Roberts Does Sandy Day

It's difficult to imagine a sillier Supreme Court decision than John Roberts' opinion that the individual mandate is not a tax, so that the anti-injunction act is not invoked, but fits nicely into Article I Section 8 as part of the Congress's power to tax.

The power to tax what?  A decision NOT to buy something?  After all, that's clearly a penalty, and the Court's entire history on the subject of penalties denies that.

There are only two opinions in US history that rival this decision for lack of judgement, and the first is actually two decisions: Sandy Day's two announced on the same day on affirmative action in the Michigan Law School and Michigan undergraduate admissions programs.  One, she said -- swinging her blonde head to her right shoulder -- was UNconstitutional, and the other -- bouncing her golden locks off her left shoulder -- was NOT.

The only other decision that rivals John Roberts' Folly was Roger Tanney's decision known as Dred Scott. 

You probably remember the difficulties that caused.

What Wave?

I watch the Albuquerque Isotopes play minor league baseball through the summer months.  I must say, I really hate The Wave, that self-absorbed non-baseball fan activity where people stand and wave in synchrony with the others in their section, one section after another, simulating an ocean wave.  "It's baseball," I yell, "Watch it!"  I keep trying to get those in my section to do The Breakwater by rising early to face the wave with their hands on their hips, reflecting it back into the section from which it came.

Charlie Cook analyzes the possibility of a wave election this fall here.  It's thick with psephologist jargon -- parliamentary voting, nationalized election, etc. -- but it's well worth your study.  He has two main points.  Here is his first:

Using The Cook Political Report's Partisan Voter Index as a measuring stick, our preliminary analysis indicates that the number of strongly Democratic districts­those with a score of D+5 or greater at the presidential level­decreased from 144 before redistricting to 136 afterward. The number of strongly Republican districts­those with a score of R+5 or greater­ increased from 175 to 183. When one party starts out with 47 more very strong districts than the other, the numbers suggest that the fix is in for any election featuring a fairly neutral environment. Republicans would need to mess up pretty badly to lose their House majority in the near future.

In other words, the Dems won't get the House back in 2013.  Not even close.  He goes on to his second point:

If the 24 toss-up races split evenly between the parties, Democrats would score a net gain of just a single seat.

So Cook, one of the most respected seat-by-seat Congressional prognosticators says, "No Dem Wave."

And, as Ron Popeil used to say, "But wait.  There's more!"  Cook's second point indirectly addresses Obama's chances.  That's the meaning of "parliamentary voting," of course.  And "nationalized" elections.  And "Tip O'Neill's 'all politics is local' adage [has] left the building."

Cook says

Minimal partisan change doesn't preclude significant change in the House's makeup, however. In 2008, 85 members won "crossover" districts that voted for one party for the House and the other way at the presidential level. Unsurprisingly, these members show the greatest proclivity to think independently and have the most incentive to compromise. But in 2010, this number was cut in half to 40. In 2012, it could be cut in half yet again to fewer than 20.

That's parliamentary voting, where districts vote for congressional representatives in parallel with their presidential vote.  But wait.  Let's do the arithmetic.  The Republicans now hold 242 seats.  Dems pick up a single seat.  And the President wins 20 or fewer of those....  Hmmm.  So he wins 221 districts.  Max.  That's winning more than half the vote in 3 or 4 more than half the congressional districts in the nation.  And after redistricting, all of those congressional districts are almost exactly the same size, so we're talking about no better than a narrow victory in the popular vote here.

So, if Obama is to win, he can't pile up district victories in just a few blue states, which he almost certainly will do.  Recall that though Al Gore won the popular vote in the 2000 election, he won only 21 states in the narrowest electoral college loss in recent history.  His problem was that most of the states he won had large population.

Cook closes with this on the House:

If you're waiting for a retreat of tea party politics in the House Republican Conference and a resurgence of Blue Dog Democrats in the next Congress, you are likely going to be disappointed.

Who's thinking like that, other than Nancy Pelosi?

The Lessons of Walker's Victory in Wisconsin

As you could not fail to know by now, last night the votes were counted in Wisconsin, and Scott Walker became the first Governor to stave off defeat in a recall election.  At present, it appears that one of the four Republican Senators was recalled and replaced, so that the recall efforts were successful only in that Republicans marginally lost control of the Senate.

There are three lessons in this victory.

1.  Today, the power of public sector employee unions is overrated (see the LLNYP's liberal mouthpiece Russ Douthat here and the Jay Cost article he cites here), depending as it does on voter sympathy that is greatly reduced in times of no growth, especially if the unions are part of the cause of slow growth, as in California, New York, and the other blue disasters of the upper Midwest.  In such a case, the vaunted union ground game is overmatched against that of the fiscally motivated tea party and its allies, e.g., FreedomWorks and superPACs of the moment.

2.  Conservatives must not fear to act against public sector unions.  They will survive if they cast their legislative actions as fair to the taxpayer and the unions' opposition as greedy.  Remember: in the public sector case this battle is always the unions against the taxpayers. 

3.  It is essential that fiscally conservative actions be taken with even the slimmest of majorities, even if the legislative majority may be lost.  Even the slightest accommodation with the left in order to stay in power neuters the power.  Power must be exercised when won or it's not power.  Action will hearten the ground troops and the Reagan Democrat/Independents, some of whom are forced union members -- removing the automatic deduction of union dues reduced union membership by 60% in Wisconsin reducing the union's access to funds to spend on elections.  It will also dishearten union partisans.

Finally, it must be noted that the RealClearPolitics.com metapoll -- an assembly of all horse-race polls on the recall into a single poll -- was remarkably accurate.  Below are the final RCP averages and those averages adjusted by either of two standard assumptions regarding the undecided -- that they either won't vote or that those who do will split exactly like the decided -- compared to the final tally.

                        RCPAvg         UndiesOut      Final
Walker                 51.5                 53.48        53.2
Barrett                 44.8                 46.52        46.3
Undies                   3.7
Margin                                           6.96          6.9

The final results were within 0.3%, and Walker's margin of victory was predicted within less than 0.1%.  This was true even though the polls it averaged were far lass accurate individually, and included many autodialer robopolls.  Big samples may matter more than the margin of error would lead you to believe.

From Bad to Worse for Obama

Independents have been trending away from Obama for quite a while.  Even the Reagan Democrats -- blue-collar whites -- jumped ship in 2010.  I have seen a number of pieces arguing that Obama's campaign has written them off completely.

Here is a piece I missed when it first came out in early April detailing a survey of swing state independent voters by the organization known as Third Way, a coalition of New Democrats.  Who knew that independents far prefer prosperity to equality of result?  Who'd a thunk it?