Defending the defensible: Citizens United - two years and one election later.

Over two years have passed since the Supreme Court cleared away any barriers to corporate participation in our electoral process. This decision was widely panned across the political spectrum and may have damaged the Courts reputation. Many on the right, left, and center feared the consequences of even more big money unleashed in the political process, but the most hysterical and apocalyptic criticism came from the left. Words like disaster, catastrophe, subversive, destructive, and indefensible were and are routinely used by the left to describe the Court's decision.

Enough time has passed that we can now begin to assess the actual effects of the decision as opposed to speculating about future damage and giving voice to our fear and loathing of hypothetical scenarios. Tim Cavanaugh of Reason Magazine takes a look at the subsequent impact of the Citizens United Supreme Court decision and finds"Five Ways Citizens United Is Making Politics Better":

Ranked-choice Voting: Epic Fail in Oakland.

Mayor Quan releases dove at religious conference.
The dove was reportedly killed shortly thereafter, struck by a wayward bullet
while flying over the Occupy Oakland encampment.

One year ago, Jean Quan was elected mayor of Oakland. She never led in any poll at any time during the campaign. She always trailed front-runner Don Perata in every minute of the campaign from beginning to end.

On election day, 36% percent of Oakland voters said they wanted Don Perata as their mayor. Only 24% of Oakland voters said Jean Quan was their first choice to be mayor. In prior years, a runoff election would have followed and voters would have chosen between Perata and Quan in a head to head runoff election. Not this year. This was Oakland's first Ranked-choice Voting election for Mayor. The other candidates on the ballot were eliminated and the second and third choice votes on their ballots were added to Quan and Perata's totals. Jean Quan became mayor. Oakland saved the cost of conducting a runoff election.

Taiwan explains Wisconsin

Cheeseheads cheering Governor Scott Walker

As previously noted, Taiwanese animations are the future of all mainstream news and consequently a regular feature of this blog. As usual, the folks at NextMedia have distilled US TV news, newspaper commentary, blogs, and twitter feeds on the Wisconsin standoff into an easily digestible two minute animation. After three posts on the subject we'll give NMA the last word. It appears this story is winding down anyway, and the Dividist is getting bored with it.

This is what a cheesehead protest looks like in Taiwan:

"Republican Scott Walker was elected governor of Wisconsin in the US mid-term elections last year. He ran on a conservative platform emphasizing fiscal responsibility.Once in office, Walker set about dealing with Wisconsin’s debt problem. He targeted the benefits of Wisconsin’s public sector unions.Knowing that they would lose if the matter came to a vote, Wisconsin’s Democratic senators fled to deny Republican lawmakers from bringing the matter to the floor. When Walker started threatening to cut benefits, public sector workers like teacher, firemen and nurses were enraged. Despite threats from Walker that he might mobilize the national guard against the unions, 25,000 strikers converged on Wisconsin’s state capitol to protest the proposed cuts. The protest struck a chord all over the world. A local pizzeria got orders from as far abroad as Egypt to help feed the strikers. But what will happen to Wisconsin’s fiscal condition if they get what they want?"

The Dividist wonders why we bother watching the news. We should just wait for NMA to distill every story down to its essence.

Despite all the giddy excitement on the left about the embarrassing prank call to Governor Walker from a fake David Koch, he did not say anything that is going to change the dynamic in Wisconsin. The problem is not anything he said in the call. The problem is that he took the call.

Taking that call reinforced left wing paranoia about David Koch which is beginning to take on the epic proportions of right wing paranoia about George Soros. The only likely long term effect will be to Walker’s presidential ambitions and potential re-election. He'll be running against that audio recording for the rest of his political life. So it goes. He took the call, now he'll live with it. The Dividist is good with that. But as far as the legislative standoff is concerned, this is a foregone conclusion. Walker will win.

Wisconsin Democrats run for the exits.

Polls do not support the AWOL Wisconsin Senators. The state Assembly is on the verge of passing the Walker Budget Repair Bill and the Senators will have to return sometime or be recalled. The protesters in Madison will have to go back to work or be fired. The Republicans have the votes and Walker has the will. Done deal. We'll update here with any breaking news, but the Dividist thinks it is Kabuki Theater from this point. Moving on.

Divided and Balanced.™
Now that is fair.

The Carnival of Divided Government Sêdecim et Quadrâgintâ (XLVI)National Dividism Month Edition

Welcome to the 46th edition of the Carnival of Divided Government - The Special "National Dividist^® Day of Celebration" Edition. OK - So we missed posting this on the actual National Dividist Day of Celebration which occurred on January 5th - the first day of our recently divided brand spanking new 112th Congress and government. Your loyal blogger was distracted by other pressing issues, so this carnival was delayed and subsequently renamed to the "Special National Dividist^® Month of Celebration - A Nostalgic Look Back" Edition.

Carnival of Divided Government

As explained in earlier editions, we have adopted Latin ordinal numeration to impart a patina of gravitas reflecting the historical importance of the series. In this the Carnival of Divided Government Sêdecim et Quadrâgintâ (XLVI), as in all of the CODGOV editions, we select volunteers and draftees from the blogosphere and main stream media writing on the single topic of government divided between the major parties (leaving it to the reader to sort out volunteers from draftees). Consistent with this topic, the primary criteria for acceptance in the carnival is to explicitly use the words and/or concept of "divided government" in submitted posts. A criteria that, to our endless befuddlement, is ignored by many of the bloggers submitting posts, which sadly results in The Dividist reluctantly ignoring their fine submissions. Among the on-topic posts, essays and articles we choose our top ten favorites for commentary and consideration. We hope you enjoy these selections, particularly in this, the first edition of the Carnival to be posted under a Divided Government since the 28th edition was posted on October 31, 2008 . We look forward to enjoying at least two years of a noisy, fractious, bickering and bitterly divided federal government, just the way the founders intended.

First up - Mike Dorning reviewed President Obama's State of the Union address for Bloomberg, who chose to feature our happy new governmental state in their headline - "Obama Ushers In Era of Divided Government With Appeal for Unity, Progress":

"In a State of the Union address marked by the symbolic comity of Democrats and Republicans sitting next to each other instead of across the aisle of the U.S. Capitol, Obama asked for bipartisan cooperation with the opposition party now in control of the House. Two years into his presidency, his appeal signaled an effort to reclaim the promise of his historic campaign in 2008, in which he asked Americans to embrace a less-partisan approach to governing that set aside old arguments... After two years of battles over his health-care overhaul and other major initiatives, and the rise of the opposition Tea Party movement, Obama again offered the possibility of greater cooperation."

The Dividist is reminded that the SOTU is mosly theater, and also just noticed that he neglected to post his traditional SOTU show tune linkfest this year. As pleasurable as the lyrics may sound in the speech, the real governing tune is yet to be heard and only to be revealed in the actions of the administration leading the 112th Congress band in the upcoming legislative parade. Perhaps it is not too late to continue the series... perhaps with something from The Music Man. Stay tuned.

A recent edition of The Economist also reflected on the SOTU speech and the challenges President Obama faces during "Crunch time - America’s president faces a divided government and a mountain of debt:"

"Welcome to the masochistic pleasures of divided government in America. For two years the Democrats controlled both ends of Pennsylvania Avenue. That did not give Mr Obama the power to enact every measure he wanted (an energy bill and immigration reform were two that fell by the wayside), but the 111th Congress was indeed extremely busy. The Democrats poured hundreds of billions of borrowed dollars into efforts to stimulate a sagging economy, bailed out Detroit’s failing carmakers and passed scores of laws, including one to reregulate the financial sector... Polls show that Americans like divided government. Its fans say that it forces politicians from opposite ends of the spectrum to seek common cause in the centre. “We will move forward together, or not at all, for the challenges we face are bigger than party, and bigger than politics,” said Mr Obama in his speech. For the time being, however, the parties are preparing for battle, not discussing peace terms."

As it should be. With both parties firmly holding a grip on real power, we will enjoy better, more fiscally responsible governance as a consequence. As well as a lower probability of purely partisan legislative abominations like the Porkulus and Obamacare legislation.

Speaking of con-games and Obama's Healthcare Reform, Michael Tomasky of the Guardian offers some insightful observations and a dubious premise while looking at the shifting attitudes among the populace since divided government was restored in - "Healthcare and divided government":

"Passions have subsided, I suspect, because conservatives are less enraged now that they feel they have a voice in the government. Independents repeatedly say in polls that they are fine with divided government. So that leaves only liberals who are really unhappy, witness the 43% who want more changes.

I wasn't happy on election night, Lord knows, but I guess in many ways Obama is better off with a divided government. If the Democrats ran everything, the Republicans, so expert at whining in opposition and ginning up phony accusations, could continue blaming every single bad thing that ever happened on the Democrats. And now, in independent voters' minds, the suspicion that Democrats are going to try to jerk the country to the left are null and void. They know it can't happen. The president and the GOP House have to fight over the middle, which is how the middle likes it, and which is probably on balance good for the country.

The problem is that the middle is way to the right of where it once was, even 15 years ago. Remember, just 15 plus three years ago, Republicans were solidly behind a healthcare plan pretty much just like the one they're going to vote to repeal tomorrow. Divided government has its upsides, and seeing Obama fighting harder for the middle, as we'll see this year and next, will be good. But at some point, the Democrats have to think of something to do about the fact that the middle keeps moving right."

The Dividist is not sure Mr. Tomasky could get any more convoluted here. He acknowledges that divided government is good for the country but complains that it prevents passing legislation like Obamacare, which is wildly expensive, incomprehensibly complex, does not do what it's proponents set out to accomplish, increases the burden on employers, increases the cost for individual policies, shifts an enormous financial burden to cash-strapped states, and is an all-around terrible piece of legislation. Not to mention - unconstitutional.

The Dividist is also not sure what 1993 Republican supported legislation Tomasky is referencing. Whatever it was, neither that legislation nor Hillarycare passed in either the united 1992-3 nor the divided 1994-2000 government. It took an overwhelmingly unified Democrat government and a purely partisan vote to cough up the Obamacare hairball. 'Nuff said.

Sean Patrick Hazlett blogging at Reflections of a Rational Republican, digs into a favorite Dividist topic - the frequently cited meme that Investors Love Divided Government. His analysis contradicts some conventional wisdom in "Think You Can Make Money Investing When Your Party is in Power? Guess Again":

"I have always held the notion that a divided government, in which the President’s opposing party controls at least one house of Congress, is better for economic performance than the alternative. I held this view because in a divided government, nothing gets done... However, it turns out that my intuition proved to be wrong, at least over the time periods I observed. The 10-, 20-, 40-, and 60-year average returns all show that the market outperforms during a period in which one party controls both the White House and Congress and underperforms during a period of division. I do not understand why this is the case. I can only speculate. Perhaps one-party control provides investors with more certainty over future fiscal and economic policies, whereas a divided government generates more uncertainty. One way to test this hypothesis would be to measure the S&P 500’s average volatility each year. If volatility were higher during periods of divided government, this observation might support this hypothesis."

The Dividist is impressed with the analysis, but Sean gets a few things wrong. As he is not very specific about his methodology, the Dividist is not sure how he is coming up with comparable 10, 20, 40, and 60 year averages for divided vs. united government over presumably the same time periods, nor does he identify the dates he is using for periods of divided and united government.

More significantly, by utilizing only these undefined long term averages as the basis for his comparison, he is missing the most important and possibly only market effect one should expect in divided vs. united government stock market analysis - to whit: short term swings based on investor sentiment. The stock market is a discounting mechanism - which is another way of saying that the market is a reflection of what investors believe today about what will happen tomorrow - maybe 3, maybe 6, maybe 12 months down the line.

To the extent that a change from a united to divided government - or a Republican to Democrat switch in power - 0r a Democrat to Republican switch in power - or any such partisan variation is at all useful to an investment thesis, the most opportune time to take advantage of it is probably months before the change actually occurs in an election. Any such change is likely to be a short term rather than long term effect (measured in months not years and certainly not in decades) and based on sentiment - not logic. The important point is that the effect will be seen in the stock market long before the change actually takes place.

That said - the Dividist absolutely agrees with Sean's conclusion that "Investors are better off following key economic indicators that have more impact on stock fundamentals rather than chasing gusts of whatever foul stench the political winds blow their way." Our view was best summarized in The Dividist's July post - where a potential pre-election future divided government bet was noted during a period of united government and a full six months prior to the eventual divided government being sworn in. That bet paid significant profits:

"I am reluctant to link longer term market behavior to any policy or partisan mix in Washington. I've not seen any studies that show a believable, statistically significant correlation between long term market direction and Republican, Democratic, or divided governments. That said - in the short term it is less important whether there really is a correlation so much as whether investors believe there is a correlation. My sense is that most investors believe the stock market will benefit from Republicans taking control of either the House or Senate in the fall. With that expectation, a rising market could very well be a self-fulfilling prophecy."

And yes... The Dividist made that bet last July. Thank you very much.

Jonathan Strong at The Daily Caller reviews a recent Cato Institute study authored by Marcus Ethridge on the beneficial effects of gridlock in "Cato study bucks conventional wisdom, and instead touts cantankerous divided government:"

"Despite the many calls for civility, bipartisanship and a go-along-to-get-along spirit, is a cantankerous, divided, partisan Congress the cure for what ails us? Channeling both James Madison and public choice theory, the Cato Institute’s Marcus Ethridge says yes. “A large and growing body of evidence makes it clear that the public interest is most secure when governmental institutions are inefficient decisionmakers,” Ethridge says in a new paper. In other words, the political process works best when it’s slow and difficult to pass new laws...

The messy lawmaking process envisioned by the Founding Fathers, and championed in the Federalist Papers for the difficulty it created in adding new laws, makes it more difficult – and expensive – for special interests to have their say, argues Ethridge. “The Constitution’s most important innovation — the separation of legislative and executive powers — was based on the framers’ understanding of how political interests behave,” Ethridge says, “The gridlock that progressives abhor neutralizes some of the political benefits that producer groups and other well-heeled interests inherently enjoy.”

The Cato study is a well written, interesting and important analysis that I'll be posting about separately and adding to the scholarship links in the sidebar. In the meantime, for a similar and somewhat more succinct analysis...

Justin Harter of America is tweeting his affection for gridlock and divided government:

"I'm a big fan of divided government. R's and D's can crow all they want and it doesn't matter because we have sweet, sweet gridlock."

Well said Justin. Hmmm... Perhaps there is something to this 140 character business after all. The Dividist notes that he now has 13 followers on Twitter and still has yet to send a single tweet. Perhaps the time has arrived. Perhaps he should retweet Justin's pithy and profound sentiment. Perhaps... not.

Rick Sincere blogging at Rick Sincere News and Thoughts is thinking about the ramifications of a divided Virginia legislature as well as a divided federal government after the 2010 census "Legislative Redistricting Under Conditions of Divided Government":

"For the first time in Virginia history, legislative redistricting will take place in 2011 under conditions of divided government: the state Senate is controlled by Democrats, while the House of Delegates and governorship are under Republican control. In an interview, political scientist Michael McDonald discusses the implications of those circumstances... Whether the redistricting process will fall victim to partisan bickering, or whether conditions of divided government actually make the process fairer and more transparent, both remain to be seen."

The Dividist tends to focus primarily on the Feds but, as Rick points out, there are some really interesting ramifications to watch at the intersection of the census, redistricting, and 2010 election results. Although we now have One Party Democratic Rule in California, the redistricting process was stripped from the legislature by voter proposition. The Dividist can't wait to see how that turns out. Get the popcorn ready.

The Big Tent Democrat blogging at TalkLeft (among others) quotes Ross Douthat's NYT Opinion piece to advance a pessimistic outlook on entitlement reform in "No Touching The Third Rail":

"None of this was particularly surprising. It’s clear that both parties have decided that a period of divided government twelve months before a presidential election is the wrong time to make big moves on entitlements and the deficit. Better to wait, jockey for position, and hope that the correlation of forces after 2012 will be more favorable to their preferred solutions. And it’s clear, too, that they’ve decided (with honorable exceptions) that it’s too risky to even begin building support for the unpopular cuts or tax increases ahead. The bet, on both sides, is that there’s still time to work with, and that the other party will blink, or at least give ground, before the real crunch arrives. Let’s hope they’re right."

I can't help but think that Big Tent and Matt Yglesias are hoping against hope that Ross Douthat is right. The Dividist thinks they are all wrong. There are enough newly elected Republicans who (like President Obama) recognize that their reelection prospects are significantly enhanced by getting on the right side of history with some tough decisions on spending and entitlements. The Dividist optimistically believes we are going to see meaningful change in the next two years. To paraphrase the political sage Mick Jagger, it won't be what we want, but it'll be what we need.

J.T. Young, opining in the Washington Times, gets it absolutely right in "Gridlock: Better for Budgets":

"Gridlock is better; at least that’s what history shows for the budget. In contrast to all the handwringing that a divided government is bad for getting things done, it has a far better record for balancing the federal budget than does one-party control in Washington. This, in turn, points to an inescapable fact: Washington’s budget problem is spending, and spending does not happen on its own...

Our deficit and debt problems are the result of conscious and continuous actions - and yes, consensus ones. The media currently bemoaning gridlock as an obstacle to solving our current deficit predicament at the same time refuse to acknowledge what got us here in the first place. Spending is the cause of the budget problem, and it was consensus that was the cause of the spending. America’s political history is of a government operating under checks and balances. Regretfully, its budget history is one of operating out of balance, owing to the writing of checks. Balance in the government is the better alternative to achieving balance in our budget. And it is because that it is the better check on writing checks."

So true. The Dividist wonders if this former GWB administration Treasury official will still feel this way when he realizes that the only way to maintain a politically balanced and divided federal government in 2013 will be by reelecting Barack Obama in 2012.

Since the restoration of divided government last November, President Obama has not suffered for lack of advice on how his administration should deal with the divided 112th Congress. Prior Presidents are often invoked as models for Obama to emulate., presidents Clinton and Eisenhower being notable examples. Writing in the Washington Post, Dan Balz finds another former president from which President Obama might extract a teachable moment in "Lessons for Obama in Truman's divided government":

"If President Obama and new White House Chief of Staff William Daley are looking for advice on how to think about dealing with the Republicans in Congress, they might consider a virtual visit to the Harry S. Truman Library and Museum. There, in the archives, is a nearly 10,000-word memo, dated December 1946, written by presidential adviser James H. Rowe Jr. Truman reportedly kept a copy of the memo in his desk for reference as he battled the 80th Congress, where as a result of the 1946 midterm elections both houses were newly in the hands of the Republicans. "Presidential leadership, if it means anything, means no more than how to lead the people only as fast as they will follow," Rowe wrote. "The history of every administration shows that in the final analysis, a president has but one weapon - public opinion."...

Those insights could be particularly useful to Obama over the next two years. If there was one overarching miscalculation during the president's first two years in office, it was the assumption that he could lead the public faster than the public was willing to be led. Whether on health care or the economy, Obama acted boldly - and in his view out of necessity - but failed to persuade the public of the rightness of his actions.

Daley warned of this danger more than a year ago, anticipating the losses the Democrats suffered in November. Rowe's memo is a powerful reminder of what Obama should expect from the new Congress, why confrontation is to be expected and why winning the battle for public opinion should always be in the forefront of his mind. After all, the 1948 elections turned out well for Truman."

The bucks stops here... or over there... or somewhere. Good Luck Mr. President.

Miscellany

Traditionally, we conclude this Carnival by including one "off-topic" submission, as a grudging acknowledgment and proxy for the many off-topic submissions received. Off-topic in this context means - no mentions of "divided government" or gridlock.

For this edition, we offer Dr. Robert Muller presenting The Right/Left Hoax posted at Global Freedom Strategies wherein we find some useful links to on-line political tests and a curious mix of insight, naivete, dusted with a light touch of paranoia.

With that, we'll conclude this edition.

Look for the next edition of The Carnival of Divided Government Septem et Quadrâgintâ (XLVII) - Special Dividist^® Ides of March Edition - on or about March 15th, unless we decide to move it up to the Special Presidents Day Edition, or delay it until the Special April Fools Day Edition, or All of The Above. Submit your blog article at carnival of divided government using our carnival submission form.

Divided and Balanced.™
Now that is fair.

1-1-11 - It's all aces this year and other reasons for optimism.

I had this weird feeling all New Year's Day that I just couldn't shake. It was kind of deja-vu-ish, in the sense that - I was sure I felt this way before - but I just couldn't quite remember why or when. Then it finally hit me - I was experiencing "optimism." I was actually feeling good about our future prospects and looking forward to the new year. This was a sensation I'd almost forgotten, as I've not felt this way on a New Year's Day in at least a decade. I was much more accustomed to the overwhelming sense of relief at leaving the prior year behind, while looking forward with a nameless dread at the year to come. Well - this was such a unique sensation, that I thought it worthwhile to try and put my finger on the source of this irrational exuberance cautious optimism.

Lets start with the easy ones - the date itself. Just look at it: "1-1-11". Now that is a date to start a year with - Four Aces. It just doesn't matter how the deck was cut, or how much bad luck you've been dealt up to now. When you flip those cards and see four aces staring back, you are feeling good about life. I felt so good about it that I am going to deal myself four more aces by posting this at exactly 11:11 PM.

In a few weeks the Chinese New Year kicks off and in the Chinese zodiac, this is the Year of the Bunny ( 兔 ). Need I say more? What's not to like about the Year of the Bunny? This year, the Year of the Bunny is also the 3rd year of a presidential term and if you believe in bunnies or investing based on presidential cycles, then this should be a good year for the stock market.

At almost every level - nationally, locally, in sports, politics, even looking globally - there was good news to be found and something to look forward too. Let's tick them off..

Reason for National Politics Optimism
On Wednesday the new Republican majority in the House of Representatives will gavel in a restoration of divided government after a disastrous two years under One Party Democratic rule. The 111th Congress, including the lame duck session just completed was a perfect example of the kind of fiscal irresponsibility and insane spending that seems to accompany One Party Rule by either party. Wednesday, January 5th has been declared an official National Dividist^® Day of Celebration by... um... The Dividist. Everyone should take the day off and spend the day watching c-span with a fifth of Kentucky bourbon.

In general, our expectations and hopes for divided government can be found on the post linked here. Historical evidence shows that divided government restrains the growth of spending and is more fiscally responsible than one party rule. Our specific expectation for the new Congress is that this historical precedent will hold when comparing the divided 112th to the united 111th. How could it not?

The 111th has made this comparison easy and inevitable. The 111th Congress and Democratic One Party Rule will go down in history as the single most fiscally irresponsible episode in our nations history, funding a trillion+ of new spending in bailouts and Stimulus I without being paid for, another trillion+ in new spending with Obamacare – passed on the pretense of being paid for by shifting costs to the bankrupt states and by pretending the “Doc Fix” does not exist and capped off with yet another trillion+ dollar hole in the deficit from the stimulus II/tax bill just passed in the lame duck session over the objections of the still ineffectual fiscal hawks.

The divided 112th Congress will undoubtedly improve on that record. It just can’t get any worse. Of course, I used to say that about One Party Republican rule. We'll see.

Reason for Sports Optimism
My Chicago Bears have locked down the number 2 seed in the NFC playoffs. It does not even matter (to the Bears) what happens in Sunday's game against the Green Bay Packers. I actually hope the Bears rest their starters. If Green Bay moves on as a wild card, they may meet again in Chicago for the NFC Championship a few weeks hence. I may have to go to that game, and I may have to rewrite and update the "Bears Song in Prose." Hopefully with a better ending this time.

Reason for San Francisco Values Optimism
My New Year's Day hangover was not as bad as I deserved, and I was greeted the first day of the new year by a great headline in the Chron to enjoy with my ibuprofin and coffee:

San Francisco chosen to host America's Cup
"It's a new year and a new dawn for the sport of sailing in San Francisco. The city was chosen Friday to host the next America's Cup in 2013, heralding a potential renaissance in competitive sailing and a boon of more than $1 billion to the local economy. This "marks the beginning of an extraordinary new chapter for our city and for the sport of sailing," said Lt. Gov.-elect Gavin Newsom, who sought to secure the Cup as a capstone to his seven years as mayor. "We don't think there is any better showcase in the world for sailing than San Francisco Bay." [...]"

This is going to be great. It'll be one heck of an economic boon to The City and enable us to upgrade rotting piers and waterfront infrastructure that we otherwise could never afford to fix. This was such an obvious good thing that even our dysfunctional Board of Supervisors had to get behind it, despite the usual carping from the batshit left in the City who can't stand the idea that Larry Ellison might make some money on the deal.

Reason for International Optimism

Eugene Volokh of the Volokh Conspiracy has been all over a troubling European legal investigation that makes the Wikileaks legal travails pale into insignificance. Last August, he linked to a breaking story on Italian police opening an investigation into a topless sunbather for inappropriate application of sun screen:

"A TOPLESS sunbather is being investigated by police after being accused of sensuously rubbing sun cream on herself on a public beach. Police were called to a beach at Anzio south of Rome by a furious mother who said the way the “attractive” sunbather was rubbing lotion on her body had “troubled her sons aged 14 and 12.” “She is amazed that she is being condemned for simply sunbathing topless,” [the woman’s] lawyer Gianluca Arrighi said.“Let’s be clear my client is tall, brunette and has an ample breast and is therefore going to naturally be sensuous when she applies cream to her chest....”

Well I hope I don't have to paint a picture here to show what a troubling precedent this investigation represents. This is about...um... Freedom. But - good news! In a New Year post, Volokh follows up on the story:

“the claimant mother has been condemned for ‘calumnie’ ... (a false accusation leading to the beginning of a criminal trial) and ordered to pay 25k to the young woman.” He points to an Italian video on the story, but since I can’t speak Italian I can’t understand it, except to note that the word for “topless” in Italian is apparently “topless.”

The most revealing in-depth analysis is to found in the linked Italian channel TG5 video news report. These screen shots are from that video. And yes, Italian TV News is much better than US TV News.

UPDATE:
The Italian story has "legs" and noted by the likes of McCain and Instapundit.

Divided and Balanced.™
Now that is fair.

The President is schooled.

Frequently heard conventional wisdom on the left attributes the poor Democratic election performance to a bad economy and disenchanted liberal voters staying home. The logical inference of that wisdom is that an improving economy and a "stay the course" liberal agenda for this administration is all that is needed to restore the Obama coalition to its 2008 glory. Last week, Anne Kim and Stefan Hawkin of Third Way and Lincoln Park Strategies released a post-election survey that tested the conventional wisdom and found it wanting (H/T Tully):

Politico - Who really abandoned Dems?

The Obama voters who stayed home this year (the “droppers”) or who switched their vote to Republican (the “switchers”) are neither disgruntled and de-motivated liberals. Nor are they raging tea partiers. Rather, they are overwhelmingly moderate to moderate conservative. Bipartisanship is what they demand. And the role of government, deficits and the economy are their major concerns. In a post-election survey by Third Way and Lincoln Park Strategies, we polled 500 droppers and 500 switchers. Our findings make one point clear: The path to regaining or retaining power for both parties isn’t toward the right or left. It’s from the center out...

Switchers are unhappy about deficits. The top-ranked reason cited by switchers for voting Republican was “too much government spending” (66 percent cited this). And while 64 percent of switchers say deficits are a “serious problem that are weakening the economy,” three in four don’t think Democrats are either “serious about reducing the deficit” or “responsible with taxpayer dollars.”

The survey - "Droppers” and “Switchers”: The Fraying Obama Coalition"

66% of switchers say “too much government spending” was a major reason for their decision not to vote Democratic this year. This is the number-one ranked factor switchers gave in our poll.

• 64% of switchers say deficits are a “serious problem that areweakening the economy” (versus 32% who say “deficits are a concernbut we have more pressing priorities”).
• 76% don’t think Democrats are “serious about reducing the deficit.”
• 78% don’t think Democrats are “responsible with taxpayer dollars.”

In fact, 68% of switchers say they would be more likely to support President Obama in 2012 if he offered a serious proposal to reduce the deficit.

Apparently President Obama and his political brain trust were indeed diligently taking notes while getting seriously schooled in the midterms. Good. On Monday President Obama announced a Federal employee pay freeze for non-military employees. On Tuesday he met with congressional leadership and assured the American people that he heard the voice of the voters:

"The American people did not vote for gridlock. They didn’t vote for unyielding partisanship. They’re demanding cooperation and they’re demanding progress. And they’ll hold all of us –- and I mean all of us –- accountable for it. And I was very encouraged by the fact that there was broad recognition of that fact in the room. I just want to say I thought it was a productive meeting. I thought that people came to it with a spirit of trying to work together. And I think it’s a good start as we move forward. I think everybody understands that the American people want us to focus on their jobs, not ours. They want us to come together around strategies to accelerate the recovery and get Americans back to work. They want us to confront the long-term deficits that cloud our future."

The Dividist has one quibble with the President's statement. While technically true that the American people may not have voted specifically for gridlock, and while he is also correct they would prefer bipartisan cooperation on controlling spending, they did clearly show they'll happily take gridlock over the kind of crappy and stupidly expensive steamrolled partisan legislation that passed in the last Congress. But, in the bipartisan spirit of taking a bipartisan hatchet to a slashed bipartisan budget, we'll overlook that nit.

Minutes after the President's statement, the co-chairs of his National Commission on Fiscal Responsibility and Reform had a press conference to announce that their final report on a deficit cutting plan will be delivered on Wednesday and voted on Friday. Regarding the vote, the Democratic co-chair Erskine Bowles said " ... that whatever happens, the commission will have achieved "victory" by starting a national conversation about the federal debt. 'The era of deficit denial in Washington is over,' the North Carolinian and former Clinton White House chief of staff drawled." The Dividist agrees.

In three days, the top three stories out of Washington are all about fiscal responsibility, controlling spending and deficits. President Obama and the President's commission are leading the charge. Real, meaty, substantial proposals are being put on the table. If it were not for wikileaks, this is all we would be talking about, and that is a very good thing.

The Dividist is practically giddy with excitement and in danger of losing his cynicism. He suspects we going to make real progress this time. Now, the Dividist hastens to add that he is not delusional. If done correctly, it will be contentious, noisy, the air will be filled with partisan cries, lamentations, the rending of garments and the bellowing of gored ox. Likely, the Dividist will be among those gnashing teeth, tearing hair, and complaining bitterly about whatever makes it out of the sausage grinder. But at least we appear to be starting down a path to some semblance of what passes for fiscal responsibility in Washington D.C.

There is one simple reason for optimism: The President and political advisers understand his re-election in 2012 depends on restraining spending and the deficit. Republicans in Congress understand their re-election and majorities in the House and Senate in 2012 depend on it. Even some Democrats in Congress understand their re-election in 2012 depends on it. David Axelrod thinks it important enough to ramp up the Audacity of Astroturf troops mere days after the mid-term. Hey - it worked for Obamacare.

Not all on the left agree. Some still in denial, found the President's initiative to be vexing, a capitulation, an ineffectual ploy, bad negotiations, symbolic, doublespeak, blasphemy, stupid, gutless, cretinous, anti-union, pointless, a sellout and a blunder (among other things).

OTOH, those that "get it" understand exactly how damaging this chart was to Obama and the Democratic Party in the midterms. Private sector jobs were lost by the millions, but under this administration public sector jobs (that pay better with greater security than the private sector) were protected. Given the close relationship and massive financial support the Democrats and Obama received from public sector unions like SEIU, it just did not look good. Voters were angry. With the help of letter from a reader, even Ezra Klein gets it now (almost).

Republicans will predictably say that it is weak gruel, and does not go far enough. But, it is a start. Given the depth of the hole our pols dug for us over the last ten years, a real start is exactly what we need. Thank you Mr. President. If you stay on this path, you may even get re-elected, and we can keep our happily divided government.

Divided and Balanced.™
Now that is fair.

Monday Midterm Miscellany

This was to be the Friday Flotsam feature, wherein the Dividist takes a stroll down the metaphorical beach of the DWSUWF blog and takes note of the detritus that has washed ashore and cluttered his little island of rationality in the great big blogospheric ocean. Even though it is not Friday, we'll do it anyway. The beach is a mess.

We are surrounded with the flotsam and jetsam of the midterm election cruise ship that sailed past a few weeks ago and is now little more than a dot on the horizon. Left behind - a variety of midterm topics the Dividist intended to blog about, but now serving as a distraction to the lame duck session, START treaty, foreign policy, tax cuts, the 2012 Presidential election season, and more looming memes.

ITEM - Blog news and annoying blogger affectations.

The Dividist has belatedly begun the process of cleaning up the sidebars, removing 2010 campaign contribution badges, and rearranging gadgets that were relevant to the midterms, but less interesting now. The Dividist is also working with some of the new Blogger templates, thinks the old blog is long overdue for a makeover, and will be looking to spruce the place up over the holidays. Stay tuned.

Finally your loyal blogger noticed that he has been referring to himself in the third person with increasing frequency of late, using the Dividist^® moniker he recently shelled out good money to register as a trademark. The Dividist finds this habit annoying on other blogs, and is unsure why he thinks The Reader would think any differently about this blog. The Dividist hopes this is just a phase he is going through and will drop the affectation soon.

ITEM - Good Predictions, Bad Predictions and the end of the "100 Year Rule".

The Dividist is in the habit of making election predictions, and 2010 was no exception. Days after the 2006 midterm restored divided government, he assessed his 2006 prognostications (more right than wrong), misquoted Ayn Rand, and looked forward to 2008. Similarly, after the divided government candidate lost the presidential election in 2008 he looked forward to 2010 and 2012 with fear, loathing and some more predictions. Time to face the music.

Net net, although the Dividist predicted GOP pickups, he concluded there was no way for the GOP to restore divided government in 2010, thinking they simply were in too deep a hole to crawl out in one election cycle. Variations of that same prediction were repeated on this blog in the 10 in 10 series without much change until recently. These bad predictions were influenced by his fidelity to the "100 Year Rule" - as, up to 2010, it was a reliable historical precedent that the House never flipped party control unless the Senate flipped first or concurrently. It was a rule that had never been violated since the US began directly electing Senators almost 100 years ago.

As they say, precedents are made to be broken and happily the Dividist was wrong. We now have divided government and a divided congress as a consequence of the GOP retaking majority control of the House. It's all good. The "100 year rule" will never be mentioned again. Another homily that is on the verge of being retired is "All Politics is Local". For the last three cycles, "All Politics is National" has been a better rule of thumb.

In the future, I suggest The Reader pay more attention to the Dividist's co-blogger Tully's predictions. He has a better track record.

ITEM - Michael Reynolds owes the Dividist a bottle of 15 year old Laphroiag

He has already contacted me via e-mail, and I'm sure that he is good for it. But - in light of his other poor prognostications - the Dividist feels justified in crowing about this well documented winning wager.


ITEM - Divided Government meme was a far more popular blog topic in the 2010 election than in '08 or '06.
In each of the last three elections, there has been a spike in blog postings about divided government as election day approaches. This effect was magnified dramatically in 2010. The Dividist has used Nielson's BlogPulse trend search tool to measure blogospheric interest in each of the last three elections. This is a great little tool that returns a graph showing the percentage of all blog posts in the entire blogospheric universe mentioning any search term over time.

In 2006, Divided Government posts peaked at .007% of all posts or 7 out of 100,000 posts on the peak day (NOTE - this is out of the universe of all blog posts, not just politics - including emo Japanese teen girl fashion diaries and pron blogs - just sayin... its a small percentage of a big universe). In 2008 divided government posts peaked at slightly less, or about .0065% (6.5 posts per 100,000) shortly before the election. Assuming the blogosphere is itself is expanding (I think a safe assumption), that would still indicate an absolute increase in blog posts on the subject, although slightly less as a relative percentage of all posts. In 2010 divided government posts peaked at around .014% or 14 posts per 100,000 - more than a doubling of blogging interest over the prior two cycles. Make of that what you will.

ITEM - California is financially fracked, and the Democrats are now completely in charge. What could go wrong?
The Dividist has been careful to only advocate a divided government voting heuristic at the federal level where there is substantial historical evidence and scholarship to support the rationale. The Dividist does not know if the same dynamic works at a state level. With a state as big as California and a bicameral legislature similar to the federal, he suspects it does. In any case, we are about to find out. With Ahnold in Sacramento, we had a quasi-Republican governor to balance the heavily Democratic legislature. No more. The Dividist is clearly out of step with a majority of his fellow Californians, who are perfectly content to have the Democrats run everything in Sacramento and to be represented in Washington by a Senator who is simply an embarrassment to the state.

Jerry Brown is our Governor-elect. San Francisco Mayor Gavin Newsom is Lt. Governor-elect. The legislature is a blue as it ever was and the entire state government is now as blue as it gets. Despite being one the most highly taxed states in the union, the state is facing the biggest financial crisis in it's history, in no small part due to union featherbedding and pension deals cut for state workers who are - shock - big contributors to California Democrats.

Brown promised in the campaign that there would be no new taxes unless approved by the voters. That is good, unless he was lying. What are the odds? Californians also passed propositions that prevent Sacramento from raiding local municipality revenues, prevents them from raising taxes unilaterally by calling them fees, but permits the budget to be passed on a majority (vs. 2/3 supermajority) vote. That pretty much only leaves big spending cuts to solve our financial problems and requires only a simple majority of Democrats to pass them. The California Democratic legislature now has the opportunity to fix the problems that their fiscal irresponsibility created. They have all the keys to power. There is no one else to blame. There are no excuses. Okay California Democrats - you created the problem- you own the problem - now fix the problem.

ITEM - The Tea Party Giveth and Tea Party Taketh Away -or- Funny, you don't look libertarianish.
The Dividist does not think anyone can deny that the energy and enthusiasm of the Tea Party movement was the fuel that drove Republican success in the House of Representatives. However, The Dividist also does not think anyone can deny that, given what happened in the House, the GOP underperformed in the Senate. Weak Tea Party supported candidates in Delaware, Colorado, and Nevada probably did cost the GOP control of the Senate. If the Senate finished 51-49, there was a reasonable possibility that Joe Lieberman and Ben Nelson could have flipped parties to give the GOP control of the Senate. At 53-47, that possibility is off the table.

That said, the Dividist is very excited about the Tea Party supported Rand Paul win. For the first time, there will be a libertarianish voice in the Senate.

The Dividist views Senator-elect Rand Paul in the same category as Senator Bernie Sanders. Sanders is a self described socialist, representing a small minority of the electorate, but the people of Vermont choose to give this ideology a voice in the Senate. The people of Kentucky have now given the libertarian-leaning a voice in the Senate, and for that the Dividist is grateful. The Dividist is considering switching from single malt scotch to Kentucky bourbon in his honor.

The left appears to be particularly unhappy about Paul, but they should not be. Rand Paul will be as much a thorn in the side of Republicans as Democrats. When it comes time to cut spending – Rand Paul will not hesitate to put Defense spending and our overextended and wildly expensive global military footprint on the table. The Dividist may even convert to Aqua Buddhism.

ITEM - Republicans are in position to take the Senate Majority in 2012. Unless they don't.
Much has been made of the structural advantage the Republicans will have in the 2012 Senate races, a point the Dividist has been making since 2008. Of the 33 Senate races up for consideration 23 seats are currently held by Democrats. Moreover, many of those Democrats are among the putative moderate/conservative class of Democratic Senators that won narrow races in red states, on the strength of the 2006 Democratic wave. In that class are Webb in Virginia, McCaskill in Missouri and Tester in Montana. The complete list:

2012 Democratic Senate Incumbents

• Dianne Feinstein of California
• Tom Carper of Delaware
• Bill Nelson of Florida
• Daniel Akaka of Hawaii
• Ben Cardin of Maryland
• Debbie Stabenow of Michigan
• Amy Klobuchar of Minnesota
• Claire McCaskill of Missouri
• Jon Tester of Montana
• Ben Nelson of Nebraska
• Bob Menendez of New Jersey
• Jeff Bingaman of New Mexico
• Kirsten Gillibrand of New York
• Kent Conrad of North Dakota
• Sherrod Brown of Ohio
• Bob Casey, Jr. of Pennsylvania
• Sheldon Whitehouse of Rhode Island
• Jim Webb of Virginia
• Maria Cantwell of Washington
• Joe Manchin of West Virginia
• Herb Kohl of Wisconsin
• Joe Lieberman of Connecticut
• Bernie Sanders of Vermont

2012 Republican Senate Incumbents

• Jon Kyl of Arizona
• Richard Lugar of Indiana
• Olympia Snowe of Maine
• Scott Brown of Massachusetts
• Roger Wicker of Mississippi
• John Ensign of Nevada
• Bob Corker of Tennessee
• Kay Bailey Hutchison of Texas
• Orrin Hatch of Utah
• John Barrasso of Wyoming

It is hard to overstate how important the Delaware, Colorado, Washington, California and Nevada wins were for the Dems in 2010. The more seats they put in the bank this cycle, the better the chances of surviving likely 2012 losses. Although the odds are still against them, it is certainly conceivable that with an improved economy, some serious course corrections by the administration, and the possibility of even more help from the GOP (by nominating candidates as bad as Angle and O’Donnell) they can limit their net losses to 3 seats in 2012 and retain the Senate majority.

Webb, McCaskill and Tester can still carry the day in 2012 by taking a consistent and strong fiscal conservative voting record into the election and showing independence from the Democratic leadership over the next two years. Representative Jason Altmire in Pennsylvania is a model for Democrats like these who want to be re-elected. He also arrived in Congress on the 2006 wave, winning in a Republican district. Since then he has won re-election twice more and survived the 2010 GOP wave. He did not vote for Obamacare or Cap & Trade, and never stops talking about restraining spending and fiscal responsibility. Let the Democratic Senators who have eyes to see and ears to hear, see, hear and understand. Amen.

Another factor that is not getting as much attention, is the GOP can also lose 2-3 seats in 2012. It is axiomatic that in a wave election like 2010, the surging party retains all incumbent seats. There is no reason to believe that 2012 will be a wave election like 2010, which puts GOP seats also at risk. Certainly it is an open question whether Scott Brown can hold his seat in Massachusetts. It is also a realistic possibility the GOP/Tea Party will help out again by running more clowns in Republican primaries who will then lose against Democratic incumbents. There is already talk of primary challenges for Olympia Snowe and Orrin Hatch. Realistically, the numbers are stacked heavily against the Democrats, but the 2010 Senate Republican performance has opened the door a crack for the Democrats to squeeze through and retain the Senate in 2012.

ITEM - The Dividist will be changing teams again for 2012

There are three ways that our brand spanking new divided government can continue past the 2012 election.

1. The Democrats could retain the Senate majority. The Dividist considers this unlikely since 23 of the 33 seats up for reelection are held by Democrats, many of them swept in on the 2006 Democratic wave. Possible, but as noted above, they’ll be on defense and structurally have a much tougher row to hoe than in 2010.
2. The Democrats could lose the Senate and retake the House. The Dividist thinks this is extremely unlikely, given the depth of the hole they have dug for themselves in the House.
3. Barack Obama could be re-elected. In all cases (excepting an improbable Dem 2012 wave retaking the House and retaining the Senate), the easiest vote to ensure divided government past 2012 will be to vote against the GOP presidential candidate and re-elect Barack Obama. That is the way The Dividist sees it now, and if nothing changes that will be the way The Dividist votes. [Caveat - there is one wild card that bears watching.]
   

The last time the Dividist changed teams was after the Democrats swept Congress in 2006 and it became clear that the only way to keep the government divided was to elect a Republican President in 2008. It took the Dividist until December of the following year before he was confident enough in his forecast of the political winds for 2008 to prepare himself mentally and formalize the change.

Changing teams in support of a political objective is, of course, incomprehensible to partisans who are psychologically incapable of voting for anyone outside of the their preferred party for President, Senate, or House of Representatives. Partisans generally subscribe to some variation of the “My party is on the side of angels and the other party is the spawn of satan.” school of politics. Their vote at the federal level votes is as predictable as sunrise and sunset and they represent the vast majority of the electorate.

At least 70% of the electorate and probably closer to 80%+ vote as partisans, regardless of whether they choose to label themselves by their party of preference or as an independent. Political Scientists show conclusively that most self-identified "Independents" are closet partisan voters.

Not that there is anything wrong with that. Some of the Dividist's best friends are partisans. He thinks the correct way to to think of Partisan Dead Weight (PDW) is as ballast - so long they stay roughly balanced on the right and left, they provide stability for our ship of state. It is because of them that a relative sliver of the electorate who are true independents, who will really swing their vote at a federal level between the major parties, can dramatically change the complexion and direction of our government.

UPDATED: Fixed typos, added and repaired links.

Divided and Balanced.™
Now that is fair.