Brookings: Topics - U.S. Politics

What Should the Supreme Court Do About Affirmative Action?

Henry J. Aaron — Mon, 20 May 2013 10:42:00 -0400

Author's note: the following review of the book Mismatch: How Affirmative Action Hurts Students Its Intended to Help and Why Universities Won’t Admit It by Richard H Sander and Stuart Taylor, Jr. was commissioned by Leon Wieseltier of the New Republic on September 10, 2012. It was submitted on January 30, 2013. No editorial comment having been received to date, I am posting it on the Brookings web site.

The Supreme Court decision in Brown versus Board of Education was a watershed event in several respects. It crowned a lengthy legal campaign to overthrow segregation in public schools. It rapidly widened into a multi-front campaign to assure that African Americans, other minorities, and women would not be excluded from any important aspect of American life. And it invoked social science in support of a fundamental reinterpretation of the Constitution.

Following Brown, it soon became clear that removing legal barriers was not enough to end the legacy of discrimination. Lyndon Johnson’s 1965 speech at Howard University stated bluntly that “We seek not just freedom of opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

To counter the effects of past discrimination, Johnson said, it is necessary not just to remove barriers but also to offer help. Some assistance was procedural. Selective colleges, universities, and graduate schools began for the first time to recruit minorities actively and to mentor them. Other assistance was substantive, such as making race, sex, or national origin a ‘plus factor’ for jobs, contracts, and college admission. Programs of this sort immediately raised knotty conundrums for law, ethics, and social science. Were they constitutional? Were they fair? Did they work?

The legal problem was obvious. The 14^th amendment states: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.” Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. Title VII of the Civil Rights Act flatly bars consideration of race in hiring and promotion decisions. Many universities are state chartered and supported. Private and public institutions of higher learning receive federal contracts. The constitution and civil rights laws make no exception for discrimination practiced to redress past injustices.

Ethical issues are also inescapable. Giving African Americans or Hispanics a special break does not increase the number of jobs or slots in university classes. Giving them an edge means pushing others back in the queue. Many of those ‘others’ never personally did anything wrong. If giving such edges to past or present victims of discrimination was accepted, how large an edge was it fair to give and for how long?

In its earliest phases, affirmative action clearly helped its intended beneficiaries. In 1933 when Harold Ickes and his two lieutenants, Clark Foreman and Robert Weaver—later the first black cabinet officer under president Johnson—required that blacks be hired to help build public housing, there could be little doubt that African Americans benefitted from their action. When Richard Nixon’s Secretary of Labor, George Shultz, commented about discrimination in the building industry: “We found a quota system; it was there; it was zero,” there could be no doubt that moving from zero would help those who had been excluded. The nation was so far from the goal of fair treatment of minorities and women that possible conflicts with other objectives seemed remote. But when selective colleges and universities began to admit minority students with comparatively weak academic credentials, many of whom got poor grades and dropped out at distressing rates, a new question arose...did race preferences, at least in higher education, really help those they were intended to help?

Research on the impact of preferential admissions in higher education and litigation over its constitutionality ran on parallel tracks.

The policy of boosting enrollments at selective universities and colleges from what came to be called ‘under-represented minorities’ developed rapidly during the 1960s and 1970s. It coincided with efforts by those institutions to become genuine meritocracies. Although prestigious undergraduate and graduate programs had always favored the academically talented, they also held many slots for the offspring of previous graduates and generous donors. Athletic or artistic skills helped too, of course. Discrimination in admissions was routine, primarily to hold down the numbers of bright kids with the “wrong” religion or cultural background.

Then in the 1960s and 1970s, the weight attached to good grades and high test scores on entrance exams soared. Bragging rights came to those colleges whose entering classes had the highest scores on college entrance examinations. Some slots were still held for the progeny of previous graduates, the well-connected, the financially generous, and the artistically talented or athletically skilled. But academic standards for admission rose at both the undergraduate and graduate level. In simple terms, the ‘good’ schools, more than ever before, became academically excellent.

As far back as the 1970s concern grew that the policy of giving an edge to African Americans, Hispanics, and other members of under-represented minorities, however well-intentioned, might be doing more harm than good. Giving applicants from these groups an edge in admissions necessarily meant that, on the average, they came with weaker academic credentials than did whites. To be sure, selective schools offered matriculants big advantages—enriched environments, good connections, and, to those who graduated, a valued credential. On the other hand, students without adequate preparation might find the work just too difficult. As a result, they might even learn less than they would at less selective institutions. They might suffer stigma or be marked as second-raters or shamed as beneficiaries of unearned advantages, as many critics of affirmative action claim and some supporters fear. The result would be low-academic performance, high drop-out rates, wasted time and money, and, in extreme cases, blighted lives. The risk of these adverse effects would be larger the greater the gap between the student’s preparation and the norm at the institution they attended. This, in brief, was known as the mismatch hypothesis.

Determining whether a mismatch effect actually exists is extremely difficult. Even if admissions were race blind and even if there were no mismatch effect whatsoever, African Americans and Hispanics admitted to selective colleges and universities would predictably have lower grades and graduate a lower rates than do whites. This expectation is in no manner racist. It follows directly from two indisputable facts. African Americans and Hispanics applying to college have lower test scores and high-school grades on the average than do whites; and test scores and grades both are predictive of academic performance.

A hypothetical example illustrates how these two facts will produce different success rates for various groups. Imagine that colleges use an academic index for selecting students. The index can take on three values: 1 (high), 2 (medium), or 3 (low). Those with a higher academic index do better on the average in college than those with a lower score. Imagine also that out of every 100 whites, 35 score 1, and 35 score 2, and that out of every 100 African Americans and Hispanics 10 score 1 and 50 score 2. Selective schools admit only those who score 1 or 2, and they do so in a race-blind manner. Half of whites but only one-sixth of African Americans and Hispanics score 1. Those who score 1 do better in college than those who score 2. It follows that whites will do better in college on the average than will African Americans or Hispanics. This conclusion would not follow if tests and grades under-predicted performance of minorities relative to that of whites. But repeated studies have shown that tests and grades do not under-predict performance of African Americans and Hispanics.

The observation that African Americans and Hispanics who enroll at selective universities have lower qualifications for admission than do whites should therefore come as no surprise. Affirmative action adds to the difference between test scores and grades of entering students. But gaps would exist even if there were no affirmative action, and whether or not mismatch exists.

So, the challenge...how can one tell from the observation that African Americans and Hispanics do less well in college than do whites at selective schools whether this gap results from mechanical reasons of the sort just described or from harm inflicted through mismatch?

Simply comparing grades and graduation rates of various groups is not enough. The undeniable fact that students from under-represented minorities get poorer grades and drop out more often than white students do proves nothing about whether affirmative action helps or hurts its intended beneficiaries. One could go further and measure whether students at selective institutions do better or worse than do students with similar test scores and grades at other colleges and universities.

That is just what Derek Bok and William Bowen, former presidents of Harvard and Princeton, respectively, did in their evocatively titled book, The Shape of the River. This study, published in 1998, drew on a rich data set developed with the support of the Mellon Foundation, which Bowen then headed. The survey reported on a large data set—College and Beyond—reporting the college experiences, graduation rates, and subsequent earnings of 93,660 students who graduated from thirty-four select universities and colleges in 1951, 1976, and 1989. Using statistical techniques that controlled for the expected influence of high-school grades, pre-college admission tests, race, and certain other characteristics, the authors found that African-American students who attended elite universities did as well as or better than African-American student who attended less elite institutions. The authors reported that they found no evidence to support the mismatch hypothesis.

The Bok-Bowen study was highly influential. The authors are highly respected. The survey was large. The information it contained was broad and detailed. Even so, the survey data were not ideally suited to test the effects of affirmative action. The earliest surveyed cohort attended college before affirmative action was much practiced and it is not clear to what extent that cohort drove the results. The data came mostly from highly selective institutions. Furthermore, because the data have not been freely available, few scholars could check the Bok-Bowen findings or do additional analysis. The importance of making data available so that other scholars may try to replicate results and identify errors hardly needs emphasis in light of recent controversies regarding the impact of government debt on economic growth.

Bowen and other co-authors revisited the question of how college affects students in 2009 with a new study, Crossing the Finish Line, based on an even larger survey. This study reported on the experiences of 124,522 freshmen who began college in 1999 at one of fifty-seven four-year public universities. These institutions were generally less selective than those included in the College and Beyond survey. Bowen reported some startling results. Regardless of the quality of the high schools that students attended, their grades predicted college performance far better than did standardized tests. The 2009 study also confirmed the major finding of The Shape of the River—that after controlling for high-school grades, test scores, race, and socio-economic status, students were more likely to graduate from more selective than from less selective universities. Once again, Bowen and his co-authors found no evidence to support the mismatch—what they called the ‘over-match’—hypothesis. Students are well-advised, they said, to enroll in the most selective institution that will accept them.

Critics questioned whether the Bok-Bowen studies provided support for affirmative action. Invoking considerations of fairness, Stephen and Abigail Thernstrom noted that high graduation rates from elite institutions reflected not only the high qualifications of enrollees, but the high expectations for graduation at them. Besides, they emphasized, giving a race- or ethnicity-based edge to some necessarily involves a race- or ethnicity-based handicap for others. One of those groups with a race-based handicap, they noted, are Asians, whose academic credentials on the average outshine those of whites and who suffered much discrimination in American history.

Others argued that ordinary survey data are inherently inadequate to test the mismatch hypothesis. No survey can measure all educationally-relevant student characteristics. Specifically, surveys cannot measure aspirations or mental toughness, which are relevant to educational outcome and may be correlated with the schools students attend. Many social scientists argue that the best way, and sometimes the only adequate way, to test the effect of an intervention is the randomized experiment. Such methods are routine in medical and agricultural research, but they are not normally available to those testing the effects of affirmative action. Students cannot be randomly assigned to colleges. And, even if they could be, the very act would color the results. Normally, analysts are stuck with survey data. They can do no more than control statistically for every influence they can measure and hope that omitted factors are not very important.

From the earliest years of affirmative action, those denied admission to schools that gave minorities a race-based or ethnicity-based edge have challenged the practice in court. In 1978, the Supreme Court ruled in The Regents of the University of California v. Bakke that the constitution barred the university from setting aside a fixed number of slots in its medical school class for under-represented minorities. But, universities could use race as a ‘plus’ factor in pursuit of ‘diversity,’ which, the Court said, is a legitimate educational goal. To this day, however, the Court has not defined exactly what diversity is or how one would know if it had been achieved.

Breaking with Bakke, the federal Circuit Court serving Louisiana, Texas, and Mississippi ruled in 1995 in Hopwood v. Texas that the University of Texas Law School could not use race as a factor in admissions. The case never got to the Supreme Court, however, because Texas dropped the challenged admissions practices.

Seven years later, the Supreme Court heard a pair of challenges to admission practices at the University of Michigan. For undergraduate admissions, Michigan used a point scale based on grades, test scores, and other factors. One hundred points assured admission. Under-represented minorities received 20 points automatically. In Gratz v. Bollinger, by a 5-4 margin, the Court reaffirmed that the pursuit of diversity is a legitimate goal, but it ruled that Michigan’s procedure was not ‘narrowly tailored,’ did not in general treat each applicant individually, resembled a quota system, which the Court had disallowed in Bakke, and was therefore unacceptable.

At the same time, also by a 5-4 vote, the Court upheld a race-conscious admission policy by the Michigan Law School. In Grutter v. Bollinger, the court said that the use of race was acceptable because the law school considered many factors and did so on an individual basis. The swing vote in both cases and author of the opinion of the Court was the now-retired Justice Sandra Day O’Connor, who has been succeeded by Justice Samuel Alito, widely thought to be less sympathetic than O’Connor to affirmative action.

The legal history is marked by chaotic disagreement. Not only has the court been divided, but the majorities have disagreed in the reasoning that has led to their judgments. For strong minded, independent jurists to reach a common position by different reasoning is not unusual. But the opinions reflect unresolvable internal conflicts. The Constitution guarantees equal protection, irrespective of race, national origin, sex, and age. Yet, American history is redolent of despicable violations of those principles. When, at last, Congress and private groups began to take steps to counter the legacy of discrimination, the highest court has been willing to curb, but not bar, these measures—at least, not yet.

While the idea that the best qualified people should get jobs, the best proposal should win the contract, and the best students should be admitted to selective colleges commands widespread support, few people adhere rigidly to the principles of meritocracy. They understand that in many cases no clear or reliable metrics exist for measuring merit. Furthermore, once one acknowledges that colleges and universities may legitimately consider factors other than test scores and grades in determining which applicants should be admitted, it is inevitable that some students refused admission will be better qualified on academic grounds than those admitted.

The point made in virtually every legal brief by a litigant complaining of discrimination because an African American or Hispanic with lower test scores or a weaker academic record was admitted reflects a profound confusion—such a result is inescapable once other criteria for admission are allowed to influence results. And because race, musical talent, athletic skills, and other non-academic characteristics predict academic performance less well than do grades and test scores, it is likely that those admitted because of such ‘non-academic’ qualifications will perform less well, on the average, than those admitted for purely academic reasons. Their grades are likely to be lower and they are likely to graduate at lower rates than those with stronger grades and test scores. Other influences, such as compensatory programs for the ill-prepared, easy grading (for athletes), or enrollment in ‘gut’ courses can partly or fully offset such tendencies. But the tendency is basic.

The issue of whether affirmative action in education is constitutional has returned to the Supreme Court docket. On February 21, 2012 the Supreme Court agreed to hear arguments in the case of Fisher v. Texas. Oral arguments took place on October 10, 2012. Outside interest in the case has been intense. The court received 90 ‘friend of the court’ (amicus curiae) briefs from interested parties, including social scientists.

Following the Hopwood decision, Texas adopted a simple policy of admitting applicants in the top 10 percent of Texas high-school graduating classes. Although the top-10-percent formula sacrifices some academic selectivity, it is a transparently reasonable admissions policy for a state-chartered institution dependent on state funds for part of its budget. It does not explicitly involve race or ethnic origin, but de facto residential segregation guarantees that this formula will result in the admission of more African Americans and Latinos than if admissions were based on test scores. Since its adoption, this formula has accounted for 60 to 80 percent of undergraduate admissions to the University of Texas. Following the Grutter decision, which sanctioned admission policies that considered race in a narrowly targeted, individual manner, Texas instituted what it called a “holistic” process to govern other admissions. The holistic admissions procedure uses both an academic index, based on test scores and grades, and a personal achievement index based on a wide range of other factors including two essays, family background, activities in the community and elsewhere, and race.

Ms. Fisher, a white Texas high school graduate, was in the 12^th percent of her class and therefore was not admitted on the 10 percent plan. Nor was she admitted through the alternative selection process. She was offered a place on a waiting list, which she refused. She challenged the constitutionality of the Texas admission policy, claiming that but for her race she would have been admitted and was thereby unconstitutionally denied equal protection under the law.

The briefs of the parties to the case focus on whether the use of race in the Texas formula does or does not qualify as ‘limited and individualized,’ as specified by Justice O’Connor in Grutter v. Bollinger. But the court may go further by limiting or overturning Grutter, and at least four justices are thought to be disposed to do so. Persuasive evidence that affirmative action harms those it is intended to help would buttress the ethical foundation for such a position. One of the amicus briefs, by UCLA law professor Richard Sander and legal journalist Stuart Taylor, argues just that. Their book, Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, is a lengthy and rich argument in support of this position. So significant is this indictment of affirmative action that another amicus brief, by a veritable Who’s Who of empirical social scientists is devoted to rebutting the Sander/Taylor brief. Social scientists submitted several other amicus briefs, some in support of Ms. Fisher’s appeal, some opposed.

Mismatch extends and elaborates an indictment of affirmative action first presented by Sander in 2004 in a Stanford Law Review article. That article provoked intense controversy, personal invective, and allegations of data suppression. Mismatch recounts this controversy in score-settling detail and is, thus, also a personal memoir and an expose of intellectual politics in the academy, as well as a layman’s guide to social science research on a tricky subject. Co-author Stuart Taylor comes to this tale with the background of having written Until Proven Innocent, a chilling and devastating expose of the way a rogue—and subsequently disbarred—district attorney railroaded Duke lacrosse players after a stripper falsely accused them of rape, and tells how Duke faculty members and administrators rushed to condemn the players despite abundant warning signs of prosecutorial abuse.

Sander and Taylor do not argue that affirmative action is inherently harmful to its intended beneficiaries, but rather that it is pushed to a damaging extreme. To make their case, they lay out a theory of how affirmative action, as practiced by the most select universities and colleges, ramifies through much of higher education. A few top universities are able to attract most of the academically able African Americans and Hispanics. Although the academic credentials of these students, on the average, are not as strong as those of their white or Asian classmates, these African-Americans and Hispanic students are mostly able to handle the academic challenges they face at these top schools. Sander and Taylor argue that is why Bok and Bowen found that most of the minority students they surveyed graduate and do well professionally.

But that is just part of the story. The selective institutions, Sander and Taylor argue, so seriously deplete the limited pool of academically well-qualified minorities that lower tier schools, also trying to meet affirmative action goals, admit applicants with credentials so weak that these students do less well than they would at still less selective institutions. Mismatch can be inferred as well, Sander and Taylor argue, from the finding that a larger proportion of students with a given SAT score major in the difficult STEM subjects (science, technology, engineering, and math) at less-selective than at more selective schools.

The reasoning is straightforward. First-level courses in these fields that serve as pre-requisites for upper division study weed out students who are comparatively weak at the institutions they are attending. Because affirmative action allows minority students to attend colleges where their academic preparation is comparatively weak, such students are more likely to get weeded out than they would be had they attended less-selective colleges and universities, where their academic preparation would have been more competitive.

The strongest evidence for the mismatch hypothesis comes not from data on undergraduate admissions but from information on law school graduates. The American Bar Association compiled data on thousands of law school graduates from a wide range of law schools—the Bar Passage Study (BPS). Because student grades and class rank depend, in part, on the average academic strength of classmates, students with a given academic index are more likely to get better grades at lower ranked law schools than they would at higher ranked law schools. Furthermore, African American and Hispanic students covered in the BPS were the beneficiaries of sizeable race- and ethnicity-based admission preferences at most law schools.

Based on data from the BPS, Sander and Taylor report two findings that, they argue, suggest mismatch. First, African American and Hispanic law school graduates with similar academic index scores (based on undergraduate performance) to those of whites passed the bar at lower rates than did whites. But if one controlled for both academic index and law school grade point average, there was no significant difference in passage rates of African Americans, Hispanics, and Whites. The reason why relative class standing influences bar passage, they argue, is that instruction and grading are geared to the median student in each school. Students who are weaker than average at a given school will find it hard to keep up, will learn less than they would if instruction was geared to their level of preparation, and will therefore pass the bar exam at lower rates than they would had they attended a school better tailored to for their academic skills. This finding implies that law school students should not follow the advice from Bok and Bowen gave to undergraduates—go to the most selective school that will admit you—but should instead be very careful not to over-reach.

Could both Bok/Bowen and Sander/Taylor be correct? The curricula at professional and graduate schools are notoriously austere. The environment in law school is ruthlessly meritocratic to an extent true of few undergraduate programs. If the conditions between undergraduate and graduate schools and among undergraduate programs are sufficiently different, affirmative action might help in some cases and hurt in others.

An intense intellectual battle followed Sander’s 2004 article and continues to this day. One exchange illustrates how hard the issues are analytically and how difficult it is to reach consensus. Two members of the Yale Law School faculty, Ian Ayres and Richard Brooks, noted that not all African Americans surveyed in the BPS accepted admission letters from the schools they had listed as their first choices. Some went to lower choice schools that were mostly less selective than the first choice schools. The students in the two groups were otherwise similar. If mismatch were a problem, they reasoned, students who went to first choice schools would be more likely to get low grades and less likely to pass the bar than those who went to less select schools. In an initial draft, Ayres and Brooks found no such differences and stated that the evidence provided no support for the mismatch hypothesis.

Sander reports that Ayres and Brooks shared their analysis with him and that he pointed out errors, which they then corrected. After the corrections were made, Sander and Taylor claim that the corrected results closely match what the mismatch hypothesis suggests—those students who did not go to their first-choice, relatively select law schools got better grades, graduated at a higher rate, and were more likely to pass the bar on their first try. But, they assert, Ayres and Brooks refused to modify the text of their initial draft. In addition, Ayres and Brooks are among the signers of the amicus brief by quantitative social scientists which is highly critical of the methods that Sander and Taylor use. This brief states flatly: “Sander’s research has major methodological flaws—misapplying basic principles of causal inference—that call into doubt his controversial conclusions about affirmative action....Sander’s research does not constitute credible evidence that affirmative action practices are harmful to minorities....”

Quite apart from the analytical case that Sander and Taylor make against affirmative action, Mismatch is an expose of politics and back-biting in the academy. It charges that those controlling what should be publicly available data refuse access to people who it is feared will come up with politically objectionable answers. It charges critics with refusals to admit demonstrable mistakes. Both Taylor’s earlier book on the Duke rape case and Mismatch report enough unreasoned and unreasonable behavior in the name of political correctness to make one gag. Most importantly, Mismatch charges universities and colleges with a stunning lack of candor regarding the extent of affirmative action and refusal to provide data with which analysts could evaluate its effects.

Although Mismatch indicts affirmative action in its current form, Sander and Taylor recommend that affirmative action be modified not ended. They note that minorities who are favored by affirmative action disproportionately come from favored socio-economic groups, children of professionals and others with higher education. They recommend that racial preferences be no larger than preferences based on financial need and socioeconomic status. The emergence of growing economic inequality heightens the appeal of class-based affirmative action. Precisely how such balancing of racial, socio-economic, and needs-based factors might be achieved is not explained in the book. Others have also urged class-based affirmative action as both fairer and politically more acceptable than race-based affirmative action—notably, Richard Kahlenberg who has taken that position for nearly two decades. Unfortunately, Sander and Taylor leave a key question unanswered—if current race-based affirmative action harms intended beneficiaries, why wouldn’t a mix of some race-based and some class-based affirmative action also do so?

Particularly troubling for a technically minded reader/reviewer is the absence from a book running to nearly 300 pages of any clear, technical presentation of the mismatch hypothesis. The authors say at the outset that in order to keep the book to a reasonable length, they are omitting ‘technical or elaborating material’ but that such details can be found at their website. At various other points in the book, readers are also advised that they can find further detail at the same web site. As I write this review and after personal contact with both authors, the website remains without such supporting material.

What conclusions should the Court and the public take from Mismatch and the cacophony of conflicting research on the effects of affirmative action? First, universities and colleges should provide qualified analysts access to data on admission practices. It is not credible that universities would suffer irreparable damage if their admission practices were publicized. Nor is it believable that minorities who benefit from racial preferences would wilt from the stigma if these practices were spelled out. The failure of colleges and universities to divulge data on the way affirmative action operates should not be tolerated. The best way to correct any over-use or misuse of affirmative action is not to ban it but to insist that its operation be illuminated with hard data and further analysis.

Second, on the major theme—the charge that affirmative action hurts its intended beneficiaries—I believe that judgment must still be withheld. Sander and Taylor present a powerful case that it does so in particular instances. But the character of college and university programs and their objectives is enormously varied. It is much more important to make sure that African Americans and Hispanics are well-represented among tomorrow’s public officials and business leaders and that they are well trained than it is to assure racial or ethnic diversity among tomorrow’s mathematicians and biomedical researchers. Meritocratic values have their place. So too do the values of inclusiveness. If there was ever a place where one size does not fit all, it is in the treatment of affirmative action within the academy.

Authors

Henry J. Aaron

Image Source: © Jose Luis Magaua / Reuters

Implementing the Affordable Care Act: Organizational and Political Challenges

Mon, 20 May 2013 14:00:00 -0400

Event Information

May 20, 2013
2:00 PM - 3:30 PM EDT

Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

This program aired live on CSPAN.org »

The Affordable Care Act is the single biggest domestic policy accomplishment of the Obama administration, but most Americans have yet to feel its impact, since many of the most far-reaching provisions do not take effect until 2014. Although the Supreme Court upheld the law, it continues to face political opposition and attempts to slow down its full implementation.

On May 20, the Management and Leadership Initiative at Brookings hosted a forum on the organizational challenges of implementing the Affordable Care Act in a difficult political environment. A panel of experts discussed obstacles such as building the state exchanges, expanding Medicaid, the role of the IRS, enforcing the individual mandate, the reaction from the small business community and the effect on premium prices.

Video

Federal Tax Reform? Don't Bet The Rent Money On It

Bill Frenzel — Tue, 14 May 2013 11:52:00 -0400

In some years there are no budgets. This year we have been presented with thre dueling budgets, one from each house and one from the president. Neither house has picked conferees, and neither has any current inclination to do so. Each prefers to glare at the other until the next election day.

The “Grand Bargain” on the Federal budget this year is still possible, but it seems less and less likely. The prospect is for another year of small deals, recurring crises, and several continuing resolutions.

As hopes for the big fiscal fix recede, tax reform moves to center stage. Ideally, tax reform ought to be a part of a larger budget agreement. But, with that agreement now slipping out of reach for 2013, tax reform seems to some observers to be a more promising suspect.

Tax reform appeals to both parties for different reasons. Democrats need it for new spending to stimulate growth. Republicans want to use it for lowering tax rates for the same reason. Those differences may be irreconcilable, but members of Congress seem to want to give tax reform a try.

Perhaps the best reason for tax reform optimism lies in the fact that the chairmen of both tax-writing committees really want to do it. Dave Camp, chair of the House Ways & Means Committee, is now serving his last term as chair under caucus rules. Max Baucus, Camp’s Senate Finance Committee counterpart, is in a similar position. He is retiring from Congress after this term.

Both of these leaders are strongly motivated to produce a tax bill before they slide into history. Both are able veterans who know the tax code. They meet regularly. Both have held hearings on tax reform, and have given it much study over the past two years. In addition, Camp has the blessing of the House Republican leadership including Speaker Boehner, who has saved the precious number, HR 1, for a tax reform bill.

Some business interests, led by the U.S. Chamber of Commerce, want to see reform of the tax code, too. Many of them see advantages in potentially lower rates, and in reform of U.S. taxation of their foreign income. American business is by no means unified on this subject, but there clearly is plenty of interest.

There is, however, another side to the tax reform story. Historically, it is a rare event. The last successful effort was in 1986. Before that one has to backtrack to 1958 to identify a major tax reform enactment. In the 1986 version, both Congressional parties, (with Democrats in the majority) and the President, Ronald Reagan, strongly supported it. Even so, the process took two years. Nobody believes that the 1986 political consensus can be duplicated today.

In 1986, the American people polled strongly in favor of tax reform. Nowadays, they are not so sure. They saw the 1986 act substantially altered by amendment in the years immediately thereafter. Today, the public is not sure that tax reform will help them. And, even if it does help, they are pretty sure it will soon be amended beyond recognition. Trust in the government has all but faded away in the last three decades.

In the end, the biggest hurdle for tax reform will be to overcome the opposition of interests who are unwilling to part with their tax preferences peaceably. Unsurprisingly, many individuals and corporations just love their tax preferences. Some of them would be worse off with a system that abolished those preferences even if their basic tax rates were lowered.

This group is sophisticated. It knows how to make strategic political contributions, and it knows how to lobby successfully. It also knows how to maneuver in the current political environment where polarization is the rule, and in which members of Congress do not often trust one another. For these interests, the conditions on the playing field are just about perfect for defending their preferences.

Just as the country needs a Grand Bargain, it also needs tax reform. It would be wonderful if tax reform could be achieved this year. The two chairmen and many members will give the good old college try. But, if a budget compromise is not possible, it also seems unlikely that a good tax reform bill can be enacted. Cheer for tax reform; pray for it; just don’t bet the rent money on it.

Authors

Bill Frenzel

Publication: Forbes

Image Source: © Kevin Lamarque / Reuters

The Road to War : Presidential Commitments Honored and Betrayed

Marvin Kalb — Fri, 10 May 2013 00:00:00 -0400

Brookings Institution Press 2013 280pp.

Not since Pearl Harbor in 1941 has an American president gone to Congress to request a declaration of war. Nevertheless, since then, one president after another, from Truman to Obama, has ordered American troops into wars all over the world. Why no declarations of war? Why has it become so comparatively easy for a president to commit the nation to war? What is Congress’s responsibility? Where is the press? In The Road to War, esteemed journalist and author Marvin Kalb explores these crucial and timely questions.

Rather than formally declaring war, presidents have justified their war-making powers by citing predecessors’ “commitments,” private and public. Many have been honored, but some have been betrayed. From Vietnam to Israel, presidential commitments have proven to be tricky and dangerous. For example, presidents pledged the United States to the defense of South Vietnam; yet none saw the need for a formal declaration of war, and few in Congress or the media chose to question the war’s provenance or legitimacy until it was too late. In the end, the U.S. lost 58,000 Americans—and the war.

Given the extraordinarily close U.S.-Israeli relationship, based on secret presidential assurances, it is remarkable but true that a number of Israeli leaders feel that at times they have been betrayed by American presidents. Kalb, while explaining the origin of this sense of betrayal, raises a profoundly important question: Isn’t it time for the United States and Israel to negotiate a mutual defense treaty? Wouldn’t such a treaty help facilitate an Israeli-Palestinian agreement and provide American reassurance for Israel in the nuclear standoff with Iran?

The word of a president can morph into a national commitment, the functional equivalent of a declaration of war. Therefore, whenever a president “commits” the United States to a policy or course of action, with or increasingly without congressional approval or national debate, it is time to raise the yellow flag--watch out!

Praise for The Road to War:

“Every road to war is ultimately also a tragedy. Kalb’s concluding chapter, however, offers a timely and important ray of hope: a defense treaty between the U.S. and Israel in the context of a fair peace settlement between the Israelis and the Palestinians might avoid not just one but even two wars. President Obama should read this chapter.”
—Zbigniew Brzezinski, former U.S. national security adviser

“Marvin Kalb has written a fine book that should be required reading for everyone who wants to be president because it underlines what every president seems not to know in the beginning—that it is much easier to get into war than to get out of it. Terrific insight, carefully researched and clearly written.”
—Bob Schieffer, CBS News

“Kalb raises important questions about the unchecked power of presidents to take the nation to war. His provocative proposal for a U.S.-Israeli defense treaty will certainly add to the debate about the future of U.S. diplomacy in the Middle East.”
—Graham Allison, Harvard University

ABOUT THE AUTHOR

Marvin Kalb

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A Bipartisan Case for Chained CPI

Martin Neil Baily and Glenn Hubbard — Thu, 09 May 2013 00:00:00 -0400

Over the last few days, politically driven critics have called on the president to abandon his support for changing the way the government indexes provisions in the budget to inflation by switching to “chained CPI.” Looking beyond politics, we’re here to say that these critics’ arguments are wrong on their merits.

As economists from opposite ends of the political spectrum, we would strongly urge the president and leaders in Congress to continue to support moving to chained CPI, which represents the most accurate available measure of inflation and cost-of-living increases. Switching to this more accurate measure of inflation represents the right technical, fiscal and retirement policy—and policymakers should not delay any further in making this improvement.

From a technical sense, the current CPI—or consumer price index—that is used to index many parts of the budget and tax code is widely understood to overstate inflation. This is because it fails to account for so-called “substitution bias,” in which consumers reallocate their purchases depending on the relative prices of similar goods. For example, if the price of apples goes up, consumers will buy more oranges. However, this behavior is not accounted for in standard CPI measurements.

The Bureau of Labor Statistics, which calculates the CPI, is very aware of this shortcoming, which is why it has developed and refined the chained CPI for more than a decade. The nonpartisan Congressional Budget Office states that the chained CPI “provides an unbiased estimate of changes in the cost of living from one month to the next.”

Some argue that using the chained CPI to index Social Security benefits is inappropriate because it does not reflect inflation for retirees, which critics suggest is higher than it is for working-age adults because of the elderly’s higher rate of spending on healthcare. However, the CBO has said that based on the available research, it is unclear whether the cost of living actually grows at a faster rate for the elderly than for younger people, and that the CPI-E —“E” for “experimental”—which was intended to provide a more accurate measure of inflation for seniors, has several methodological flaws that overstate inflation, including underestimating the rate of improvement in healthcare.

Beyond the technical case for the chained CPI, there is a strong fiscal case. Because current measures currently overstate inflation by about 0.25 percent per year, moving to a more accurate measure would result in real deficit reduction. Measuring inflation more accurately would generate savings from throughout government: about $390 billion in the first decade alone. Roughly one-third of those savings would come from slower growth in Social Security benefits, another third from revenue increases (as certain tax provisions such as the cutoff points of income tax brackets are indexed to inflation) and the remaining savings from a combination of other spending programs and lower interest payments on the debt. Given the very real need to begin to put our debt on a sustainable path, this would be a small but important contribution. The savings would be gradual, with only a small amount in the near term, thus protecting our fragile recovery from immediate austerity.

Finally, switching to chained CPI is the right retirement policy—or rather, a small piece of it. The Social Security program is on a path to exhaust its trust fund. Current projections indicate that this will occur in 2033, threatening cuts for all beneficiaries, including the very rich and the very poor, the very young and the very old, veterans, disabled workers and others. Improving the way we measure inflation won’t prevent the program’s looming insolvency, but it will eliminate a full fifth of the long-term funding gap.

To the extent that the overpayments under the current formula offset the shortcomings of our current retirement system for the lowest-income and most-elderly beneficiaries, a switch to chained CPI can and should be accompanied by targeted policy changes providing benefit enhancements designed to help the affected populations, rather than providing higher-than-justified inflation adjustments for all beneficiaries.

The federal government should not knowingly continue to measure inflation inaccurately, especially given the costs to the budget and to the Social Security program. Changes that cut Social Security benefits are a tough sell for Democrats, and changes that increase revenue are a tough sell for Republicans. But if they cannot even agree to a technical correction to those areas of the budget, how will they be able to make the hard choices to control our debt and reform our government over the long term?

Authors

Martin Neil Baily
Glenn Hubbard

Publication: The Hill

Image Source: © Fred Prouser / Reuters

Fund - Don't Cut - U.S. Soft Power

Michael E. O'Hanlon and Gen. David Petraeus — Tue, 30 Apr 2013 00:00:00 -0400

The president’s budget proposal is now on the streets of Washington, D.C. Currently, it would protect funding for the State Department and the Agency for International Development and related activities from further cuts. The combined annual budget for development aid, security aid and diplomacy has averaged close to $60 billion over the past half decade. That is now slated to decline to about $50 billion, partly due to reduced war-related costs. But this amount could come under intense scrutiny. Moreover, if there is no grand bargain between the president and the Congress, sequestration could force reductions of a further 10 percent.

Such an outcome would be bad for our nation’s security. As each of us has testified on Capitol Hill in past years America’s ability to protect itself and advance its global interests often depends as much on its “softer” power as it does on our nation’s armed forces. For example, though Latin American countries were themselves primarily responsible for their progress, the headway many of them made in stabilizing their countries in recent years has been a big plus for American security, too — and American aid had a role in that progress. That is part of why we have supported a budget deal that would repeal sequestration and achieve most further deficit reduction through savings in entitlement spending with similar increases in revenue generation. Implicit in our approach was the thinking that lawmakers should avoid the temptation to gut foreign aid just because it generally lacks a strong constituency in the United States.

America’s spending on development and diplomacy and security aid — the so-called 150 account — has strengthened under Presidents George W. Bush and Barack Obama. That has been a positive and long overdue development. Funds for diplomacy and development were starved in much of the 1990s. Some of the reductions in that earlier period were warranted, admittedly, as aid then was not always as productive as it might have been.

Today, we are arguably doing a good deal better. Various forms of development assistance and aid have, in fact, produced impressive results on a host of fronts in recent years. The President’s Emergency Plan for AIDS Relief, a major initiative of Presidents Bush and Bill Clinton and now President Obama, has played a significant role in helping to turn the tide against the HIV/AIDS epidemic — even if more work remains to be done. Development assistance has also helped more than 600 million people move out of extreme poverty, achieving one of the United Nations Millennium Development Goals several years before the 2015 target date.

Moreover, as John Podesta has recently written, in this century alone, aid has helped reduce the global childhood mortality rate by one-third — impressive, even if only halfway toward the U.N. goal for 2015. The maternal mortality rate has been reduced by almost half, as well. And progress has been seen in other sectors — such as agriculture, energy and other realms, including many in the combat zones where each of us spent considerable time in the past decade.

America deserves considerable credit for much of this progress, as the U.S. is the world’s largest aid contributor, at roughly $30 billion in 2012. The United Kingdom, Germany, France and Japan round out the rest of the top five donors, each providing from $10 billion to $15 billion a year. But relative to our economy’s size, America does not do more than its fair share; it provides just 0.19 percent of gross domestic product in development aid, similar to Japan’s level but less than half that of the three big European donors listed above, and less than a third the U.N. goal of 0.7 percent of GDP. Private donations improve our net national position somewhat, but only to an extent. The State Department budget is still less than 5 percent of the military’s — and the number of Foreign Service officers worldwide is less than half the number of soldiers in a single Army division.

Given our military contributions to international stability and the global economic growth that results from that stability in various areas, American foreign aid doesn’t need to grow substantially. But it should not be cut further. Consider some of the ideas we might want to consider in the years ahead. These should not be unconditional offers of help but would require the right kind of cooperation from key nations abroad whose future stability is central to our own security:

A possible deal to help Egypt revive economic growth and service its debt after a two-year economic downturn following its Arab Spring; this would be contingent on President Mohamed Morsi respecting the Egyptian constitution and helping us with Middle East peace;

A possible proposal to help Pakistan reinvigorate its energy sector, which currently holds back the country’s growth and compromises its quality of life; this would be contingent on Pakistan contributing more to security in the region and to pursuing reforms that reduce disincentives for significant private initiatives in the energy arena;

A major push with other donors to help countries like the Democratic Republic of the Congo reform and strengthen their security forces;

Aid for transitional governments in Libya, Yemen and Mali, and perhaps someday Syria, to get on their feet so they can stabilize, develop security forces, police their own territories and prevent terrorists from establishing sanctuaries;

Ongoing help in future years for Afghanistan’s government provided that it takes steps toward better governance and a sound election in 2014.

This agenda need not break the bank; even taken together, development aid and assistance and these initiatives would not remotely add up to another Marshall Plan. But this discussion suggests that our security will be improved by sustaining foreign aid in the years ahead rather than by making further cuts.

Authors

Michael E. O'Hanlon
Gen. David Petraeus

Publication: POLITICO

Image Source: © Akhtar Soomro / Reuters

Finding the Common Good in an Era of Dysfunctional Governance

Thomas E. Mann and Norman J. Ornstein — Fri, 26 Apr 2013 15:32:00 -0400

The framers designed a constitutional system in which the government would play a vigorous role in securing the liberty and well-being of a large and diverse population. They built a political system around a number of key elements, including debate and deliberation, divided powers competing with one another, regular order in the legislative process, and avenues to limit and punish corruption. America in recent years has struggled to adhere to each of these principles, leading to a crisis of governability and legitimacy. The roots of this problem are twofold. The first is a serious mismatch between our political parties, which have become as polarized and vehemently adversarial as parliamentary parties, and a separation-of-powers governing system that makes it extremely difficult for majorities to act. The second is the asymmetric character of the polarization. The Republican Party has become a radical insurgency—ideologically extreme, scornful of facts and compromise, and dismissive of the legitimacy of its political opposition. Securing the common good in the face of these developments will require structural changes but also an informed and strategically focused citizenry.

Read the full essay at amacad.org » (PDF)

Editor's Note: The above is from the Spring 2013 issue of Daedalus (a journal of the American Academy of Arts & Sciences) co-edited by William A. Galston (Brookings) and Norman J. Ornstein (American Enterprise Institute), which contains essays on the topic of “American Democracy and the Common Good” by Galston, Brookings’ Thomas Mann, and a number of other noted scholars. The essays range from theoretical and historical inquiries to examinations of specific institutions in the public and private sectors and in civil society.

Authors

Thomas E. Mann
Norman J. Ornstein

Publication: Daedalus

The Common Good: Theoretical Content, Practical Utility

William A. Galston — Fri, 26 Apr 2013 10:34:00 -0400

Despite skepticism about the common good, the idea has both theoretical content and practical utility. It rests on important features of human life, such as inherently social goods, social linkages, and joint occupation of various commons. It reflects the outcome for bargaining for mutual advantage, subject to a fairness test. And it is particularized through a community’s adherence to certain goods as objects of joint endeavor. In the context of the United States, these goods are set forth in the Preamble to the Constitution—in general language, subject to political contestation, for a people who have agreed to live together in a united political community. While the Preamble states the ends of the union, the body of the Constitution establishes the institutional means for achieving them. So these institutions are part of the common good as well. These are the enduring commonalities—the elements of a shared good—that ceaseless democratic conflict often obscures but that reemerge in times of crisis and civic ritual.

Read the full essay at amacad.org » (PDF)

Editor's Note: The above is from the Spring 2013 issue of Daedalus (a journal of the American Academy of Arts & Sciences) co-edited by William A. Galston (Brookings) and Norman J. Ornstein (American Enterprise Institute), which contains essays on the topic of “American Democracy and the Common Good” by Galston, Brookings’ Thomas Mann, and a number of other noted scholars. The essays range from theoretical and historical inquiries to examinations of specific institutions in the public and private sectors and in civil society.

Authors

William A. Galston

Publication: Daedalus

Image Source: © Shannon Stapleton / Reuters

Why Congress is Failing Us

Thomas E. Mann and Norman J. Ornstein — Fri, 26 Apr 2013 15:54:00 -0400

Editor’s Note: Norman J. Ornstein is a resident scholar at the American Enterprise Institute. Thomas E. Mann is a senior fellow at the Brookings Institution. They are co-authors of “It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism.” On April 26, 2013, Mann and Ornstein discussed why Congress is failing the American people in a Moyers & Company video interview:

Why Congress is Failing Us from BillMoyers.com on Vimeo.

Veteran Congress-watchers Thomas Mann and Norman J. Ornstein spoke with Bill Moyers about the Senate’s failure to make progress on gun control in April despite 90% of the American public supporting background checks. Though leadership is contextual and there have been historically dysfunctional legislatures, today’s extreme political polarization is unique and the American people are those affected the most by partisan polarization.

In the interview, Thomas Mann explains that "sadly, divided party government, which we have because of the Republican House, in a time of extreme partisan polarization, is a formula for inaction and absolutist opposition politics, not for problem solving. It wasn’t that long ago when you could actually get something done under divided government.”

How do Mann and Ornstein reply when Bill Moyers asks who wins and who loses when we have this deadlock and dysfunction?

Norman J. Ornstein: Well first of all the public and future generations really do lose. We have real problems, short and long term, in the country…

Thomas Mann: …We’ve been living through, now, years of stagnant wages, of high unemployment, of growing economic inequality. So the work of our legislature, our government, makes a big difference. And right now those issues are not being addressed in any substantial way because of the dysfunctional politics and because the Republican party has drifted so far from the mainstream of our politics.

Watch the full video on billmoyers.com »

Authors

Thomas E. Mann
Norman J. Ornstein

Publication: Moyers & Company

Image Source: © Larry Downing / Reuters

An Examination of the Judicial Conduct and Disability System

Russell Wheeler — Thu, 25 Apr 2013 13:30:00 -0400

Editor's Note: Russell Wheeler testified before the House Judiciary Subcommittee hearing on the federal judicial conduct and disability system on April 25, 2013. The Judicial Conduct and Disability Act of 1980 authorizes any person to file a complaint alleging that a federal judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts." The text which follows is Russell Wheeler's opening statement.

Chairman Coble, Ranking Member Watt, Vice-Chairman Marino, and members of the Subcommittee: Thank you for this opportunity to testify at this oversight hearing examining the federal judicial conduct and disability system, and thank you for the oversight itself. Proper legislative oversight of the other two branches is a vital part of the checks and balances embodied in the Constitution. By way of summary, I believe the judicial branch is doing, overall, a very good job of administering the Act, which largely involves sifting through a high number of insubstantial and often frivolous complaints to find the few that justify further investigation.

Since September 2005, I have been a Visiting Fellow in the Brookings Institution’s Governance Studies Program and president of the Governance Institute—a small, non-partisan, non-profit organization that since 1986 has analyzed various aspects of interbranch relations. In both positions I have been especially interested, among other things, in various aspects of judicial ethics regulation.

Before assuming these positions I was with the Federal Judicial Center, the federal courts’ research and education agency, serving as Deputy Director since 1991. While at the Judicial Center and for about a year at Brookings, I assisted the six-member Judicial Conduct and Disability Act Study Committee, appointed in May 2004 by Chief Justice William H. Rehnquist and often referred to as the “Breyer Committee,” after its chairman, Associate Justice Stephen G. Breyer. The committee—Justice Breyer, two former chief circuit judges, two former chief district judges, and the Chief Justice’s administrative assistant— reported to the Judicial Conference of the United States in September 2006,[1] after which a renamed Judicial Conference Judicial Conduct and Disability Committee developed new, mandatory rules governing the processing of complaints, rules that the Conference approved in March 2008. [2]

Credit for the report and the subsequent rules goes in part to the House Judiciary Committee and its then-chairman, Representative F. James Sensenbrenner, who called attention in early 2004 to what he regarded as an improper dismissal of a judicial conduct complaint he had filed (the Breyer Committee subsequently agreed that the dismissal was improper)[3]. Chief Justice Rehnquist said in announcing the committee appointments, “There has been some recent criticism from Congress about the way in which the Judicial Conduct and Disability Act ... is being implemented, and I decided the best way to see if there are any real problems is to have a committee look into it.”[4]

The relatively few problems highlighted by the Breyer Committee, and the process enhancements in the 2008 rules, have no doubt led to improvements in how the federal courts handle complaints filed under the Act, although, as the Committee report documented, the courts had already been doing, overall, a very good job. In this statement, I describe the Breyer Committee’s methods and principal findings, and then offer a few fairly modest suggestions to strengthen further the judicial conduct and disability system.

The Breyer Committee and Its Work

At the outset, let me make very clear that I speak only for myself and in no way claim to speak for the Breyer Committee (which went out of existence after it filed its report) or for any former members of the committee or its small research staff (or, for that matter, for my two current affiliations).

What it did Working with two Judicial Center researchers and one from the Administrative Office of the U.S. Courts (and me as a coordinator of sorts), the committee selected two samples of complaints terminated from 2001-03: a 593-complaint sample, selected to overrepresent complaints most likely to have alleged behavior covered by the Act (e.g., the sample included a larger percentage of complaints filed by attorneys than in the initial unmodified sample and a lower percentage of complaints filed by prisoners) and a separate sample of 100 terminations drawn totally at random. It also identified 17 complaints terminated from 2001 to 2005 that received press or legislative attention—“high visibility complaints”.[5]

The research staff reviewed the 593 complaints and terminations to identify “problematic” terminations, based on committee-approved definitional standards[6] and after committee review of a subset of initial staff reviews to ensure the staff was applying the standards as the committee wished. The committee members alone reviewed the smaller 100-case sample without staff assistance. (The various forms for reviewing the complaints are in the report appendices.)

The purpose of both reviews was not to determine if the subject judges had committed misconduct or displayed performance-degrading disabilities but rather to assess whether chief circuit judges and judicial councils applied the statute as intended—mainly whether the chief judge conducted a “limited inquiry” (as the Act authorizes) sufficient to justify dismissing the complaint or concluding the proceeding, but not an inquiry that invaded the investigatory role reserved for a special committee.

Finally, staff, using survey instruments approved by the committee, interviewed current former chief circuit judges and staff.

What it found The committee concluded that 3.4 percent of the 593 stratified sample of terminations were problematic, as were 2.0 percent of the terminations in the 100 straight random sample complaints (not surprising given the larger sample’s oversampling of likely meritorious complaints). The Committee found a greater proportion of problematic dispositions among the high-visibility complaints (five of the seventeen), which it attributed to those complaints’ greater likelihood to confront the chief judge or circuit council with more decisions, and thus a greater chance of at least one incorrect decision. The Committee expressed concern that these five problematic dispositions could take on outsize importance because of their visibility, and convey an inaccurate impression to the public and would-be filers of the Act’s effectiveness.

To be clear, this was a methodologically rigorous analysis that let the chips fall where they may. (The non-partisan American Judicature Society praised the report for “not hiding the federal judiciary's dirty linen in the closet,” and for “thoroughly discuss[ing] situations in which the judiciary's performance was deficient [and] the causes that may be responsible”.[7]) The committee imposed strict—some might even say too strict—criteria in its review of the terminations it assessed. For one example, a complaint by a prisoner alleged that the person on the bench in a hearing in his case was a young man, probably the judge’s intern, not the judge. The judge informed the chief circuit judge that he had no intern at the time of the hearing and his law clerk was a middle-aged woman, after which the chief judge dismissed the complaint. The committee characterized the allegation as “bizarre, [but] not so outlandish as to be what our Standard 4 calls ‘inherently incredible,’” and classified the disposition as problematic because the chief judge did not obtain, or order his staff to obtain, the electronic recording of the proceeding to verify that the voice on the tape was that of the judge.[8]

These findings suggest that, despite occasional problematic dispositions, proper administration of the Act is by and large engrained in the culture of federal judicial administration. One might ask whether a replication of the research conducted on a more recent sample of cases would find the same low level of problematic dispositions. Obviously, we cannot know that without the replication itself, but there are reasons to suspect that such a replication would find performance at least as favorable as that found by the committee. One reason is the mandatory committee rules and the tougher enforcement and oversight regime they mandate. Also, though, the Breyer Committee findings track very closely those of an earlier study, conducted in 1991-92, using the same basic methodology, for the statutory National Commission on Judicial Discipline and Removal, chaired by former Congressman Robert Kastenmeier. The earlier study used only one modified random sample (of 469 complaints) and found a 2.6 percent problematic disposition rate (compared to the 3.4 percent that the Breyer Committee found in its 593-case sample). The difference is not statistically significant.[9]

Informal discipline outside the Act Finally, the committee interviews tracked a widely shared view within the federal judiciary, namely that informal resolution of misconduct and disability, perhaps in the shadow of the Act, is more extensive than resolutions that result from formal complaints. This is especially so as to performance-degrading disability, which is rarely the basis for complaints under the statute.[10]

Committee Recommendations and Additional Steps

The Committee offered twelve recommendations, principally to provide additional information to chief judges and councils including a vigorous role for the Conduct Committee; to provide additional information about the Act to potential users; and to enhance publically available information about the Act and its implementation. The judicial branch, mainly through the new rules, has adopted many of the recommendations. I am also aware of Professor Arthur Hellman’s specific proposals to improve the implementation of the Act, mainly in the areas of transparency, disqualification of certain judges in judicial conduct proceedings, and review of chief judge and council orders. Professor Hellman is probably the country’s leading expert on the federal judicial and disability system. In general I share his concerns and endorse his proposals, and add here only a few additional comments.

The role of the Conduct Committee The Act is clear that the chief judge, upon receipt of a complaint, may undertake a “limited inquiry” but “shall not undertake to make findings of fact about any matter that is reasonably in dispute.”[11] A complainant may appeal a chief judge’s dismissal order to the judicial council, but a judicial council’s “denial of a petition for review of the chief judge’s order shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.”[12] Perhaps because of some reported instances in which chief judges appear to have dismissed complaints after making findings of fact of matters reasonably in dispute—dismissals affirmed by the respective judicial council—Rule 21 seeks, in the words of its commentary, “to fill a jurisdictional gap.” It authorizes the Conduct Committee to consider, on petition of a dissenting council member or on its own initiative, whether the chief judge should have appointed a special committee. This is an important role for the Conduct Committee, even if it would be needed rarely. I tend to agree with Professor Hellman that a statutory change would help to clarify the Conduct Committee’s authority in such situations, rare as they may be.

In a related vein, the Breyer Committee recommended that the judicial branch monitor the Act’s administration periodically, but doubted that “a full-blown replication of our research would be necessary each time. This was a labor-intensive process for us, for our staff, and for the judges and supporting personnel in the circuits.”[13] The Conduct Committee has taken an important step in this direction by examining of some of the universe of terminations it receives from the circuits and doing so in a manner the highly respected Committee chair, Judge Anthony Scirica, characterizes as similar to the Breyer Committee’s review. Just as the Breyer Committee published summary data on its review of the terminations it examined and explained why some terminations were problematic, the Conduct Committee might release similar periodic summary analyses.

Providing information on how the Act has been interpreted The commentary to Rule 3 states that the “responsibility for determining what constitutes misconduct under the statute [“conduct prejudicial to the effective and expeditious administration of the business of the courts,” 28 U.S.C. § 351(a),] is the province of the judicial council of the circuit subject to such review and limitations as are ordained by the statute and by these Rules.”

The judicial branch needs a transparent way of accessing the decisions of the judicial councils (and chief judges) in order to allow chief judges, council members, and other process participants and observers a means of identifying and assessing the determinations the councils are making—accessing what some have called the common law of judicial misconduct and disability.

One of the Breyer Committee’s main recommendations was for selected orders to be posted on the judicial branch website “in broad categories keyed to the Act’s provisions, and . . . with brief headnotes.”[14] This recommendation is embodied to a degree in the Rules’ promise that the Conduct Committee “will make available on the Federal Judiciary’s website . . . selected, illustrative orders, appropriately redacted, to provide additional information to the public on how complaints are addressed under the Act.”[15] The Conduct Committee’s forthcoming on-line Digest of Authorities can make a valuable contribution to this end.

The Act itself also requires each circuit to make available in the court of appeals clerks office all written orders implementing the Act’s provisions.[16] The Rules bolster that provision by suggesting the courts’ websites as an optional form for making the orders public, and, in terms of transparency and ease of access, website postings are obviously the better option.[17] A preliminary review of circuit practices as I prepared this statement suggest that these circuits do so[18]:

First	All orders from 2008 following, ranging in number from 14 to 45 per year.
Seventh	All orders since 2011 (93 in 2012, for example) with earlier years available on website archives.
Ninth	794 orders, from 2006 and later
Tenth	About 500, since January 2008
DC	Orders from 2011-2013 (53, for example in 2012)

Two other circuits (the Second and Fifth) have posted a small number of orders in high-visibility complaints, and the Federal Circuit has posted 24 orders from 2008, 2009, and 2010.

These postings are surely a positive, if incomplete, step. At the risk of sounding unappreciative of the posting circuits’ efforts, however, analyzing the orders, to compare dispositions of similar complaints, or to assess how different chief judges and councils define or interpret the statute and the governing rules, would require wading into an undifferentiated mass of orders (including routine council orders affirming chief judge dismissals), identified only by date, case number, and, in some circuits, a generic description (e.g., “Order, Chief Judge” or “Order, Judicial Council”). A more helpful typology is necessary (along with indicating the page length of each order as a rough way to identify non-routine orders).

Enhanced orientation for chief circuit judges

The Breyer Committee recommended an individual, in-court orientation program for each new chief circuit judge, provided by an experienced current or former chief judge and a member of the Administrative Office General Counsel’s office who staffs the Conduct Committee, and that the Federal Judicial Center develop a common core curriculum for the program to promote uniformity in the Act’s implementation. The recommendation, along with others, for on-tap resources, was designed to ensure “‘that the chief judge is not out there alone’.” [19] I do not believe the Conduct Committee to date has requested the Federal Judicial Center to develop such a program, or some other program toward the same end. It is worth exploring, however, whether the Center is in a position to develop and administer such a program and curriculum, and whether the Conduct Committee perceives a need for it in light of the other steps it is taking in its advisory role.

Providing information on the Act to potential users The courts, based on my most recent and admittedly non-exhaustive review have done a fairly good job with another transparency-related Breyer Committee recommendation, namely making information readily available on court website about the Act and how to file a complaint. Not all courts that post such material place it on the homepage, as the Committee recommended,[20] but for the most part I do not believe the information is hard to find. The Judicial Conference Committee on the Judicial Branch, under its former chair, Judge D. Brock Hornby, and current chair, Judge Robert A. Katzmann, with the assistance of its Administrative Office staff, has aggressively reminded the courts of the Rules requirements for such posting.[21] The Breyer Committee found, in 2006, only marginal compliance with a previous suggestion for such posting, and found that those courts that were posting the information on their websites did not experience a greater proportionate number of filings.[22] It accompanied its recommendation with a suggested paragraph warning would-be filers that the chief judge would dismiss their complaint if it related to the merits of an underlying decision, and a fair number of courts appear to have adopted that suggestion.

* * *

Thank you for the opportunity to testify this afternoon. I will do my best to answer any questions you may have.

[1] “Implementation of the Judicial Conduct and Disability Act of 1980, A Report to the Chief Justice,” (Sept, 2006), available at http://www.fjc.gov/library/fjc_catalog.nsf/autoframepage!openform&url=/library/fjc_catalog.nsf/DPublication!openform&parentunid=C6CA3DC8B22AC2D78525728B005C9BD3

[2] Available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/Misconduct/jud_conduct_and_disability_308_app_B_rev.pdf

[3] See report, id at note 1, at 73-75.

[4] Id at 131.

[5] Id at 39ff.

[6] Id at Appendix E, 144ff.

[7] “Politics and Progress in Federal Judicial Accountability,” Judicature (Sep’t., Oct., 2006), available at http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=530

[8] Id at 53.

[9] Id at 95ff.

[10] Id at ch. 5.

[11] 28 U.S.C. §352(a)

[12] 28 U.S.C. §352(c)

[13] Report at 123.

[14] Id at 117.

[15] Rule 24(b).

[16] 28 U.S.C. §360(b)

[17] Rule 24(b)

[18] The orders are available at these links:
http://www.ca1.uscourts.gov/?content=judicialmis.php;
http://www.ca2.uscourts.gov/judmisconduct.htm;
http://www.ca5.uscourts.gov/JudicialMisconductOrders.aspx;
http://www.ca7.uscourts.gov/JM_Memo/jm_memo.html;
http://www.ce9.uscourts.gov/misconduct/judicial_misconduct.html;
http://www.ca9.uscourts.gov/misconduct/;
http://www.ca10.uscourts.gov/misconduct.php;
http://www.cadc.uscourts.gov/internet/misconduct.nsf/DocsByRDate?OpenView&count=100;
http://www.cafc.uscourts.gov/judicial-reports;

[19] Report at 113

[20] Report at 120-21.

[21] Rule 28

[22] Report at 33

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Authors

Russell Wheeler

Publication: House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

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What's Behind all Those Judicial Vacancies Without Nominees?

Russell Wheeler — Thu, 18 Apr 2013 11:54:00 -0400

Last week, Senate Judiciary Committee ranking member Charles Grassley (R-IA.), said “we hear a lot about the vacancy rates. There are currently 86 vacancies for federal courts. But of course, you never hear the President mention the 62 vacancies that have no nominee. That is because those 62 vacancies represent nearly 75 percent of the total vacancies.”

This brief paper, after noting the considerable power that home state senators have over judicial nominations, reports that:

• Considerably fewer of the vacancies without nominees on April 12, 2013, could reasonably be expected to have had nominees by then, based on patterns in the previous two administrations.

• Of the vacancies without nominees, almost half are in states with two Republican senators, and those vacancies are older than those in other states.

• There are many more nominee-less vacancies now than at this point in President George Bush’s presidency.

• Of the vacancies that have received nominations, the time from vacancy to nomination was greater in states with two Republican senators.

• Although it is difficult to apportion responsibility for the number and age of nominee-less vacancies and the longer times from vacancy to nomination, we should consider a specific proposal for more transparency about pre-nomination negotiations that might produce more nominations, more quickly.

The Senate has long honored the concept of “senatorial courtesy”—a willingness to confirm judicial nominees only if the home state senators approve. Senate Judiciary Committee chair Patrick Leahy and most of his predecessors over the last half-century or more have refused to process nominees to whom home state senators have objected, although the form of the objections and the weight given to objections from majority and minority senators has varied.[1] This year, even the Senate majority leader couldn’t get a hearing for a Nevada state judge whom he had recommended, because his Republican colleague refused to let the nomination proceed. Home-state senators’ effective veto over judicial nominees leads to bargaining—how much currently, we outsiders can’t say—between the White House and home state senators to find nominees that the administration favors and that the home state senators are willing to let proceed. The practice now seems to be, in general, that senators propose district nominees to the White House and react to potential court of appeals nominees proposed to them by the White House.

Number and age of vacancies without nominees

As of Friday, April 12, 2013, 71 actual and future vacancies on the district courts did not have nominees before the Senate, nor did 13 court of appeals vacancies. (A “future” vacancy refers to a judgeship occupied by a judge in active status who has announced publically that s/he plans to leave active status at some future date. The Judicial Conference of the United States encourages judges to give a year’s notice of their intention to leave active status, but not all judges do so.)

Only 33 of the 71 district vacancies, however, and nine of the appellate vacancies occurred or were announced before the August 2012 recess. For this and the previous two administrations, vacancies occurring after those fourth-year recesses have not received nominations until mid-April or later of the fifth year, except for one of President Barack Obama’s nominees.[2] The 33 district and nine circuit vacancies also exclude those that became nominee-less when, after the August recess, a nominee withdrew or was not resubmitted. (For example, the Nevada nominee referenced above asked the president to withdraw her nomination on March 13, 2013. Although the president had nominated her in February 2012 for a vacancy created in August 2011, the new date of the vacancy is the date of the withdrawal, and, for that reason, is not one of the 33 district vacancies.)

District vacancies The table shows that of the 32 vacancies in district courts with Senate delegations, almost half—15—were in the 14 states with two Republican senators—including six in Texas, three in Georgia, and two in Kentucky.

Eight of the vacancies are in the18 states with two Democratic senators, including three in California and two in New York. Nine are in states with a mixed delegation, including two in Illinois, three in Pennsylvania, and two in Wisconsin (and one in Massachusetts that was announced three and a half years ago, when the state had a mixed delegation, even though the delegation reverted to all Democratic in January 2013). These 32 nominee-less vacancies include three that once had a nominee who dropped out—two in two-Republican senator states and one in a split-delegation state.

The nominee-less vacancies in the states with two Republican senators are considerably older than those in states with two Democratic senators—measured in average days from the vacancy date, here defined as when it was announced, when it was created if no announcement, or Inauguration Day for vacancies that Obama inherited. Average age of the district vacancies in states with two Republican senators is 672, versus 649 for states with mixed delegations, and 471 for states with two Democratic senators.

Court of appeals vacancies Court of appeals judgeships are not statutorily assigned to particular states within the circuit but strong and rarely disputed traditions dictate that each judgeship belongs to a particular state.

Of the six nominee-less appellate vacancies in states with Senate delegations, four are in states with two Republican senators (Georgia, Kansas, and two in Texas). One is in Wisconsin, where the incoming Republican senator made clear in early 2011 that he would veto a nominee whom the administration first submitted in 2010 and resubmitted in 2011. The Kansas vacancy also had a nominee who dropped out after the two senators would not allow the nomination to proceed. The other is a vacancy on the Ninth Circuit’s Court of Appeals—the oldest vacancy in the country—that has been the object of one of the rare interstate disputes over the seat’s proper location, this one between the California and Idaho Senate delegations. (The 1,543 days shown are from the 2009 Inauguration Day; the vacancy dates to 2004.)

The average age of the four nominee-less appellate vacancies in the judgeships from states with two Republican senators is 529 days and much longer for the Wisconsin vacancy.

Bush Administration Nominee-less Vacancies in April 2005

The current situation is different, certainly as to the district courts, than the one that prevailed early in President George W. Bush’s second term, as shown on the table below, indicating pre-2004 recess vacancies that had no nominees by mid-April 2005, and the days that had elapsed since the vacancies’ creation or announcement.

In 2005, there were five nominee-less district vacancies, as opposed to 33 now, in part because the Senate had confirmed 97 percent of Bush’s pre-recess district nominees, as opposed to 90 percent of Obama’s, and Bush submitted only three nominees from the recess through mid-April, versus 15 by Obama. The three nominee-less appellate vacancies are three fewer than the current six vacancies in states with Senate delegations. Two were in California, one a vacancy for which the administration did not resubmit its initial 2013 nominee due to the home state senators’ objections. The extended vacancy reflected in part a dispute over whether the judgeship belonged to Maryland or Virginia.

Time from vacancy to nomination

What about judgeships that got nominees, whether confirmed or not? The table below shows the total number of Obama district nominees as of April 12, 2013.

On average, the Obama administration has submitted its 171 district nominees 406 days after the date of vacancy. The average for the 28 nominees in states with two Republican senators was 457 days, compared to 412 for the 94 two-Democratic senator state nominees and 364 for the 43 split-delegation state nominees. These figures, though, show the analytical difficulties created by changes in the make-up of Senate delegations; three long-pending Pennsylvania nominations could be ascribed to either the mixed or two-Democratic group. I have ascribed them to the latter, but ascribing them to the former would increase the average days for mixed delegation state nominations to 419 and reduce those for two -Democratic states to 387.[3]

There was considerable variation within the three categories. The six Texas nominees waited on average 603 days from the date of vacancy (as defined above), while the four in South Carolina waited only 286. The nine in Florida, with its mixed delegation, waited 353 days. The two Pennsylvania nominations clearly ascribed to the mixed delegation group waited 665 and 850 days, while the three I ascribed (almost by a flip of the coin) to the two-Democratic category waited 1,152 days on average. The 20 New York nominees waited 399 days on average, and the six in Illinois when it had two Democratic senators waited 275 days.

Average days for making circuit nominations were lower in all categories. There were not enough nominations for individual states to identify reportable variations.

What explains these differences?

We can only speculate, but no doubt both the Obama White House and at least some of the senators bear some responsibility for the high number of long-lasting nominee-less vacancies, and the long times from vacancy to nomination. The 391 days on average from date of district vacancy to nomination in two-Democratic senator states under Obama is longer than the overall time for all nominations under Bush to this point—276 days on average (At this point, Bush circuit nominees had waited on average 300 days for nominations.)

Perhaps the Obama White House has been slower to suggest potential nominees in states with Republican senators, or react more slowly to suggestions from those senators. Perhaps Republican senators insist, more than their Democratic counterparts, on nominees they proposed over White House objections or object more to White House-proposed nominees. The entire Senate Republican caucus told the White House by a March 2009 letter that “if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee. . . .”[4] Perhaps Democratic senators from mixed-delegation states are the hold-ups, or perhaps Democratic House of Representative delegations have also stymied quick nominations by insisting that the White House pay attention to them as well as to their Republican senator counterparts.

Because we can only speculate on White House-senator negotiations, consider the proposal by Columbia Law School’s Michael Shenkman, a former Senate Judiciary staffer who later worked in the Obama administration. He has proposed that White Houses publish “the status of pre-nomination negotiations, although not the names of the [potential] nominees themselves.”[5] Senators could call out what they regard as misleading administration information, bringing the dispute into the open for verification. All in all, “[l]ocal editorial pages across the country would be newly equipped to comment on who is holding up the filling of” vacancies.[6] (Shenkman’s proposal is aimed at district vacancies, because his main objective is to try to fix the somewhat more fixable district judge confirmation process. Restricting the greater transparency proposal to potential district nominees may be the best way to inject any transparency into the process at all. The proposal, though, may merit consideration for court of appeals vacancies as well.)

The form of disclosure would resemble the Administrative Office of the U.S. Courts’ on-line list of “Current Judicial Vacancies,”[7] from which I have drawn some of the data for this short analysis. It displays the vacancy and the date it was actually created, the previous incumbent, the name of any formally submitted nominee, and the date of the nomination. The administration Web page would add to this information, for each vacancy without a nominee, the date on which the incumbent gave notice of the forthcoming vacancy or the date the vacancy was created in the absence of such notice, the date when the White House received senators’ recommendations, and an administration statement on whether it is still considering the unnamed, potential candidates or whether the administration has requested new names.[8] Where the administration initially provides names to senators for comment, the list could identify the date the names were provided, the date of any senatorial response, and, again, whether the administration is still considering the candidates. The administration list, to repeat, would include no names except those of the previous incumbents and those of nominees formally submitted to the Senate.

Shenkman acknowledges that candidates submitted to the White House who are identified in senatorial press releases or by the rumor mill could be embarrassed if they do not get the nomination, but argues the “[a]dministration’s priority should be on the health of the overall process.” Senators might not like the light such a list would shed on their dealings with the White House, but Shenkman argues that it would be difficult for senators to frame a principled objection to such disclosures, which could help repair the overall process.

* * *

At the least, such a public list (and any disputes over its accuracy) would shed more light on the vacancy situation than merely counting the number of nominee-less vacancies.

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[1] See M. Sollenberg, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present (2003), http://wikileaks.org/wiki/CRS-RL32013 . Thanks to my colleague Sarah Binder for calling this document to my attention and for her comments on the phenomenon at issue.

[2] In February, Obama submitted a nominee to a vacancy announced in mid-August on the (senator-less) Court of Appeals for the Federal Circuit.

[3] The three dates of vacancy were in early to mid 2009, when the state had two Democratic senators after Arlen Specter’s switch in April 2009, and persisted through the almost two years of the two-Democratic delegation until nominations in mid-and late 2012, when the state had had a mixed delegation for over a year and a half.

[4] Manu Raju, “Republicans Warn Obama on Judges,” Politico, March 2, 2009, available at http://www.politico.com/news/stories/0309/19526.html.

[5]M. Shenkman, Decoupling District from Circuit Bench Nominations: A Proposal to Put Trial Bench Confirmations on Track,” 65 Ark. L. Rev. 217, at 299 (2012).

[6] Id. at 302.

[7] See star note at p. 1.

[8] Shenkman, op cit at 300.

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Authors

Russell Wheeler

On the Budget, Obama's Opening Bid Was Reasonable

Ron Haskins — Tue, 16 Apr 2013 15:26:00 -0400

It would be difficult to imagine an uglier process of enacting legislation on important issues than the last two years of attempts by federal policymakers to reduce the size of the nation's deficit. Although no single explanation would suffice to account for the difficulty of making bipartisan progress, a major philosophical difference between the political parties stands out as the major culprit.

Broadly speaking, Republicans want smaller government and lower taxes; Democrats want more government and higher taxes. Since enactment of the Social Security Act in 1935, the story of the federal government has been one of expanding programs, increasing federal spending, and increasing taxes. Republican denials notwithstanding, Republicans have often supported the thousands of laws that expanded government relentlessly over the years and even in raising taxes to support the programs, although they have often kept in check the higher levels of spending proposed by Democrats. Even so, for the last several years Republicans have talked more vigorously about the philosophy of small government and low taxes. Necessity met opportunity when the nation entered a slow-burning deficit mess, aggravated by a severe recession that soon convinced almost everyone that the federal government had to balance its books by cutting spending, raising taxes, or both. Roughly speaking, the need to reduce the deficit, combined with the fact that cutting spending would move the nation toward the Republican goal of smaller government, has given Republicans an opportunity to cut spending to an extent that would have otherwise been impossible.

By contrast, the deficit puts Democrats in a defensive posture because, as President Obama's budgets show, they typically propose increased government spending. Ironically, Democrats also have been able to seize on an external force to support their cause. That force was the Great Recession that began in December 2007 with effects, especially high unemployment, that continues today. In 2009, Democrats were able to pass an $800 billion plus stimulus bill to fight the recession and that bill expanded a host of programs for the poor and unemployed. Some of those changes have been made permanent, which has had the effect of permanently boosting government spending.

The recession and the stimulus have allowed Democrats to advance their agenda; the deficit and the compromise legislation Congress has passed to reduce it over the past two years have allowed Republicans to advance their agenda, although the fiscal cliff agreement in January did contain a $600 billion tax hike on the rich.

Now comes President Obama with his budget proposal for 2014. He proposes to increase taxes by imposing a minimum tax rate of 30 percent on earnings over $1 million, limiting itemized deductions for those in the top tax brackets, and increasing the federal tax on cigarettes to pay for expanded spending on preschool. Republican leaders have been scathing in their rejection of the tax increases. But the president also proposes changes in health care, primarily Medicare, by encouraging more Medicare recipients to use generic drugs and by making elderly couples with incomes over $170,000 pay for more of their care. And most importantly, Obama proposes to change the inflation adjustment in Social Security benefits in a way that would reduce spending by about $130 billion over the next decade and even more after that.

Although Republican leaders have been hostile to many features of the Obama budget, the Medicare and Social Security proposals are important and would both cut spending. It is even possible to see the inflation adjustment proposal as a breakthrough because a Democratic president has, at the cost of infuriating his political base, proposed to reduce spending on the program that is the greatest policy achievement of the Democratic Party. In the past, Republican leaders have urged the president to make the specific inflation adjustment proposal he now offers in his budget. Republicans should take it.

The President makes a number of new spending proposals in his 2014 budget, notably on infrastructure, preschool expansion, support for manufacturing, and making permanent several existing tax credits that help low-income families. But the Office of Management and Budget estimates that as a percentage of GDP, the nation's debt would decline from 76.6 percent in 2013 to 73 percent in 2023. Many analysts and politicians think the debt should be reduced more, but this reduction, if the OMB estimates are correct, would represent continued progress on the deficit and a major breakthrough on Social Security.

The opening question for serious negotiations about the 2014 budget and deficit reduction is whether both sides have shown enough give to justify serious bargaining. Whatever else it might do, the Obama budget proposal, by offering an important reduction in Social Security spending and a cut in Medicare spending that could be expanded in the future, shows considerable give on the president's side. So far the response from most Republicans has been dismissive. Maybe Republican leaders should take a second look and make a counterproposal that falls between the Ryan budget and the president's budget while retaining the Social Security and Medicare savings. If they have to offer something in taxes, which they will to get a deal, remind Democrats that the Social Security inflation adjustment would also increase income taxes by around $100 billion over ten years and accept the president's cigarette tax proposal. Something along these lines would allow both Democrats and Republicans to achieve part of their traditional agenda.

Authors

Ron Haskins

Publication: Real Clear Markets

The Do-little House of Representatives: Why so Little legislating?

Sarah A. Binder — Thu, 04 Apr 2013 16:51:00 -0400

I noticed the other day that House lawmakers have cast relatively few recorded roll calls this year—voting just 89 times before leaving town for spring break. To put those roll calls into perspective, I gathered two decades or so of House “early voting” data—the total number of votes cast each year between the start of the session in January and the last day of voting before Easter. Granted, Easter jumps around the calendar like a (Peeps) bunny. But party leaders do target their floor agendas to approaching recesses, so it’s reasonable to use the Easter break (rather than a fixed calendar date) to mark the end of each session’s “early voting” period. With that caveat in mind, some brief thoughts on recent patterns in early voting

For starters, some notable patterns appear in the data. The 113th Congress is indeed off to a slow start—showing the least amount of roll call activity since 2006. More generally, the drop in House roll call voting runs counter to a broader trend of ever expanding legislative floor voting. Regardless of whether Democrats or Republicans hold the gavel, the House has increased its workload each winter over the past quarter century. That said, bursts in legislative voting take place only after a changing of the guard to a new majority. In 1995, 2007, and 2011, roll call voting jumped precipitously: New chamber majorities appear to follow through on their electoral promises to change the agenda in Washington, whether it’s Newt Gingrich’s Contract with America or Nancy Pelosi’s Six for ‘06. Coupled with new majorities’ frequent campaign promises to broaden participation on the chamber floor, such commitments likely drive the surge in legislative activity when party control changes hands.

Before going too far here, rest assured that I recognize the limitations of such data. We can’t judge a Congress’s broader performance by its winter legislative season. Moreover, we might want to distinguish between first and second session winter voting records. (The former might be interesting; the latter, not so much.) In any case, output measures such as votes are better viewed in comparison to the array of demands faced by legislators. We want to know what Congress accomplished, relative to the big issues and problems of the day. In short, more roll calls do not necessarily mean a better legislature. Still, I think the relatively low level of House legislative activity at the start of the 113th Congress is worth pondering.

This year’s quiescent House floor likely reflects a few developments.

First, the steep drop off in early voting partially reflects Congress’s recent difficulty in making fiscal policy. The GOP’s willingness in 2011 to open up the appropriations process to nearly unlimited amendments by both Democrats and Republicans helped to drive up the number of early roll calls. This year, GOP leaders were unwilling to allow any rank and file members to take a crack at the mammoth CR: Opening up the bill to amendments would have threatened a carefully knit package of limited changes to the CR. Given bipartisan concerns about the impact of the sequester, allowing amendments could have derailed the bill before its must-pass deadline. Tentative majorities prefer limited legislative activity.

Second, welcome to the “Boehner Rule” House. By definition, the GOP leadership’s new practice of letting the Senate go first drives down early House floor activity. Boehner’s reluctance to have the House go first reflects the difficulty of cobbling a chamber majority without Democratic votes: The GOP’s thin margin and the threat of defection by rank and file GOP on measures deemed insufficiently conservative could keep House floor activity depressed for awhile. (Witness the sixteen GOP who voted against bringing the CR to the floor and the eight GOP who have voted “no” on each critical vote this year.)

Third, and related, letting the Senate go first may offer political dividends to the House leadership. The Senate might no longer be the world’s greatest deliberative body, but it’s still the most sluggish. The House leadership likely benefits from legislative delay, particularly on the big issues of the day that create electoral dilemmas for the GOP’s brand name (for starters, immigration reform and gun control). Delay offers opponents time to mobilize, allows public support to wane, and lets House Republicans blame Senate Democrats for congressional inaction. Win, win, win (at least for now) for a party leadership unable or reluctant to build a legislative majority for reform.

In short, these data are limited but potentially revealing. House leaders no doubt are using the time to devise and sell a legislative strategy going forward. Given the difficulties of squaring the party’s ideological and electoral ambitions with the demands of its rank and file, no surprise House leaders (men and women alike) have avoided leaning in.

Authors

Sarah A. Binder

Publication: The Monkey Cage

The Tax Code Is a Hopeless, Complex, Economy-Suffocating Mess

Bill Frenzel — Thu, 04 Apr 2013 12:26:00 -0400

Throughout our population, experts and non-experts alike, the verdict is nearly unanimous. The U.S. tax code is a hopelessly complex mess, antithetical to growth, and is crammed with conflicting incentives, which screams for reform. But there is little agreement on how to repair it. My preferences are necessary, just, and ordained in heaven. Your preferences are unnecessary, unjust and counter-productive.

Tax reform is the most difficult and complicated piece in the U.S. budget battle. It is integral to both the Republican House and the Democratic Senate budgets. As in every budget item, there is a conservative vs. liberal confrontation, but tax reform is loaded with more confusing detail, and it adds extra layers of difficulty to the budget debate.

Some liberal and conservative inclinations tend to intersect when the conversation focuses on elimination of tax preferences. But, both sides have their favorite exceptions. Democrats love tax expenditures for the less affluent. Republicans love the preferences they suspect will stimulate growth.

Additionally, there are wide divergences about how the deficit savings from eliminated tax preferences should be used. Republicans like deficit-neutral solutions which invest all savings in lowering rates for growth. Democrats would like to spend those savings, either for compassionate spending or for Keynesian growth stimulus.

More real difficulties arise when tax preferences, individual and corporate, are considered one at a time. This is where powerful lobbying interests intervene. These are the interests that finance campaigns and parties. Regional factors arise, too. The normal political “rules” are often overridden. In some committee votes, it is hard to distinguish Democrats from Republicans.

Three of the four largest individual preferences are interesting examples. The first is the homeowners’ preference, which allows deductions for mortgage interest and real estate taxes. Homeowners’ enthusiasm for those benefits is exceeded, exponentially, by the real estate lobby, including real estate and mortgage firms, sun-belt governors, etc. The lobby, with bi-partisan support, easily defended its prize in the 1986 Tax Reform Act, and again, more easily, in President Bush’s Commission on Tax Reform in 2005.

The other two large preferences are charitable deductions and medical insurance (untaxed income for employees, and a deduction for corporations). Taking on the Little Sisters of the Poor, the big universities, or the United Fund is a fool’s errand. And standing up to powerful unions and corporations is not much easier.

Because these three big preferences, and others, are so well defended, many observers have suggested that placing a limitation on total individual preferences, a la Martin Feldstein, is a better approach. That strategy offers some hope, but it’s no piece of cake, either.

Reforming individual preferences is tough, but corporate preferences are, in some ways, even more perplexing. The last tax reform was achieved, at least partly, by shifting individual tax burdens on to corporations. That was okay in 1986. Today the common wisdom in both parties, and among knowledgeable observers, is that the U.S. corporate income tax rate must be reduced for reasons of international competition.

The task would be easier if individual and corporate income tax reform could be considered separately. Here again, there is a problem. Much of American business is transacted by small companies taxed as individuals. Separating these companies from their corporate competitors may not be practical.

Business operations are scattered over the U.S. supply chains extend everywhere. The tentacles of strong lobbying organizations also extend everywhere. Our system of territorial representation in Congress makes nearly every member a special defender of certain companies, industries, or unions. This factor tends to upset tax reform strategies. Sub-contracts loom large. Majorities appear, and disappear, unexpectedly.

Some budget observers believe that tax reform could be the key to long term fiscal compromise. Instead, some of these extra dimensions could make it the enemy. The devil is always in the details. Tax reform teems with details. Its politics are sometimes treacherous, even for seasoned politicians.

On the positive side, the tax committees of both houses are primed and ready to move forward. Chairman Camp and Baucus, while not exactly political soul-mates, have some similar ideas, a good business relationship, and regular communications. Both parties seem to want to try it.

Speaker Boehner has assigned tax reform the precious number of H.R. 1. If President Obama can extend his Congressional charm offensive, tax reform will never be the odds-makers’ favorite, but it is not out of the question for 2013.

Authors

Bill Frenzel

Publication: Forbes

Applauding Connecticut’s Gun Control Legislation

John Hudak — Thu, 04 Apr 2013 16:28:00 -0400

The Connecticut General Assembly and Governor Dannel Malloy have proposed and passed a legislative package addressing gun control, school safety, and mental health care. Are they controversial? Yes. Are they motivated by a horrific act of school violence? Yes. Do they provide a prime opportunity to improve public policy? Absolutely. The latter is what is missing from the national conversation.

Since the massacre in Newtown 111 days ago, gun control advocates have begged for policy solutions. Gun rights advocates have argued that legislative proposals will not work and thus should not be implemented. Connecticut offers something for everyone. First, this legislation is the most comprehensive, aggressive policy response in the United States since the tragedy. This move will please those clamoring for tighter restrictions on guns, for safer schools, and improved mental health care.

Second, gun rights advocates should see this as an opportunity. If gun owners, conservatives, libertarians, NRA officials and others truly believe such legislation will fail, these laws give them a chance to demonstrate it. If their convictions are firm and true and these laws will only lead to more violence, there will be proof. If their fears that such laws will make honest, law-abiding citizens the defenseless victims of criminals and an expansive government, the Nutmeg State will show us. For those in favor of unfettered access to firearms, you should let Connecticut prove your point.

Yet, there is an alternative scenario. One that is more plausible. One that is more likely. The Connecticut legislation may be a success. It may limit—not stop, but limit—crime, keep some weapons out of the hands of dangerous offenders, keep schools and other public spaces safer, provide better preventive mental health care, assist law enforcement in their investigations, and still allow citizens the ability to exercise their 2^nd Amendment rights. This scenario terrifies the most extreme elements of the gun lobby. It threatens not the Constitution, but their own existence.

The Connecticut legislation will offer a test. With scientific research, statistical analysis, and policy experience, we will see whether rhetoric reflects reality. We will see whether policy succeeds or fails. It gives us a chance to ask and answer questions that plague this debate. Yes, researchers have asked these questions already. Some of the best work on the topic comes from Johns Hopkins’ Dr. Daniel Webster and his colleagues at the Center for Gun Policy and Research. Moving forward, this legislation provides an experimental setting, Connecticut provides the most public of profiles, and time will provide the data.

Surely, some will bemoan the move as an infringement on the 2^nd Amendment. And these laws allow courts to rule on the constitutionality of such restrictions—another opportunity for gun rights advocates fearful of constitutional violation. But, in reality, Connecticut’s move today exemplifies one of the most beautiful attributes of the American Constitution: federalism. Federalism lets states within bounds to implement laws separate from the national government. It allows for an evaluation of policies and their effectiveness. States do this with law enforcement, budgeting, taxation, health care, tort reform, marriage, drug policy, and in a whole host of areas. My colleague, Jonathan Rauch, recently explained that these different laws in different places tell us much about what is good policy and what is bad. We can improve our laws, ignore the bad, embrace the good, and let evidence, not talking points, inform future policymaking.

In many ways, Connecticut has done the impossible. It brought together leaders from both parties to come to a compromise based on evidence, testimony, empirics, and, yes, emotions. Democrats and Republicans together passed legislation in an effort to keep safe my friends who are teachers, my family members who are students, my brother-in-law in law enforcement and my fellow Nutmeg State brethren.

Gridlock did not win the day in Connecticut. Solutions did. Now, time will tell us exactly what gets solved.

Authors

John Hudak

Policy Leadership and the Blame Trap: Seven Strategies for Avoiding Policy Stalemate

R. Kent Weaver — Fri, 29 Mar 2013 00:00:00 -0400

Editor’s Note: This paper is part of the Governance Studies Management and Leadership Initiative.

Negative messages about political opponents increasingly dominate not just election campaigns in the United States, but the policymaking process as well. And politics dominated by negative messaging (also known as blame-generating) tends to result in policy stalemate. Negative messaging is attractive to politicians because people tend to pay more attention to negative information than positive information, and they are more sensitive to losses than equivalent gains. Political polarization, competitive, nationalized elections, increased fiscal stress and changes in campaign law and practice have all exacerbated pressures to engage in negative messaging in recent years. There are a number of strategies that allow politicians to maneuver around the “blame trap” and avoid policy deadlock in some circumstances, including passing the buck to non-elected bodies and putting in place triggering mechanisms that generate politically unpopular policy changes in the future. All of these strategies have limitations and disadvantages, however, so both blame-generating politics and policy stalemate are likely to be the “new normal” in American politics in the near future.

There are several strategic options for avoiding policy stalemate in a political environment dominated by negative messaging. Each of these options has distinctive advantages and limitations, and risks. None is suitable for all situations, but together they offer some important opportunities to avoid policy stalemate.

Passing the Buck: A first strategy that politicians can use to try to avoid the blame trap is to pass the buck to non-elected bodies—often temporary commissions—to reach deals behind closed doors without the pressure of staking out and defending partisan and ideological positions.
Grand Deals and Circling the Wagons: A related strategy to passing the buck is for Democratic and Republican leaders to negotiate behind closed doors to try to strike a grand deal on an issue like budgets and taxes or immigration, which they then sell jointly to the public and to rank-and-file legislators (“circling the wagons”) as the best deal that is achievable—and better than no deal at all.
Government by Autopilot: Another strategy for making difficult decisions is to set up a procedure under which reaching some trigger (e.g., deficit levels, or Social Security deficits) leads automatically to programmatic adjustments according to a formula set up in the original legislation unless Congress agrees to overturn it.
Feet to the Fire: This strategy starts with the same mechanism as policy by auto-pilot: policymakers set up an automatic mechanism that will trigger politically painful policy changes without politicians themselves pulling the trigger.
Experiment: On some policy issues where parties are divided, it may be possible to try out different approaches to policy before making a firm choice at the national level. This can be done in several different ways. One is to give more authority to states and localities to experiment with new policy options rather than having a uniform national policy.
Executive Action: If a hyper-partisan and divided Congress is unable to break policy stalemates, what about executive action as an alternative? There certainly are some opportunities for breaking stalemate through executive action, as President Obama showed in June 2012 when he suspended deportation of young illegal immigrants who had entered the country illegally.
Compromise: A final strategy for overcoming the blame trap is the oldest and simplest one: politicians can split the difference with their partisan foes and meet them halfway.

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Authors

R. Kent Weaver

Short-Term Congressional Budget Fixes Only Prevent Total Disaster

Bill Frenzel — Wed, 27 Mar 2013 00:00:00 -0400

In a pleasantly surprising move, the normally moribund Congress passed a Continuing Resolution (CR) to fund the government for the last 6 months of FY 2013. The President obligingly signed it. What’s more, the usual nasty and dilatory process was completed on time without excessive name-calling.

That made the CR a multiple winner. It got the country past 2 more cliffs. One was the blunt and thoughtless cuts of the sequester. The other was the expiration of the current CR. While mitigating some of the worst effects of the sequester, it maintained the total savings of the sequester. That’s a double win for a Congress that rarely scores victories.

That’s fine for now, but the CR is just one more short term stand-off between the warring Democrats and Republicans. They proved they can, when pressured, keep the Ship of State moving past cliffs, sequesters, debt ceilings, and other crises. But their short term fixes only prevent a total disaster. They give no long term certainty or direction to the country.

CRs are, in fact, a clumsy way to conduct the people’s business. They include all functions of government in one ugly package. They include some reviews of some spending, but they lack the careful scrutiny that is applied when all 13 appropriations bills are passed separately. Lacking a common budget target, legislators are forced to bundle all spending in to a CR.

In the past few years, frequent budget crises have become the rule for Congress. This year we avoided the cliff, dodged the debt ceiling, and now have eased the effect of the sequester. We will face another debt ceiling expiration in August, and probably have another CR in September. All of these could have been avoided had our political leaders agreed on a long term budget plan to stabilize the debt ratio at a reasonable level.

This year both the Republican House and the Democratic Senate have passed budgets. The Senate budget was the 1^st in 4 years, and was a cause for public celebration. The bad news is that the House and Senate versions are poles apart. A compromise is considered highly unlikely.

The Republican budget balances after 10 years, and stabilizes the debt ratio at 55%. It raises no new taxes, and makes drastic cuts in health care spending. The Democratic budget lowers debt slightly, but does stabilize it. It increases taxes by $1 trillion, and makes small spending cuts. These budgets are reconcilable, but only if the politicians regard each other as the opposition, instead of the enemy.

Without a reconciliation, our budget process will move the country backwards into more CRs and more cliffs in 2014. We will survive, but continue to lurch from crisis to crisis.

Our economy will be denied the certainty it requires for a faster recovery.

What is lacking here is the Grand Bargain, a 10-year program to tame the long term deficit-drivers, and stabilize the debt so we can deal effectively with future emergencies. Every budget observer has a personal favorite version of the big compromise. The well-known Bowles-Simpson Plan is just one of many possible models.

Republicans are determined to raise no more taxes, and to reduce entitlements that are the long term debt-drivers. Democrats are equally determined to defend entitlements, and to impose more taxes.

Neither side can get everything it seeks. Yet, both sides remain adamant. Each believes that it can ultimately defeat the other, despite contrary historical evidence. Meanwhile, our economy underperforms at sub-standard levels. Uncertainties caused by the stalemate continue to confound markets and business decisions.

There is still time for compromise, but, so far, the will has been absent. The political parties and their leaders have to make an agreement. Nobody can do it for them. One day the light will dawn. They will begin to understand that compromise is strength, not weakness. The sooner that day comes, the better.

Authors

Bill Frenzel

Publication: Forbes

Image Source: Kevin Lamarque / Reuters

In Reducing Teen Pregnancy, Shame Is Not a Four-Letter Word

Richard V. Reeves — Fri, 15 Mar 2013 12:36:00 -0400

New York is deploying a powerful weapon to reduce teen pregnancy: shame. New advertisements around the city dramatize the truncated life chances of children born to teenagers; in one, a tear-stained toddler stares out, declaring: “I’m twice as likely not to graduate high school because you had me as a teen.”

Nobody is arguing the facts. But plenty of people are furious at the decision to highlight them. “Hurting and shaming communities is not what’s going to bring teen pregnancy rates down,” declared Haydee Morales, the vice president for education and training at Planned Parenthood of New York City.

This is the allegedly “liberal” response. But liberals should think twice: shame is an essential ingredient of a healthy society, particularly a liberal one. It acts as a form of moral regulation, or social “nudge,” encouraging good behavior while guarding individual freedom.

Read the rest of the op-ed at the New York Times website »

Authors

Richard V. Reeves

Publication: The New York Times