The Cure Is Worse Than The Disease: Using The Thought Police To Fight Al Queda

Apparently, two Arab-Americans have been indicted for swearing loyalty to Al Queda. The actual charge, it appears, is conspiracy to aid Al Queda. Admittedly, it has been 30 years, but my recollection from law school is that there are two elements to a conspiracy charge: (1) an agreement by two or more people to commit an illegal act and (2) an overt act in furtherance of that agreement. In this case, assuming that the NYT reporting is accurate, a government undercover agent, pretending to be an Al Queda recruiter, spent two years trying to persuade two men to agree to provide support for Al Queda. To make the conspiracy rap stick, the feds had to bring the two men together. They did so for the first and only time about 10 days ago in New York. At that time, the feds allege, both swore allegiance to Al Queda. The feds apparently believe this oath was a criminal act.

I have more than a few problems with this. First, the purely legal ones:

1. It's hard to see what agreement the two men made with each other. By taking the oath, they each arguably promised to help Al Queda, but those promises were not between the two men but were made separately to a third party.

2. Even if the taking of the oath in each others' presence is enough to establish an agreement between them to aid Al Queda (and to thereby commit an illegal act), it is hard to see how the oaths constituted an overt act in furtherance of that agreement. Indeed, according to the Times at least, the feds themselves concede that neither man had any immediate plans to do anything. At most, their actions consist of generalized statements of sympathy for and support of Al Queda.

3. Finally, this whole case appears to bear all of the hallmarks of a classic "entrapment": the government appears to have worked very hard to persuade the defendants to commit an act (i.e. conspire with each other) that from all appearances they would never have committed if the government had just let them alone.

But none of those are the points that really bother me. Presumably, the criminal justice system with sort this out eventually, and this case, like so many other of the government's anti-terrorism prosecutions will fall apart. Sure, the lives of two men will have been ruined in the process, but even that is not the real problem.

What really concerns me is the fact that the government appears to have fully embraced the idea that even thoughts and private speech can be criminal. Indeed, they are so far around the bend on this issue that they are actually proud of what they are doing in this case.

As the Times reports, this indictment is the first in what could be a string of indictments resulting from a two-year effort by the feds "aimed at identifying and arresting people disposed to provide aid to terrorists." I have no problem with government efforts to identify such people, provided that those efforts do not unlawfully intrude into protected privacy rights. Further, if there were reason to believe that the a person identified in this effort was actually likely to act on his "disposition", I could even countenance heightened surveillance of that person. But since when is it a crime to be "disposed" to do something?

If I may be so immodest as to quote myself:

What happened on 9/11 was horrible. But the uses to which the Bush Administration is putting those events are far worse. The Administration's rhetoric would have us believe that 9/11 was an attack on freedom and liberty. It was not. It was an attack on symbolic buildings and people. The attack on liberty and freedom (and all of the other values we associate with America like fairness, due process, a presumption of innocence, rights of privacy and freedom from unreasonable searches) came later and was perpetrated by the Administration (with a big assist from Congress).

September 11th has become the Bush Administration's Reichstag fire: a pretext for a relentless expansion of the perceived right and actual ability of the federal government to control peoples' lives. Three years ago, it would have been unthinkable for the federal government to claim the right to imprison thousands of people indefinitely, without charges or trial, without access to counsel, and in many cases without even having to reveal who is being held. Now, it not only claims those rights, it is actually doing all of those things. Three years ago, it would have been unthinkable for the federal government to claim the power to monitor and record and investigate the thoughts, ideas, expressions, affiliations and movements of American citizens without warrant or notice and without any basis beyond some vague "national security" claim. Now it is the accepted practice. In the name of defending freedom, the Bush administration is in the process of destroying it.

We now need to add another "unthinkable" to this litany: Prior to 9/11, it would have been unthinkable for the government to claim that having a certain "disposition" was a criminal act. Now it has so far embraced that concept that it trumpets its efforts to bring such "thought criminals" to justice.

I Wonder If They Are Subject To Sarbanes-Oxley?

NYT reports: C.I.A. Expanding Terror Battle Under Guise of Charter Flights:

While posing as a private charter outfit - "aircraft rental with pilot" is the listing in Dun and Bradstreet - Aero Contractors is in fact a major domestic hub of the Central Intelligence Agency's secret air service. The company was founded in 1979 by a legendary C.I.A. officer and chief pilot for Air America, the agency's Vietnam-era air company, and it appears to be controlled by the agency, according to former employees.

Behind a surprisingly thin cover of rural hideaways, front companies and shell corporations that share officers who appear to exist only on paper, the C.I.A. has rapidly expanded its air operations since 2001 as it has pursued and questioned terrorism suspects around the world.

Things Fall Apart?

Much in the news to generate some hope that America is returning to her senses:

The filibuster deal (full text here)

James Dobson foaming at the mouth, making himself ever more offensive to the American mainstream.

Voinovich on Bolton

Stem Cell revolt

And even Glenn Reynolds and John Henke think the Right is overplaying its hand.

Ain't democracy grand?

Democracy at Work

I LOVE this stuff! The Washington Post has a great article today on the digestive processes of democracy (as illustrated by the give-and-take around the judicial filibuster issue): it sure ain't pretty and it sure is slow but the fact that it is going on is proof that the patient is alive.

I am going to go out on a limb and make two predictions about all of this:

1. Frist will not push the button on the nuclear option. He won't, because he knows he will lose regardless of the outcome. The biggest blow would be if he pushed the button and lost the vote. That is a very real possibility. All that is necessary is for six Republican senators to vote in favor of keeping the filibuster. Three -- McCain, Chaffe and Snowe -- have already said that they would do so if it comes to a vote. Three others -- Warner, Specter, and Collins -- are pointedly undeclared and seem likely to stay that way until actually forced to vote. Two others reportedly "in play" are Breaux and Collins. In short, if Frist were to push the button he would have to do so without being sure he could win. And losing would be unthinkable. On the other hand, even if he did win the vote, he would lose in the long run. He would be the man that turned the Senate in the House of Representatives. His actions would come to be seen as a raw power play in which he sacrificed the traditions of the Senate and its historic commitment to the rights of the minority on the altar of political expediency. The day after the vote it will be obvious to everyone that something important was lost over an issue that in reality is pretty trivial: whether Patricia Owens gets a seat on the Fifth Circuit. And Frist will be the guy who did it. Frist, in short, has no upside in forcing this to a vote. His upside lies in fighting the fight, since in doing so he demonstrates to the Right that he is a standup guy.

2. The issue will be resolved the way such issues always are in a Democracy: by a compromise that allows both sides to declare victory. Bush will get 3 or 4 but not all of his nominees confirmed and Frist will be able to say -- truthfully -- that he "fought the good fight" and made the Democrats blink. The Democrats will have defeated 2 or 3 of the nominations despite being in a minority and despite the enormous influence of the Presidency, and that they too "fought the good fight" and preserved the filibuster for another, more important day. Yet, neither side will have won so clear a victory as to embolden them to (greater) arrogance.

As I have said before, I believe Judges should bring their personal beliefs on what the law should be to bear on their decisions. As a result, I also believe that the process of appointment is -- must be -- a fundamentally political process, since that is the way the People ultimately influence the direction in which the Court is leading the Country. So, while the shenanigans going on now around (a very small number of) Bush's the judicial nominations are like watching sausage being made, it is nonetheless the epitome of a democratic process. And, I think, everything will be fine in the end. As a good friend likes to say: The Sturm and Drang notwithstanding, "the Republic is safe."

Update: Told you so!

The Unreliability Of Supreme Court Nominees

Here's something interesting: Republicans have appointed 7 of the 9 sitting Justices of the Supreme Court:

Rhenquist: 1971 Nixon
Kennedy: 1975 Ford
Stevens: 1975 Ford
O'Conner: 1981 Reagan
Scalia: 1986 Reagan
Souter: 1990 GHW Bush
Thomas: 1991 GHW Bush
Ginsburg: 1993 Clinton
Breyer: 1994 Clinton

I suppose they would argue that Ford wasn't a "real" Republican and thus appointed the Right's current bete noir, Justice Kenndy, author of the opinions holding that laws criminalizing homosexual sex and allowing execution of minors were unconstitutional. But even so, how do you explain O'Connor, who voted with Kennedy in the sodomy case and Souter who voted with Kenndy in both? Is it possible that neither Reagan nor GHW Bush was a "real" Republican either?

The point has been made before: Being on the Supreme Court changes people, often in ways the Republicans don't anticipate or like very mauch.

WSJ: But Here They Are Spot On

Redeeming itself somewhat, the WSJ also published this editorial today: Liberal Fundamentalism: Who are the intolerant extremists? It is actually a reprint of an editorial originally published in 1984 arguing that the ise of the Religious Right was actually a reaction to the fundamentalism of 1970s liberalism. It is presumably republished today to remind us that the Liberal Left is simply reaping what it sowed.

I agree. The arrogant and intolerant liberalism of the 1970s is what made me a Republican. The arrogant and intolerant conservatism of the 2000s is what has made me a Democrat again. The problem is fundamentalism itself. True belivers are scary and, fortunately, they eventually self-destruct.

I hope the WSJ keeps this editorial, becuase my guess is they will be able to publish it again in 2014 as an explanation of why religious conservatism has by then become so powerless, even embarassing. Although, at that point, I suspect there will be with a bit less "I told you so" and a bit more "Why did we let this happen?"

WSJ: Defending the Indefensible

I rarely read a WSJ editorial with no redeeming social value. I almost invariably find something that makes me think about my own conclusions, and I can generally respect their position even if I disagree deeply with their argument or conclusion. As a result, when I saw the headline and subhead for this morning's editorial, How we got here: Why Republicans Can't Let The Judicial Filibuster Succeed, I thought: "Aha! Finally! An intelligent explanation of why the Republicans are willing to go to such lengths to get 3 or4 lower court nominees confirmed."

Man, was I disappointed.

As John McCain reportedly said on the weekend news circuit, the very point of the Senate, with two members from each State regardless of size, it to protect minoritiy interests from the tyranny of the majority. Judicial appointments are political. And, they are important. I do not support the trashing that Robert Bork or Clarence Thomas got at the hands of the Democrats. But neither do I believe, as the editorial argues, that a Presiedent has an absolute right to appoint whomever he wants to the federal bench simply becuase 50 Senators plus the Vice President are members of his own Party.

The editorial concludes: "This is at its core a political fight, and elections ought to mean something." I agree on both counts. But what gets missed in this is that the Republicans did not win THAT big. Having 55 Senators just isn't a big enough majority to have everything they want. They have to compromise. But that is simply not in their lexicon these days and they would prefer to do permanent damage to the Senate and the Country than to give even one inch on the childish mantra: I won! Therefore I get everything I want!

I say again, any judicial nominee who has the benefit of a Presidential nomination and all of the benefits that Presedential backing brings to bear on his/her confirmation, but who still cannot get at least the acquience of 60 Senators, has no buisness getting a lifetime appointment to anything, much less to the federal bench.

Privacy vs. Morality

Reading the federal district court case striking down the Nebraska same-sex-marriage amendment launched me on a hyperlink-assisted voyage to a number of the major islands in the archipelago of the Supreme Court's privacy jurisprudence. Some of these I had visited before, though not recently. I had read descriptions of the others, but never actually visited them. The trip was fascinating, sometimes moving, and overwhelming relevant to -- indeed largely the source of-- what Justice Scalia calls "the Kulturkampf" that is going on in America today. It is a tour I would highly recommend you take, and, to make that easier, I am providing free "tickets" below:

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965): The start of it all. A married couple has a "fundamental" right to privacy with respect to their sexual relations that is protected by the Due Process Clause of the US Constitution (even though a right to privacy is nowhere mentioned in the Constitution) and a state ban that prohibits a doctor from providing contraceptives to a married couple is unconstitutional because it significantly intrudes on that right without serving any significant State interest.

LOVING v. VIRGINIA, 388 U.S. 1 (1967): "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival" and the state may not restrict that right so as to ban marriage between people of different races. (Note: the possible relevance of this holding to the issue of gay marriage was almost certainly not recognized by the court at the time. However, it has since been recognized by others, since the statute at issue did not preclude marriage as such. It only precluded marriage between two classes of people. What the court was saying, really, was that there is a fundamental right not merely to marry, but to marry the person you want to, and the state may not restrict that right based on some sense of what is "right" or "wrong").

STANLEY v. GEORGIA, 394 U.S. 557 (1969): The State may not criminalize the private possession of pornography.

EISENSTADT v. BAIRD, 405 U.S. 438 (1972): The right to sexual privacy recognized in Griswold is an individual right that extends to individuals whether or not married and the state may not make it a crime to provide contraception to individuals who are not married.

ROE v. WADE, 410 U.S. 113 (1973) : The right of a woman to control her own body is "fundamental" and the State may not entirely preclude abortions, although it may impose restrictions once the fetus achieves viability.

BOWERS v. HARDWICK, 478 U.S. 186 (1986) : This is the first of the post-Griswold cases involving homosexuals, although the anti-sodomy statute at issue actually applied to both homosexuals and heterosexuals. The Court characterized the issue as whether there was a "fundamental" right to commit sodomy, and, not surprisingly, concluded that there was not. Therefore, it held that statutes criminalizing sodomy (both heterosexual and homosexual) were not unconstitutional.

ROMER v. EVANS, 517 U.S. 620(1996) : The state may not enact a constitutional amendment barring the state and its political subdivisions from extending the state's anti-discrimination laws to homosexuals, lesbians and bisexuals.

LAWRENCE et al. v. TEXAS, Case no. 02-102 (June 26, 2003): Reversing Bowers. According to the Court this time around, the issue was not, as Bowers had held, whether there was a fundamental right to sodomy but whether there was a fundamental right to privacy with respect to sexual relations. Five of the Justices decided the case on substantive Due Process grounds, holding that, ala Griswold and Eisenstadt, state statutes criminalizing homosexual sexual relations were unconstitutional because they intruded on the fundamental right to sexual privacy without serving any legitimate state interest. Justice O'Connor agreed with the outcome, but based her concurring opinion on Equal Protection grounds (and would therefore not have overruled Bowers), since the Texas statute, unlike the Georgia statue at issue in Bowers, applied only to homosexual sodomy. In other words, O'Connor did not hold that homosexuals have a fundamental right to sexual privacy. Rather, she held that the sodomy statute was unconstitutional because there was no rational basis for the State's decision to criminalize it only for homosexuals.

As is often the case, the most interesting part of the Lawrence decision is Scalia's truly scathing dissent, in which he was joined by Justices Rhenquist and Thomas. No matter which side of this issue you come down on, I urge you to read it. If you disagree with the outcome, Scalia will provide you with all of the ammunition you could ever want. If you agree with the outcome, Scalia will, as always, make you think.

Among other things, Scalia points out that, if homosexual sodomy cannot be outlawed, it is very hard to find a constitutionally permissible rationale for bans on gay marriage. Indeed, he argues, it is very hard to find a basis for any law that is based primarily on morality. It is this aspect of Scalia's argument that primarily interests me about these cases.

As you will note, all of these cases are about sex, and each raises essentially the same question: to what extent (if at all) may the state regulate or criminalize purely private sexual activity where the only justification for such regulation is an effort to enforce a majoritarian sense of morality? With an amazing degree of consistency, despite significant changes in the make-up of the court over time, the answer is that the state's power in this regard is very limited, at least where there is no "victim" involved.

This last point -- about the absence of a victim -- is key, obviously. This line of cases does not lead inexorably to the de-criminalization of rape or child molestation. In the first of these there is no consent in fact and in the second there is no consent in law and probably not in fact either. The state has an obvious interest in protecting people from sexual predators and I doubt if anyone would argue that a right of privacy trumps that state interest. The existence of a putative victim is also what makes the abortion cases so difficult. Plainly there is more at issue in these cases than "just" morality.

But, there are lots of other kinds of "victimless sex" that are still criminalized solely for moral reasons in most if not all states. Prostitution is the most obvious example, but some others include polygamy and voluntary incest between consenting adults. Admittedly, in particular cases involving these types of sexual relations it may be hard to determine whether "consent" is freely and knowingly given; and if it is not, then the case would present an entirely different and much easier issue. However, in all three there are undoubtedly cases in which the participants are full grown adults acting entirely independently and voluntarily. What does the Griswold-to-Lawrence line of cases have to say about those? If we believe that majoritarian morality is not a basis, by itself, for regulating voluntary sexual relations among consenting adults, then are statutes outlawing prostitution, polygamy and incest between consenting adults also unconstitutional? And, if your answer to that question is "yes", how do you feel about laws against bestiality? In short, what role, if any, does morality have to play in state regulation of private consensual sex?

For now, at least, I just want to pose the question. If you want MY answer to it, you'll have to wait, since I haven't quite got it figured out in my own head yet. But, as prelude, let me say this: I have a great deal of trouble with any law that has as its sole basis the enforcement of majoritarian morality, and I am therefore inclined to argue that individual interests in privacy -- in "being let alone" -- outwieghs the State's interests in enforcing morality even in these cases.

And Now the Deluge

Yesterday, Judge Joseph F. Bataillon of the Nebraska Federal District Court struck down Nebraska's state constitutional ant-gay-marriage amendment, holding that it violated the federal constitution. In searching for a copy of the opinion (which I have not found yet), I ran across this: the record of Judge Bataillon's confirmation vote in the Senate: 100-to-0. My guess is he'd have a hard time mustering half that many votes today. And, needless to say, his near-term prospects for an appointment to the Court of Appeals, to say nothing of the Supreme Court are pretty much toast.

UPDATE: Here's a link to Judge Bataillon's Decison:Citizens For Equal Protection, et al. v. Bruning, Attorney General

I have to admit I have mixed feelings about this decision. Not about the outcome, of course. It's the timing that concerns me. Obviously, this is going to re-energize the movement to put a same-sex-marriage amendment in the US Constitution. But that's not really the concern either. That will take years and, frankly, I think there is almost zero chance that such an amendment would ever get adopted. Indeed it would probably not even get out of Congress, since to do so requires concurrence of 2/3 of both houses.

No, my real concern is that this issue is now in play the federal courts and seems very likely to end up at the Supreme Court sometime in the next two years. In ordinary times, I would welcome that prospect, since, in ordinary times, I think the Supreme Court -- even this Supreme Court -- would end up doing the right thing. See, e.g., Lawrence v. Texas (2003)(laws banning consensual sex are unconstitutional)and Romer v. Evans (1996) (striking down a Colorado constitutional provision barring the State, and any agencies or political subdivisions thereof, from outlawing discrimination based on homosexual sexual orientation). However, these are not ordinary times. The Courts in general, and the Supreme Court in particular, are already under attack and this case simply adds more fuel to the fire. Courts are not immune to such pressure for one very simple reason: They need the support of the Executive to be effective. The Supreme Court's ability to take any action that means anything depends entirely on the willingness of the executive branch to abide by and if necessary enforce it's judgments. We are in a time where that willingness is being tested to a significant extent. In some sense, the Justices' first duty is to make sure that this comity is not destroyed, for if it ever is, the Court will cease to be an effective check on anything. This practical political reality has to weigh heavily in the mind of even those Justices who would normally be inclined to see sexual-preference discrimination as wrong and as inconsistent with basic notions of equal protection. Thus, despite the fact that I applaud the decision, and believe that eventually this issue needs to come before the Supreme Court, I frankly wish a couple more years had passed before it did.

The other timing downside is that it comes on the very eve of the long-awaited showdown on the right of a minority part to filibuster judicial nominations with which they disagree. I believe this is a vital check on the power of the majority party (whichever party that is). After all, if the President, with all of his power and influence can't persuade 60 Senators to vote for a nominee, there is no way that nominee should be given a lifetime appointment to anything, much less to the judiciary. Yesterday, it was not at all clear that Frist had the votes to change the filibuster rule. According to the New York Times today, there are three Republican Senators who have come out against changing the rule -- McCain, Chaffe and Snowe -- and three others who appear to be "on the fence" -- Specter, Breaux and Collins. Also, Voinovich has shown some willingness to stand up to the Administration with his refusal to support the Bolton nomination. But the Right will see the Nebraska gay marriage decision as being yet more evidence of the need for haste in getting the federal judiciary "reformed" and will raise the stakes yet again for those few Republican Senators who actually have the guts to try to moderate the zealotry of the current Republican Leadership. I am afeared, in short, that the filibuster may be an unintened victim of this decision, to the long term detriment of the Country.

Ohio's Not ALL bad

Ohio may be the state that gave us another four years of W & Co. but it does have some redeeming social value nonethless: a Senator with at least a bit of both judgment and spine. Now if we can just get him (and 3-4 others) to tell Bill Frist to cool it on the filibuster thing, I would begin to see hope again for the Party of Lincoln.

Vive Le Judicial Filibuster: Requiring 60% For Confirmation Of A Lifetime Appointment Is A Good Idea

As reported in both the New York Times yesterday and the Washington Post today, it appears that the issue of whether to try to end the potential for a filibuster of judicial nominees is coming to a head. As a result, I wrote e-mails this morning to both of my Senators (Voinovich and DeWine, both Republicans) urging them to vote against that rule change. I would urge all of you to do the same. It has nothing to do with Bush's nominees, though; I would have the same position if the Republicans were in the minority and were threatenting to filibuster the nominees of a Democratic President. Quite simply, I believe that, insofar as federal jdges are appointed for life, limiting the President's power of appointment to individuals who can garner at least acquiesence of 60% of the Senate is an important check on the President's power.

Lest We Forget . . .

In the "I'm shocked! Just SHOCKED!" category,Bush lied to us about Iraq and manipulated intelligence to ensure that it conformed to a predetermined policy decision! But Kevin is right. It is important that we keep reminding ourselves of this.

Where The Heck Is China?

Read this article, U.S. Cites Signs of Korean Preparations for Nuclear Test, take a close look at the map that accompanies it, and then ask yourself why China is putting up with this nuclear nonsense. Is China really going to let Kim test a nuke right on it's own border?

Crocodile Tears From Tom DeLay

This is just too rich: DeLay Calls for Greater Humility

Some Context That Does Matter: On The Battle Over The Judiciary

Nice piece of historical perspective in the NYT today on the uneasy relationship that has always existed between the legislative/executive branches and the judiciary: Chopping Off the Weakest Branch . It's probably true that there is no one of the stature of John Marshall on the federal bench today. But, even so, if the judiciary in its infancy can survive and even out-maneuver the likes of Thomas Jefferson, I don't think we need to worry too much about a mature judiciary being threatened by the likes of Tom Delay and James Dobson.

Context Matters- but only to a point

Oh, Matt c'mon, just stop it. Your list of desireable social welfare benefits might all be well worth pursuing, but it is silly to argue that we should reject the benefits that might flow from private accounts simply becuase we do not yet have them all. The exisiting social security system doesn't provide any of these benefits either. Rejecting private accounts simply becuase we don't have everything else you might want smacks of cutting off you nose to spite your face.

Internet surveillance

Courtesy of Instapunit here is a moderately interesting piece on remedies for violation of the laws -- including the Patriot Act -- defining and to some extent limiting the government's right snoop into internet communications: The Volokh Conspiracy . The blog, as well as the Law Review article it references, argue that development of the law related to what the government can and cannot do in this area would be better served if the statues authorized courts to suppress evidence collected in contravention of whatever limitations are imposed by these statutes. For reasons that are not entirely clear to me, the author, Orin Kerr, a law professor at George Washington University, concludes that the Fourth Amendment suppression jurisprudence is of limited practical applicability in these types of cases. As a result, he argues, there is a need for the statutes that authorize (and to some extent limit) government internet surveillance to include a provisions authorizing suppression of evidence obtained in violation of the statutory limitations.

I have no doubt that Professor Kerr is right about this. However, my bigger concern is not with remedies but with authorizations. My sense is -- and admittedly it is only a sense because I have not given the Patriot Act the study it deserves -- is that the lack of a suppression remedy is the least of our worries. After all, suppression is only a remedy if the surveillance itself was unlawful. A far more serious problem, I suspect, is that far too much surveillance is authorized by these statutes.

In reality, this is simply a note to myself (and you): The Patriot Act is up for renewal this year. I (and you) need to better educate myself (and yourself) on what needs to be changed.

The Thrift Imperative -- and Private Accounts

I wonderhow this -- The Thrift Imperative, pointing out (again) arguing that America's the anemic savings rate is threatening our economic well being -- relates to the issue of private accounts for social security. The article argues that the biggest cause of the low net savings rate is the Bush Administration's deficits, which the article claims, alomost completely offset the economy's net private savings. If that is the case, then private accounts by themsleves won't help much since re-directing even a portion of FICA taxes to private accounts will eventually require increases in federal borrowing to pay benefits. But, it does seem that private accounts, coupled with tax increases, could be a part of the answer. My point really is this: private accounts have some significant benefits and we should not reject them simply becuase they are being pushed by George Bush.

This Is A "Pay-To-Play" Blog

I understand that there are actually people who read this blog. I know because I have gotten e-mails etc. from people wondering why I have not written much recently. I haven't written much becuase it feels like I am talking to myself. I don't need to do that, though. I already know what I think long before I sit down to write about it. In short, if you want me to keep writing, you have to leave "tracks" (in the way of comments). So, if you actually are interested in reading my meanderings, get off your duff and SAY something even if you do it "anonomously" and don't sign your name. Otherwise, I'm gonna just take my keyboard and go home! Nananananaa!

What's So Wrong With Progressive Indexing of Social Security Benefits?

Yesterday's lead editorial in the NYT -- Hitting the Middle Class, Again -- seems just plain silly.

Mr. Bush endorsed a proposal that would take a huge bite out of the Social Security retirement benefits for the middle class, claiming that would close some 70 percent of the system's financing gap. That figure is almost certainly overstated. Under the proposed reductions, young workers who now earn about $36,000 would face a 16 percent cut; those earning about $58,000 would face a cut of 25 percent, and those earning $90,000, 29 percent. People not yet in the work force would face even larger reductions.

The proposal to which this refers, of course, is to change the way increases in social security benefits are determined. Under present rules, the benefits to which one will be entitled in the future are increased each year at the rate at which wages increase. Bush is proposing is that, for higher income people, the rate of increase should be pegged to the rate of inflation instead. (The rate of inflation is generally lower than the rate at which raises rise). Thus, what Bush is suggesting is not really a cut in benefits. It is a cut in the rate at which benefits increase. And this cut in the rate of increase would apply only to higher income people. The benefits for lower income people would continue to be indexed to the wage increase rate. One can describe this as a "reduction in benefits" only if one takes it as a given that today's 21 year old has an absolute right to see his benefits grow at the wage rate rather than the inflation rate for the next 40 years. But that's a pretty silly way to look at things. First, no one is entitled to anything. What A 21 year old (or really any person) gets from social security the electorate is prepared to pay him at the time he retires. Not a penny more, or less. My guess is that that is likely to change over time by a percentage far greater than the percentage difference between the wage and inflation rates. Second, even if we want to say that the promises made today should be inviolable, the only promise actually made to anyone is to pay currently scheduled benefits until the trust fund runs out (currently projected to be somewhere around 2047 if nothing changes). At that point, the promise is to pay the retiree only that percentage of his scheduled benefits that can be paid out of then-current receipts. Present estimates are that, after the trust fund is exhausted, Social Security will be able to pay only 72% of scheduled benefits. In short, under present law, a person who is 21 today is only "entitled" to 72% of currently scheduled benefits. It is, at present, against the law to pay him any more than that. So, if the effect of indexing the benefits for higher income people to inflation rather than wages is to defer the date at which the trust fund is exhausted, then the effect is to give everyone an increase in the benefits to which they would otherwise be entitled.

For a more honest -- if far less readable -- explanation of the impacts of Bush's proposals, see this from the WSJ.

But the New York Times' yellow editorialism is not really the point. I agree that, for people who are less than 10, maybe even 20, years from retirement, it is probably unfair to change the rules now. Rightly or wrongly, many of these people may have counted on social security to provide them with the bulk of their retirement income and it is now too late in their lives to make up the difference if the rules were to change. But the real question is what we want to tell the "20-somethings" about what social security will do for them. After all, it is the people who are 40 years from retirement who are the ones facing big benefit cuts if nothing changes.

My sense, from both a fairness and a policy perspective, is that we should tell them -- especially the upper income portion of them -- that they should not think of social security as a program that will replace some specified percentage of their pre-retirement income (which is the rationale for indexing benefits to wage growth). Rather, we should say, by the time you reach retirement, the purpose of social security is going to be simply to keep you out of poverty. That is, over the next 30-40 years, we are going to convert social security from something like a pension program to something like a welfare program. As a result, your benefits from social security will be indexed to the inflation rate, since the purpose will be to maintain a certain level of purchasing power, independent of what you actually earned. In return, we are going to let you -- actually make you -- invest a portion of what you pay in FICA taxes in private accounts that you will own.

I advocate, in short, something similar (in concept at least) to the Cato plan discussed in this post