Diogenes of NY

Where We Are

One of the amazing aspects of the American experience has been the ability to reconstruct our society over multiple generations by incorporating immigrants who do not share the religious, cultural or ethnic makeup of those already here. This great “melting pot” has turned settlers from all over the world into citizens even as they have changed what it means to be an American. The majority of children in our public schools are already racial minorities, and over the next couple of generations, as the chart below shows, our entire population will be majority minority.

In the not so distant past, overt racial, gender and religious discrimination were the norm in America. Comprehensive reforms in the 1960s such as the Civil Rights Act , the Voting Rights Act, the Equal Employment Opportunity Commission, and Affirmative Action Programs were enacted to reduce racial discrimination and increase diversity in our society. Fifty years later the fact of a black President and black Attorney General presents strong support for the assertion that we have come a long way towards reducing discrimination against racial minorities in housing, education, the workplace and politics. The progress was painful, hard earned and took too long. But today virtually every organization in America, be it private, public or non-profit, has minorities at virtually all levels, even if they may be underrepresented in the C-Suites. Although far from eradicated, discrimination now is mostly covert. Perhaps this is because interracial social interaction was rare 50 years ago and is peaceful, easy and routine today. Based on demographics alone, our collective progress is likely to continue for years to come, obviating the need for aggressive new policies to increase diversity.

Disparate Impact

The Senate is considering President Obama’s nominee for Secretary of Labor, Thomas Perez. He faced tough questioning by Republican senators, but will likely be confirmed. Mr. Perez is currently serving as Assistant Attorney General for the Civil Rights Division of the United States Department of Justice. He has been actively involved in promoting the continued use of Disparate Impact (DI) to determine if discrimination has occurred. DI states that the government and private litigants can rely on statistics and other measures to show that policies have a disparate impact on minorities, even if they lack proof of intentional discrimination.

Mr. Perez has attracted Congressional scrutiny for his involvement in an ethically questionable quid pro quo with the city of St. Paul in which he agreed to have the Justice Department drop a False Claims Act suit potentially worth $200 million to taxpayers in exchange for having St. Paul withdraw a case challenging DI before the Supreme Court. Mr. Perez may be a sincere crusader for the oppressed, but his sharp elbows in sustaining DI bespeak a desire to achieve a result by any means necessary. Although DI has been primarily applied to housing by HUD,  applying this theory in other realms would result in unintended and bizarre consequences.

“If a business, agency or school has standards for hiring, promoting, admissions or offering a mortgage that aren’t being met by individuals in some racial and ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That is what racial preferences do. Second, the government can attack the standards themselves. That is what the disparate-impact approach to enforcement does. Third, one can examine why a disproportionate number of individuals in some groups aren’t meeting the standards—such as failing public schools or being born out of wedlock—and do something about it. …Disparate impact makes illegal what any rational person would not define as discrimination. And by forcing a change in neutral standards for hiring, renting and the like in order to count outcomes by race, it actually causes discrimination.” Roger Clegg, WSJ 2/25/13

In 2003, the Supreme Court (Grutter v. Bollinger) permitted educational institutions to consider race as a factor when admitting students, but ruled that quotas are unconstitutional. Since then some states (California, Washington & Michigan) have banned affirmative action policies outright. So relaxing standards as a means to continue racial preferences is unlikely in the future. The third option mentioned above to increase racial diversity would require real progress in our schools and other social programs…which brings us back to Disparate Impact.

Fatal flaws in the DI theory can be seen in two policy outcomes that follow from its use. In our national prison population blacks are about three times as likely to be incarcerated as whites as compared to their numbers in America’s total population. Hispanics are about 50% more likely to be in jail than whites. Informed citizens realize that crime occurs by and between racial minorities in disproportionate rates because of a host of constantly shifting social and economic factors, not because blacks and Hispanics are more prone to criminal behavior. If we applied DI without making other structural changes to our society and forced our prison population to reflect the  greater citizenry, would our streets be nearly as safe?

Using DI in education can also lead to dubious outcomes. Blacks are under represented in the NY gifted and talented program outcomes even as Asian minorities are wildly over represented. Since the testing and standards for the test were developed by many people of many races, how could this be? Many cultural factors influence academic and economic success by various ethnicity. The beauty of our system is that the numbers will continue to change over time. Mandating racially representative results would make a mockery of gifted and talented programs which are by definition based on merit.

Why It Matters

Diogenes believes disparate impact is contrary to standards of fairness and equality upon which our society is based. The wonder of America is that our government truly seeks to create equal opportunity for every citizen. Virtually all of us support some concept of a safety net, but our government has never before advocated equal outcomes. Disparate Impact entirely reverses the proposition that we all need to struggle to achieve our places within society. The idea that all organizations should have quotas based on statistical ethnic representation within the greater population enshrines racism rather than merit. That’s just not the American way.

Current US Immigration Policy

There is huge demand in the world to emigrate to another country. A 2012 Gallup Poll found that 640 million people, about 13% of the world’s adults, would like to leave their country of birth permanently. About 150 million of them list the US as their top choice destination.

The United States has the most welcoming immigration policy in the world in terms of numbers, with about a million people coming here legally every year. About two thirds of these immigrants are being reunited with family members who are already legally here. The balance of those million legal immigrants are split between slightly more of those who were granted legal status for humanitarian reasons (political or religious persecution abroad) and somewhat less of those granted visas on the basis of their employment skills. Most other developed nations have greater percentages of skilled worker immigrants than does the US, because it is almost a canon amongst policymakers worldwide that highly skilled workers will create jobs for others.

US Work Visa Programs

There are several non-immigrant work visas issued to foreigners.  The best known of these are H-1B visas which are strictly limited to employment by the sponsoring employer.  Theoretically, this program provides a safety valve for employers to hire workers with specialized knowledge from around the globe whenever permanent residents or citizens are not available to do such work.

Congressional policy is to award 65,000 H-1B visas to employers each year. If there is heavy demand, an additional 20,000 H-1B visas for those having masters or higher degrees from US academic institutions are made available. This limit on H-1B visas has been in place for more than two decades now. If the US Customs and Immigration Service  (USCIS) receives more visa petitions than it can accept, a lottery system is used to randomly select the number required to reach the limit. This year’s lottery is the second since 2008. In recent years the cap has been reached between 73 and 300 days.

Although the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past, the employment-based green card process took only a few years, less than the duration of the H-1B visa itself. Recently the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants to obtain green cards. Because the duration of the H-1B visa hasn’t changed, this has meant that many more H-1B visa holders must renew their visas in one or three-year increments for continued legal status while their green card application is in process.

Problems With the Program

Even detractors of the H-1B visa program concede that it can fill important roles, including encouraging talented foreigners to permanently relocate to the United States. Critics want to require employers to prove that they’ve tried to recruit Americans before applying for foreign workers, and make sure that H-1B workers get paid as much as Americans do for comparable jobs.

The policy reason we have the H-1B program is that brilliant foreigners increase American competitiveness worldwide. However, most of today’s H-1B workers don’t remain in the US. In February, ComputerWorld reported that the top 10 users of H-1B visas last year were all offshore outsourcing firms such as Tata and Infosys. Together these firms hired nearly half of all H-1B workers, and less than 3 percent of them applied to become permanent residents. “The H-1B worker learns the job and then rotates back to the home country and takes the work with him,” explains Ron Hira, an immigration expert who teaches at the Rochester Institute of Technology. India’s former commerce secretary once dubbed the H-1B the “outsourcing visa.”

Reform Ideas

There is currently much discussion in Congress about immigration reform, mostly to address what to do about the 11 million+ illegal residents already here and to deal with temporary “guest workers”.  Congress should, but probably won’t, use this as an opportunity to deal with the problem of trained and talented people around the world who want to emigrate to the US, but are restricted from doing so by the byzantine rules of our immigration policy. Because they are unable to initially qualify for green card resident visas, many use work visas to get themselves into the country first and only later attempt to qualify for resident status. Hence the unexpected focus on the H-1B visa program.

In January, a bipartisan group of 10 senators introduced the Immigration Innovation Act (aka I-Squared Act) to raise the H-1B visa numbers to 115,000 next year and to 300,000 in later years. It is a great idea to increase the number of talented immigrant visas.  Current law limits the granting of these visas to no more than 7% of the skilled immigrant total from any one country, thereby increasing the wait times by years for those from high population countries such as India and China. But if the current program has been hijacked by outsourcing firms to train replacement workers, why would we possibly want expand the numbers of a flawed current program which would increase the harm to America?

Some from both sides of the aisle have long called on USCIS to “staple a green card to the diploma of every STEM graduate”. This isn’t a bad idea, but there are already 1.8 million American engineering graduates that are either unemployed or not working in engineering, so it’s not as if there are any shortages of BS degree holders. And around 2/3 of foreign PhD STEM graduates remain here five years after school, so it would appear that opportunities to stay already exist for them.

Diogenes believes that the best and most easily implemented reform would be to change the H-1B program to award visas to individuals around the world (via a lottery of all qualified applicants) rather than to companies. Lottery winners could have six months to get here, and would have to obtain employment within six months of their arrival. Job changes should be readily permitted to keep companies from paying legal foreign workers less than Americans. Awarding H-1B visas to individuals instead of employers would also disincentivize offshore sourcing firms from taking advantage of our immigration policies as they harm our economy, because those workers would no longer be so easily coerced to return to their home countries if they could easily change employers and remain here. Those who applied for these visas would have self selected to be aggressive, trained and talented additions to the American workforce.

Last Friday’s shooting deaths of 26 children and adults at an elementary school in Newtown, Connecticut is the latest in a long series of mass shootings of random innocents by deranged persons. Like many Americans, Diogenes is deeply troubled by these recurring tragedies, and thinks this is an appropriate time to consider the role of guns in American society.

The Right To Bear Arms

The 2nd Amendment to the US Constitution, as ratified by the states in 1791 states

“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

Why was this right considered so important that it was enshrined in the Bill of Rights? Here is a partial list of the key reasons:

• The United States had only recently won its independence after a revolutionary war that had lasted eight years. There was an uneasy peace with England that would again devolve into war in the next 20 years.
• There was no standing national army, and most (white) male American adults were members of armed militias that could be called out in the event of war.
• Many of the states had western borders which had Indians (potentially) threatening American settlers on the frontier.
• Hunting was a significant means of putting food on the table in all of the states.

Guns in the US Compared to the Rest of the World 

Gun regulations in America are lax compared to the rest of the world. Nearly half of all households (47%) have a gun, although many homes contain multiple guns. About 1/3 of Americans own guns, although the percentage of the population owning guns has been declining in the last 50 years. About 2/3 of gun owners state that they own firearms for personal protection, 2/3 for hunting and over 1/3 for target practice. The reasons overlap quite a bit and so add to more than 100%. According to the Washington Post, guns per capita are sharply higher in America than anywhere else in the world, and as the chart below shows, about double that of the rest of the developed world.

Data source: Small Arms Survey (Max Fisher/Washington Post 2012)

The National Rifle Association (NRA) will tell you that “Guns don’t kill people. People kill people. Guns are only tools.” This may all be true, but gun violence in the US is higher than anywhere else in the western world, perhaps because we have more tools readily available?  A bit more than 100,000 Americans will likely be killed or injured in gun violence next year. To be “fair”, about 20,000 of them will be suicides, but guns are involved in about 2/3 of violent crimes in America, almost all of these are handguns. Hunting rifles are rarely used in violent crimes.

Current Gun Regulation and Proposed Changes

Policies at all levels of government have attempted to address gun violence through a variety of methods, including restricting firearms purchasing by youths and other “at-risk” populations, setting waiting periods for firearm purchases, establishing gun “buy-back” programs, targeted law enforcement and policing strategies, stiff sentencing of gun law violators, education programs for parents and children, and community-outreach programs. Sen. Dianne Feinstein, D-Calif., said she will introduce legislation next year to ban new assault weapons, as well as big clips, drums and strips of more than 10 bullets.

Perhaps of even greater significance is the call for more scrutiny of the ways government can keep guns out of the hands of the mentally ill. Methods for doing so will require much discussion.

Guns & Self Defense

The 2nd amendment’s protection canards are at best disingenuous, as technology is wildly different today than in 1791. Guns then were almost all single shot muskets with limited effective range. No one had the capability to kill 10 or 50 people.

Today’s total of 290 million guns in almost 50% of households is ridiculous. The shooter in Connecticut took his mother’s guns to kill her and 26 others. Purchasing verification would not have stopped him.

Self defense, the stated primary reason for owning a handgun, is a non sequitor. A study from the University of Philadelphia suggests that victims in possession of firearms are 4.5 times more likely to be shot and 4.2 times more likely to be killed than those unarmed.

“gun possession by urban adults was associated with a significantly increased risk of being shot in an assault. On average, guns did not seem to protect those who possessed them from being shot in an assault. Although successful defensive gun uses can and do occur…such successes are (not) likely…

A gun may falsely empower its possessor to overreact, instigating and losing otherwise tractable conflicts with similarly armed persons. …individuals who are in possession of a gun may increase their risk of gun assault by entering dangerous environments that they would have normally avoided. Alternatively, an individual may bring a gun to an otherwise gun-free conflict only to have that gun wrested away and turned on them…

when victims had little to no chance to resist, they were almost always confronted with events that happened very suddenly, involved substantial distances, had no face-to-face contact, and had physical barriers between them and the shooter (e.g., bystander or drive-by shootings). These victims likely had no meaningful opportunity to use a gun even if they had one in their possession.”

“Investigating the Link Between Gun Possession and Gun Assault”, Branas, et al, American Journal of Public Health, November. 2009

What More Needs To Be Done?

Diogenes believes that current proposals do not go nearly far enough to safeguard the public from gun violence. The following steps should be taken to stop the continuing massacre of innocents.

• Sale and possession of handguns should be severely restricted to law enforcement and those few occupations where armed force might be necessary, such as jewelers and armored truck drivers and guards.
• Biometric “trigger locks” should be mandatory to prevent illicit sales and use of stolen firearms.
• Possession and display of unlicensed firearms should be grounds for mandatory prison terms.
• Federal funding should be made available for the buy back of semi-automatic weapons and handguns from the public using a carrot and stick approach. Time limits should be imposed for the purchase and surrender of such weapons, after which private ownership should simply be made illegal.
• For those citizens who insist on personal protection, non lethal means of defense at close range should be used. Pepper spray and personal stun weapons such as Tasers are the solution. (The Taser fires two small dart-like electrodes, which stay connected to the main unit by conductive wire as they are propelled by small compressed nitrogen charges. The air cartridge contains a pair of electrodes and propellant is replaced after each use. There are a number of cartridges designated by range, with the maximum at 35 feet for law enforcement and 15 feet for consumer use. Tasers primarily function by creating neuromuscular incapacitation; the devices interrupt the ability of the brain to control the muscles in the body. This creates an immediate and unavoidable incapacitation that is not based on pain and cannot be overcome. Once the electricity stops flowing the subject immediately regains control of his or her body.) Taser devices are not considered firearms by the United States government. They can be legally carried (concealed or open) without a permit in 43 states. Tasers typically fire one cartridge, although a new model has three shots in case of a miss.

Armed criminals will always be a challenge  as long as handguns are made anywhere in the world. Nevertheless, these proposals would allow for legitimate hunting and sporting uses by citizens while adding protections for the general public. Knives and other deadly weapons will still be available, but mass killings would be made far more unlikely. It is time to break the “cowboy culture” of violence in America.

Americans are rightfully proud of the right to express their political opinions at the ballot box and expect a peaceful transition of government leadership to whoever wins a general election. Nevertheless, in most election cycles, substantial numbers of Americans are more motivated to vote against one candidate than wholeheartedly in favor of the other. Why don’t we have more, and better choices for our leaders?

Who Are Democratic Party Members and Primary Voters?

As they are currently constituted, both the Democratic Party and the Republican Party are dominated by the ideologically extreme ends of their memberships. On the Democratic side, union members accounted for 22% of Democratic National Convention (DNC)  delegates, and unions are major money contributors to the Democratic Party. Unions spent $1.1 billion on politics from 2005-2011 and another $3.3 billion on other activities such as lobbying, of which 92% was spent on the Democratic Party . This is so despite the fact that only 12% of workers nationally are union members, and 40% of union members are Republicans Party members or vote that way. Another 8% were “Greens” who favor much higher fossil fuel costs and more EPA Regulatory Rules which are cost multipliers for many businesses.

Who Are Republican Party Members and Primary Voters?

On the Republican side, as much as 50% of primary voters are Evangelicals and Pro-Lifers, about 10% of party members are Tea Party supporters who oppose new taxes as a means to repair the Federal fisc, and about 10% are also NRA members who believe that Americans should be able to carry assault weapons. There is considerable overlap amongst these segments.

Why Is the Composition of Political Party Members and Primary Voters a Problem?

The Democratic Party has about 30% of its membership with far left, non mainstream core beliefs. The Republican Party has about 30% of its membership comprised of those with far right non mainstream core beliefs. These extreme views are disproportionally represented in America’s political process because 30% of Americans consider themselves to be independents not allied or involved with determining policy positions in either party. Paradoxically, it is the vote of these independents that determines the outcome of general elections.

In order to incorporate the support of their extremist radical wings, each political party is forced to move away from centrist platforms that would likely appeal to the greater portion of the electorate. In particular, the Republican Party’s presidential candidate is perennially hobbled by conservative social policy declarations required to be made during the primaries to secure the nomination, only to attempt to backtrack during the general election campaign. As a result of these discrepancies between party participants and the general electorate,  the American Republican and Democratic parties are among the weakest in the world with respect to being able to present to voters a team of candidates united by coherent principles and a program for governing the country.

Why Does America Only Have Two Political Parties?

America’s founding fathers made many compromises in order the secure the approval by the states of a federally empowered central government under the Constitution. One of many checks and balances on federal power was the adoption of a bicameral legislative body with disproportional power given to smaller states in the Senate. Another was the adoption of the Electoral College. This indirect presidential election scheme is further reinforced by the congressional election methodology.

The main reason for America’s majoritarian character is the electoral system for Congress. Members of Congress are elected in single-member districts according to the “first-past-the-post” (FPTP) principle, meaning that the candidate with the plurality of votes is the winner of the congressional seat. The losing party or parties win no representation at all. The first-past-the-post election tends to produce a small number of major parties, perhaps just two…. Smaller parties are trampled in first-past-the-post elections.

—Economist Jeffrey D. Sachs, The Price of Civilization, 2011

What Can Be Done to Fix the Problem?

In what may well be a surprise to most of the American electorate, there are two other national political parties, the Libertarian and the Green Party. While the Libertarians manged to place their candidate on every national ballot, they won no states and received no electoral votes. As I wrote in Why Do We (Still) Have the Electoral College?, a proportional voting or parliamentary system is the solution. Such systems are  inherently much more open to minority parties securing better representation than third parties do in the American system. Currently, Maine and Nebraska are the only states that proportionally split their electoral vote, but there is no legal impediment to the adoption of such policies in every other state.

What Would a Proportional Direct Vote World Look Like?

A direct proportional vote within each state would have the practical effect of making presidential elections a popular vote. It would not truly be one because votes would be sub-totaled by each states’ Electoral College votes, and there could be rounding errors. The change could be implemented without requiring a Constitutional Amendment.

Candidates would place greater efforts on larger population centers which might skew heavily toward another party, because electoral votes would be available at the margin. Voter participation would likely rise dramatically, particularly in deeply partisan states, because every vote would count. From a public policy standpoint, this would be presumed to be good for America. The following chart shows that the US election system is responsible for one of the lowest voluntary voter participation rates in the developed world.

The rise of more centrist third, fourth or even fifth parties could unleash a torrent of choices for American voters. Because each of these smaller parties would need to build governing majority coalitions, compromise would be required for political success. The current gridlock  in Washington would be history. More independents would be co-opted to participate in the system because their narrower concerns would be better addressed by smaller parties.

America is a center/center-left nation. We are ethnically and racially majority minority for the first time in our history. It’s about time that our politics and our politicians better reflected this new reality and gave new voices a chance to be truly heard.

When Americans are asked what the most important issues are in this presidential election, they cite jobs and the economy. By any objective measure, the Obama presidency has been one of poor economic growth. No matter what hand a President is dealt, at some point, he owns the record. Since Mr. Obama is poised to be re-elected, some other factors must determine who we choose to vote for.

Do we want to vote for someone who looks like us?

In the 2008 heyday of hope and change, strong minority turnout helped push Mr. Obama to victory, especially in such swing states as Virginia and New Mexico. But as another election approaches, the minority thrill is gone. According to the Census Bureau, Hispanic voter registration has fallen 5% across the U.S., to about 11 million. Black registration is down by 7%

About 40% of whites who voted in 2008 crossed the racial divide and voted for a black man, while only 4% of blacks who voted did so for a white man. Most of Hilary Clinton’s supporters in the Democratic presidential primaries in 2008 were women, and for many, that was her greatest asset. We remain racially polarized on a political level in 2012, as the following chart shows. Each candidate’s total support among voters is broken down by race.

If we are ever to become a truly multicultural society, we need to make choices based on issues rather than appearance, race, ethnicity or gender. But how de we do that when so many voters are either incapable or don’t care to understand the issues and have no concept of macroeconomics? It’s almost perverse that we make naturalized citizens learn about our constitution and pass a civics test before earning their passports. Only about a quarter of the native born electorate could pass these tests. Is it any wonder how poor a job public education is doing in science and math compared to the rest of the world when in our public schools we don’t even properly teach our children their future rights and obligations as citizens?

Do we want to elect someone who promises to look out for us even if we doubt the ability to deliver?

President Obama has consistently promised that he would make the economy fairer and more level. Somehow his policies have had the opposite effect. The most recent report by the Census Bureau indicates that annual household income fell in 2011 for the fourth straight year. Between 2009 and 2011, income for the middle fifth of the population declined 1%, while income for the top fifth increased 4%. Seniors, dependent on their savings saw interest rates fall by over 31% (Jan. 23, 2009 to date), while inflation further reduced the value of their savings by 9%.

President Obama promised to create jobs. Since January 2009 the civilian labor-force participation rate has fallen by 2.2 percentage points, representing a loss of over five million jobs. His policies, though, have juiced the stock market. An investor willing and able to take risks profited by over 65% if he bought stocks tracking the Dow at President Obama’s inauguration.  The administration’s policies are hurting the poor more than they are hurting the workers and net taxpayers of America, i.e., the millionaires and billionaires.

Do we chose ideology over prosperity?

Without doubt, some of what comes out of the Republican Party with regards to social issues is simply hateful and fighting the tide of history. Opposition to gay marriage and “legitimate” rape are only two dark examples. The president’s economic policies have clearly hurt most Americans, whereas the policies advocated by the Republicans at least have a chance to improve the economy, and yet the Republicans are behind in the election race. Is it possible that America has reached a tipping point and finally prefers the “social equality” espoused by Democrats (equal shares of the pie) instead of unequal shares of a growing pie, also/known/as capitalism? Mr. Romney inelegantly makes the case that the “takers” in the 47% of Americans who do not pay income taxes, are now poised to overwhelm the “makers” he seeks to represent. Mr. Romney may know more about economics than Mr. Obama, but the public thinks he doesn’t understand the economic problems of average Americans.

Do we choose to vote for someone we want to spend time with?

As we approach the first presidential debate this evening, how will Americans decide who wins? Most of the audience will have long ago decided who they will vote for, if they vote (less than 60% of eligible voters will cast ballots.) Will any of the few truly undecideds in the electorate be swayed by the arguments that can be communicated within this rigid time frame?

Apart from their purely show-business aspect, do the debates in any significant way enhance our appreciation of the minds or the characters of the presidential candidates? Mostly the debates will show how quickly the candidates can organize and regurgitate sound bites and parry attacks without becoming flustered. A fast response has little to do with genuine thought, which requires brooding over a subject, laboriously working through its complications. Quickness of response, so central to the debater, is a useful  but minor skill that has little to do with handling difficult questions and serious problems.

In the final analysis, Americans usually vote in presidential elections for the candidate with the greater empathy, or likability. The clear exception here would be Richard Nixon, who it seems nobody liked very much. In this election, it’s not even close. Mr. Romney is another rich old white man, and Mr. Obama is seriously cool!

A Lame Duck session of Congress in the United States occurs when the legislative body is in session after an election has been held, but the term of the newly elected Congress has not yet begun. Lame Duck members have been defeated or did not stand for re-election.The term “lame duck” was originally applied to bankrupt businessmen in 18th century England, whose impairment rendered them vulnerable, like “a game bird injured by shot.”

Starting in 1789, the terms of the President, the Vice President and the incoming Congress began on March 4, four months after the elections were held. This was a reasonable delay at the end of the 18th century, when a newly-elected official might require several months to put his affairs in order and then undertake the journey from his home to the national capital. The adoption in 1935 of the 20th Amendment shortened the interval between an election and the beginning of a legislative term. American national elections are now held on the 1st Tuesday in November in even numbered years. The first session of a Congress takes place on January 3 of the following (odd numbered) year, and the President is sworn in on January 20th of every other even numbered year.

The eight week interregnum encompassed the Thanksgiving, Christmas and New Year’s holidays and was thought to allow  for a more reasonable transition for members of Congress. Congressional business that was required to be undertaken in the last 2 months of any congressional term was expected to be of such importance as to warrant attention from a lame duck session. Procrastination and deadlock are not a recent Congressional phenomenon. Since 1935, there have been 18 lame duck sessions out of a possible 38. It is fairly certain that 2012 will see a 19th session.

This year’s session promise to be one of the most active in many years. Big-ticket items — including the expiring Bush tax rates, budget sequestration and an increase in the debt ceiling — will have to be dealt with by Dec. 31. Votes on those politically tough issues are unlikely during campaign season, and the probable increase in Republican congressional members provides a last chance for Democrats to further their legislative agenda. Other issues that require action from Congress include the expiration of the payroll tax cut, extending unemployment benefits, reversing cuts to doctors’ Medicare payments, spikes in the Alternative Minimum Tax (AMT) and the estate tax and the renewal of a tax-extenders (special interests ) package. All pending bills die at the end of a Congress and must be reintroduced at the start of a new two-year term, so they can’t simply wait to be dealt with by the new (presumably more Republican) Congress.

Some might argue that a Lame Duck session frees up Congress to put needed legislation forward without the threat of an election hanging over their heads. The theory is that a clearly approaching deadline allows for compromises to be reached across party lines. This cynical approach to government is completely contrary to the spirit our democratic traditions. One of the rights of our citizens is to be able to hold our elected officials accountable for their votes, and to vote the incumbents out if we so choose. Do we want to enact important legislation during a Lame Duck session? Under time pressure to accept compromises, members of Congress routinely vote on thousand page bills even their staff hasn’t properly reviewed and considered, and often haven’t even fully read.

One wonders why today we have a delay of more than a week or two between elections and the term of a new Congress or President? Technology has long made overnight travel possible from anywhere in the US to Washington. Under a parliamentary system there are usually no fixed dates for elections or the beginning of terms, so that a new session of parliament will always begin with its first meeting after an election has been held. Often the previous parliament is simply dissolved by the head of state at the request of the head of government. It is time to end the spectacle of a dysfunctional Congress made to appear even more inept with Lame Duck sessions.

Last week America celebrated her birthday. 236 years later, the United States remains one of the great bastions of freedom. Our citizens generally abide by the rule of law, property and civil rights as we go about life, liberty and the pursuit of happiness. Of course we have criminal activity by some individuals and corporate interests, which we (mostly) expect our police and regulatory system will deal with. We also believe that illegal behavior from our public officials, once exposed, will not be tolerated.

Beyond their salaries and benefits, most elected officials receive the esteem of their fellow citizens not only for their public service but out of respect for their offices. Many who are elected do so not for money, ideology, or a lust for power. They are motivated by the desire to serve and “make a difference”, and the belief that they are qualified to do so.

The implicit bargain citizens make with their officials is that in return for the prestige and power of their offices, our politicians will serve us faithfully to the best of their abilities free of the corruption that plagues many foreign governments. There are a bevy of regulations in place to prevent conflicts of interest, taking bribes, trading on inside information or otherwise allow politicians to unduly profit from their positions. Furthermore, we expect our officials not to commit “acts of moral turpitude” (see Anthony Weiner), not lie to us, and basically not break the laws of the land.

On June 26th, the third longest serving member of Congress, Charles B. Rangel, won the Democratic primary for the 13th House District in New York, all but guaranteeing his reelection in November. Each congressional district represents about 700,000 Americans, of which about 540,000 are of voting age. In the primary, only 39,000 votes were cast, about 7% of eligible voters, and Mr. Rangel received a plurality of less than 50% amongst the 4 candidates on the ballot, with an advantage of about 1000 votes over second place candidate State Senator Adriano Espaillat.

Such a low level turnout allows those narrow interests who have directly benefited from an official’s support to legally hijack the will of the larger community. (Curiously, the 13th District, which includes Harlem, Washington Heights and a portion of Bronx, has historically been majority black, but with demographic changes and redistricting it is now majority hispanic. Mr. Espaillat would have been the first Dominican-American in Congress and presumably was counting on widespread hispanic support in the race, but historically blacks vote at roughly twice the rate of hispanics, nullifying their numerical advantage in this contest.)

Mr. Rangel was first elected in 1970, defeating Adam Clayton Powell, Jr. in the Democratic primary. In 1967, the long serving Mr. Powell had been excluded from his seat by Democratic Representatives-elect of the 90th Congress following ethics violations and allegations of corruption, but Powell was re-elected in 1968 and regained his seat in a 1969 Supreme Court ruling. In 1970, Mr Rangel won the primary by only about 250 votes out of 25,000 cast.

Irrespective of whether one agrees with Mr. Rangel politically, he was once in-arguably  an effective leader of Afro Americans and Democrats in the House of Representatives, and a champion for the development of his Harlem district. He is a founder of the Congressional Black Caucus and a former Chairman of the House Ways and Means Committee, the chief tax writing committee of the House.

In an eerie echo of his predecessor, in November 2010, Mr. Rangel was found guilty on 11 charges by the House Ethics Committee, and subsequently received a sanction of censure from the entire House. He was only the 23rd congressman in history ever to receive this penalty, and the first in over 30 years. The bipartisan committee stated “public office is a public trust [and Rangel] violated that trust.” Among the violations were:

• improper solicitation of millions of dollars from corporate officials and lobbyists (who had business before the House Ways & Means Committee) for the Charles B. Rangel Center for Public Service at The City College of New York
• failure to disclose hundreds of thousands of dollars of income and assets on financial disclosure forms and IRS returns
• maintaining a rent-stabilized unit in a Harlem luxury apartment building for his campaign committee
• maintaining multiple rent-stabilized apartments for his personal use, saving over $30,000/year in rent
• failure to pay income taxes on a villa in the Dominican Republic

Mr. Rangel served his constituents for over 40 years. The violations of House Ethics regulations occurred over at least the last 10 years. He is now 82 years old, and has said that he will retire in 2014. Does such a politician with such long service deserve a final term so as to finish his career with dignity?

Despite renown for compassion, as Diogenes I am astonished that Charlie Rangel remains in Congress. One could hardly present a better case for term limits. Rangel started as a leader of his community, and over time came to believe he was “entitled” to more than the public ever envisioned. As a long time member and later chair of the House Ways & Means Committee, there is no one who should have been more exacting in their effort to comply with the rules. These infractions were wide ranging and long lived, not even close to being acceptable. If he knowingly committed these violations he is corrupt. If he didn’t know he was an idiot. Either way, Rangel is unworthy of elected office.

We should expect and demand that our publicly elected officials adhere to a higher than average code of personal moral and financial conduct. Shame alone will not deter the corrupt from trying to hold on to power. As citizens we need to exercise our right to vote to prevent those malefactors from keeping their offices. If not, as H.L. Mencken said “people deserve the government they get, and they deserve to get it good and hard!”

Americans tend to think of the presidential election as a direct vote of the people. Most are aware that there is a subtotal of votes by state, with that state’s total “electoral votes” going entirely to the highest vote getter in that state. This is why we know that there are “battleground states” which have a relatively even split of voters, and are therefore hotly contested by the candidates.

Such an understanding would be incomplete. America’s founding fathers had only recently completed a revolution against a distant power that imposed “taxation without representation”, and were acutely apprehensive about ceding too much power to a central authority. They created an entirely new form of government, a federal republic of independent states with many checks and balances upon the powers of a national government.  Congress was organized as a bicameral body, one with representation apportioned strictly by population (the House of Representatives), and another (the Senate) with equal votes for each state, regardless of its size or population. This format was intended to preserve the rights of the smaller states, and prevent them from being overwhelmed in government by the larger states.

The Electoral College (EC) today has 538 Electors. Each state is entitled to a number of electors equal to that state’s representation in Congress (Senate + House). Because each state has two Senators and at least one Representative, every state has at least three electors. Since the 23rd Amendment passed in 1961,  Washington, DC has also had 3 electoral votes.  Currently California has the largest number of electors: 55.

The electors meet in their respective state capitals about a month after the general election to cast their votes for president and vice president. These electors, who together form the EC, are the ones who actually elect the president. If no candidate gets a majority of the electoral vote, the House of Representatives elects the president. This happened in 1800 and again in 1824. The choice in the House is made on a one-state/one-vote basis, which means, obviously, that the single representatives of Vermont, Wyoming, Montana, Alaska, and North and South Dakota which combined represent about 1.4% of all Americans, have voting power equal to the combined delegations of California, Texas, Florida, New York, Illinois, and Pennsylvania, which represent about 40.3% of us. States rights are one thing, but does this sound remotely democratic to anyone?

States with many buffalo and few people, like Wyoming, derive disproportionate influence in national elections from the EC and are not keen on changing it. Since every state gets at least three electors, low-population states have far more political power than they would have in a direct election system. The number of voters per elector is about four times smaller in the three-elector states than in the more populous states. Direct election of the president would eliminate the current bias in favor of the Republicans, since there are five predominantly Republican three elector states and only two states and Washington, D.C. are mostly Democratic three elector entities. The Electoral Map below shows the current votes of each state and indicates whether their populations are overwhelmingly Democratic, Republican or mixed. It should be noted that the colors shown are for the states’ voting history in presidential elections. In practice, many of the states are “purple”, with the parties splitting the governorship and control of state legislatures.

Electoral Map of the US by 270towin.com

It is curious to note that every state elects it’s “president”, a/k/a Governor with a strictly popular vote? If one person, one vote is the right way to pick every governor, why not the country’s president?

Some might argue that the Electoral College hampers democracy because it prevents 3rd party candidates from prevailing unless their support is concentrated in fewer states rather than widespread thinly across the country. But broad distribution of support is also required in order to be able to govern, so perhaps that is a good thing?

Having an EC affects voter turnout in various ways. Differences in turnout between swing states and non-swing states under the current electoral college system suggest that replacing the EC with direct election by popular vote would likely increase turnout and participation significantly.The Electoral College depresses voter participation in much of the nation. If one knows their vote will be overwhelmed by the other party’s advantage in that state, their vote doesn’t “count” and we retard participation. Also, a state with low voter turnout gets precisely the same number of electoral votes as if it had a high turnout. By contrast, a well-designed (more) direct election system could spur states to get out the vote.

Of course, one might question the notion that higher voter participation in elections would be a social positive. Some might note that one of the reasons the founding fathers created the EC was that the general public could not be entrusted to wisely choose their president directly. Of course, this was a time when women were disenfranchised and slaves, who of course could not vote, we counted as 3/5ths of a human in determining the apportionment of the slave states’ electoral votes and congressional districts.

Another artifact of the EC is that our candidates mostly campaign in the battleground states that might go either way in a general election. In 2004, for example, a full 99% of all advertising expenditures by the two major-party candidates were concentrated in only seventeen of the states. Florida and Ohio alone accounted for more than 45% ($111 million) of the $235 million spent in all of these states.

Perhaps the most powerful argument for scrapping the EC is that it does not serve the nation well when we have a closely contested election. On four occasions, 1876, 1888, 1960, and 2000, the winner of a plurality of the popular vote was not elected president.

So with all these problems, why don’t Americans demand an end to the EC? Isn’t it merely a relic of a bygone age? Getting rid of the electoral college would require a constitutional amendment. Amending the constitution is (by design) an exceptionally difficult process requiring not only 2/3 majorities of both houses of Congress, but also by the legislatures of 3/4 of the states.

A major criticism of the EC is its winner-take-all character. If Florida’s 25 electoral votes had been split in 2000 13 for George Bush and 12 for Al Gore, then Gore would have been president. There is nothing in the constitution mandating winner-take-all. The manner for choosing electors is regulated by state, not federal law. In fact, two states, Maine and Nebraska, do not use winner-take-all. In those states, the winner of each congressional district gets one elector and the winner of the state as a whole gets an additional two.

Diogenes believes that the fastest, easiest, and best to be hoped for solution to the problems posed by the Electoral College would be for each state to have directly proportional allocation of its electoral votes to each candidate. This would preserve a large measure of the disproportionate influence of smaller states in presidential elections while forcing candidates to run more truly national campaigns that would engage much higher proportions of the electorate. Any state that wanted to adopt this system need only pass a state law to do so. No constitutional amendment would be required.

America has had a federal civil service system in place since 1871. Fair hiring practices were first codified by the Pendleton Civil Service Reform Act in 1883, and the standardized General Service (GS) Pay Scales were first introduced in 1923. Civil servants rarely made claims of unsafe working conditions or egregiously unfair pay.

Why then do we have public employee unions? In the private sector, one could (perhaps) make the argument that labor unions balance the inherently lesser negotiating power of workers with those of their bosses to set pay and working conditions. Trade unions first arose during the Industrial Revolution not only to negotiate wages, but to improve safety and unsafe working conditions in a world where regulation was virtually nonexistent. Today of course, we have a panoply of worker protections; among them are the Occupational Safety Health Administration, the Employment Retirement Insurance Safety Act, the Americans with Disabilities Act, the Civil Rights Act,  the Age Discrimination in Employment Act and the Fair Labor Standards Act.

The founders of the labor movement viewed unions as a vehicle to get workers more of the profits they help create. Government workers, however, don’t generate profits. They merely negotiate for more tax money and more jobs. It would be ironic if unionization didn’t increase public sector pay. After all, isn’t that what a union is for, to get workers better compensation than they could get on their own?

In the private sector, companies rightfully fight to get pay right. Those that do stay in business. Those that don’t either lose their workers to other employers or go out of business. But there is no incentive for public workers to limit their wage and benefit demands.

” the only private sector workers who get the same package of pay, benefits, and job security as government employees are workers at large, unionized companies. Should the public sector be governed by the same salary, benefits, and job rules that caused so many problems at General Motors?“

Do we want government jobs to be more desirable than those in the private sector? Many Americans think that public sector employees are on average paid less than private sector employees with the implicit bargain being that government workers would have job security that private company workers lack. This is an erroneous assumption.

“Full-time federal employees earned an average of $81,258 in pay last year and $41,791 in benefits, the Bureau of Economic Analysis (BEA) reports. By comparison, the private worker earned $50,462 in pay and $10,589 in benefits, meaning that federal workers earn about half more in pay but four times as much in benefits, the BEA says.“

The big advantage for federal workers over private-sector workers comes in time off, pensions and lesser-known benefits. After three years, federal workers get 20 days of vacation, 10 paid holidays and 13 sick days. For older workers, a federal pension is a sweet reward. Lifetime benefits are based on the highest three years of salary, rather than the five years typical of defined pension plans in the private sector. Retirement can start as early as 56 years old with medical benefits.

President Obama instituted a federal pay freeze in 2010, and has called for a 0.5% increase for 2013. But when government workers get a pay freeze, they still get a bump in pay for an additional years of service. Does this make sense?

Liberals argue that civil servants have a right to join labor unions, citing the 14th Amendment’s Equal Protection Clause. But even a champion of labor rights such as FDR recognized that government employees have a “special relationship” to the people that should preclude their ability to strike. Other government employees such as the military have never been allowed to organize. As recently as 1958, George Meany, President of the AFL-CIO thought it was “impossible to collectively bargain with the government” (though later he was happy enough to accept their union dues). So how did government workers unions become entrenched in federal,  state and local politics?

In 1962, President Kennedy was facing poor prospects in midterm elections. JFK saw how in Wisconsin and New York, which had recently allowed public unions to take hold, local liberal politicians benefited politically and financially. So Mr. Kennedy lifted the ban on federal government workers unions by executive order. Today, there are about a million federal employees represented by unions, about 31% of the total workforce, whereas in the private sector, only 7% of the workforce is unionized. At the state and local level, 36% of workers are unionized.

Union membership in the private sector has been declining steadily for years, and is now at levels last seen in the 1930s at the beginning of the organized labor movement. Clearly, private sector unions are a spent force, remaining mostly in service industries and local construction work for government jobs (see my post “On the Davis Bacon Act and Public Works”). In manufacturing, most union jobs have been exported, moved to “right to work” states, or been automated out of existence.

So at the end of the day, what has some 50 years of government employees unions brought us?  Decades of over promising and fiscal malpractice by state and local officials have created unfunded public employee benefit liabilities of more than $3 trillion.  Years of overly optimistic growth projections, underfunding and over promising by politicians have rendered many of these public pension systems toxic assets on states’ books. Some jurisdictions around the U.S. already spend more money on retired workers than on current employees, and more on retired teachers than on existing students and schools.

Even more troublesome than the current or future economic costs of public employee unions is that unions interpose themselves in the administration of government. For a prime example look no further than our schools. Education is easily the most important social equalizer in our society, yet there is clear evidence that despite spending more than 3 times the inflation adjusted cost on K-12 since 1970, student performance levels have not increased. Many factors harm student performance—including that we don’t fire our worst teachers and don’t reward our best, thanks to union contracts that forbid merit-based compensation and block the dismissal of teachers except in rare circumstances. Last week Newark Mayor Cory Booker said that he was considering using some of the $100 million donated by Facebook founder Mark Zuckerberg to a foundation for Newark schools to fund buyouts of the worst teachers in the city’s system. “If we could fire the 300 to 400 lowest-performing teachers…(we) wouldn’t have a financial crisis.”

It is difficult today for defenders of public sector unions to make any sort of convincing case that such unions benefit the public at large. These “public servants” are better paid than their private sector brethren, and they interfere with the proper administration of government by our elected officials. It is time to end government unions.

What drives people to pursue a political career? Is it idealism, ideology or the pursuit of power? I like to think that they want to help society and believe they have a better capacity to do so than most of their fellow citizens. And yet the Law of Unintended Consequences does not usually allow politicians to correctly forecast the ultimate impact of their well motivated actions. A prime example was Prohibition, which sought to rid America of the scourge of alcoholism and public drunkenness. Widespread disrespect of the law generated rampant corruption among politicians and within police forces and gave rise to organized crime to supply booze even as consumption continued at high levels.

Whatever their motivations, politicians at all levels operate through two primary levers; the power to tax and the power to spend. In this post, let’s examine the power to tax. Starting from a base of good intentions, politicians use their power to carve out exemptions, deductions, credits and other tax code distortions to try to achieve their policy goals. While we tend to like our congressional representatives (after all we voted for them), as a body, national approval ratings for Congress are now at 21%.

It is no wonder that this is so. We have arrived at ‘Economic Perdition’, where as a country we lack either the resources to pay for our fiscal extravagances or widespread agreement on how to change the unsustainable path we are on. In large part we don’t think the tax code is fair because some very high income rich people  and corporations like GE pay taxes at a low rate or none at all.

The alternative minimum tax  (AMT) was passed in 1969 because 115 Americans paid little or no taxes on million dollar incomes derived from municipal bonds, and were vilified for not paying their “fair share”. In 2012, 31 million Americans will be ensnared by the AMT who are not even necessarily “wealthy”. President Obama says that is not enough, so last week he called for the “Buffett tax” of 30% on all income over $1mm. This failed on a Senate vote along largely party lines.

Liberal preoccupations with “fairness” and “social equity” are puzzling to me. Definitions of these terms can be debated endlessly even among well intentioned citizens. Because of income inequality, the “rich” should always pay more. (Of course, we could eliminate income inequality, but that would be known as communism.)

Many of us have no idea just how progressive the tax system already is. The top 1% of income earners already pay 38% of all taxes and that the top 10% pay about 70% of all taxes. With about about half of the population paying no net taxes after credits and transfers, the remaining 49% of citizens, the “middle class” pay only 27% of taxes.

Most Americans have little comprehension as to what manner of trickery and foolishness lurks within the federal tax code, which is now 17,000+ pages. (You can get copies from the GPO, but searching it as a database seems to me much easier than pawing through the 20+ volumes of small text.) As a nation, we spend $300 billion per year on tax preparation, or around 20% of what we pay in taxes because of its mind numbing complexity. And the efficiency cost of the tax system—the output that is lost over and above the tax itself—is between $240 billion and $600 billion per year. Of course, it’s not only tax policy that is so complicated. In the recent Supreme Court oral arguments on the Affordable Care Act (Obamacare), Justice Scalia claimed that the court could not reasonably be asked to actually read the 2700+ page law, claiming that would be tantamount to a violation of the 8th Amendment barring cruel and unusual punishment.

The economy works best when investors and companies can operate under predictable policies that allow them to better judge their risks for the long term. The U.S. economy doesn’t need another tax gimmick. We need tax reform that includes a permanent cut in marginal individual and business tax rates for everyone.

The president and many in his party keep telling us that the government needs more money, but if they believe this, why are they taking charitable deductions? I expect the reason is that most of us implicitly believe (for good empirical reasons) that private charities and other tax-exempt groups spend our money more wisely and carefully than the government.

As a seeker of truth, it seems to Diogenes that the only way to solve this conundrum is to enact fundamental tax reform that does not require a lawyer or accountant to explain to citizens. The Constitution was only about 8 pages. Even complex legislation need not be so obscure. The original Social Security Act was fifty-two pages. By not trying to address every possible contingency, these documents allow a flexibility necessary in the application of good law. Americans are fundamentally open and fair. They are easily capable of understanding the intent of laws if that intent is allowed to be made known.

We should all be easily able to file our tax returns by ourselves because the tax code makes sense. (60% of Americans currently pay someone to prepare their tax returns. Of those that do it on their own, the IRS estimates it takes them an average of 32 hours to do the job.) The best way to do this is to enact “flat tax” reform with one fixed rate above the poverty line. There should be few allowable deductions, perhaps only for charitable contributions and for mortgage interest, up to certain limits. Initially such a tax code seems overly simple,  so let’s examine the reasons why this idea would work.

Compliance would be very high, as it would be extremely difficult as well as less profitable to game the system.

Tax collections from the “rich” would actually increase, as it has in most years in most of the 24 countries that have enacted such reforms. None of those countries that have adopted flat tax regimes have returned to progressive taxation.

Everyone above the poverty level would receive relatively equal treatment. Even large charitable donations would not excuse the wealthy from paying taxes.

A flat tax would discourage increased spending by government. Tax increases would affect all taxpayers. In the current tax system, government officials are lobbied for benefits to special interests paid for by all, or try to raise money for new spending by targeting certain groups or industries for taxes . If everyone’s taxes had to go up with any new spending, every new government program would have to be more carefully reviewed. In the long run government should become more efficient.

Businesses and government could better plan and organize their spending, leading to increased economic growth.  We would change the discussion from fighting over shares of the pie to increasing the size of the pie.  Partisan politics would be immeasurably reduced to discussions of how to spend the tax receipts.