Sunday, November 30, 2003

Cutting Spending, and Other Myths

I took a week off due to spam, I guess. I wrote this column last week and emailed it to my editor while in Florida for a Devereux meeting, but he claims he never received it. I asked what happened, and sent it again; apparently the first time it got caught in the Tribune's email system spam filter. So it ran this Sunday instead, and I got to take the week off. And I hope my father-in-law, who always picks up the check, reads to the very end.

East Valley Tribune, Nov. 30, 2003

Can we drop the pretense that we can balance the budget by cutting spending? Nobody’s done it, nobody will, and people who pretend that fantasy can come true are deluding themselves.

Better you should believe in the Easter Bunny. With that myth, kids get some chocolate. With the “just cut spending” myth, kids merely get burdened with our debts.

Exhibit A is the new California governor, who campaigned as an outsider, not a politician, not beholden to special interests, blah blah blah. So how does Gov. Schwarzenegger plan to tackle his state’s budget woes?

First, he repealed the hated car tax increase, worsening the deficit by $2 billion.

Second, under California’s peculiar budget rules, the repeal cuts money intended for local governments for fire, police, and other services. Naturally, the new governor wishes for $2 billion in offsetting spending cuts so local communities don’t suffer, but he wants somebody else to propose specific cuts. It’s like the movies: Call in a stunt double and let him demonstrate leadership.

So after making matters worse, and not leading, what is this great GOP hope’s plan? It’s borrowing $15 billion, the largest state bond issue in history. During the campaign, we thought he promised to “cut spending” but apparently he actually meant “borrow billions.” I guess we didn’t understand his accent or something.

Then there’s Exhibit B, Washington, D.C., where Republicans control the White House, the Senate, the House, and the Supreme Court, but they can’t control spending. They can try to shift the blame, but the GOP is large and in charge and can’t get off the spending barge.

President Bush has mostly gotten whatever he wants through Congress, except for 6 out of some 150 judges (as opposed to nearly 60 judges Clinton nominated who never got a vote from the GOP). But Bush hasn’t vetoed a single spending bill or done anything serious to cut spending.

Think I’m overstating the GOP’s sorry record? Then go read the energy bill, which nobody outside of Washington can stomach. It’s a stinking multi-billion dollar pile of vote-getting goodies, subsidies large and small for both major campaign contributors (oil, ethanol, and MTBE) and minor civic achievements (the first Hooters in Shreveport -- hooray!). Cut spending? Not with votes to be had.

Not only has complete GOP control actually increased spending from what the Clinton administration (with a booming economy) did, but these supposedly flinty tightwads want to create two new, massive entitlement programs. You’ve probably heard about a new prescription drug benefit in Medicare, which would take this entire page (and more) to explain; suffice it to say that it’s a major new spending program launched with the budget deficit at nominally record levels.

But these Republicans have created a second entitlement program. You may think it’s a war, but listen to the high-concept language of the Bush administration about our national commitment to perform a task that’s never been done before, how nobody should doubt our will, that we must fulfill our promises.

What do you call a government program that isn’t subject to debate but instead requires spending whatever’s needed, no matter what? That’s the very definition of an entitlement. Iraq may be a war, but it’s essentially another huge entitlement program.

Arnold and George have no intention of cutting spending. They want to spend just as much, maybe even more, as Democrats do; the only difference is that Democrats are willing to pay for spending today with taxes today, while Republicans prefer that future generations pay for today’s spending.

It’s a good thing my in-laws are Democrats; otherwise, when they take us out to dinner, they’d stick me with the check.

Wednesday, November 19, 2003

Getting It Wrong Isn't "Dissent"

I got tired and took three days off from politics, so you're getting Sunday's column late on Wednesday. But my zest for battle has been refreshed by Gov. Arnold ("It was my accent--you heard 'cut spending' but what I meant was 'borrow $15 billion'") Schwarzenegger, the energy bill, and Rural/Metro deciding to pull a "Lisa Graham Keegan" on Scottsdale--win the election, then quit. So I'm back.

East Valley Tribune, Nov. 16, 2003

Instead of actually addressing any of my arguments about church-state separation and the Alabama judge with the Ten Commandment fixation, both Carol Nichols Turoff and state Rep. Karen Johnson wrote letters to the editor replete with the usual epithets -- Liberal! Democrat! Liberal Democrat! -- and went all relativistic, claiming that it’s all a difference of opinion.

But it’s not. The law is clear. Turoff and Johnson could say they think the law’s mistaken and should be changed. But instead they pretend there’s doubt about what the Constitution requires, and that’s just wrong.

I treated Turoff with more respect than she gives judicial applicants with differing political views, but she defends her lack of legal and historical knowledge as “dissent.” Johnson then wrote that Turoff’s “opinion” should be respected because “[t]wo of our previous governors thought so well of her that she was appointed to represent the voters of this state in the judicial selection process.” And also because the Constitution only says Congress, not a state, can’t establish a religion.

Take Johnson’s substantive claim first. Sure, the Constitution doesn’t explicitly prohibit states from establishing religions, but that’s not what it means today -- and anybody familiar with American history, not just law, knows it. The applicability of the Bill of Rights to the states through incorporation via the Fourteenth Amendment has been the law since the 1930’s.

That’s the kind of rhetorical gymnastics needed for any claim that the Alabama Ten Commandments monument was legal, the very week that the U.S. Supreme Court finally settled the case. If conservatives want to make everything relative and a matter of “opinion” regarding church-state separation or global warming, then don’t be surprised that “good science” takes a beating when it comes to forest health or tort reform.

But what I found most interesting in Johnson’s letter was the unusual phrasing: appointed by two previous, and nameless, governors. What might account for the curious lack of detail -- some sort of right-wing love that dare not speak their names?

Well, maybe the luster of the names of former governors Fife Symington and Jane Hull, the two governors who appointed Turoff, isn’t quite so bright these days. Symington’s fall is well known, with his bank fraud convictions overturned by that ultra-liberal Ninth Circuit Court of Appeals, followed by one of those notorious last-minute Clinton presidential pardons so otherwise reviled by the GOP. But Jane Hull’s legacy isn’t so lustrous either, as more people realize that her major achievement while governor was essentially to retire while still in office.

It’s been quite a change on the Ninth Floor. The Napolitano administration has logged in more constituent service calls in nine months than Hull’s did in four years. When Gov. Napolitano’s constituent services team visited their offices for the first time, they learned that their predecessor’s voice mail system could hold only 10 messages. After the tenth person (in a state of 5 million people!) called, that was it.

It sure sounds easy being a Republican. People expect so little, you can essentially phone it in from Pinetop; just don’t try leaving a message. If anyone calls you on your false statements, just call them a liberal Democrat. And if you’re wrong, well, it’s all a matter of opinion, isn’t it?

Friday, November 14, 2003

Child Protective Services

Those of you in Arizona may want to view this presentation, and forward it to your email lists as well. I've heard that the previous version got about a quarter-million downloads in less than a week, and if it generated a fraction of that many emails to legislators, maybe we'd get the Arizona Legislature to treat child welfare with the same alacrity that they showed in funding lawyers to defend the incumbents' legislative districts. Just a thought.

Monday, November 10, 2003

Statistics and Sex (Now Do I Have Your Attention?)

My battle with Carol Nichols Turoff will resume next week, but this week it's abstinence-only sex education. Shorter version for the statistically-impaired: If Mongo like result, Mongo claim to like "junk science." But Mongo don't know sex. As one of my law partners pointed out, if parents can't teach abstinence-only to their kids at home, how on earth are teachers supposed to do it at school?

For those of you following the special session on Child Protective Services--or especially, for those of you not following it--you should go to the following link and then contact your legislators using the links at the end.

East Valley Tribune, Nov. 9, 2003

What supporters of so-called “abstinence-only” sex education programs really want -- apart from the traditional adult pleasure of telling kids “No!” -- is for legislators to abstain from any knowledge of statistics.

The 2003 study of the Arizona Abstinence Only Education uses faulty data, invalid experimental design, a continually-changing program, and the absence of any test or “control” group to justify the program. You’d never know the limited, vague, and tentative nature of the study, because proponents’ press releases don’t have to be statistically valid -- and aren’t.

But before considering the wide gulf between what the 2003 study actually said and what abstinence-only supporters claim it said, it’s worth noting that every major sex education program (including comprehensive programs with statistically valid positive results) promotes abstinence as the most reliable method of preventing unintended pregnancy and sexually transmitted diseases.

In other words, abstinence isn’t only for abstinence-only. The real question is whether abstinence-only is effective, making sex the only school subject where less knowledge is somehow better.

The 2003 study has more limitations than my limited space allows, so let’s hit only the high points. First, the program kept changing through its five-year run, so study results may come from program aspects now revised, or jettisoned entirely.

Second, an accurate study would look for fairly long-term effects. The 2003 study surveyed program participants as little as three months later, which simply isn’t enough time to evaluate birth rates accurately.

Third, the study defines “success” as telling a pollster you have a “positive attitude” toward abstinence -- not that you intend to (or actually do) abstain.

Fourth, 45 percent of those surveyed participated in programs sponsored by Catholic Social Services (disclosure: I’m a CSS contributor), so positive results may come from participants’ religious inclinations instead.

Fifth, significant data in the 2003 report comes from prior years, and reports at the time explained that such data may have problems. Seemingly positive news came from "year 2" data, which appears to have overstated the number of program participants and understated birth rates. Years with better data collection methods showed birth rates among program participants basically matching state rates, and little evidence of positive change from the program.

Sixth, the most fascinating recommendation in the 2003 report comes from its observation that participants overwhelmingly thought that the program “talked too much about what was right and wrong.” The report authors assert that “nonjudgmental” abstinence-only programs, which cultivate interpersonal skills “are more likely to be effective than programs that are perceived as saying, ‘Do this because it is right.’” Somehow I doubt that “nonjudgmental abstinence-only” is what program boosters have in mind.

But the most serious flaw in the 2003 report -- the 500-pound gorilla, actually acknowledged in the report -- is the complete absence of any control group against which to measure the program’s results. As the study notes, “[i]n the absence of a comparison sample, or published findings from similar programs serving similar groups of teens, it is difficult to judge the merit of these successes.” Without a control group, it’s impossible to tell if abstinence-only is more or less effective than classes where similar students got lectures about the virtues of Vitamin C, or learned to play the trombone.

Maybe abstinence-only programs can have positive effects, but it definitely hasn’t been proven yet. And it’s odd that people who usually claim that government can’t do anything right, and needs to do and spend less, are suddenly enamored of devoting millions of your tax dollars on their unproven experiment.

If you actually read the studies, you’ll realize that when it comes to abstinence-only, the only statistically-valid thing to say is “Just say ‘we don’t know’.”

Monday, November 03, 2003

Ignorant of the Law

Ms. Turoff treats many people who appear before the Arizona Commission on Appellate Court Appointments with much less kindness and courtesy than I allow in the following column. The editor chose the headline; I wouldn't have called her a zealot but rather would have used the more technically-correct term, Wacko. As-appeared-in-newspaper version here.

Church and State

East Valley Tribune, Nov. 2, 2003

You’ve heard how “ignorance of the law is no excuse?” It means people can’t avoid the consequences of their actions by claiming that they didn’t understand the law.

You probably think legal ignorance might disqualify somebody from sitting on the state commission that nominates potential judges. But this being Arizona, you’d be wrong.

In her letter last month to the Jewish News of Greater Phoenix, Carol Nichols Turoff, a member of the Arizona Commission on Appellate Court Appointments, displayed her inexcusable legal ignorance. Turoff joined the debate over the Alabama judge who installed a large Ten Commandments monument in the Alabama Supreme Court building:

“The so-called separation of church and state does not exist in our Constitution. However, it is alive and well within the ACLU and among tolerance advocates. Today, we tolerate everything. Everything that is, except Bible-based religion, which Judaism certainly is, and upon which this country was founded.

The prohibition in the establishment clause of the First Amendment is against a state-endorsed religion, not religion itself. Hence, presidents take their oaths of office with a hand upon the Bible, and Congress opens daily sessions with a prayer.”

There’s so much wrong in those two paragraphs that it’s hard to figure where to start. First, while the words “separation of church and state” aren’t found in the Constitution, neither (as I’ve noted before) is the phrase “presumption of innocence.” Nonetheless, Congress or a state legislature couldn’t constitutionally decide to fight more efficiently by making defendants have to establish innocence rather than the prosecution having to prove guilt.

The concept of judicial review isn’t in the Constitution, either. This mindlessly literal reading of the document went out of style with Marbury v. Madison, and since 1803 has been used only by charlatans preying on the ignorant.

Second, the legality of the Ten Commandments monument in Alabama is settled, over, and final. Federal District Judge Myron Thompson found this taxpayer-funded religious display illegal, which decision was upheld by the U.S. Court of Appeals, which decision the U.S. Supreme Court declined to review. It’s a final judgment of a competent court (and, as Rick and Sharon Cohen noted, not of the ACLU or “tolerance advocates”).

Turoff may think that decision was wrong, but it’s the law, and she needs to accept it. But if she gets to pick which judicial decisions she can decide to reject, then I have a teensy problem with Bush v. Gore. Tell me when it’s my turn.

Third, the oath of office and congressional prayer examples aren’t particularly good for Turoff’s argument. Courts have upheld such customs because they are secular in practice, as essentially social or historical artifacts. In other words, those ceremonies are acceptable because nobody treats them seriously as prayer. But Turoff wants the Ten Commandments monument as a religious symbol. By using these historical customs to justify religious ceremonies, Turoff’s given the game away.

Finally, what does “Bible-based religion” really mean? I guess Hindus, Buddhists, and Moslems don’t count now. How long until Jews aren’t useful to these zealots, too?

If Turoff wants to run for elective office, or propose Constitutional amendments to authorize taxpayer-subsidized religious displays that suit her taste, she’s free to do so. But her opinions about the law aren’t merely vigorous, they’re flat-out wrong. Somebody that determinedly mistaken in her views shouldn’t be deciding who gets to be a judge.

When Turoff became a member of the commission, she took an oath to uphold the U.S. Constitution and the Arizona Constitution -- which contains an even broader establishment clause. She’s violating that oath, and has no business on the commission. If she doesn’t resign, she should be impeached.