Month: May 2013

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Baseball and Justice Sotomayor or Flood v. Kuhn revisited

Anyone who loves baseball and history will love this story.  I found it on NPR reported by Nina Totenberg who covers the Supreme Court.  It is about a combination moot court and historic re-enactment.  The case is Curt Flood v. Bowie Kuhn from 1972.  Law school often do this kind of re-enactment, but this one was sponsored by the Supreme Court Historical Society.  Justice Sotomayor presided from the seat of the Chief Justice.

For those who don’t remember, the case was brought by St. Louis Cardinals great Curt Flood, who challenged baseball’s reserve clause — the provision that allowed teams to virtually own players, set salaries and conduct trades, with the players for all practical purposes never able to negotiate freely with other teams. That meant that at the time Flood brought his challenge in 1970, he was earning what was then considered a top salary of $90,000. This, for a player who had signed with the Cards at age 18, with no agent or lawyer, and who in six of the next 12 seasons batted .300 and won seven Gold Glove awards. So, when he was traded to the Philadelphia Phillies, a definitely lesser team at the time, he refused to go, and could not play for any team.

He wrote to the then-baseball commissioner, Bowie Kuhn, protesting that he was “not a piece of property to be bought and sold.” Kuhn denied his request for free agency — a concept unrecognized by baseball back then — and Flood sued, seeking to block the perpetual use of the reserve clause.

Flood lost, but baseball changed forever as the free agency system was put into place anyway.

In 1994, however, nearly two decades after the Flood decision and the ensuing changes in baseball, the owners sought to effectively nullify the free agency system, and the baseball players struck, wiping out the playoffs and the World Series. The National Labor Relations Board went to court, contending that the owners were negotiating in bad faith, and the case came before a young federal district court judge named Sonia Sotomayor.

She agreed that the owners were colluding illegally to fix salaries and granted a temporary injunction barring them from doing that. Sotomayor, a wildly dedicated Yankees fan, issued her opinion in time to allow the new baseball season to begin as scheduled on opening day, with the old baseball contract in effect. She thus earned the title, “the judge who saved baseball.”

The arguments in the re-enactment veered between history and current day baseball.

Representing Flood at the re-enactment was Stanford Law professor Pamela Karlan, a frequent Supreme Court advocate, and ironically, a former Blackmun law clerk. And representing Major League Baseball was another frequent Supreme Court advocate, Roy Englert.

Karlan opened, noting that the Supreme Court’s 1922 and 1953 decisions upholding baseball’s antitrust exemption were outliers and that the court had not permitted such an exemption for any other professional sport.

Sotomayor asked why the court should “break with tradition,” thus depriving the owners of their “reliance” on previous decisions.

Karlan shot back that if the court were to side with the owners for a third time, it would amount to something done in baseball only once before — three errors on a single play.

Sotomayor, with a straight face, opined that the court could apply another baseball rule: three strikes and you’re out.

Karlan, undaunted, replied, “I’m swinging for the fences here, your honor.”

Sotomayor is escorted onto the field by New York Yankees catcher Jorge Posada to throw out the ceremonial first pitch before the New York Yankees game against the Boston Red Sox at Yankee Stadium on Sept. 26, 2009.

The next exchange con free agency and salaries management to get in a dig at Sotomayor’s favorite Yankees.

Sotomayor asked what would happen if the court were to take away the antitrust exemption. Wouldn’t the players move around so much that fans would have no team loyalty?

No, rejoined Karlan, the owners would just have to pay the players what they are worth in order to hold on to them, and instead of year-to-year contracts that leave players with no leverage, the owners would have to negotiate longer-term contracts.

Sotomayor, in mock horror, said that if the antitrust exemption were abolished and owners could no longer collude to set player salaries at will, the Yankees might have to pay Reggie Jackson $1 million a year!

Worse, replied Karlan, would be if the Yanks paid Alex Rodriguez a quarter of a billion dollars not to play.

“I can’t imagine such a thing!” answered a shocked Sotomayor.

Next at bat were the owners.

Next up to the lectern was Roy Englert, representing the baseball commissioner and owners. He noted that some 50 bills had been introduced in Congress over the years to eliminate the antitrust exemption, and none had passed. The court, he said, should leave the question to Congress.

But Sotomayor asked, “Where are the rights of the players?” Quoting Curt Flood, she said that the baseball system was a form of “involuntary servitude” that does not exist in any other industry.

Englert replied that “these young men are making on average $28,000 … as much as Supreme Court justices.” Moreover, unlike other sports, he observed, baseball puts enormous investment into training players in the minor leagues.

The case does involve some serious legal questions, some raised by the decision written by Justice Blackmun.  It appears that Blackmun was reluctant to overturn the prior decisions, but wrote his opinion in such a was that everyone understood that baseball did in fact fall under that anti-trust laws and does engage in interstate commerce.

Justice Sotomayor concluded

‘There are Supreme Court decisions that are wrong,” she said. The court’s 1896 decision upholding segregation was wrong, and the Supreme Court was right to reverse it in 1954. But sometimes, she said, the question is not whether the decision was wrong, but whether this is the right time to overrule it.

Today, she observed, we see as “horrible” the reserve clause that deprived players of any real negotiating power. But at the time, what both sides thought they were arguing about was “the very survival of baseball.”

Photograph of Justice Sotomayor and Jorge Posada by Bill Kostroun/AP
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Republican suicide in Virginia?

Having lived in Virginia for many years, I take more than a passing interest in the political scene there and this fall’s election will be a doozy!  Not quite sure what Virginia Republicans think they are doing, but unless everyone in Virginia has totally lost it, Terry McAuliffe should be the next governor.

This morning, the Washington Post has a story with 3 earlier related ones.  Here are the headlines with links:

E.W. Jackson a wild card in Va. GOP campaign  This is the main profile and biography.

Va. GOP’s E.W. Jackson: So far right he has said Democrats have ‘Antichrist’ agenda

E.W. Jackson complicates Cuccinelli bid

Va. GOP picks conservatives for fall ticket; black minister is lieutenant governor choice

So what exactly is going on in Virginia?   On May 18, the Post described the ticket this way

Thousands of Virginia Republicans on Saturday picked a slate of statewide candidates who vowed to stay true to conservative principles, resisting calls to remake the GOP message after losses in 2012.

At the top of the ticket is gubernatorial hopeful Ken Cuccinelli II, the attorney general. Known for high-profile battles against “Obamacare,” abortion and a university climate scientist, Cuccinelli stood by what detractors have called an out-of-the-mainstream agenda.

…

E.W. Jackson, a minister from Chesapeake, won the nomination for lieutenant governor with a full-throated appeal for limited government, traditional families and gun rights. “We will not only win an election in November, we will open the hearts and minds of our people and save this commonwealth and save this country,” said Jackson, the first African American nominated by the Virginia GOP for statewide office since 1988. [That was Doug Wilder, who won.]

For attorney general, the party nominated state Sen. Mark D. Obenshain (R-Harrisonburg), who this year successfully pushed tougher voter ID rules. “Are you ready to stop Obamacare in its tracks?” he asked the crowd in his acceptance speech, eliciting cheers.

Republican nominee for governor Ken Cuccinelli, right, is joined onstage with the other members of the ticket, including E. W. Jacksonon, second from left.

Republican nominee for governor Ken Cuccinelli, right, is joined onstage with the other members of the ticket, including E. W. Jackson, second from left.

It is as if the election last year never happened.  Mitt Romney didn’t lose.  Barack Obama never won.

But the candidate in the spotlight is Jackson.

Jackson’s improbable rise, one that has astonished Republicans far and wide, is the latest of a number of incarnations, including foster child, Marine, Harvard law school graduate and even Democrat. But the minister who is now GOP gubernatorial nominee Ken Cuccinelli II’s running mate has long used his booming voice to endear himself to conservatives.

Still, Jackson’s words — sometimes eloquent, sometimes raw, often impassioned — are causing anxiety for many Republicans as the resurfacing of his past statements about homosexuality and abortion have threatened to disrupt the campaign.

Instead of promoting their new ticket, Republicans have answered for Jackson’s once calling gays “perverted” and “sick” and saying Planned Parenthood has been “far more lethal” to blacks “than the KKK.”

Jackson has ties to Massachusetts which I didn’t know.

After a tour with the Marines, Jackson graduated with honors in 1975 from the University of Massachusetts, where he majored in philosophy. Then he graduated from Harvard Law School in 1978. He spent more than 20 years in Boston, practicing law, pastoring at New Cornerstone Exodus Church, serving as a chaplain to the Boston Fire Department, and hosting radio shows, including one called “Earl Jackson Across America.”

At one point, he was a Democrat, and he was elected to the party’s Massachusetts State Committee, where he distinguished himself with his conservative views. “I thought, ‘Wow, here’s a great potential leader,’ ” said James Roosevelt, who is a grandson of Franklin D. Roosevelt and who was then and is now legal counsel to the state Democratic organization. “Then I learned of his views, and I thought: ‘What’s he doing? This is not a leader of the Democratic Party.’ ”

Jackson became a Republican in the early 1980s, explaining that Democrats’ embrace of the gay rights movement violated his religious beliefs. In 1989, he joined the opposition to a proposal to ban discrimination against gays and lesbians in Massachusetts. “We intend to blow this bill to smithereens,” he told reporters then. “We intend to defeat this legislation and bury it so deep no one will ever find it again.”

Sorry Rev. Jackson.  We not only passed that bill, but we also have marriage equality.  I have to admit I never listen much to talk radio or to Jackson’s program.  He moved to Virginia in 1998, perhaps thinking the political climate there would be more in tuned to his views and clearly he was right about that: he is now the Republican nominee for Lt. Governor.  Jackson has also been affiliated with the Christian Coalition and the Tea Party.

“The Republicans I’m talking to are saying, ‘What the hell are they doing in Virginia?’ ” said Michael Steele, former chairman of the Republican National Committee. “Is this, ‘101 ways to lose an election’? You’re coming out of the gate with comments everyone has to explain. You’re wasting a lot of time and energy batting that back when you should be doing other things to get the guy known.”

Although unknown to many Republicans, Jackson in recent years has built a following among the most activist of Virginia’s conservatives, many of whom were delegates at the convention. But Republicans are now concerned, Steele said, that Jackson will turn off the party’s own voters. “You can’t have a situation where Republicans say, ‘You know what? I can’t have this’ and they stay home or vote for the other guy,” he said.

Added to the mix is the investigation of the current Republican governor, Bob McDonnell awkwardly headed by the current Republican Attorney General and nominee for Governor, Ken Cuccinelli who took money from the same supporter.  The New York Times has that story.

Virginia’s attorney general has appointed an outside prosecutor to investigate Gov. Bob McDonnell’s financial disclosures, in a widening scandal over a political donor who wrote a $15,000 check for the wedding of the governor’s daughter, and who was also a benefactor of the attorney general.

Kenneth T. Cuccinelli II, the attorney general, who is also the Republican candidate for governor this year, said on Wednesday that he named the outside prosecutor last November to look into Mr. McDonnell’s disclosures.

Mr. Cuccinelli said “information came to my attention” triggering the appointment of the prosecutor. His referral of the case to the Richmond commonwealth’s attorney, Mike Herring, whose role is similar to that of a district attorney, “was not a conclusion that any violation occurred,’’ Mr. Cuccinelli said in a statement.

The investigation came to light through a Freedom of Information Act request by The Richmond Times-Dispatch, which first reported it.

Mr. McDonnell and Mr. Cuccinelli, who are yoked in an awkward political alliance – the former a popular governor of a purple state and his would-be successor, a Tea Party favorite — have been swept up in controversy over their friendship with a Virginia businessman, Jonnie R. Williams Sr., who gave generously to both officials.

What a tangle!  Can Terry McAuliffe pull out a win for the Democrats?

“We’re in a deep [expletive],” said one Virginia Republican strategist. “The only good news is that the Democrats have Terry McAuliffe. It’s the only thing keeping us glued to a chance of victory.”

McAuliffe, a former Democratic National Committee chairman, has faced questions about his leadership of an electric car company and some unflattering quotes from his own memoir.

All I can say is “stay ‘tooned”.

Photograph: Steve Helber/AP

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Primary versus Exclusive

IRS building on Constitution Avenue in Washing...

IRS building on Constitution Avenue in Washington, D.C.. (Photo credit: Wikipedia)

Trust the former budget guy Lawrence O’Donnell to find this.  The part of the tax code with the definition of 503(c)4 was written in 1954 and the IRS regulation adopted in 1959.  (Think maybe we need to update the tax code?).  According to Clare Kim writing for O’Donnell’s “The Last Word”

Internal Revenue Service agents have been struggling to do their jobs–which have been made essentially impossible by an incorrect interpretation of the law that the IRS made in 1959. It was then that the IRS changed the language of the law without any authority to do so. Here is how the tax law was written in its latest update in 1954 on 501(c)(4) social welfare organizations. The 501(c)(4) designation was to apply only to: “Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare.”

But a 1959 interpretation guideline written by the IRS says that: ”To be operated exclusively to promote social welfare, an organization must operate primarily to further the common good and general welfare…”

My Webster’s New Collegiate Dictionary defines exclusive as excluding or having the power to exclude, the definition we are all familiar with.  Exclude is to shut out or bar from participation, consideration or inclusion.  The 1954 tax code meant that any group receiving this exemption was to only promote social welfare.  Primarily on the other hand means chief.  The question some Senators and Representatives put to IRS officials was whether exclusive and primary meant the same thing.  The IRS officials didn’t think so and neither do I.  The 1959 reg combines the two in a way that the poor folks trying to make determinations have to find confusing.

But is this all just semantics?

At his news conference, President Obama stressed the importance of enforcing clear laws. “We’re gonna have to make sure that the laws are clear so that we can have confidence that they are enforced in a fair and impartial way and there’s not too much ambiguity surrounding these laws.”

Citizens for Responsibility and Ethics in Washington (CREW) officially filed a lawsuit against the IRS for departing from statute on “exclusively” for social welfare in the code. The organization’s 17-page filing asks the IRS to simply enforce the law as written and to drop the IRS’ false interpretation of the law.

If this happens the Democratic organizations like Organizing for America will lose their exemptions just like Tea Party groups and Karl Rove.  I don’t think this a bad thing.

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A little humor for a gray day

It is kind of gray and coolish today the kind of weather that makes you wish that spring would really arrive in New England, that the weather would be a little more consistently 60s and 70s.  So to cheer myself up I put up a new theme.  I’d had the old one for a few years (!) now and it was time for a change.

To go with the new theme, here are 10 Great Headlines which I have copied out of the 2013 Old Farmer’s Almanac.  They were submitted to the Almanac by S.P. of Manchester, NH.

1.  Hospitals Sued by 7 Foot Doctors

2.  Police Begin Campaign to Run Down Jaywalkers

3.  Panda Mating Fails: Veterinarian Takes Over

4.  War Dims Hope for Peace

5.  Astronaut Takes Blame for Gas in Spacecraft

6.  Juvenile Court to Try Shooting Defendant

7.  Something Went Wrong in Jet Crash

8.  New Study of Obesity Looks for Larger Test Group

9.  Cold Wave Linked to Temperatures

10.  Typhoon Rips Through Cemetery; Hundreds Dead.

Cover of the Old Farmer's Almanac.

Cover of the Old Farmer’s Almanac. (Photo credit: Wikipedia)

I was once the headline editor of my high school newspaper so I have a lot of sympathy for those who wrote these.  Which is your favorite?  I’m torn between 7 and 10.

 

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“No Drama Obama”

If I am not mistaken, that phrase first surfaced during the 2008 campaign to describe the lack of panic when Hillary Clinton won a string of smaller state primary elections.  People were panicking; the press was touting their new story about Clinton overcoming the Obama lead to take the nomination.  And Obama and his team just kept trucking along the planned path.  “No Drama Obama”.

President Obama during a news conference in the Rose Garden at the White House, May 16, 2013, in Washington, D.C.

President Obama during a news conference in the Rose Garden at the White House, May 16, 2013, in Washington, D.C.

So here are three things to ponder in light of the recent “scandals”.  The first is from an Andrew Sullivan post on the Dish.

Former Obama speechwriter Jon Favreau describes how Obama handles scandals:

The handwringers and bed wetters in the D.C. punditocracy should know that Barack Obama will never be on their timeline. He does not value being first over being right. He will not spend his presidency chasing news cycles. He will not shake up his White House staff just because of some offhand advice offered to Politico by a longtime Washingtonian or a nameless Democrat who’s desperately trying to stay relevant. And if that means Dana Milbank thinks he’s too passive; if it means that Jim VandeHei will keep calling him arrogant and petulant; if it means that Chris Matthews will whine about him not enjoying the presidency, then so be it. He’ll live.

Favreau knows him as well as anyone – and that rings true. It’s also a deep political strength. Most mortals cannot manage that no-drama glide – I sure can’t. Hillary is more easily provoked into hunkering down rather than sailing through. What troubles me, though, is not that the IRS clusterfuck and the VA backlog are signs of malevolence, but rather that they are indications of a government that doesn’t work right. And no president should glide past that.

The real issue, the one people, particularly the Republicans, may be missing is that President Obama, unlike Bill Clinton, is not all that interested in the nuts and bolts of governing.  If this is true, than Sullivan is correct:  Obama either needs to get interested or he needs to find some staffers that are interested.  I think that federal agency responsibilities have just gotten too big.  I’m not saying that we don’t need government and services, but that it may be time for a real review of whether we can cut some of the older programs or change them to be incorporated as part of newer ones.  Maybe we need another Al Gore waste in government study.  Or the President needs to step up his search for duplicate programs and add reoranizing for great efficiency.

The second is the fact the the President’s approval ratings don’t seem to be going down despite the best efforts of Darrell Issa and his friends.  Nate Silver summarizes

Political coverage over the last week has focused on a series of stories that reflect negatively on the executive branch — but President Obama’s approval ratings have held steady. As of Monday, Mr. Obama’s Gallup approval rating was 49 percent — the same as it was, on average, in April. Mr. Obama’s Rasmussen Reports approval rating was 48 percent, not much changed from an average of 50 percent in April. Mr. Obama’s approval rating in a CNN poll published on Sunday was 53 percent, little different from 51 percent in their April survey. And in a Washington Post-ABC News poll, Mr. Obama’s approval rating was 51 percent, essentially unchanged from 50 percent in April.

There are a lot of theories as to why Mr. Obama’s approval ratings have been unchanged in the wake of these controversies, which some news accounts and many of Mr. Obama’s opponents are describing as scandals. But these analyses may proceed from the wrong premise if they assume that the stories have had no impact. It could be that the controversies are, in fact, putting some downward pressure on Mr. Obama’s approval ratings — but that the losses are offset by improved voter attitudes about the economy.

Silver includes this graph.

If Silver is correct then the Republicans have to hope that one of their darts hit home or that the economy really tanks.  I’m one who is cautiously optimistic that we will have an actual budget come October making the sequester cuts go away.  If I am right, then the economy should remain in decent shape and maybe people will start hiring with the uncertainty removed.

I close with a bit of humor from Andy Borowitz who questions the ability of the no drama approach to any real scandal.

President Obama’s handling of controversies about the I.R.S., the Justice Department, and Benghazi has raised “grave doubts” about his ability to cope if he ever became involved in an actual scandal, prominent Republicans said today.

“If this is how he handles this stuff, Lord have mercy on him if he ever has to deal with a real scandal,” said newly elected Rep. Mark Sanford (R-S. Carolina). “Quite frankly, I don’t think he has what it takes.”

“The true test of a leader is this,” Rep. Sanford added. “When he gets in a fix, does he have the presence of mind to lie about his whereabouts? Sadly, I don’t think President Obama passes that test.”

No one can say that Mark Sanford’s life has been without drama!

It is fine for the President to continue without drama as long as his plan includes a hard look at the bureaucracy.

Photograph of the President: Mark Wilson/Getty Images

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Leaks, national security and the press

Every administration on every level of government worries about leaks.  Mayors worry about information on a big new construction project or policy initiative getting out too soon.  Presidents worry about national security.  Members of legislatures worry about a stand on an issue leaking before it can be “properly framed.”  Actually all politicians worry about that.  Look at VP Biden “leaking” his position on gay marriage.  I’ve been suspected of being a leaker because I knew reporters – and I’ve helped look for leaks.   I also believe in a free press, but as with any freedom, limits are needed.  The question is where that line should be.

Do you understand what the AP scandal is all about?  I have to admit that until I read this piece by Jack Shafer of Reuters, I really didn’t.  I don’t think the press did a good job of trying to explain their own story.  Did you know that the leak had to do with the underwear bomber?  I didn’t.  Never heard or saw that and I follow the news pretty closely.

Shafer writes

Journalists gasp and growl whenever prosecutors issue lawful subpoenas ordering them to divulge their confidential sources or to turn over potential evidence, such as notes, video outtakes or other records. It’s an attack on the First Amendment, It’s an attack on the First Amendment, It’s an attack on the First Amendment, journalists and their lawyers chant. Those chants were heard this week, as it was revealed that Department of Justice prosecutors had seized two months’ worth of records from 20 office, home and cell phone lines used by Associated Press journalists in their investigation into the Yemen underwear-bomber leaks.

First Amendment radicals — I count myself among them — resist any and all such intrusions: You can’t very well have a free press if every unpublished act of journalism can be co-opted by cops, prosecutors and defense attorneys. First Amendment attorney Floyd Abrams speaks for most journalists when he denounces the “breathtaking scope” of the AP subpoenas. But the press’s reflexive protests can prevent it from seeing the story in full, which I think is the case in the current leaks investigation.

,,,

The Obama administration has already used the Espionage Act to prosecute more government officials for leaking than all of his predecessors put together, but we shouldn’t automatically lump its pursuit of the underwear-bomb leaker in with those cases. Perhaps this investigation is chasing an extra-extraordinary leak, and the underwear-bomber leak is but one of the drops.

I have to point out here that the Republicans in Congress have pushed the administration to find leakers and, I fear, have caused the Democrats and President Obama to catch their paranoia.

Attorney General Eric Holder has overseen more leak investigations under Obama than were pursued under Bush

Attorney General Eric Holder has overseen more leak investigations under Obama than were pursued under Bush

Shafer continues

The AP story that has so infuriated the government described the breakup of an al Qaeda in the Arabian Peninsula plot to place an underwear bomber on board a U.S.-bound airliner. Published on the afternoon of May 7, 2012, the story patted itself on the back for having heeded the White House and CIA requests to not publish the previous week, when the AP first learned of the operation. The AP states in the article that it published only after being told by “officials” that the original “concerns were allayed.” In a chronology published in today’s Washington Post, we’re told that the CIA was no longer resisting publication of the AP story on the day it hit the wire (Monday) and that the White House was planning to “announce the successful counterterrorism operation that Tuesday.”

That may be the case, but the government was still incensed by the leak. In fact, it appears that officials were livid. As my Reuters colleagues Mark Hosenball and Tabassum Zakaria reported last night, the government found the leak so threatening that it opened a leak investigation before the AP ran its story.

Now, what would make the Obama administration so furious? My guess is it wasn’t the substance of the AP story that has exasperated the government but that the AP found a source or sources that spilled information about an ongoing intelligence operation and that even grander leaks might surge into the press corps’ rain barrels.

At the risk of making the Department of Justice’s argument for it, a leak once sprung can turn into a gusher as the original leakers keep talking and new ones join them, or as the government attempts to explain itself, or as others in the government begin to speak out of turn. From what I can tell, all of the above happened after the AP story appeared.

So there you have it.  It was not the particular leak, but the fact that there was a leaker that could potentially leak again.  As Shafer points out when there is a leak there is also the problem of government officials saying too much and, in effect becoming leakers.  What happened here was the existence of a double agent got out, mostly because of what government officials said in trying to explain the original AP story.   Shafer summarizes the trail and concludes

To begin with, the perpetrators of a successful double-agent operation against al Qaeda in the Arabian Peninsula would not want to brag about their coup for years. Presumably, al Qaeda in the Arabian Peninsula will now use the press reports to walk the dog back to determine whose misplaced trust allowed the agent to penetrate it. That will make the next operation more difficult. Other intelligence operations — and we can assume they are up and running — may also become compromised as the press reports give al Qaeda in the Arabian Peninsula new clues.

Likewise, the next time the CIA or foreign intelligence agency tries to recruit a double agent, the candidate will judge his handlers wretched secret keepers, regard the assignment a death mission and seek employment elsewhere.

Last, the leaks of information — including those from the lips of Brennan, Clarke and King — signal to potential allies that America can’t be trusted with secrets. “Leaks related to national security can put people at risk,” as Obama put it today in a news conference.

The ultimate audience for the leaks investigation may not be domestic but foreign. Obviously, the government wants to root out the secretspillers. But a country can’t expect foreign intelligence agencies to cooperate if it blows cover of such an operation. I’d wager that the investigations have only begun.

None of this means we should go rooting around people’s cell phone and email records without some protection.  In his reaction to the scandal, President Obama called for Congress to enact an updated media shield law which would replace the Justice Department’s internal regulations (which I think they actually didn’t follow).  Wouldn’t it be interesting for Congress to take some proactive steps instead of just investigating?

Photograph: Alex Wong/Getty Images

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A Nobel Prize Winner and questions about Nagasaki

There was a very interesting profile in the New York Times Science section this week about Osamu Shimomura the Nobel Prize winning chemist.  Never heard of him?  Me either.  It was his life, not his science I found most interesting.  My mother’s family is from a small town near Hiroshima and I grew up knowing about Hiroshima and Nagasaki.

Sixty-eight years ago, Osamu Shimomura was a 16-year-old high school student working in a factory seven and a half miles from Nagasaki, Japan. Sitting down to work, a light flashed, briefly blinding him, and the pressure wave from an explosion came rolling through.

On his walk home from the factory, he was drenched with a black rain. His grandmother immediately had him bathe, most likely saving him from radiation-related illness.

Dr. Shimomura has said that he mostly doesn’t think about the bomb dropped on Nagasaki, but he recently delivered a lecture at the Los Alamos National Laboratory.  Los Alamos is the home of the Manhattan Project and the birthplace of the atomic bombs dropped on Hiroshima and Nagasaki.  The bomb was not the topic of Dr. Shimonura’s lecture.

Instead, he recounted the discovery and development of one of the most significant tools for modern biotechnology: the green fluorescent protein, or G.F.P., used widely in cell and molecular biology as a visual tracer. The discovery, which has deepened the understanding of a wide range of fundamental biological processes, brought him the Nobel Prize in Chemistry in 2008, along with Martin Chalfie and Roger Y. Tsien.

Together with my father who returned briefly from Manchuria in 1939. Front row from left: my mother Yukie, grandmother Tsuki, grandfather Kosaburo, father Chikara, younger brother Sadamu, and myself behind Sadamu, together with my uncle Eijiro Sata's family in back row.

Together with my father who returned briefly from Manchuria in 1939. Front row from left: my mother Yukie, grandmother Tsuki, grandfather Kosaburo, father Chikara, younger brother Sadamu, and myself behind Sadamu, together with my uncle Eijiro Sata’s family in back row.

In his autobiography accompanying his Nobel information, Dr. Shimomura did talk about Nagasaki.

On August 6, 1945, news reports informed us that the city of Hiroshima had been completely destroyed by a new type of bomb; we didn’t know what kind. Three days later, shortly before 11 AM, a siren sounded at the Isahaya factory, notifying us of an air raid. As usual, rather than going into a bunker, I went to the top of a nearby hill with a couple of friends and looked at the sky. We saw a single B-29 going from north to south towards Nagasaki, about 15 km away. I thought that its course was unusual. The B-29 dropped two or three parachutes and I heard sporadic gunshots. Watching carefully, I saw no people attached to the parachutes. Within a few minutes, another B-29 followed the first one, and a siren sounded the “all clear” signal. We returned to our factory building.

At the moment I sat down on my work stool, a powerful flash of light came through the small windows. We were blinded for about 30 seconds. Then, about 40 seconds after the flash, a loud sound and sudden change of air pressure followed. We were sure there was a huge explosion somewhere, but we didn’t know where. The sky was rapidly filling with dark clouds, and when I left the factory to walk home, about three miles away, a drizzling rain started. It was black rain. By the time I arrived home, my white shirt had turned gray. My grandmother quickly readied a bath for me. That bath might have saved me from the ill effects of the strong radiation that presumably existed in the black rain.    The next morning, a technical officer told us that the parachutes we had seen the day before contained measurement instruments and a transmitter. He also mentioned that there was serious damage in Nagasaki, but the details were unknown. The chief of the factory organized a rescue party. We tried to enter Nagasaki, but could not because the roads and the railroad were impassable. Later that afternoon, the railroad was opened to Michinoo, near Nagasaki station, and rescuers began to transport injured people to Isahaya and other cities.

On August 15, in a radio broadcast, Emperor Hirohito declared unconditional surrender. This was the first time that most Japanese citizens had heard the emperor’s voice. I think there was a widespread feeling of relief, and also fear for an uncertain future.    Many years passed before we had detailed information about the atomic bombs that were dropped on Hiroshima and Nagasaki. The Nagasaki bomb was a different type and far more powerful than the Hiroshima bomb. Even if the use of the Hiroshima bomb was justifiable in order to precipitate an end to the war, the bomb dropped on Nagasaki three days later was clearly a test of new arms. It cannot be justified.

It cannot be justified.  I have always had questions about Nagasaki.  Why didn’t the Emperor call for surrender immediately?  Why didn’t we wait a few more days before dropping the second bomb?

The Times story recounts others at the Los Alamos dinner raising the subject.

At a dinner, Bette Korber, a theoretical biologist at the Los Alamos National Laboratory, told of how her father had been on a troop ship preparing for the invasion of Japan. For years, she said, he had credited the decision to drop the bombs with sparing his life. Years later, however, when declassified documents reopened questions about whether the Nagasaki bomb had been necessary to end the war, he was in despair, she said.

Gary Doolen, a physicist who had been a weapon designer at the lab, said there was evidence that the second bomb had been dropped as a demonstration of American power to Russians, who were then massing troops in East Asia.

Dr. Shimomura, tall and stooped, mostly listened.

The next day he and his wife returned to the museum.

…Moments before the Nagasaki bombing, Dr. Shimomura had seen a B-29 bomber drop three parachutes. The drop had puzzled him. He would later learn that they carried instruments for data transmission and measurement.

He asked John E. Pearson, the Los Alamos physicist who had invited him to lecture, about the instruments. After some hunting they found models of the original parachute payloads.

“Some guy came up and started explaining what we were looking at,” said Dr. Pearson. “Osamu said, ‘Yes. I watched them falling.’ I don’t think I’ve ever seen anyone quite as stunned as that guy.”

I wonder what those instruments recorded.  I wonder if the information would be useful as we try to deal with other nuclear disasters.  I wonder if they were destroyed by the bomb.

Shimomura

Photograph of the family from Shimomura’s Nobel Autobiography

Photograph of Shimomura Josh Reynolds/Associated Press

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Taxes, taxes, taxes

Who was it that said, “Nothing is certain but death and taxes”?  They should have added tax loopholes and exemptions to that list.

Here in Massachusetts we have a Senate candidate who took at $281,000 tax credit for agreeing not to made changes to the facade of his home located in a historic district.  I don’t know how this works in other states but here local city and town councils can pass by-laws regulating historic districts.  Cohasset, the town where Gabriel Gomez lives, has a by-law on the books that says owners of homes in the historic district may not change the facades of their homes.  So Mr. Gomez basically took a tax credit for something he was prohibited from doing anyway.  Adrian Walker wrote this in the Globe this morning.

Challenged to explain, a testy Gomez set a new standard for chutzpah. He claimed that his tax break is really the fault of his opponent, Ed Markey — because in 1981, Markey voted for the law that established tax breaks for historical preservation.

OK.  So maybe taking the tax break was not illegal, but there is something about it that makes me – and it appears – other voters wonder if this is the guy we want representing us.  Plus there is the fact that most of us don’t make $281K over many years much less get to take that much off our taxes.

Walker continues

Andy Hiller of WHDH-TV cornered Gomez and asked a few questions about it, or tried to. What he got back from Gomez was this: “I don’t apologize for any success I’ve had. Absolutely not. I’m proud of everything I’ve done. I’ve worked for everything I’ve done. I’ve earned everything I’ve done.”

Gomez is an accomplished military veteran who has earned many things in his life, but he certainly didn’t earn this. Even the Internal Revenue Service has decried the historical-preservation deduction he took as a farce.

The questions about Gomez’s taxes probably haven’t ended, either.

On a financial disclosure form filed in March, Gomez said that under his separation agreement from the private equity firm Advent International, he received something called “carried interests.”

Carried interests are fees paid to equity firms and hedge funds to manage portfolios. They are taxed as capital gains, at a rate of 20 percent, rather than the top income rate of 39.5 percent.

Carried interests are fees paid to equity firms and hedge funds to manage portfolios. They are taxed as capital gains, at a rate of 20 percent, rather than the top income rate of 39.5 percent.

The carried interest rate — which costs taxpayers an estimated $1.3 billion a year — has long been the subject of dispute, with some critics arguing that this is one of the first tax loopholes lawmakers should close.

How much of Gomez’s income falls under the “carried interest” loophole is unclear from the disclosure form.

Gabriel Gomez is running as a reformer, as an outsider but as Walker points out, he already knows all the tricks.  Maybe we need someone like him to help reform the tax code – not!

Internal Revenue Service Building

Internal Revenue Service Building

Taxes are also at the heart of what the Republicans hope will be the scandal that brings down the Obama Administration if Benghazi doesn’t work out for them.  According to the New York Times this is what we know.

The Internal Revenue Service’s special scrutiny of small-government groups applying for tax-exempt status went beyond keyword hunts for organizations with “Tea Party” or “Patriot” in their names, to a more overtly ideological search for applicants seeking to “make America a better place to live” or “criticize how the country is being run,” according to part of a draft audit by the inspector general that has been given to Capitol Hill.

The head of the division on tax-exempt organizations, Lois Lerner, was briefed on the effort in June 2011, seemingly contradicting her assertion on Friday that she learned of the effort from news reports. But the audit shows that she seemed to work hard to rein in the focus on conservatives and change it to a look at any political advocacy group of any stripe.

…

Since last year’s elections, Republicans in Congress have struggled for traction on their legislative efforts, torn between conservatives who drove the agenda after their 2010 landslide and new voices counseling a shift in course to reflect President Obama’s re-election and the loss of Republican seats in the House and the Senate.

But the accusations of I.R.S. abuse are sure to fuel an effort that appears to be uniting dispirited Republicans and their conservative political base: investigating Mr. Obama and his administration. Republicans are pushing a portrayal of an administration overreaching its authority and punishing its enemies.

“The bottom line is they used keywords to go after conservatives,” Representative Darrell Issa of California, the chairman of the House Oversight and Government Reform Committee, said Sunday on the NBC News program “Meet the Press.” He requested the inspector general’s audit along with another Republican, Representative Jim Jordan of Ohio. As an audit, it will not find blame or refer anyone for criminal prosecution.

This all goes back to the Citizens United decision by the Supreme Count and the flood of organization, most it seems on the right to register as 501(c)4 social welfare groups.  This leaves me puzzled.  How can a group which supports political lobbying be tax exempt?  I give money to Planned Parenthood to support clinics.  I also give money for the political operations.  The first is tax exempt, the second is not.  So maybe the problem is, once again, with the tax code.  Ezra Klein explains.

Let’s try to keep two things in mind simultaneously: The IRS does need some kind of test that helps them weed out political organizations attempting to register as tax-exempt 501(c)4 social welfare groups. But that test has to be studiously, unquestionably neutral.

The story thus far seems both chilling and cheering. Employees at the agency’s Cincinnati branch did employ a test that, in effect, targeted tea party groups. Whether they meant it to be discriminatory or they simply created one that was discriminatory is in contention, but ultimately immaterial. The IRS, more so than almost any other agency, must act in ways above  reproach.

But when the Cincinnati group explained their test to IRS exempt organizations division chief Lois G. Lerner, she objected to it and it was changed. A few months later, the IRS would release new guidance that suggested scrutinizing “political action type organizations involved in limiting/expanding Government, educating on the Constitution and Bill of Rights, social economic reform movement,” and after that, “organizations with indicators of significant amounts of political  campaign intervention (raising questions as to exempt purpose and/or excess private benefit.)”

The context for all this is that after Citizens United and some related decisions, the number of groups registering as 501(c)4s doubled. Because the timing of that doubling coincided with a rise in political activism on the right rather than the left, a lot of the politicized groups attempting to register as 501(c)4s were describing their purpose in tea party terms. A popular conceit, for  instance, was that they existed to educate on the Constitution — even if the particular pedagogical method meant participating in Republican Party primaries and pressuring incumbent politicians.

In looking for that kind of language in 2010, the Cincinnati employees were attempting to create a usable shortcut. Like Willie Sutton robbing banks, they were going where the action was. But they needed a clearer test that also identified the language of the left, even if left-leaning  groups weren’t exhibiting the same surge in activism. And, frankly, it shouldn’t have been left to career employees in Cincinnati. The IRS needed clearer rules coming from the top. But the top didn’t know what to do with these 501(c)4s, in part because it feared a situation precisely like this one.

It is worth remembering an important fact here: The IRS is supposed to reject groups that are primarily political from registering as 501(c)4s. If they’re going to do  that, then they need some kind of test that helps them flag problematic applicants. And that test will have to be a bit impressionistic. It will mean taking the political rhetoric of the moment and watching for it in applications. It will require digging into the finances and activities of groups on the left and the right that seem to be political even as they’re promising their activities are primarily non-political.

If we’re not comfortable with that, then we need to either  loosen the definition of 501(c)4s or create a new designation that gives explicitly political groups the benefits of the 501(c)4s (namely, they don’t have to pay taxes and they can keep their donors anonymous). But either way, as I wrote on Friday, the only way to make sure this doesn’t keep happening is for the IRS — or the Congress and White House that control it — to make some tough decisions about 501(c)4s.

To make things look even more suspicious, Ms. Lerner appears to have been confused about the order in which events unfolded.  But, is there a scandal here?   It does not appear that any group, on the right or left has been denied 501(c)4 status.  I believe that to get 501(c)3 status which most community development groups and organizations like the Girl Scouts and the Boys and Girls clubs have one must provide a lot of information including board membership and by-laws.  The problem here is that many these new groups appear to be political organizations regardless of whether or not they claim to be educational.  I question whether any of these groups, right or left, should be tax exempt.

“Tax-exempt social-welfare groups organized under section 501(c)(4) of the Internal Revenue Code are allowed to engage in some political activity, but the primary focus of their efforts must remain promoting social welfare. That social-welfare activity can include lobbying and advocating for issues and legislation, but not outright political-campaign activity. But some of the rules leave room for IRS officials to make judgment calls and probe individual groups for further information. Organizing as such a group is desirable, not just because such entities typically don’t have to pay taxes, but also because they generally don’t have to identify their donors.” John D. McKinnon and Siobhan Hughes in The Wall Street Journal.

The odds are against Mr. Gomez being elected to the Senate and they are likely to be against the Republicans making a credible argument about the IRS, but taxes and tax exemptions are clearly land mines for anyone in politics today.  But if the Republicans are right, that is a place where the Obama Administration and I will part company.  As my Congressman Mike Capuano said today, “There’s no way in the world, I’m going to defend that. [if the accounts are true] Hell, I spent my youth vilifying the Nixon administration for doing the same thing.”

Photograph:  Reuters

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Let’s Define Hypocrisy

Best summary of what is up with the Republicans and Benghazi, including a reminder from Steve Lynch of MA that the Republicans all voted to cut the embassy security budger.

Desert Dogmeh

Republicans remind us not to politicize something that they have been, and are currently, hell-bent on politicizing.

Seems fair.

Republicans lead a witch hunt on Benghazi

By Eugene Robinson,

May 09, 2013 11:31 PM EDT

The Washington Post

Those who are trying to make the Benghazi tragedy into a scandal for the Obama administration really ought to decide what story line they want to sell.

Actually, by “those” I mean Republicans, and by “the Obama administration” I mean Hillary Clinton. The only coherent purpose I can discern in all of this is to sully Clinton’s record as secretary of state in case she runs for president in 2016.

Did Clinton’s State Department fail to provide adequate security for the U.S. Consulate in Benghazi? In retrospect, obviously so. But the three diplomats who testified at the hearing gave no evidence that this failure sprang from anything other than the need to…

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