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Wednesday, July 21, 2010

Lee Surrenders To Grant, Obama Retains Slavery

WASHINGTON, DC, April 10, 1865 (FNS)—The Civil War ended yesterday with the surrender of General Lee’s Confederate Forces to Ulysses S. Grant, the Union Commander, at Appomattox.

Although most observers are generally happy with the surrender, many of President Obama’s most loyal supporters are livid with the Commander-in-Chief because of the concessions he made in order to obtain the future support of the Southern Senators who will rejoin the body when the next Session begins.

At a media event this morning, Press Secretary Dick Timoneous expressed the President’s hope that the formerly Confederate Members of Congress are looking forward to changing the political culture and steering the Nation in a better direction:

“It’s time for the opposition to realize that what really matters is putting America first. The President is certain that by offering some concessions now, Southern Senators will look beyond their own parochial interests and do their part to move this process forward.”

Ohio Congressman Zebidiah Kucinich summed up the anger from the left: “We won the war, for God’s sakes, which is a mandate if I ever saw one, and yet the first thing the President orders when putting together surrender terms is to take the issue of ending slavery off the table.

It makes no sense, especially when we know that these former Confederates will never support the President’s agenda. To make it even worse, we know the President will make more concessions later on down the road in order to try and get any opposition votes he can.”

Reached in Charleston by telegraph, former Confederate Senator Beauregard DeMint told this reporter that: “Appomattox will be Obama’s Waterloo! He can never be allowed to destroy the foundation of our Southern economy—and if he tries, we’ll use the 10th Amendment to protect the interests of our States…and Freedom.”

Disaffected leftist voters, who were already upset over Obama’s failure to close the Union detention facility at Andersonville, as he had promised he would during his Presidential campaign, have become even more vocal recently as the Union Army has appeared to block Administration efforts to end the “Don’t Ask, Don’t Tell” policy that has caused thousands of urgently-needed Black soldiers to be discharged during the War.

All of this, combined with the President’s recent actions in failing to end slavery, have led to an “enthusiasm gap” between voters in the President’s Party and those on the other side, emboldening his opponents in the upcoming midterm elections.

Southern voters, who have seen the end coming for some time, have been organizing into “Coffee Parties” in an effort to protect their economic interests—but they chafe at the notion that there is a racial component to their concerns.

In a recent speech to an enthusiastic Kentucky crowd, Senate candidate Roger Weightman (“Old Flintlock”) Paul was heard to say: “Our only interests are in protecting the agricultural economy of the South, and the Constitutional values that were handed down to us from our God; that requires us to keep slaves in places like Mississippi, but it has nothing to do with racism.”

Members of the crowd, sporting the robes and hoods that have recently begun to take over as the preferred uniform of the “Coffee Party”, echoed Paul’s comments, including a large, florid, gentleman who appeared to be using laudanum at the time of our interview; he chose to remain nameless, but told me this about the slaves he had met: “Slaves are uppity, but not as blacks. They’re elitist. They think they’re smarter and better than everybody else. That’s what they were taught. It’s like they’re Harvard men.”

Political strategists, including Senator Sumner of Massachusetts, have urged the President to become more bold in his negotiating tactics, and to take more control over the weekly media cycle: “The President is enormously popular when he gives speeches, he clearly has a mandate, and now that the telegraph can quickly spread his message there is no reason why the Coffee Party, who, after all, represent a minority of the Nation, should be allowed to drive every single element of the political conversation—especially if all the President ends up doing is watering down the abolition of slavery to the point where nothing is accomplished at all.”

In a related story, pressure continues to mount on the Administration after the unprovoked firing of an Agriculture Department official who was “framed” by Confederate media interests; the official, who gave us an exclusive interview in Washington yesterday, reports that she has already been told that she could make enough money suing for wrongful discharge to purchase her own “Seward’s Folly” if she wanted—in fact, the act of suing for wrongful discharge, currently a novel legal concept, may become known as a “Sherrod Suit” if the former official chooses to move forward with this new form of litigation.

Monday, July 12, 2010

On A Pair Of Victories, Part Two, Or, DOMA Ruled Unconstitutionally Irrational

We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.

In the first half of the conversation, we examined the ruling in Commonwealth of Massachusetts v Department of Health and Human Services (HHS), today we examine the companion case, Gill v Office of Personnel Management (OPM).

I don’t usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as “the Feds” from time to time), is not so happy at the moment.

As with last time, there’s a lot of ground to cover, and the sooner we get to it, the better.

In the companion case, Massachusetts v HHS, the Plaintiff was the State of Massachusetts, who alleged, convincingly, that the DOMA definition of “spouse” was forcing the State to illegally discriminate against its own citizens.

Today’s Plaintiffs are seven same-sex couples, all legally married in Massachusetts, and three survivors of same-sex spouses.

They all seek to overturn Section 3 of DOMA; the definitions of “marriage” and “spouse” are the issue in question.

The Feds report that Congress is acting under the authority of Article IV Section 1 of the US Constitution, which allows them to determine the “effect” of certain legal instruments issued by the various states:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

When DOMA (H.R. 3396 (104th)) was enacted, in 1996, Section 2 changed the “effect” of marriage by allowing one State, for the first time, to ignore the legal proceedings of another:

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

The Federal Government also refuses to recognize that same-sex couples are married, and over the years several of these Plaintiffs, who are federal employees, have been trying to enroll their same-sex spouses in various federal health care plans, including the surviving spouse of now-deceased former Representative Gerry Studds; all were denied.

Other plaintiffs seek certain Social Security benefits, including survivor benefits, and one seeks to have their monthly Social Security payment adjusted upward based on how much their spouse earned.

The final group of plaintiffs want to be recognized as married couples for federal income tax purposes.

The Court denied standing to Representative Studd’s spouse; this because other legal action must be concluded before this Court could act on his claims.

The Judge pointed out that 1138 various federal benefits are at issue; many of them non-monetary.

He also reviewed the statements made by various Members of Congress as DOMA was being enacted; these statements all revolved around how the moral fiber of the Nation was threatened by same-sex marriage, or something similar.

Now we need to address how Courts resolve questions related to equal protection. This, from the opinion:

“To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” But Courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, Courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class. A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest."

The Plaintiffs assert DOMA should fail under the strict scrutiny standard, and explain why...but the Judge ignores those arguments; this is because the Judge believes DOMA fails the rational basis test, which is the “easier” of the two standards:

“...a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]...

...As such, a law must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects...”

Attorneys for the Defendant assert that Congress wanted to achieve the following:

“...(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.”

The Court the notes that those same attorneys have now “disavowed” Congress’ stated intents in defending against these lawsuits...but that doesn’t matter, because, when passing legislation:

“...the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”

As a result, the Court will examine those proffered motivations.

The Court believes there is no truth to the idea that banning same-sex marriage somehow encourages responsible child-bearing; the Feds acknowledge the same.

“But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting.”

The Judge goes on to point out that it’s not all about procreation: childless heterosexual couples are allowed to marry, and the ability or inability to breed has never been part of deciding who can marry.

Is “traditional” marriage nurtured or protected by banning same-sex marriage?

The Court notes that telling same-sex couples they can’t “Federally” marry probably won’t make them want to marry members of a different sex...especially if they’re already married, as all these Plaintiffs are.

The Court also can’t figure out how making same-sex couples pay more income tax makes heterosexual marriages more secure.

“What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” And this the Constitution does not permit...

...Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....” (Emphasis is original)

With the Defendants already behind 4-0, they have presented to the Court new “rational bases” for the purposes of this litigation:

They now assert that Congress can impose the status quo through legislation until the states work it out for themselves, and that DOMA was the only way to make sure everyone gets the same federal marriage benefits; they also feel that when new social problems come along, Congress is allowed to employ an “incremental response”.

Judge Tauro disagrees. He continues a conversation he began in Massachusetts v HHS that relates the long history of marriage as a state-regulated activity. He suggests the government has no legal interest in pursuing a uniform national definition of marriage; in fact, says the Judge, the Feds have deferred to the states all along on who is married, and, with this one exception, still do.

He provides numerous current examples from law and regulation:

“...42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the Courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”)...”

Judge Tauro notes that the states were even allowed to decide for themselves the validity of interracial marriages until the 1960s:

“The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”

Tauro disposes of this argument by reminding everyone that the question of interracial marriage was also just a bit controversial, in its time.

He then reminds us that this is the first time the Federal Government has ever defined marriage; he also notes that all previous efforts to create a Federal definition were attempted Constitutional Amendments; he assumes this was because Congress knew that absent an Amendment, they couldn’t define marriage for the states.

“...The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.”

The Defendant tries to explain that DOMA is an incremental approach, but the Court dismisses this explanation. The Judge explains that DOMA does not incrementally advance same-sex marriage; instead, it permanently denies it to the Plaintiffs.

On the other hand, the Feds do recognize any opposite-sex marriage, under any state’s laws, and there appears to be no federal consistency in how marriage is defined...except to ban same-sex marriage.

The Court provides an example: a 13- and a 14-year-old opposite-sex couple could marry in New Hampshire, and even though Judge Tauro feels no other state would sanction such a marriage, the Feds would, because New Hampshire says their married, and that’s good enough for the Federal Government.

The Feds argue for “consistency” in applying marital benefits and assert that DOMA reduces the federal administrative burden, and the Court dismisses both arguments: a consistent approach would be to treat all married couples equally, and there seems to be no extra administrative burden associated with same-sex married couples relative to opposite-sex couples when it comes to things like getting the spouse on the health insurance or processing a tax return as “married – filing jointly”.

The marriage license is the administrative issue, and that’s already been taken care of by the various states involved.

The Plaintiffs argue that DOMA actually makes things less consistent and more complex; the Judge agrees.

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it...

...As irrational prejudice plainly never constitutes a legitimate government interest, this Court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

Well, I’ll tell you what...this is pretty heady stuff right here: you very rarely see a Federal Judge absolutely reject the positions of the Federal Government, but in this case Judge Tauro has.

He feels that the 10th Amendment reserves to the states the right to define who may marry and how, and that this has been the case since before we sent Marines to the shores of Tripoli.

He sees the Federal Government as having provided no rational basis for DOMA, twice; in fact, he feels that the effect of DOMA is exactly the opposite of what the Government attorneys claimed was the intent of Congress at the time the law was passed.

To put it very simply, just because the majority in Congress in 1996 may not have wanted same-sex couples to marry doesn’t mean the Constitution is on their side...and all that means there is a lot of thinking going on in the Department of Justice around an appeals strategy...but we have done enough for today, so we’ll leave that discussion for another time.

Friday, July 9, 2010

On A Pair Of Victories, Part One, Or, “I DOMA Think Congress Can Define Spouse Anymore”

I have to work fast over the next two days to get you this story, but it is a good one.

We are all aware of the Federal Defense of Marriage Act (DOMA), championed by former Congressman Bob “I’m A Libertarian If It Doesn’t Involve Your Penis Or Vagina” Barr; we now have two rulings, released on the same day by the same Federal judge, that will render the Act moot, if they’re either upheld throughout the appeals process…or if the Obama Administration decides to end that appeals process right now.

There’s a lot of ground to cover, and time is short.

Let’s get to work.

This will be too much analysis for one story; we’ll be, instead, discussing the ruling in Commonwealth of Massachusetts v. Department of Health and Human Services (HHS) today; the second opinion, which decides Gill v OPM (OPM is the US Government’s Office of Personnel Management) will be the topic of tomorrow’s discussion.

The goal of the Mass v HHS lawsuit (this is a bit informal: we’ll frequently refer to Massachusetts as Mass today) is to overturn section 3 of DOMA, which defines marriage as a union between one man and one woman:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Mass has recognized same-sex marriage since the Supreme Judicial Court Of Mass ruled on the issue in 2004; the State alleges, in this suit, that DOMA violates the US Constitution’s 10th Amendment…

“…by intruding on areas of exclusive state authority, as well as the
Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs.”

For those unaware, here’s the text of the 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Federal Government says it can regulate on this issue because of the Spending Clause, located in the US Constitution’s Article 1, Section 8:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”

We have a problem because State definition of marriage causes conflicts when the State partners with the Federal Government in various programs, for example:

--The Veterans’ Cemetery Program: the State allows same-sex couple spouses to be buried in certain military cemeteries operated in partnership with the Federal Department of Veterans’ Affairs (DVA).

The DVA objects to this arrangement, offers DOMA’s definition of “spouse” as the reason why, and says they will recover all the money they have ever transferred to the State under this program if the State agrees to bury these spouses in these cemeteries.

An actual couple has applied under the program and will be affected by all of this.

--There are a variety of implications for the Medicare program as it exists in Mass: for one, income eligibility is calculated differently for same-sex and opposite-sex couples; for another, Mass makes extra Federal tax payments related to the fact that they provide health care benefits to same-sex state worker spouses that are taxed differently than when the same benefits are provided to opposite-sex couples.

The Federal Government tried to dismiss the case altogether by claiming that none of the Plaintiffs had any “standing” before the Court.

Long story short, you have to prove “actual harm” to bring a lawsuit, and the Federal Government position is that all harms alleged by the Plaintiff are hypothetical.

Federal District Judge Joseph Tauro, of Boston, completely dismisses this argument, pointing to actual harms that have already been suffered, including denial of burial benefits and the threat of cash costs to state if Medicare funding is cut off.

“…Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarly-situated individual—being lowered into his grave at Winchendon…

…Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny…”

Let’s move right along to the Constitutional analysis:

If there is an “enumerated power” in the US Constitution’s Article 1, Section 8, or “express[ed] jurisdictional elements” in a Statute passed by Congress, then the Federal Government can regulate family law; if not, you have to go to an Article 1, Section 8 “Spending Clause” analysis.

In this case, the Federal Government claims they are entitled to regulate the Federal definition of marriage because of the power under Article 1, Section 8 to provide for the “general welfare” of the Nation.

Judge Tauro, however, notes that not all the harms alleged by Plaintiffs are spending-related: for example, provisions related to the way copyright protection and the Family Medical Leave Act work depend on the marital status of the involved parties.

“In South Dakota v. Dole, the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”

The State claims that DOMA fails on several of these 5 elements.

---For example, getting the Federal money that is part of the partnerships we’ve been talking about requires the State to violate Section 1 of the 14th amendment, which reads as follows:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added by me)

The State alleges they are compelled to deny equal treatment to same-sex couples in order to get Medicare and veterans’ cemetery money (the Medicare money alone is about $5.5 billion a year).

The Court agrees with the State’s position on the Medicare issue; as a result there is no need to rule on the legally identical cemetery issue.

--Now we need to address the 10th Amendment analysis:

Assuming the appeals continue, this case will go to fairly conservative First Circuit, then to the Supremes. This Court, in the next section of the opinion, anticipates some of the thinking that appeals courts up the line might apply to this ruling:

“In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”

The Court agrees that tests (1) and (2) have been met. This, regarding test (2):

“State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution…

…That same-sex marriage is a contentious social issue, as the government argues, does not alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.”

The Federal Government argues that just because they didn’t pass DOMA before 1996 doesn’t mean they weren’t allowed to do so; the Court finds that since the Feds failed the Article 1, Section 8 analysis already, they still fail when they try to use the same argument now.

The Feds also tried to argue that certain immigration cases give them power to regulate definition of marriage; the Court again finds their arguments unpersuasive.

The Feds argue that Massachusetts is an employer, so they have no standing to raise a sovereignty challenge; but the Court again disagrees, and says the State, as a sovereign, is entitled to regulate its employee relations.

Now we move on to (3), the proposition that for a law to violate the 10th Amendment “…it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”

The question of what is a “traditional government function” is highly contentious in the Federal Appeals Courts; some question whether such an analysis can even be performed.

Based on First Circuit precedent, this Court will address the question of:

“…whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence.”

Judge Tauro finds that DOMA fails this test; points to the same issues we’ve been discussing (the Medicare and Cemetery partnerships), and says the DOMA definition of “spouse” unacceptably restricts the State from governing itself:

“That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the “core of sovereignty retained by the States,” because “the Constitution ...divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”

That’s a fair amount of law, all in one bite, and we have another ruling like this one tomorrow, with lots more “Strict Scrutiny” analysis…but for now, let’s stop right where we are, and we’ll all meet up here tomorrow.

Wednesday, July 7, 2010

On The Smartest Investment Ever, Or, Wanna Restart The Economy?

It’s been a while since we had to have a real heart-to-heart, the Obama Administration and I, and last time it was because Rahm Emanuel had been a bit snippy toward those of us who are carrying the water for this Administration.

We need to have another one of those conversations today; this time the circumstances are a lot more positive—in fact, if the Administration follows my suggestions here, we have a real chance to put the Democrats on the road to victory, not just this November, but also in 2012.

What I’m proposing will create hundreds of thousands, if not millions of jobs, and it will stimulate millions more as we create a national source of discount electrical power that can be used by business and consumers alike.

Here’s the best part: it’s no “pie in the sky” promotion I’m offering here; we’ve already done the same thing before, it’s been working out well for almost three quarters of a century...and even better than all idea first pays for itself, and actually makes the Federal Government a profit, forever after.

Lewis Black will offer today’s opening statement; he’s a bit blunt, so if you, like Mr. Krabs’ Mom, get all distressed when exposed to “sailor talk”, just move right on past his commentary and the rest of us will be with you in just about 30 seconds:

So Lewis is right: we need to build a big thing. Where he and I disagree is that I think the big thing could be distributed all across the country, and I think the big thing should make a profit for the taxpayers who will be making the upfront investment.

So how do you do that?

Franklin Roosevelt delivered a speech in Portland during the 1932 presidential campaign. He promised that the next great federal hydroelectric project would be built on the Columbia River to prevent extortion against the public by the giant electric utility holding companies then dominant in the region.

That speech marks the first day of the history of the Bonneville Power Administration (BPA). Over the many years since, a string of dams were built along the Columbia River; these are operated by the Army Corps of Engineers, and the hydroelectric power they produce is marketed and distributed by the BPA to both public and private utilities.

Since the BPA is selling about 45% of the region’s power for a price not much above the actual cost of production, this “public option” keeps electricity prices in Oregon, Idaho, Montana, and Washington to more or less 50% of the cost of power in California, DC, New Jersey, or every single State on or near the East Coast, from the Delmarva Peninsula north. (The one exception is Pennsylvania: Northwest states pay about 1/3 less than customers in the Keystone State.)

Now what I’m proposing is to duplicate the BPA model, nationwide, with power generation assets owned by Federal agencies sited on Federal land selling that power, cheaply, but at a profit, to consumers.

If my math is correct, we spent about $465,584,000,000 on electricity in 2007 in the US (4,157 million megawatthours [MWh] times the national average of 11.2 cents per kilowatthour [kWh]); if that could be cut by 1/3, that’s $150 billion annually that could be eventually recovered by the larger economy.

(Fun Fact: Did you know that Sharron Angle has threatened legal action because she believes that if Harry Reid reposts her actual, but now deleted, Nevada Senate primary campaign website, word for word, it will hurt her chances of being elected...or that she believes that doing such a thing is a “dirty trick”? It’s all...absolutely true.)

So here’s what we do:

There’s an enormous amount of Federal land in Nevada, to give just one example, which could be “inhabited” with either windmills or solar generation assets. At this point you need some more “transmission and distribution” assets to get that power to say, Phoenix, or Las Vegas, or California, which the new entity that we create to market this new power will own.

We could also own “distributed” assets (for example, solar panels on major building rooftops), which requires investment in “smart grid”.

The same opportunities exist along the East Coast.

As we bring more of this power online, we can reduce the amount of coal generation we use on any given day, which is going to help reduce costs, both in cash and in the environment.

Now the big risk with wind and solar is that you may not have “near 100% uptime”; the solution is to hold coal and natural gas assets that you’ve taken offline in reserve; natural gas can be fired up quickly if needed, the rest of the time, you’re getting greener.

How much would such a plan cost?

That depends. The lowest costs appear to be achieved by reducing the cost of financing, finding sites with higher average wind speeds, and increasing the size of the generator—and this is especially true with windmills: the taller the tower and the longer the blades, the more power you’ll get, and the increase is more logarithmic than linear.

It’s reported that the cost of connecting to a grid owned by another utility also affects the cost of power; some utilities seem to be discouraging wind generators by imposing various conditions when they want to connect. The distance from the generators to that larger grid also impacts the cost of the power produced.

(“Distributed” assets, such as rooftop solar panels or windmills, may cost more up front and are less efficient, but there is a considerable savings in not having to build power lines to a distant power plant.)

The cost of capital and the cost of access to the grid aren't big problems for the Federal Government, and that means you could put up a wind plant that produces 150 million KWh annually for about $65 million. If you sold that power for 4 cents per KWh, you’d make about $6 million a year, and about 90% of that would go to debt and the cost of operations.

Such a plant would be paid off in 15 years, and from then on, about 60% of your $6 million in annual profit.

Now if you applied that same math to the goal of replacing about 10% of US power generation, you’re looking at about $520,000,000,000 plus the cost of new grid. Let’s add 50% for that cost.

The eventual outcome: if we did it all at once, we’d have it all paid off 22 ½ years after construction is finished...or sooner—and after that, we’d be making a profit of just over $300 billion a year...which, if we did nothing else, would pay off our entire current debt in about another 40 years.

And that’s what I’m proposing, Mr. Obama: I want you to stand up in front of this country and tell us we’re going to do this, that we’re going to concentrate on the areas with the highest costs first, and that paying off our investment is easy and makes us a stronger economy in the bargain.

That this is your “man on the moon in 10 years” moment.

We give preference to US-sourced production, and we lend money to seed that production. We can create all kinds of jobs in the process, both in the manufacture of the generation assets, and in their installation.

If that’s not enough, lowering the cost of power in New England from today’s average of 16.8 cents per kWh by 30% or more is absolutely going to help bring jobs back into the region—particularly in the manufacturing, tech, and communications industries, each of which consume lots of power.

The same in California—and the same in the Upper Midwest, where reducing the cost of power will also help to create badly needed jobs.

So whaddaya think, Mr. President?

You need a damn good idea, especially one that creates lots of American jobs—and this one does that...and it does it by lowering the cost of power, making our environment a better place in which to live...and if all that wasn’t enough, we’re making a profit doing it, so we can pay down the national debt at the same time.

So get out and sell this sucker—and when our Republican friends rise up against this new “socialism”, ask ‘em why they’re against jobs, and lower power bills, and why they don’t want the Federal Government paying off its debts...and then just sit back and enjoy Michael Steele’s and John Boehner’s and Mitch McConnell’s efforts to respond.

Friday, July 2, 2010

On Music Appreciation, Part Two, Or, Records Only Have One Groove

It was just yesterday that we decided to take a day off from politics and talk about music, both familiar and not so much; the conversation ran a bit long, and when we got halfway through we decided to get together tomorrow.

It was pretty fun, what with sewers and male models and Gorillaz and all, and when we had put down the pen it was just after taking in Sarah Vaughan’s reworked dance version of the Peggy Lee classic, “Fever”.

They say tomorrow never comes...but now it has...and we have eight more songs to talk about before we can finish our multigenerational “Summer Music Appreciation Playlist”.

Today we’ll incorporate jazz and dance, the invention of modern musical recording, arguably the greatest saxophone player ever, and a shout out to “our man in Paris”.

If all that wasn’t enough, we also discover what happens when you graft a certain Pepper onto Jamaica’s musical tree.

You don’t want to stop now, so jump on board and let’s get this train rollin’.

When I asked Dangerfield how old he was he had to think for a minute. “I’m 22,” he said finally, “but I used to be much older.”

--From The “Hashbury” Is the Capital of the Hippies, Hunter S. Thompson

If you weren’t here yesterday, the premise is simple: I put together a playlist that combines music from across the past 50 years or so; the idea is to get you thinking about not just the song, but about that artist’s larger body of work.

In the process, the older reader learns about new music, the younger reader, vice versa.

We began with Grizzly Bear’s ”Knife”, then William DeVaughn’s “Be Thankful for What You Got”, Aretha Franklin’s super-bluesy “Night Life”, “Easy”, a song by Timbuk3, Talking Head’s “Mind”, a choral selection from Gorillaz, “Demon Days”, and then Meat Beat Manifesto’s “Super Soul Dub”.

Finally, Adam Freeland took that Sarah Vaughan version of “Fever” and turned it from an instant “lounge lizard” classic into an instant dance classic.

And with that, it’s time for us to visit Berlin.

Miss Kittin (and her collaborator, The Hacker) are widely known for their fantastic debut effort, “First Album” (all the work, clearly, going to the music), which contains the extremely naughty “dance club anthem” Frank Sinatra. A second album by the duo is just released; it includes a cover of the Elvis hit, “Suspicious Minds”.

In between: the “Batbox” album, a solo effort by Miss Kittin, from which we pluck the superb Pollution of the Mind. Let it wash over you, get lost in the sound...and let the beat carry you to a better place.

Unfortunately for us, Her Feline-ness is not likely to do a US tour anytime soon; this means our best bet is to live vicariously though “our man in Paris”, Alex Blaze.

As we discussed yesterday, I also post at The Bilerico Project, and it’s the only site upon which I post that actually assigns editors to try and wrangle some sort of sense out of these musings; Alex has had the task of having to deal with this problem the longest.

His consolation is living in Paris...not the Texas one...and that means he’s actually right in the middle of her concert bookings, which take her around Europe over and over go, Alex, and fill us in on what we really do miss.

They call that thing a “Les Paul” guitar because there really was a Les Paul, and, according to the Gibson Guitar Company, he was:

The world’s most influential, innovative guitar player and inventor

Paul nearly died, twice (ironically, or not, he was once electrocuted while busily developing the electric guitar); if pretty much inventing a musical instrument wasn’t enough, just for fun he pretty much invented the overdubbing method of recording in his spare time. He also purchased, custom-built from Ampex, the world’s very first 8-track tape recorder for his home recording studio.

About a decade later, the rest of the world discovered...stereo.

The culmination of all this effort was our next song, the decades-ahead-of-its-time How High the Moon, a 24-track recording (12 guitar tracks, 12 tracks of his wife’s vocals) released in 1953. Check out the level of all the other technology in the video and you’ll really understand just how groundbreaking Paul’s work was.

Two of the greatest recordings of the rock era have been remade as reggae albums by the same band, Easy Star All-Stars: “Dark Side of the Moon”, by Pink Floyd, and the Beatles’ “Sgt. Pepper Lonely Hearts Club Band”, and here’s the thing: the arrangements are both so natural, so appropriate to the songs, that it’s almost as though these are the original versions. (There’s a reggae Radiohead album, too...)

Just to get the feel of it all, check out the remade version of Pink Floyd’s Time.

We’re going for the Beatles in our playlist; specifically the stunningly perfect When I’m Sixty-Four.

PierPolJak brings a crazy personal story to us as well. Born in France, imprisoned there and in the UK, it’s reported that he drifted from London and the punk scene to the Caribbean and reggae over several years. I love French language reggae, and he’s been at the top of that game with the “Kingston Karma” album.

The song we want today is Je Descends Le Bar (“I Descend the Bar”), and for some reason, when you click on that link, you hear the correct song, but see clips from the bar scene in “The Terminator”...and based on my limited French, that seems like a very strange take on where the song was going.

“Nothing Compares 2 You” is the song by which you probably know Sinéad O’Connor, but as it turns out the far-from-hirsute songstress has been spending the many years since then basically making one record of every kind of music possible, which means, among several, she has a big band album, and she has a reggae album (“Throw Down Your Arms”); it’s from there that we’ll be snooching up the dub classic Prophet Has Arise.

So it’s now the shank of the evening, and you’re with the one you love...or, at least, the one you’d like to be loving at the moment...and nothing sets the mood like a saxophone...and you can fairly make the argument that no one has ever played one with more feeling, more originality, and more skill than John Coltrane.

There are others, most notably Charlie Parker...but only one, so far as I can tell, actually has a religion based on what came out of their sax.

If you’re in San Francisco sometime, visit the St. John Coltrane African Orthodox Church—which, might I add, is indeed a real a good way: I know for a personal fact that forever and ever they’ve been a source of help for San Francisco’s poor, something I witnessed when I lived there more than three decades ago.

This, from the Church website:

Free food and clothing are given to the poor and needy. We are now entering our 37th year of service to the community and have been recognized by the California State Legislature for this work.

Referrals are received from various agencies such as the Department of Social Services, Traveler's Aid, The Red Cross and the Salvation Army. Low income families, senior citizens, the handicapped and people from all walks of life are served. There is no discrimination as to race, creed or religious affiliation.

To honor St. John, I’ve selected In A Sentimental Mood, truly one of the most iconic songs in the history of jazz, and a collaboration with the equally-legendary Duke Ellington.

It’s the piano you hear first, and then that weird little “wubba-wubba” noise, and then the guitar...and then the crash cymbals, and that piano (“doo-doo-doo-doo-doo-doo”), over and over, and it’s building, and it’s that piano, and all the other instruments are filling in behind it, and it grows...and then it peaks, and the drum does a little fill, and you realize it’s the perfect 70’s late night song...Steely Dan’s FM.

Those of you under the age of about 40 wouldn’t know this, but before the 1970s virtually all songs were either right around or less than three minutes long, and you heard them on AM radio.

Then FM radio came to town, with high-falutin’ stereo and a signal that doesn’t fade out with every underpass, and the concept of “long-form”, with songs that might run (gasp!) five minutes or more became “the way it was supposed to be”.

Steely Dan crystallized all of that into this song, along with possibly the greatest “sax fadeout” ever put to tape, which, they tell us, was influenced by their love of Charlie Parker and...wait for it...John Coltrane.

And with that, we come to the end.

It’s been quite a run, with a near-doo-wop experience morphing into Sinéad’s reggae and the Church of St. John; but by now you should have some arrows in your summer music quiver that you didn’t have before, some stories that will come in handy the next time you’re playing this stuff...and if we get really lucky, we may even get a “Miss Kittin Report” from our Continental representative.

Not bad, for a day off, and if you really want to know the much as I enjoy the serious work, I can’t wait to “take a day off” again.