogs can't do.

For some reason, Elizabeth Warren concludes from all this that our dog...OWNS OUR HOUSE! That is just a non sequitur. It's a DOG. But here is what she says.

Warren's allegory of the road also leave out the extent to which the rest of us have gained by building road that lets the factory owner move her wares to market. Sure, the factory owner makes a profit selling her sprockets and cogs, but we are all better off because there are sprockets and cogs to buy and jobs to be had in the factory as well as opportunities to sell parts and materials to the factory (using the road to take things to the factory), to build and sell homes to all those factory workers (who will use the road to get to and from work), and on and on and on.Warren tells us that the factory owner would be worse off without the rest of us. Fine. But, we would all be worse off, too, without the factory owner.

Warren's limited view and misunderstanding of the relationships among the state, individuals, and public goods would be harmless enough tucked away in her next law review article, but she wants to be a rock throwing United States Senator. As I wrote earlier,

Elizabeth Warren is many wonderful things, but she is also exactly the sort of partisan busybody who likes to think she knows how to make better choices for other people than they do and is eerily comfortable using the coercive power of government to push the rest of us into making the kinds of choices she likes and punish those who disagree with her.

Frankly, the combination of her statist urges and her inclination toward describing herself as a destructive or violent partisan (depending on if she is throwing her rocks at things or people) gives me the heebie-jeebies.

Given the huge Democratic advantages in Massachusetts, it is sadly likely that Warren will end up in the Senate. Scott Brown remains personally popular in the state, though, and barring a major economic turnaround, there is some chance that the anti-Democratic tide that started in 2010 may come in high enough in 2012 to deliver her safely back to Harvard Yard. Early polls are pointing to a tight race. So, there is some hope, I suppose.

United Kingdom, Great Britain, England...

This great video, which I discovered via John Transue, explains the complex geography and political associations of the nations and territories of the former British Empire.

Perry, Ponzi Schemes, and Social Security

Rick Perry's comments labeling Social Security a Ponzi scheme have generated a lot of unflattering attention from many liberals (not surprising) and from other Republicans (a little surprising). In particular, Governor Perry's principal rival for the Republican presidential nomination, former Massachusetts Governor Mitt Romney, has argued that a political attack on Social Security would be a major electoral liability for the GOP in next year's elections. In an interview with Sean Hannity, Romney said:

If we nominate someone who the Democrats can correctly characterize as being opposed to Social Security, we will be obliterated as a party.

As someone who is on record defending the Ponzi scheme label for Social Security, it is probably not surprising that I come down on Governor Perry's side of this spat:

Social Security works by paying cash benefits to retirees and the disabled from taxes contributed by those currently working who are, int turn, promised benefits when they retire or should they become disabled. Neither a Ponzi scheme nor Social Security use contributions from "existing investors" to purchase assets that might provide returns to those investors. Instead, both a Ponzi scheme and Social Security depend on the contributions of new "investors" to redeem promises made to "existing investors." As a result, both a Ponzi scheme and Social Security will continue to make good on promises to "existing investors" so long as a sufficient stream of "new investors" are brought into its system. However, both a Ponzi scheme and Social Security will ultimately fail to pay promised returns if inputs from "new investors" are insufficient to cover the payments due "existing investors."

Social Security is especially egregious in its self-representation as some sort of investment plan. It even sends out annual statements of "contributions" that  Americans have made into the Social Security system and the "credits" that workers have earned. Of course, unlike an actual investment, Americans have no proprietary claim to Social Security benefits and the government has no contractual obligation to pay benefits that anyone has "earned."

Whether "Ponzi scheme" is a fair description of Social Security is one thing, but whether it is good politics for a presidential candidate, like Governor Perry, to employ it is another question. The conventional wisdom, of course, is that this is a bad idea. Americans, as a group, like Social Security, and older people, who are especially likely to vote, are apt to punish politicians who are perceived as a threat to Social Security. So, the thinking goes, denigrating the program, especially in a way that suggests an openness to reductions in benefits in the foreseeable future, is politically dangerous.

I will freely admit that there are risks to an aggressive stance on Social Security, but there are some big potential rewards, too. Social Security *is* in trouble, and every payroll tax holiday just makes that trouble just a little bit bigger. Sooner or later, the Social Security status quo has to be changed: benefits will have to be cut or means-tested, eligibility ages will have to go up, payroll taxes will have to be raised, or some combination of these things. Pointing out that Social Security is not an earned asset, but a program of taxing and spending that is not actuarially sound, is both true and a potentially a good political posture.

*If* voters see that Social Security is in trouble, then the politician who pulled the fire alarm can get some traction. Politicians who defend the status quo can be painted as the threat to Social Security. Those who are aggressive about criticizing the status quo and proposing reforms can make reasonable claims to be the program's savior.

Getting voters to buy the notion that Social Security is in trouble shouldn't be that hard. It is, and the recent deficit debates should help emphasize the general theme of Washington's irresponsibility and the unsustainablility of our fiscal policies. Moreover, the president and his record of deficit, debt, stimulus, bailouts, and paying for policies on layaway is, in some ways, the personification of Social Security's problems. President Obama did not create the seriously underfunded federal entitlements, but he has been utterly unwilling to deal with them.

The more difficult part is putting together a reform plan that cannot plausibly be portrayed as an effort to undermine the progam. Some combination of means-testing benefits, slowly raising retirement ages, and further incentivizing private retirement savings, so fewer people will draw out of the (means tested)  system later, wouldn't fundamentally change the nature of the Social Security system, but it would make it more sustainable and help more people become independent of the federal government during their retirement in the future.

So long as Governor Perry's tough talk on Social Security is a prelude to offering a plan for seriously reforming it (and hopefully, other federal entitlements), he call call it whatever he wants and leave those telling him to play it safe safely behind, too.

ATR, Supermajorities, and Balanced Budgets

Americans for Tax Reform is an utterly misnamed organization at this point since its political efforts are now entirely aimed at preserving the utterly dysfunctional status quo of our public revenue system. Lobbying hard against removing ridiculous tax subsidies for ethanol was a low point. It's position on a supermajority requirement for raising taxes in a Balanced Budget Amendment is even lower.

This is how ATR explains things:

Washington has an overspending problem, not an under-taxing problem. Historically, outlays have averaged about 21 percent of Gross Domestic Product (GDP) while revenues have amounted to about 18 percent of GDP. Due to the Obama Administration and Congressional Democrats’ spending binge, outlays now average almost 25 percent of GDP, and are projected to stay around 23 percent in perpetuity.

Unless tax hikes are taken off the table, reckless lawmakers will increase taxes to pay for these new bloated spending levels, rather than bring spending in line with revenues. Any lawmaker serious about restoring American solvency cannot seriously vote for a BBA that does not include a super-majority requirement for tax increases. To pass a BBA that allows a tax hike by simple majority is to distract from the real problem of government spending, and leave taxpayers to bear the burden of foolhardy federal budgeting.

First of all, Washington does have an under taxing problem right now. Revenues are about 14% of GDP, well below the 18% historical average. Raising revenues back to 18% would cut the deficit in half. But, I digress.

A rule to require a supermajority vote in order to "raise taxes" means that a host of sensible, valuable, pro-growth, conservative ideas for, you know, tax reform effectively get taken off the table. Removing deductions, credits, and exemptions for special interests? Getting rid of the awful carried interest loophole for equity fund managers' pay? Generally moving to a flatter, fairer, simpler, more transparent tax system? Under any of these arrangements, someone's taxes will increase even if many people's tax liabilities go down. If we apply the ATR's interpretation of its so-called "Taxpayer Protection Pledge" to a constitutional provision requiring a supermajority vote to raise taxes, then the prospects of actually, you know, reforming the tax system in a meaningful way goes down the toilet.

Moreover, the temptation in Congress is not going to be to raise taxes in general but to raise taxes selectively to cover spending. So, the right approach is to include a provision that sets a maximum ratio of the highest marginal tax rates to the lowest marginal tax rate above a defined income threshold. For example:

In no case shall the highest total marginal rate of taxes on annual individual incomes imposed by the government of the United States be no greater than three times the lowest total marginal rate of taxes on annual individual income above $35,000 or its equivalent adjusted for inflation.

So, if the lowest total marginal income tax rate (the rate produced by combining collections from income taxes, Social Security taxes, Medicare taxes, etc.) [say on income between $35k and $50k] were 15%, the highest combined marginal tax rate could be no higher than 45%. And, if Congress wanted to raise the total marginal rate at the high end, they would have to raise the rate at the low end, too.

This rule would ensure that the costs of government are borne broadly by the American people so that efforts to increase the size and scope of government activities necessarily imply imposing real costs on electoral majorities. By extension, any "reckless" legislators who tried to support spending on less useful programs and services by passing the buck to taxpayers would quickly find himself out of a job. 

In contrast, an arbitrary supermajority threshold for tax increases doesn't really protect taxpayers. It just institutionalizes a mechanism that will build up unsatisfied demand for government services and programs that will, eventually, manifest itself as the unthinkable supermajority that imposes skewed tax increases along with its bursts of new government programming. Indeed, the supermajority rule for tax increases strikes me a sure-fire recipe for exacerbating the pathologies of the current fiscal mess in which the country finds itself.

The other provision utterly lacking in drafts of Balanced Budget Amendment proposals I have seen is a rule for spending in the absence of a new budget. Congress is legally obligated to pass a budget each year, and we see how well that works. Unless a BBA is judicially enforceable, i.e. courts can order new taxes or spending (which we really don't want to do) there is no mechanism to ensure that budgets actually balance and no accounting for spending that's not part of an official budget, like this year's government by continuing resolution.

For any fiscal year or part of a fiscal year for which Congress has not adopted a budget in accordance with the provisions of this Article,  nominal budget authorizations and actual rates of taxation for the last year in which a budget was adopted shall prevail.

This would establishes a constitutionally mandated "continuing resolution" provision that would hold spending at the previous year's level until a new budget is enacted.