Wednesday, December 29, 2010

Pregaming today's council/mayor head-to-head

Posted By on Wed, Dec 29, 2010 at 11:10 AM

Looking for a way to kill time before this morning's headline bout  -- the Tangle in the Triangle -- between Mayor Luke Ravenstahl and City Council? 

Once you're done praying that it won't be as gruelling as yesterday's match-up, you might check out the latest in municipal bankruptcy news, courtesy of yesterday's New York Times:

"We can make it until March 1 -- maybe," Mr. Cooper said of Hamtramck's ability to pay its bills. Beyond that? The political leaders of this old working-class city almost surrounded by Detroit are pleading with the state to let them declare bankruptcy, a desperate move the state is not even willing to admit as an option under the current circumstances

"The state is concerned that if they say yes to one, if that door is opened, they'll have 30 more cities right behind us," Mr. Cooper said, as flurries fell outside his City Hall window. "But anything else is just a stop gap. We're going to continue to pursue bankruptcy until the door is shut, locked, barricaded, bolted."

Or check out this recent Slate piece, about GOP plans to use government pensions as a cudgel against public-safety unions. And there's talk about giving states, at least, the right to file for bankruptcy:

What could the pension fund people and the public sector unions be so worried about? Right-leaning Reuters columnist James Pethokoukis laid it out for them. If the states aren't bailed out, they're going to have to start cutting budgets. If there's total transparency about pension funds-- and voters are already in the mood to shave the benefits and numbers of public workers--then that's where you can cut. Republicans might even be able to pass legislation that would allow states to declare bankruptcy, which would move the pension debate from politics to court, zapping all of the unions' leverage. "From the Republican perspective," wrote Pethokoukis, "the fiscal crisis on the state level provides a golden opportunity to defund a key Democratic interest group."

Now let's get ready to st-u-u-u-u-u-u-u-m-ble! 

Tuesday, December 28, 2010

The pension debate: This is why we can't have nice things

Posted By on Tue, Dec 28, 2010 at 5:32 PM

For a minute there, the blogosphere was all a-twitter: Could there be a solution to the city's massive pension crisis after all? Could council president Darlene Harris have found the answer that has evaded the city all these months?

Answer: Probably not. 

True, council did come up with a plan: It involves raising parking rates at garages and parking lots owned by the city, and its independent Parking Authority. That money would be pledged over 30 years -- an irrevocable agreement backed with the city's "full faith and credit" -- in hopes that it would fund 50 cents for every dollar the city owes on its pension obligations. That would be enough to avoid a Jan. 1 state takeover of the pension. And unlike Mayor Luke Ravenstahl's plan -- which involves leasing the garages outright to a private operator -- council's option would keep the assets in public hands.

And yes, finance director Scott Kunka did manage to create some confusion when he appeared before council today. Kunka, who also chairs the Parking Authority, told council that while the mayor "cannot endorse this plan," he also "will not stand in council's way."

Which sounded good at first. But then three thoughts occurred to me. 

The first was: "Hmmmmm ... here we are, considering a controversial bill at the very end of the year. And the Ravenstahl administration is saying it won't really advocate against the measure. What could possibly go wrong?"

Second: To my ears, Kunka was suggesting that Ravenstahl intends to let the legislation become law without his signature. Be advised, legal scholars, that by the terms of the city charter:

"If the mayor fails to sign or return legislation to council with reasons for disapproval, it shall become law as of its effective date, ten days after submission to the mayor."

So if you believe that Jan. 1 really is the absolute holy-shit drop-dead deadline for the city to get to 50 percent funding, it's already too late. Ravenstahl could run out the clock without even trying. (Personally, I don't really buy the Jan. 1 deadline -- but it's certainly made for lots of drama!)

Thirdly, and most importantly ... Ravenstahl doesn't actually have to veto the bill to kill it. All that's necessary is for the Parking Authority to not take any action.

During his marathon session with council today, Kunka argued, repeatedly, that council could approve Harris' bill without the Parking Authority doing anything. Kunka's theory, as near as anyone could follow it, was that while the bill anticipated using 30 years of increased parking revenue, it pledged the city's "full faith and credit" to provide the promised money. If the Parking Authority came up short, the city would be obliged to find another source for the cash. So it needn't have the Parking Authority's support at all.

That's an exceedingly legalistic point, and one that further confused today's council debate.  "It's just their way of walking away from this plan," city controller Michael Lamb, who has tried to come up with alternate funding proposals, told me. "The only way it works is if the Parking Authority raises its rates."

Kunka made it abundantly clear that the Parking Authority has no plans to do so: It can't pledge revenues in advance, he argued, because doing so would interfere with pledges made to bondholders who the authority already owes.

Lamb contests that interpretation, arguing that there are always work-arounds for that sort of problem. Still, Kunka's resistance can't come as a surprise. Hell, the Parking Authority refused to even study a previous alternative to the mayor's plan. And one of the authority board members who was willing to study it abruptly left the board shortly afterward. So is it any wonder that Kunka seemed unimpressed by today's proposal?

In fact, a part of me suspected that this whole thing might be a set-up. Had Ravenstahl's adversaries on council merely hatched a last-minute plot to embarrass him, and make themselves look good, by offering a "solution" he'd never go for?

After all, there was a lot of talk from council today -- especially from Patrick Dowd, who once ran against Ravenstahl -- about how the mayor couldn't be bothered to talk to council, though he was on-hand for today's PR activities related to the Winter Classic hockey game. Could this all have been an attempt to play into the perception that Ravenstahl is, well, less than entirely engaged by his work?

Lamb doubts it, and says councilors had some reason to think this might work. He says that the proposal was discussed during a Dec. 23 conference call involving councilors, state officials, and two administration officials: Kunka and mayoral right-hand guy Yarone Zober. At the time, Lamb says, the mayor's people seemed open to the idea, though they made no promises. "Yarone is very careful about saying, 'We'll have to talk to the mayor about this,'" Lamb says. "But they sounded very interested. At least momentarily, it created the sense that this was something we could do."

But even as the Jan. 1 deadline approached, councilors complained repeatedly, they heard nothing from Ravenstahl or his office -- not until Kunka made his appearance today. Harris herself was especially livid.

"I've worked with five mayors," she said. "[W]ithin a week I could get a meeting with Caliguiri, I could get a meeting with Sophie [Masloff], I could a meeting with Tom Murphy ...  [But] as president of this council I can't get a meeting with the mayor on one of the most important issues facing this city."

Kunka rejected such accusations, noting that council had repeatedly opposed the mayor's efforts to compromise on his own plan. Councilor Theresa Kail-Smith, who frequently backs the mayor, called the charge "disingenuous": "We have had some meetings" with the mayor, she said. "We've just disagreed."

Debates like this are a big part of the reason I've tried to avoid this whole issue over the past few months. And by meeting's end, tempers had clearly frayed. Kunka got into a shouting match with Natalia Rudiak. Bill Peduto alleged that Ravenstahl might be ginning up an outcome in which Harrisburg takes over the pension fund, and leases the parking garages anyway. 

Who you blame for the impasse, I suspect, depends on where you stood on the mayor's original proposal. But either way, what we're all seeing here is a public process that has simply collapsed. The plan council proposed today was never a solution to the pension problem: Councilors themselves admitted as much. It basically was a plan to meet a trumped-up, arbitrary state deadline with a trumped-up accounting trick. 

And arguably, that's all the state deserves. Today's multi-hour debate -- with round-and-round arguments about whether the city could count on Parking Authority revenue -- arguably needn't have happened at all. In a sane universe, the city could have raised the money simply by hiking the parking tax that everyone pays-- at city-owned lots, authority-owned facilities, and privately-operated sites as well. (If you're gonna dun commuters, why only go after those using the public lots?) But the city can't raise the parking tax because state legislators, in their infinite wisdom, largely took that power away from the city. (By state law, the only way the city can raise parking taxes, is by leasing the authority's garages -- a clear attempt by Harrisburg to dictate an outcome.) That leaves city officials arguing over how many angels can fit on a parking meter. 

As for the mayor? Early on, I thought he made a strong case for his own plan. And council hasn't always covered itself with glory here. But if council is sometimes less than the sum of its parts, we also have a mayor who apparently doesn't know how to add up to five.

During today's debate, councilor Ricky Burgess faulted council for waiting until "the eighth hour" to bring the legislation to a vote. Fair enough. But at least they were still working that late. Watching Kunka dodge and weave today, and hearing repeated complaints of mayoral disengagement, I found myself wondering: Has Ravenstahl already knocked off?

Monday, December 27, 2010

Is Pittsburgh sitting atop an economic bubble?

Posted By on Mon, Dec 27, 2010 at 3:47 PM

Here in Pittsburgh, we've gotten pretty good at patting ourselves on the back. Other cities might have had real-estate meltdowns, we cluck, but not us! And we sidestepped that whole internet boom as well!

But what if Pittsburgh's economy were being supported by a bubble of its own -- an industry whose booming growth blinds us to the fact that it is ultimately unsustainable? What if one of our chief industries was headed for a fall like the one which claimed, say, the domestic steel production?

What if even the mighty Cathedral of Learning is built on a foundation of sand?

That question occurred to me after reading work by a couple of local conservatives in recent days.

The first is Jack Kelly, the P-G columnist and bete noir of some local bloggers. This weekend, Kelly wrote a column titled "The Costly College Scam," which argues that "the biggest consumer ripoff in America today is a college education":

Since 1981, tuition and fees have increased sixfold, while the consumer price index has risen just 250 percent. The rise in college costs has been especially fast in the last decade, and has reached heights that place enormous strain on middle class families ...

If you have a degree in physics or engineering, you're almost certain to earn a great deal more than someone who stocks shelves at Wal Mart. But if your degree is in sociology or ethnic studies, you probably won't earn as much as a plumber or an electrician.

Kelly's column came on the heels of an earlier piece written by Jerry Bowyer for Likening the higher-education biz to Nevada's housing market at the height of the boom, Bowyer argues, "Higher education shows every reasonable sign of having a completely unrealistic, astronomical price tag. Beyond that, the sacred cow psychology that commonly accompanies other mania is clearly present." (Bowyer later did a follow-up here.)

In previous bubbles, the "sacred-cow psychology" was that Internet stocks, or housing prices, could only rise -- either because the Internet had changed the way we do business so much that old economic rules no longer applied, or because in living memory, housing prices had only ever gone up. With respect to college, Bowyer argues, the "sacred-cow psychology" is the old nostrum that a college education always pays off with higher earnings down the road.

Let's acknowledge the obvious: Whatever else these guys are, they're conservative ideologues, and they aren't writing in a vacuum. After all, even Phyllis Freakin' Schlafly has begun asking questions about whether a college education is worth it. And when folks like Phyllis Schlafly start expressing concern for the poor and indebted, you know something is up.

One gets the sneaking suspicion, in fact, that what really bothers Schlafly & Co. is not the cost of education per se, but the fact that Barack Obama has done something about it. Back when giant for-profit enterprises like Sallie Mae were raking in fees, massive student indebtedness was, presumably, just the free market at work. Now that Obama has cut the banks out of student lending, you'll hear conservatives begin to wring their hands about whether those poor first-years are getting their money's worth. 

(I mean after all, when Kelly complains that "it is virtually impossible to discharge student loan debts in bankruptcy," he might have felt obliged to mention the Bankruptcy Abuse Prevention and Consumer Protection Act. That 2005 measure, passed by a Republican-led Congress and signed by a Republican president, made it difficult to discharged loans even when they were issued by Sallie Mae and other for-profit lenders.)

So I can't blame those who wonder about Kelly's motivation here. Does his concern stem from the fact that college campuses are among the few places where liberal ideas are not roundly dismissed ... where they even predominate? Is it any wonder that Kelly -- a global warming denier in the face of strong scientific consesnsus -- doesn't see the value in book-larnin'?

But all that said ... there is no doubt that there is a serious question here, one we lefties have been asking for awhile now. For starters, while Obama has taken on for-profit lenders, the for-profit educators are still out there. And City Paper's Charlie Deitch was among the first to sound the bell about one local player: Pittsburgh-based EDMC. More recently, the Post-Gazette has been raising questions as well.

The vast majority of EDMC's revenue comes from federally-backed student loans, which sort of makes them the General Dynamics of education. Even if you aren't a libertarian of Bowyer's stripe, you might wonder whether students are getting diplomas that are the educational equivalent of $1,200 toilet seats.

And obviously, as City Paper has noted more than once, it's not just for-profit educators students should worry about. At non-profit schools too, costs have been spiralling, and debt burdens have been rising along with them.

How much longer can this go on? At what point will the cost of a college education outstrip a student (or her family's) willingness to pay for it? At what point will a degree's cost outweigh the economic benefits derived from it? And given that Pittsburgh's economy is based on "eds and meds," what will the local impact be if a bubble does burst?

Such questions may be a long way off, and I sure wouldn't turn to Jack Kelly to answer them. You can really only expect these guys to offer simplistic answers -- it's all government's fault! -- to very complex problems. That's what they did with the housing crisis, anyway. And you can already see them lining up their arguments on education.

But although I distrust their argument, this may be a discussion the city needs to have. If anything, the rise of an "eds and meds" economy has distorted our government, rather than the other way around. That often happens when an economy is dominated by just a few actors: The steel industry exercised its own perogatives -- in terms of shaping tax codes and even municipal boundaries -- to maximize its gains. And arguably, "non-profits" like the University of Pittsburgh do the same thing every time they take a parcel of land off the tax rolls.

That may be acceptable as long as their success can be sustained. But if not ... what then? A world-renowned institution like CMU may be strong enough to survive anything short of Armageddon. But what about, say, Chatham University? Or Point Park? If they began to struggle, would we bail out our colleges the way we've done with our less-successful sports teams? Would the state rush in with aid? If there is a bubble here, in other words, would higher education in Pittsburgh be too big to fail?

Thursday, December 23, 2010

Merry Freaking Christmas: Metcalfe to head state Government Committee

Posted By on Thu, Dec 23, 2010 at 4:25 PM

So earlier today, Mike Turzai, who will be the state House majority leader next year, released the names of the Republicans who will be chairing the various legislative committees. And Daryl Metcalfe, the Pride of Cranberry, will be chairing the State Government Committee. 

You know what that means? Birtherism in state government! More pointlessly divisive debates over gay marriage! And yet more demonizing of immigrants!

As its name suggests, Metcalfe's committee handles legislation that pertains to state government and its powers. Constitutional amendments, campaign-finance and other election reforms ... all such mess as that. 

And wouldn't you know it? That's also the committee that deals with issues like immigration reform, a pet cause for Metcalfe.

Naturally Metcalfe himself is all a-flutter with excitment:

[N]ewly-appointed State Government Committee Majority Chairman Metcalfe looks forward to the opportunity of advancing the Pennsylvania Marriage Protection Amendment; election reform legislation requiring all Presidential candidates to officially submit proof of U.S. citizenship documentation; and his Arizona-modeled legislation to provide state and local law enforcement with full authority to apprehend Pennsylvania’s estimated 140,000 illegal alien invaders for deportation

Emphasis mine -- yeah, he's going there. So Pennsylvania looks well positioned to be the source of some really embarrassing headlines in 2012. 

It's got to be an especially sweet post for Metcalfe, since this committee tried to bottle up a cherished piece of anti-immigrant legislation. The committee's then-chair, Democrat Babette Josephs, explained her feelings thusly: "I give every bill the attention it deserves. I believe this bill deserves no attention whatsoever."

Metcalfe later got the bill out of committee anyway. Now he's going to be in charge ... and Josephs will be the minority chair.  Which means Metcalfe's counterpart will be someone who boasts of supporting "equal rights for lesbian women and gay men" and of "stopp[ing] English-only legislation." 

I wish I could say I was looking forward to the fireworks. 

UPDATE: Just minutes after I posted this, Sue Kerr added a pair of updates about Metcalfe's totally unsurprising attempt to bar same-sex marriage through Constitutional amendment.


Tuesday, December 21, 2010

Old Senators never die ... they just keep talking until someone shuts off their microphone

Posted By on Tue, Dec 21, 2010 at 1:44 PM

Arlen Specter delivered his farewell address -- in the best lawyerly tradition, he called it his "closing argument" -- on the floor of the Senate this morning.

I'll reproduce his prepared comments -- as released by his office a few minutes ago -- below. But the Reader's Digest version is this:

-- The Senate ain't what it used to be, and neither are Senators. Moderates are a dying breed: Specter name-drops Delaware Republican Mike Castle, who lost this year's GOP primary "in favor of a candidate who thought it necessary to defend herself as not being a witch."

-- Both parties have abused Senate rules to create gridlock and delay. While use of the filibuster gets the most attention, Specter puts this issue in a broader context, suggesting that the abuse of the filibuster arises, at least in part, from Senate majority leaders barring amendments from coming to the floor.

-- The Supreme Court overreached on the Citizens United case -- which has opened the floodgates to corporate and union spending on political campaigns -- and in general "has been eating Congress's lunch by invalidating legislation with judicial activism." One partial solution would be to televise court proceedings, so the Court could be exposed to as much contempt as every other government official. (Actually, it sounds better when Specter says it.)

-- Senators need to go out more, and visit other countries. Specter seems to believe this would enhance America's foreign policy ... though I tend to believe that depends pretty heavily on the Senator. 

-- Funding on the National Institutes for Health should be increased. 

As for the abuse of Senate procedure, Specter proposes some rule changes, which are consistent with previous ideas he's floated. A filibuster, he said, should be required to involve actual talking -- a la Mr. Smith Goes to Washington -- rather than the mere "notice of intent" to filibuster that suffices to delay action today. And when judicial or other appointments are involved, Specter supports changing the vote to cut off a fillibuster from a minimum of 60 votes to just 51. 

But mostly, Specter called for a return to "civility" and a break with partisanship.  "The Senate's deliberate, cerebral procedures have served our country well," he claimed -- citing its acquittal of Supreme Court Jusice Samuel Chase in an impeachment proceeding. But "Regrettably, that has changed in recent years because of abuse of the Senate rules by both parties."

It's a somewhat selective trip down memory lane: While Specter also mentioned the impeachment of Andrew Johnson, he didn't dwell on the proceedings against Bill Clinton, in which Specter famously voted "not proven." For that matter, his paean to the good old days didn't include such time-honored debating tactics as beating the shit out of a Senator with your cane

But I kid Arlen Specter!

Sure, lots of folks won't be sorry to see him go. The Brandywine Peace Community, for one, has issued a farewell kick in the ass: "We've been through a lot with Senator Specter," one member recalls in a press release. "I still remember ... his labeling Brandywine a terrorist group on the Senate floor." (In fairness, demonizing Brandywine might be just another example of bipartisanship.) And sure, we've all rolled our eyes at Specter's equivocations, his willingness to shift with the political wind. But those are the very attributes we may miss most once his successor, Pat Toomey, takes his place. 

The transcript of Specter's remarks follows:

"This is not a farewell address, but rather a closing argument to a jury of my colleagues and the American people outlining my views on how the Senate -- and with it, the Federal Government -- arrived at its current condition of partisan gridlock, and my suggestions of where we go from here on that pressing problem and key issues of national and international importance.

To make a final floor statement is a challenge. The Washington Post noted the poor attendance at my colleagues' farewell speeches earlier this month. That is really not surprising since there is hardly anyone ever on the Senate floor. The days of lively debate with many members on the floor are long gone. Abuse of Senate rules has pretty much stripped senators of the right to offer amendments. The modern filibuster requires only a threat and no talking. So the Senate's dominant activity for more than a decade has been the virtually continuous drone of the quorum call.

But that is not the way it was when I was privileged to enter the world's greatest deliberative body 30 years ago. Senators on both sides of the aisle engaged in collegial debate and found ways to find common ground on the nation's pressing problems. When I attended my first Republican moderates luncheon, I met Mark Hatfield, John Chaffee, Ted Stevens, Mac Mathias, Bob Stafford, Bob Packwood, Chuck Percy, Bill Cohen, Warren Rudman, Alan Simpson, Jack Danforth, John Warner, Nancy Kassenbaum, Slade Gorton, and others—a far cry from later years when the moderates could fit into a telephone booth. On the other side of the aisle, I found many Democratic senators willing to move to the center to craft legislation: Scoop Jackson, Joe Biden, Dan Inouye, Lloyd Bentsen, Fritz Hollings, Pat Leahy, Dale Bumpers, David Boren, Russell Long, Pat Moynihan, George Mitchell, Sam Nunn, Gary Hart, Bill Bradley, and others.

They were carrying on the Senate's glorious tradition. The Senate's deliberate, cerebral procedures have served our country well. The Senate stood tall in 1805 in acquitting Supreme Court Justice Samuel Chase in impeachment proceedings to preserve the independence of the federal judiciary. The Senate stood tall in 1868 to acquit President Andrew Johnson in impeachment proceedings that preserved the power of the Presidency. Repeatedly, in our-223 year history the Senate has cooled the passions of the moment to preserve the institutions embodied in our Constitution which have made the United States the envy of the world.

It has been a great privilege to have had a voice for the last 30 years in the great decisions of our day: how we allocate our resources among economic development, national defense, education, environmental protection and NIH funding; the Senate's role in foreign policy; the protection of civil rights; balancing crime control and defendants' rights; and how we maintained the quality of the federal judiciary—not only the high profile 14 Supreme Court nominations that I have participated in but the 112 Pennsylvanians who have been confirmed during my tenure in the District Courts or Third Circuit.

On the national scene, top issues are the deficit and national debt. The Deficit Commission has made a start. When raising the debt limit comes up next year, that may present an occasion to pressure all parties to come to terms on future taxes and expenditures to realistically deal with these issues.

Next, Congress should act to try to stop the Supreme Court from further eroding the Constitutional mandate of separation of power. The Court has been eating Congress's lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect Congressional fact finding and precedents. The recent decision in Citizens United is illustrative. Ignoring a massive Congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony and provided the key votes to permit corporations and unions to secretly pay for political advertising - effectively undermining the basic democratic principle of the power of one person/one vote. Roberts promised to just call balls and strikes and then moved the bases.

Congress's response is necessarily limited in recognition of the importance of judicial independence as the foundation of the rule of law. Congress could at least require televising the court proceedings to provide some transparency to inform the public about how the Court is the final word on the cutting issues of the day in our society. Brandeis was right that sunlight is the best disinfectant. The Court does follow the election returns and does judicially notice societal values as expressed by public opinion. Polls show 85% of the American people favor televising the Court when told that a citizen can only attend an oral argument for three minutes in a chamber holding only 300 people. Great Britain, Canada, and state supreme courts permit television.

Congress has the authority to legislate on this subject just as Congress decides other administrative matters like what cases the Court must hear, time limits for decisions, the number of justices, the day the Court convenes and the number for a quorum. While television cannot provide a definitive answer, it could be significant and may be the most that can be done consistent with life tenure and judicial independence.

Additionally, I urge Congress to substantially increase funding for NIH. When NIH funding was increased from $12 to $30 billion annually, and $10 billion added in the stimulus package, significant advances were made on medical research. It is scandalous that a nation with our wealth and research capabilities has not done more. Forty years ago, the President of the United States declared war on cancer. Had that war been pursued with the diligence of other wars, most forms of cancer might have been conquered.

I also urge my colleagues to increase their activity on foreign travel. Regrettably, we have earned the title of "The Ugly Americans" by not treating other nations with proper respect and dignity. My experience in Codels to China, Russia, India, NATO, Jerusalem, Damascus, Bagdad, Kabul and elsewhere provided the opportunity for eyeball --to- eyeball discussions with world leaders about our values, our expectations and our willingness to engage in constructive dialogue. Since 1984, I have visited Syria almost every year. My extensive conversations with Hafiz al-Assad and Bashar al-Assad have convinced me that there is a realistic opportunity for a peace treaty between Israel and Syria if encouraged by vigorous U.S. diplomacy. Similar meetings with Muammar Ghaddafi, Yasser Arafat, Fidel Castro, Saddam Hussein and Hugo Chavez have persuaded me that candid, respectful dialogue with our toughest adversaries can do much to improve relations among nations.

And now let me shift gears -- in my view, a principle reason for the historic stature of the United States Senate has been the ability of any Senator to offer virtually any amendment at virtually any time. The Senate Chamber provides the forum for unlimited debate with the potential to acquaint the people of America and the world about innovative proposals on public policy and have a vote on the issue.

Regrettably, that has changed in recent years because of abuse of the Senate rules by both parties. The Senate rules allow the Majority Leader, through his right of first recognition, to offer up a series of amendments to prevent any other senator from offering an amendment. That had been done infrequently up until about a decade ago and lately has become a common practice by both parties.

By precluding other Senators from offering amendments, the Majority Leader protects his party colleagues from taking tough votes. Never mind that we were sent here and paid to make tough votes. The inevitable and understandable consequence of that practice has been the filibuster. If a Senator can not offer an amendment, why vote to cut off debate and go to final passage? Senators were willing to accept the will of the majority in rejecting their amendments, but unwilling to accept being railroaded to concluding a bill without an opportunity to modify it. That practice led to an indignant, determined minority to filibuster and deny the 60 votes necessary to cut off debate. Two years ago on the Senate floor, I called the practice "tyrannical".

The decade from 1995-2005 saw the nominees of President Clinton and President Bush stymied by the refusal of the other party to have a hearing or floor vote on many judicial and executive nominees. Then in 2005, serious consideration was given by the Republican Caucus to changing the long standing Senate filibuster rule by invoking the so called "nuclear" or "constitutional option". The plan called for Vice President Cheney to rule 51 votes were sufficient to impose cloture for confirmation of a judge or executive nominee. His ruling, challenged by Democrats, would then be upheld by the traditional 51 votes to uphold the Chair's ruling.

As I argued on the Senate floor at that time, if Democratic Senators had voted their conscience without regard to party loyalty, most filibusters would have failed. Similarly, I argued that had Republican Senators voted their consciences without regard to party loyalty there would not have been 51 of the 55 Republican Senators to support the nuclear option.

The Majority Leader scheduled the critical vote for May 25, 2005. The outcome of the vote was uncertain with key Republicans undeclared. The showdown was averted the night before by a compromise by the so called "Gang of 14". Some nominees were approved, some rejected, and a new standard was established to eliminate filibusters unless there were "extraordinary circumstances" with each senator to decide whether that standard was met. That standard has not been followed as those filibusters have continued in recent years. Again, the fault rests with both parties.

There is a way out of this procedural gridlock by changing the rule on the power of the Majority Leader to exclude other Senators' amendments. I proposed such a rule change in the 110th and 111th Congresses. I would retain the 60 vote requirement for cloture on legislation with the condition that Senators would have to have a talking filibuster -- not merely the present notice of intent. By allowing senators to offer amendments and a requirement for debate, not just notice, I think filibusters could be effectively managed as they had been in the past and still be retained where necessary to give adequate debate on controversial issues.

I would change the rule to cut off debate on judicial and executive branch nominees to 51 votes as I formally proposed in the 109th Congress. Important positions are left open for months including judicial nominees with emergency backlogs. Since Judge Bork and Justice Thomas did not provoke filibusters, I think the Senate can do without them on judges and executive office holders. There is a sufficient safeguard of the public interest by requiring a simple majority of Senators on an up/down vote. I would also change the rule requiring 30 hours of post-cloture debate and the rule allowing the secret "hold" which requires cloture to bring the matter to the floor. Requiring a senator to disclose his "hold" to the light of day would greatly curtail this abuse.

While political gridlock has been facilitated by the Senate rules, partisanship has been increased by other factors. Senators have gone into other states to campaign against incumbents of the other party. Senators have even opposed their own party colleagues in primary challenges. That conduct was beyond contemplation in the Senate I joined 30 years ago. Collegiality can obviously not be maintained when negotiating with someone simultaneously out to defeat you, especially within your own party.

In some quarters, "compromising" has become a dirty word. Some senators insist on ideological purity as a precondition. Senator Margaret Chase Smith of Maine had it right when she said we need to distinguish between the compromise of principle and the principle of compromise. The Senate itself was created through the so-called "Great Compromise," in which the framers decreed that states would be represented equally in the Senate and proportionate to their populations in the House. As Senate historian Richard Baker wrote, "Without that compromise, there would likely have been no Constitution, no Senate, and no United States as we know it today."

Politics is no longer the art of the possible when senators are intransigent in their positions. Polarization of the political parties has followed. President Reagan's "Big Tent" has frequently been abandoned by the Republican Party. A single vote out of thousands cast by an incumbent can cost his seat. Senator Bob Bennett was rejected by the far right in his Utah primary largely because of his vote for TARP. It did not matter that Vice President Cheney had pleaded with the Republican caucus to support TARP or President Bush would become a modern Herbert Hoover. It did not matter that 24 other Republican Senators out of 49 also voted for TARP. Senator Bennett's 93% conservative rating was insufficient. Senator Lisa Murkowski lost her primary in Alaska. Congressman Mike Castle was rejected in Delaware's Republican primary in favor of a candidate who thought it necessary to defend herself as not being a witch. Republican senators contributed to the primary defeats of Bennett, Murkowski and Castle. Eating or defeating your own is a form of sophisticated cannibalism. Similarly, on the other side of the aisle, Senator Lieberman could not win his Democratic primary.

The spectacular re-election of Senator Lisa Murkowski on a write-in vote in the Alaskan general election and the defeat of other Tea Party candidates in 2010 in general elections may show the way to counter right-wing extremists. Arguably, Republicans left three seats on the table in 2010—beyond Delaware, also Nevada and arguably Colorado—because of unacceptable general election candidates. By bouncing back and winning, Senator Murkowski demonstrated that a moderate/centrist can win by informing and arousing the general electorate. Her victory proves that America still wants to be and can be governed by the center.

Repeatedly, senior Republican senators have recently abandoned long held positions out of fear of losing their seats over a single vote or because of party discipline. With 59 votes for cloture on the Democratic side of the aisle, not a single Republican would provide the 60th vote to advance legislation on key issues such as identifying campaign contributors.

Notwithstanding the perils, it is my hope that more senators will return to greater independence in voting and crossing of party lines evident thirty years ago. President Kennedy's "Profiles in Courage" shows the way. Sometimes party does ask too much. The model for an elected official's independence in a representative democracy was articulated in 1774 by Edmund Burke of the British House of Commons, who said: "his [the elected representative's] unbiased opinion, his mature judgment, his enlightened conscience…[including his vote] ought not to be sacrificed to you, to any man or any set of men living."

Above all, we need civility. Steve and Cokie Roberts, distinguished journalists, put it well in a recent column: "Civility is more than good manners . . . Civility is a state of mind. It reflects respect for your opponents and for the institutions you serve together. . . This polarization will make civility in the next Congress more difficult -- and more necessary -- than ever."

A closing speech has an inevitable aspect of nostalgia. An extraordinary experience has come to an end. But my dominant feeling is pride in the great privilege it has been to be a part of this unique body with colleagues who are such outstanding public servants. I have written and will write elsewhere about my tenure here, so I do not say "farewell" to my continuing involvement in public policy, which I will pursue in a different venue. I leave with great optimism for the future of our country and the continuing vital role of the United States Senate in the governance of our democracy."

Monday, December 20, 2010

On the frontiers of blogger law

Posted By on Mon, Dec 20, 2010 at 7:26 PM

From time to time, I like to share developments in the world of online law -- both to give a heads-up to other bloggers, and to give me an excuse to write about anything other than the Parking Lot Imbroglio. (Although on that score -- kudos to the crack attorneys representing city firefighters for recognizing that obscure concept known as the separation of powers! Better late than never!)

Anyway. The case before us today is Wolk v. Olson. And the question at stake for bloggers and old media alike is this: If you post something libelous online, for how long will you be vulnerable to a lawsuit?

For print-edition publications, Pennsylvania's law is pretty straightfoward: If a would-be plaintiff doesn't act within a year after the material is published, he or she is SOL.

But print-edition material -- as I'm frequently reminded -- often ends up lining bird-cages, or wrapped around fish. The paper is soon remanded to the dusty vaults of the library's microfilm department. 

Online, the material can remain in circulation for years. But generally speaking, courts have ruled that the same standard applies: It's called the "single publication rule" -- once you hit "post," or the issue hits the newstand, the clock on the statute of limitations starts ticking. And a would-be plaintiff doesn't get to reset it just because they read the paper late.

But what about the public figure who is targeted by an obscure blogger ... who doesn't even see the post until, say, two years after it is first published? Consider how it feels for someone to Google his or her name and suddenly discover your scurrilous post ... a post he or she may never have seen before, but that his or her peers may have been snickering about for months. Can a person argue that in some cases, they should have extra time to sue you for it?

That's the question raised by Wolk v. Olson.

Arthur Wolk is a highly successful Philadelphia attorney who was the subject of an unflattering blog post at the website  The post was dated April of 2007, but Wolk didn't spot it until April of 2009 -- well after the statute of limitations would ordinarily have expired. But Wolk promptly demanded a retraction, and when one was not forthcoming, he sued the website the following month, alleging defamation and related offenses. 

A few things make this interesting. One is that Pennsylvania's "single publication rule" doesn't specifically mention online content, and I'm not aware of any cases that address it. (Neither is the Citizen Media Law Project.) And based on a previous state Supreme Court ruling, Wolk contends that he deserves an extension under what's called the "discovery rule." That rule essentially "stops the clock" on a statute of limitations until you discover your injury -- provided there was a good reason you didn't know about it sooner. As the Supreme Court has put it, a defendant has to demonstrate an "inability ... despite the exercise of reasonable diligence, to know that [one] is injured."

So far, the courts have not been kind to Wolk's argument. In August, a federal judge ruled against him, holding that the discovery rule can't be easily applied to statements made in "a mass medium, like a website." What's more, if the rule could apply "no matter how public or ancient the injury might be, then [the rule] will have nullified the stability and security that the statute of limiitations aims to protect."

But the lawsuit isn't over. Wolk's attorneys have made a new argument, claiming the statute of limitations did not expire ... because the April 2007 was republished under a different URL in May 2008. What's more, Wolk contends, the new page's URL was configured to make it more visible to search engines like Google than the old site.  

"The search engine optimization was an intentional and calculated effort," the Wolk pleading argues -- an effort that "optimized the searchability of the [blog post] and thrust it into the forefront of Google-like search returns."

I can't speak to the technical merits of Wolk's argument -- it has a lot to do with punctuating URLs with hyphens rather than underscores. Nor do I know whether the blog post is more visible now than it was in 2007. But the argument could open up a whole new can of worms.

Remember the single-publication rule? As the name implies, that applies to single publications. Courts have held that if you publish old material in a new context -- anthologizing newspaper columns in a book, for example -- the clock on the statute of limitations could be reset.

The question, then, is whether changing your URLs meets that threshhold. For its part, contends that the new URLs were the result of a routine software upgrade. "Blogging software ordinarily assigns a distinctive URL to each archival post," the site points out. And when that software is updated, "the URLs attached to these archival posts are often modified slightly." argues that such a change "is more akin to moving a book to a different shelf than it is [to] publishing a revised version." Ruling for Wolk, the site argues, would put every blogger at risk for a new round of lawsuits anytime a blog host upgraded its software.

The Society of Professional Journalists, meanwhile, is filing a "friend of the court" brief in the matter.  "[B]logs deserve the same protection given to other mass media," the SPJ contends. And the precedent here could be dangerous for the MSM too: For pro journalists, "[T]he implications of trying to find years-old notes that may no longer be available due to storage issues would make a defense difficult, if not impossible."

As anyone who has seen my desk knows, I will support any argument that protects me from needing to dig up years-old shit. And if Wolk prevailed, it'd be a mess for everyone, old media and new. 

Still ... does Wolk have a point here? The single-publication rule, it seems to me, assumes that a person's reputation will most likely be damaged immediately after publication. The newspaper hits the stands, the headlines scream your name ... but as time goes on, the ink begins to fade, and with it people's memories. 

In the online environment, though, content can always be refreshed. Google results can change from day to day, and they can be goosed through search engine optimization efforts (though whether that happened here, I couldn't say). Wolk's lawyer echoed this point in August: "Unlike 'mass media' print defamation claims, where the publication is pervasive for a short time but soon becomes yesterday's news, the Internet is a different animal."

My guess is that Wolk will lose this round as well: A ruling in his favor would just be too disruptive toward the way we produce, and consume, media in the 21st century. The law was written to address a media environment much less fluid than our own, which means a lawsuit may not undo the damage new media does. In fact, by trying to erase the post, Wolk may have driven more traffic to it ... which may explain why the post in question now shows up as the #3 result when you search Wolk's name.

Friday, December 17, 2010

Doyle wins some, loses some

Posted By on Fri, Dec 17, 2010 at 5:20 PM

The past 24 hours have been a mixed bag for Congressman Mike Doyle.

On the one hand, his hopes -- expressed here last week -- that Democrats would be able to change a controversial tax-cut compromise plan have been dashed. On the other hand, a long-cherished legislative initiative -- to establish low-power FM stations for use by community groups -- has never been closer to success. 

As I noted earlier today, last night Doyle supported a doomed attempt to raise the estate tax on wealthy Americans, then voted in favor of the bill. The measure provides extended unemployment benefits and other aid to struggling families in exchange for GOP-favored tax cuts that benefit the wealthy. 

It's a startling change from a week ago: Then, Doyle was confident the tax compromise "isn't going to be brought up in its current form." But the measure he voted for last night was exactly the same bill that the Senate had sent over. 

What happened? 

"We were like a dwindling number of soldiers," Doyle says of liberal House Democrats, "who realized that there was no cavalry to back us up."

The Senate voted 81-19 in favor of the measure, which didn't exactly inspire confidence. But Doyle says it was the White House that doomed any hope of changing the measure. 

"We were trying to build some momentum and show we were willing to fight for this thing," he says. "If the President had given us any sign that he wanted a battle on that bill, we would have done it."

But that didn't happen. Trying to change the measure could have resulted in a protracted battle with Republicans, who had shown a willingness to hold unemployment benefits hostage unless tax breaks for the wealthy were continued. And in the days after the compromise was announced by Obama and Republican leaders, Doyle says, it become increasingly clear that Republicans in the Senate "were just dying to get out of this deal."

Thanks in part to opposition from right-wing commentators like Rush Limbaugh, "people really had the sense that Republicans wanted to kill this bill," in order to appease the Tea Party base. Changing "even a comma" of the bill might have given the GOP a pretext for opposing the bill, Doyle says. "And at that point, we look like we're helping Glenn Beck blow this thing up. And we know that come January 5 [when a Republicans take control of the House in a new session of Congress] we won't get a bill that looks anything like this one."

So House Democrats surrendered just a week after pledging to fight. They gave up on plans of toughening the estate tax. (There was a vote on an amedment on the proposal, but "everybody knew that it was going down," says Doyle, who voted for it anyway.) They even gave up on a relatively innocuous plan to restructure a break on the payroll tax, so taxpayers could reap the windfall in a one-time payment early in 2011. All because of fears about how right-wingers would respond.

"It's been a frustrating two years" Doyle concludes. "The House has passed the president's whole agenda, essentially." But much of that legislation has idled in the Senate. "People put their careers on the line, and now a lot of us aren't coming back."

Still, this Congressional session wasn't all bad news for Doyle. He did win unanimous House approval for a long-cherished cause: empowering community groups to set up low-power FM radio stations. Doyle has been working on the issue for the better part of a decade, and now -- "at the 11th hour, in the nick of time" -- he has won an agreement that may earn the measure's passage. 

Doyle's efforts have long been opposed by the National Association of Broadcasters, whose members feared that low-power signals would interfere with reception of their own programming. But the various stakeholders settled on language that gave broadcasters recourse with the FCC should such interference take place. The NAB has now come out in support of the measure, which will allow churches, civic groups and others to broadcast anything ranging from niche music programming to neighborhood news.

Doyle says that there was little chance that low-power stations would cause trouble for commercial broadcasters. The changes to his bill, he says, were "a matter of giving broadcasters a mechanism to address a problem that we don't think really exists."

But "the bottom line is that they've finally signed off, and all the groups we've been working with support the bill as well. If this bill passes, everybody will be happy -- a rare thing in Washington."

Of course, passing the bill now depends now on ... the Senate, which must vote for it amid a lame-duck session where Senators are also carping about Don't Ask/Don't Tell, the DREAM Act, and an arms-control treaty.

What does Doyle think the prospects for his bill are? "It's another leap of faith," he sighs. 

House passes tax cut, with local support

Posted By on Fri, Dec 17, 2010 at 9:10 AM

Late last night, the U.S. House passed President Obama's controversial tax-cut compromise. The Pittsburgh-area delegation -- which includes Republican Tim Murphy and Democrats Jason Altmire, Mike Doyle and Mark Critz -- all voted in favor of it.

Altmire, in fact, was the guy who announced the passage of the measure from the Speaker's chair.

Doyle had previously been critical of the plan. And more liberal Democrats proposed changes to the bill, focusing especially on scaling back estate-tax cuts that benefit the most wealthy. Doyle was the only member of the local delegation to support that effort, which failed by a vote of 194 to 233.

I hope to talk to Doyle later today about the vote, and will post the results of that discussion here. But the Pittsburgh delegation represents a pretty good cross section of the forces arrayed against liberal Democrats. Altmire is a well known "Blue Dog" Democrat, and Critz skews more conservative as well. Murphy has long positioned himself as pragmatic conservative. None of those political constituencies were likely to rebel against a tax-cut plan backed by leaders in both parties ... even if the deal will help explode the deficit and, in the long run, add to the uncertainty facing Social Security. 

Suffice it to say that last week, Doyle told City Paper that liberal Democrats would "get the best deal we can." That didn't happen. But Doyle was right when he told me "Dec. 9 is not the date to surrender."

The surrender actually came one week later.


Wednesday, December 15, 2010

Taking a Leak on Academic Inquiry

Posted By on Wed, Dec 15, 2010 at 6:06 PM

Clearly it's taking more and more for me to emerge from my torpor and blog these days. But I can't let this Pitt News story pass without comment:

A number of Pitt professors and administrators warned students last week against sharing controversial information released by WikiLeaks -- especially if they have aspirations to work for the government ...

Jessica Hatherill, associate director of Alumni Relations and Career Services for the Graduate School of Public and International Affairs, said [Pitt is] warning students about the implications of sharing WikiLeaks or their opinions on the controversial release of documents.

... [Career services Donald] Rieley urged students to be aware of the consequences of discussing WikiLeaks on Facebook or Twitter. He said though many consider WikiLeaks public information, the government still considers it illegal activity.

"This could potentially be a stumbling block for security clearances if they identify themselves as sharing WikiLeaks," Rieley said.

It's not that I object to Pitt administrators warning students about such consequences. The government has already advised current federal employees that material can still be classified even if everyone has already seen it. And the military has begun to bar not just access to WikiLeaks, but to media outlets carrying news about it -- like The New York Times. Pitt administrators are, in fact, merely echoing job advice given elsewhere. And they wouldn't be doing their jobs if they didn't pass such cautions along. 

Still, the message being sent here is this: If you want to serve your country tomorrow, you have to lobotomize yourself today. If your government demands it, you have to turn a blind eye to realities seen by everyone else in the world. 

Which is the sort of mindset that's gotten us into far more trouble than anything WikiLeaks has posted.

Of course, such a screening test arguably will produce the sort of employee bureaucracies most value: someone who is willing to not ask questions or venture opinions. Someone who doesn't ask, and won't tell.

Truthfully, I can see where the willingness to honor security protocols is important. Really, I can. But what a lamentable farce this is.

First of all, are we any better off if terrorists can read this stuff, but not the would-be State Department employees who may someday seek to curb their influence?

And then there's that warning about "sharing opinions" on the WikiLeaks release. How to square that with the fact that my local daily newspaper has a columnist -- an old State Department hand, no less -- who has written a pair of thoughtful columns about the matter? Is it OK for former ambassadors to discuss WikiLeaks in a general-interest newspaper, but dangerous for future ambassadors to discuss their impact on Facebook?

To play it safe, students should probably avert their eyes from the Post-Gazette's op-ed page entirely. (Sorry, kids! No more Jack Kelly for you! I know he hasn't written about wikileaks himself -- Jack loves America, after all -- and I know how popular he is with young people. But you can't be too careful!) While they're at it, students should probably avoid  The New York Times as well, which has been covering the WikiLeaks disclosures extensively.

I haven't looked at the WikiLeaks site myself; like all Democrats, I'm awaiting the onset of socialism so I can get a cushy government job bulldozing creches and mocking the American family. But if I were a bright young college student interested in global politics and government service, I'd be sorely tempted to check out WikiLeaks. Not because I hate my country, but because it offers something you can't get in a textbook: a chance to see how diplomacy actually works in the real world.

But as it turns out ...  if you want to work for our government, you have to deprive yourself of the chance to see how our government works. Ignorance isn't just bliss: It's one of the job requirements.

Oh well. My guess is that students are learning a much different lesson about their country. And given the way things are going, it may be a much more lasting one.  

Tuesday, December 14, 2010

Port Authority gets bailout from divided commission

Posted By on Tue, Dec 14, 2010 at 9:07 AM

The Port Authority got its bailout last night: The Southwestern Pennsylvania Commission approved diverting $45 million in discretionary funds and staving off the biggest service reduction in the transit agency's history.

The commission approved the move on a 27 to 22 vote.

Gov. Ed Rendell announced two weeks ago that the $45 million was available. The money was taken from a discretionary fund that the governor can use for transportation infrastructure projects; according to the governor, it was taken from projects that were stalled or had been cancelled.

In a presentation to the 10-county regional planning board, PennDOT deputy secretary for planning Jim Ritzman said that "no projects across Pennsylvania are impacted because of this ... No money is taken from projects of the SPC."

Some commissioners took exception to the move, noting that the SPC has "flexed" money to the financially-beleaguered agency twice before. But supporters, like Allegheny County Executive Dan Onorato, noted this move wasn't the same as flexing, which involves diverting road and bridge funds to mass transit.

But commissioners, like Patricia Kirkpatrick from Armstrong County who voted against the proposal, felt differently. She cited a 2008 SPC report that noted 1,700 miles in poor roads, and 1,400 bridges considered structurally deficient. "There are many people in my county who never have the opportunity to have an alternative system" of transportation, Kirkpatrick said. "They rely on roads and bridges."

She questioned why the governor's proposal didn't divvy up the $45 million among the 10 counties that are represented by the SPC. "Why come back with 45 million or nothing? What kind of statement is that?"

Port Authority CEO and SPC member Steve Bland and other county leaders have repeatedly noted the agency's $47.1 million shortfall is on account of the collapse of Act 44, the state's funding formula for transportation funding. When the federal government rejected a proposal to toll I-80, it cut Act 44's funding in half. And even under Act 44, Bland says Port Authority actually saw a 2.1 percent decrease in state funds.

"The deficit issue is not an expense issue or a passenger fare issue, it's a state issue," Bland told the SPC.

He and Onorato have noted improvements the agency has made. Onorato cited a $96 million concessionary agreement with the transit workers union. Onorato said he has asked the authority to come up with an 18-month plan to help the transit agency stretch the money out to give the governor-elect and legislature time to address the state funding crisis.

In a synopsis of the plan, Bland said that if the authority received the money, January fare increases would still go into effect and "some level of service reduction [would take place] in March." Those cuts, he estimated would be "[c]learly not 35 percent -- probably 15 percent and in all likelihood probably another 10 percent later this year or early in 2012." He said layoffs would also still be necessary, but in proportion to the service reduction. Under the 35 percent reduction, up to 540 workers could have lost their jobs.

After the SPC vote, Bland said he was thankful for the bridge funding and that the 35 percent reduction was off the table. He stressed 15 percent was a "rough" number and "I can't even conjecture what that would look like." He added it was "premature" to discuss a second round of cuts.

But the authority will stretch the money through June 30, 2012, he pledged.

Bland said fare increases -- 25 cents in zone 1 and 50 cents in zone -- will still go into effect Jan. 1, and the authority's board will have enough time to alter the service cuts at its January meeting. Bland says the agency will weigh its options in the next few weeks. "We're working through things," he said.

"Any plan that gets us to June 30, 2012 ... would include service reductions, it would include layoffs, it would include significant downsizing of the system. But clearly it wouldn't be the level of disaster of 35 percent -- it wouldn't be as harmful."


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