Happy & Hopeful Hogmanay 2009!!!

Hogmanay!!! . . . it's the Scots' New Year's celebration. By now, Edinburgh and Glasgow are rolling and roiling with huge crowds and outdoor street celebrations . . . the fireworks, and, of course, Auld Lang Syne. "Hogmanay" most likely comes from the old French phrase "au gui mener" - "lead to the mistletoe," and I like the sound of that.

I'm not the slightest bit a Scot, much, I know, to my disadvantage . . . I chose Hogmanay as a way to wish you a Happy New Year mostly because of an old Hogmanay custom, "first footing." The promise is that your year will be a prosperous one if, at the strike of midnight, a "tall, dark stranger" appears at your door with a lump of coal for the fire, or a cake, or coin. In exchange, you offer food, wine or a wee dram of whisky, or the traditional Het Pint, which is a combination of ale, nutmeg and whiskey.

Why a "tall, dark stranger"? Well, in the old days of Scotland a tall blond at your door might just be one of those uncouth and unfriendly Vikings, stealing, burning, and pillaging his or her way through your village. . . These days you're more apt to find a group of neighbors on your doorstep for a get together, not a pillaging, unless you spy a defrocked Wall Street derivatives trader. In modern times, a household takes it in turn to provide a meal for the group. In many parts of Scotland gifts or "Hogmananys" are exchanged after the turn of midnight.

In these days of financial meltdowns and difficulties all around, it's a nice thought this Hogmanay tradition of first footing. We'll need each other in the year ahead. Tonight is a good time to start first footing into a new year by touching base with a friend, a relative, a neighbor, in person or by phone. A great start to pulling together in 2009 with a new President, a commitment to hope, and its fulfillment for all!

To my family, thank you for the love and hope you bring to my life each day. To friends, thank you again for all you've done for me and my family in the last difficult year. And to those unknown blog friends, thank you for visiting my little blog. Have a safe and happy Hogmanay!!! Sing along with the Scottish Parliament!

NOTE: that even though there's a "Read more" link with this posting, there is no more to read. The above is, as they say, "it."

Franken vs. Coleman: Don't Count Either of Them Out

The Election That Keeps on Giving. Seven weeks after the election, the Minnesota canvassing board is busily trying to decide the result of the U.S. Senate race between Democrat Al Franken, ex-comedian/satirist and Republican Norm Coleman, incumbent wingnut self-parody. During this long process both candidates have at times held the lead, but lately Al Franken appears to be up by about 20-50 votes out of 1.7 Million. On Tuesday when the board finalizes its count prior to counting absentee ballots, most expect Franken to be declared the winner by approximately 50 votes.

The primary and crucial issue now being raucously debated is the number of absentee ballots not included in the November election count that will next be examined and counted by the canvassing board. How many will be ultimately counted? The two campaigns appeared to agree to 1,350 for a while, but lately both have asked that others be included as well; Coleman asking for more than 700, and Franken for an additional 85. However this is decided, the state canvassing board and Republican Governor Tim Pawlenty will likely - although not certainly - certify a winner by January 6th, the swearing-in day for the 111th Congress.

But what happens if the Minnesota recount is photo-finish close? Under Article 1, Section 5. Clause 1 of the U.S. Constitution, "Each House shall be the

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Judge of the Elections, Returns and Qualifications of its own Members . . ." It doesn't get simpler than that, nor more politically complex or rife with the chance for extreme partisanship. In the Franken-Coleman case, the losing side could pursue a court challenge, but courts, Bush v. Gore aside, do not like to settle elections. And the right of the House and Senate to resolve its own contested election cases is supreme. Justice Antonin Scalia, while a court of appeals judge, wrote in a 1986 contested House election case:

It is difficult to imagine a clearer case of "textually demonstrable constitutional commitment" of an issue to another branch of government to the exclusion of the courts… than the language of Article I, section 5, clause 1.

Additionally,

[W]e may observe that it makes eminent practical sense. The pressing legislative demands of contemporary government have if anything increased the need for quick, decisive resolution of election controversies. Adding a layer of judicial review, which would undoubtedly be resorted to on a regular basis, would frustrate this end.

Going Nuclear. There is a "nuclear option" available. And Article 1, Section 5. Clause 1 is it. On January 6th, assuming a win by Franken in a very close vote count, the Senate can seat him provisionally upon the privileged motion of a single Senator, a motion that is not subject to filibuster. Then, for further investigation the matter would be referred to the committee with jurisdiction over contested elections which, according to Senate Rule 25.1.n, is the Senate Committee on Rules and Administration,* chaired by Senator Charles Schumer (D-NY), with Senator Robert Bennett (R-UT) the ranking Minority member. The Senate could do the same if it is Coleman who arrives with a certificate of election from Minnesota. In addition, the Senate could decide to seat either Franken or Coleman "without prejudice," meaning that either could be removed based upon the findings of a Senate investigation and vote. Also, the seat could be declared vacant during Senate considerations.

Into the Way Back Machine. Since the First Congress in 1789 there have been Studies in American Political Development,132 contested Senate elections, most of them during the Civil War-Reconstruction period, and only three since 1974. Allegations of fraud, corruption, bribery, and non-criminal irregularities make up about 45% of these. Interestingly, in view of Illinois Governor Blagojevich's situation, 20% were contested based upon an alleged illegal appointment by a governor. The person contesting the election has won only two cases, and the seat has been declared "vacant" on 37 occasions. For a contestant, it's a steep uphill fight.

Recently, the 1974 New Hampshire Senate election, known as the closest election in history (2 votes), between Republican Louis Wyman and Democrat John Durkin, who contested the election, caused Rules committee staff to literally recount 3,500 disputed ballots. Ultimately, the full Democratic-controlled Senate could not decide on 35 points sent to the floor, and after six cloture votes over six weeks of debate the Democrats could not break filibusters. In the end, in late July 1975, the Senate declared the seat vacant, and the governor appointed an interim Senator pending a new election which the two contestants had agreed upon. In September, Durkin won the election by a 27,000 vote margin, much, one can confidently speculate, to the Senate's relief.

Most recently, in 1996, Democratic Senator Mary Landrieu's election from Louisiana versus Republican State Representative Woody Jenkins was contested by Jenkins, who alleged massive voter fraud. Landrieu was allowed to take her seat "without prejudice" while the Rules Committee considered Jenkins' allegations. In a tables turned irony, within the first month of the investigation it was discovered that a private detective hired by Jenkins had coached and paid numerous witnesses to make false claims. Democrats walked out of the proceedings, but the now Democrat-free committee, however, took 10 months before fully certifying Landrieu.

Once More Unto the Breach, Dear Friends? There's quite a bit a stake in the Franken-Coleman dust-up. With a Franken win Democrats would have 59 seats, although with Blue Dogs like Evan Bayh, real party unity, sadly, is unlikely. For Republicans, holding onto the Minnesota seat is important both for the vote it brings the caucus, and for strengthening the appearance that the GOP is not dead in the water, but still able to tread water. And, let's face it, with Democrats having shown they are often lacking in legislative cahones even with a majority, that Coleman vote - and voice - may win them a few important battles.

The question is not decided either as to whether the Senate would intervene. Mitch McConnell (R-KY), the Republican Minority Leader, spoke out in November at a time when Coleman was ahead in the vote count, "The recount process in Minnesota is being handled by Minnesotans, not D.C. politicians," McConnell said. "And while neither side will agree with every twist and turn or every decision, I would hope that Washington partisans would refrain from injecting themselves into what is, by design, a non-partisan process." Around the same time, Cullen Sheehan, Coleman's campaign manager, said if Franken loses the election after the recount is complete he should not challenge the results in court and he should promise Minnesotans "that he will not allow this election to be overturned by the leadership of the Democratic Senate." I have not heard anything further from the GOP on this stance since Franken jumped into the lead . . .

While, above, I'm obviously taking a swing at the GOP, it's clear that Franken and his Frankenaides would now parrot the same sentiments. Clearly, this morality play swings like a pendulum with the reported vote counts. As for Franken, about a month ago, on Joe Scarborough's show, election pollster Chuck Todd reported that senior Senators were "concerned" about the election of Franken of the "Hollywood left" and "the perception that Franken would [lead] . . . the Sean Penn's of the world [to] think they could run for office . . . Alec Baldwin . . ." Scarborough laughed and laughed. Of course - and this is an obvious aside to the topic here - Joe and Chuck conveniently forgot to remember Hollywoodies like Ronald Reagan, Arnold Schwarzenegger, Sonny Bono, Shirley Temple Black, Clint Eastwood . . . they reported no concern among Senators about the Hollywood "right."

The End Game. In any event, Minnesota's other Democratic Senator, Amy Klobuchar, recently asserted, "If the Canvassing Board declares a winner, that should be our senator . . . [the Senate] could seat a senator pending the litigation," as it had done with Landrieu in 1996. Also, though unlikely, Minnesota's Republican Governor Tom Pawlenty might insist that he has the authority to appoint an interim Senator, pending the Franken-Coleman contest. Most agree, however, that the Senate would first have to declare the seat "vacant."

The partisan-shy Senate Majority Leader, Harry Reid (D-NV), who has so often seemed noncommittal about a Democratic majority in the Senate, is in form regarding the Franken-Coleman contest. Here's his most recent statement to TPM, "We're keeping abreast of the situation and will make a decision with regard to Senate action at the appropriate point in the process." That makes mayonnaise look more and more interesting.

Should Franken show up on January 6th with Coleman contesting the election some fear that, in a characteristically shoot-the-party-in-the-foot move in order to appear bipartisan, Reid will declare the seat vacant pending a Senate investigation. This would permit Republican Governor Pawlenty to appoint none other than Norm Not-Dead-Yet Coleman, or some other wingnut, to the seat during the investigation's tenure. I wouldn't put it past Reid who knows that if he seats Franken he'll face a fully steamed and filibuster-savvy GOP minority just itching to draw first blood in the 111th Congress. Reid too often doesn't have the confidence or the stomach for the fight, and that's why I believe he might just open the door for Pawlenty and Coleman. We'll see. Perhaps Reid and the Senate Dems have grown some.

I Hate Predictions, So Here's a Few. Yes, I hate predictions, at least mine, because I'm so often wrong and should know better. But, once more unto the breach, I think that, after the absentee ballots are counted, Franken will win, and with a couple of hundred votes to spare. That's still a razor thin triumph, but I'm really going out on a limb here and also predicting that Reid will seat him, despite my pessimism above. (My New Year's resolution is "more optimism," and I'm starting early.) I also believe that Coleman may simply retire and not contest it. After all, he has other problems to face that involve possible federal indictments, and I don't think he can contest those in the Senate, at least. And lastly, with optimism, I predict I'll regret these predictions . . .

* Note that as of the date of this entry this site is not updated with membership for the 111th Congress.

U.S. Votes to Go Easy on World Hunger

What's Next, a "No" Vote on Motherhood? This one is simply stunning. And our timing in the midst of the holiday season is impeccably ironic.

In the United Nations, on December 18th, the United States was busily building the Bush legacy in the General Assembly. The vote was on a wide range of recommendations aimed at strengthening international human rights norms. There were many items on the agenda,but the one where the U.S. covered itself in glory was Annex XIV, the Right to Food. According to the General Assembly's news release:

By a vote of 184 in favour to 1 against (United States) and no abstentions, the Committee also approved a resolution on the right to food, by which the Assembly would “consider it intolerable” that more than 6 million children still died every year from hunger-related illness before their fifth birthday, and that the number of undernourished people had grown to about 923 million worldwide, at the same time that the planet could produce enough food to feed 12 billion people, or twice the world’s present population.

There's Something Odd Floating in the Punch Bowl. That lone "No" vote out of 185 voting is like the earth suddenly tore out a piece of itself shaped like the U.S. and tossed it into space. Or, count the next 184 people you see and then have a good look at the next one. That's us. We stand out like a monkey in a ballet skirt.

According to the U.N. report, the U.S. excused, er, I mean, explained, its vote: "The United States felt that the a

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attainment of the 'right to adequate food' or the 'right to be free from hunger' was a goal that should be realized progressively." Yes, certainly, let's not hurry. "The United States was the largest food donor in the world of international humanitarian food aid and it would continue to work towards providing food security to all," at a price that is reasonable and profitable and can be used as a political hammer. "In the future, he expressed hope that the co-sponsors would work to address his delegation’s concerns, so the United States could join other countries in adopting the draft." "Join other countries" translates from Bushspeak to English as "join the rest of the world."

Our Excuses Runneth Over. We also tried to dishonestly portray our vote as a procedural matter. Note that the U.N. International Covenant on Economic, Social and Cultural Rights (ICESCR) is the legal foundation upon which the U.N. built the recent resolutions to strengthen human rights, including the right to food. According to the leading lights in our delegation, however, the ICESCR does not "explicitly" state any "obligations under the ICESCR Covenant to 'respect, protect and fulfill' the right to adequate food." Sounding like Bush Justice Department Civil Rights lawyers we go on to say, "Nor does the Covenant even provide for the existence of the Committee, much less give it a mandate to issue legally binding or legally authoritative interpretations of its terms." This is much the same "fundamentalist" reasoning the Bush administration uses to deny the existence of a constitutional "right to privacy." There is no explicit mention of "privacy" in the Constitution, so to the right wing, no such "right" exists. The argument that the Constitution is suffused with the idea of privacy, as in the 4th Amendment, for one example, is lost on them for obvious reasons, i.e. it makes it easier to spy without remorse, etc.

However, in this case our explanation of our vote against the right to food is dishonest. In fact, the ICESCR does contain language about the right to adequate food. It's explained in the Committee on Economic, Social & Cultural Rights General Comment 12. Here's an excerpt:

The human right to adequate food is recognized in several instruments under international law. The International Covenant on Economic, Social and Cultural Rights deals more comprehensively than any other instrument with this right. Pursuant to article 11.1 of the Covenant, States parties recognize "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions", while pursuant to article 11.2 they recognize that more immediate and urgent steps may be needed to ensure "the fundamental right to freedom from hunger and malnutrition". The human right to adequate food is of crucial importance for the enjoyment of all rights. It applies to everyone; thus the reference in Article 11.1 to "himself and his family" does not imply any limitation upon the applicability of this right to individuals or to female-headed households.

So, our "no" vote in the U.N. indicates that we don't so much disagree that billions of people, especially children, suffer from hunger. We agree on that one. We just don't agree that it should carry any consequences with it, or be treated as a right that can be enforced through the legal system. After all, we helpfully explain, these are among "rights that [are], at face value, difficult to adjudicate, such as 'an adequate standard of living' and the 'highest attainable standard of health.' Violations of those rights [are] not apparent, nor [is] it easy to determine when they had been satisfactorily achieved." This "reasoning," of course, ignores the elephant in the room: courts exist, in large part, to determine the answers to "difficult to adjudicate" questions.

"Low Food Security" Sounds Better. But, as we've seen, the Bushies have different ideas, particularly about international law . . . and we don't want to set humane standards that could come back to bite us in the ass, like our self-proclaimed "right" to use torture if we simply rename it "enhanced interrogation techniques." In fact, the Bushies in 2006 stopped using the word "hunger" at all, replacing it with the meme "low food security." I'm an adult, I understand euphemism and the principled interpretations of legal terms; the law is, of course, about precision in the use of words. The stance by our U.N. delegation, though couched in sterile legalities, reminds me of how the Bush administration so often misused language so as to appear neutral while pushing the worst features of its agenda. It used language to confuse in the guise of precision; to obfuscate in the cloak of clarity; to injure while appearing reasonable.

Well, this right to food episode certainly adds to the Bush legacy points, doesn't it? It's a microcosm of all that we will be happy to miss when they've left town. Bush's father spoke of creating a "thousand points of light." His son is - and has always been - about extinguishing them. Let's hope that our next U.N delegation quickly reverses this inhumane and humiliating vote.

Thanks to YouTube's Nightlife Channel for Sade's "King of Sorrows" and to Chris07 of Creative Commons for "The Scream" pic.

UPDATE 1, 12-28-08: A commenter at iReports mentioned that the U.S. is among the more generous in helping to address world hunger and that my posting neglected that. I plead guilty. It is a well-known fact that the U.S. provides the most food aid, and that is because we are both blessed with surplus but also because we are a generous people. Here's a USDA site called Amber Waves that provides background and also informs about the complexities involved. My apologies for ignoring the obvious, but I still remain stunned by our "no" vote and believe my basic thesis has merit.

Their Wish Is My Wish Too

I want to keep this simple and brief, and anyone who has ever read my average blog entry will know that's waaaaaayyy out of character. . .

With this one I want to simply thank my family and all my good friends for their kindnesses, understanding, and support. You are never out of my thoughts and when I think of you I say a quiet "Thank you" for my good fortune. I hope that I can repay you in kind.

To those who visit my little blog, I appreciate you, thank you, and send my very best wishes in this holiday season.

And now, for all of you, I offer this beautiful song, "My Wish." If I ever hoped for a song that best conveys my feelings for family and friends, this is the answer to that wish. It may well be what some consider "schmaltzy," but sometimes schmaltz just says it all. For me, schmaltzy or not, this song is for you . . . and I wish for you a happy holiday season and a wonderful new year full of possibilities and good fortune.

Thanks to YouTube's Kelly9 for the video.

Layaway's Out, Theft's In At ShopN'Shoppe

With credit cards on the outs these days, old-fashioned layaway plans are on a nostalgic comeback tour. Sears, Kmart, TJMAxx, and others are bringing back the layaway, usually charging a small fee and requiring that items on layaway be paid for in full within eight weeks. Unlike credit cards, layaway doesn't allow the purchaser to take the item home prior to paying in full, but it also doesn't cost anything in interest payments, and if you can't complete the payments, you get your money back and the store simply returns the item to inventory. "It really became common during the Depression," said Howard Fink, grandson of the founder of New Jersey's Fink's Department Stores, "The family story is my grandfather let customers pay off a $3 blanket at 25 cents a week. We never stopped layaways because people liked it." In fact, this reporter's family nearly owns one of those layaway blankets first put on layaway by a now long dead great aunt during the Great Depression.

Go Away Layaway. Some stores are not embracing layaway, though. It's on the outs at Wal-Mart, with the wholesale giant ending its layaway programs back in late 2005. Wal-Mart's upcoming rival, the Johnston family's worldwide ShopN'Shoppe, never had layaway and, according to founder Alfred Johnston, "never shall we." In a wide-ranging interview with this reporter, Mr. Johnston and executive vice president Pat McSwirly insisted that layaway and other common retail practices just don't fit their business plan.

"Demand for layaway service has declined steadily as consumers turn to other options, such as downright theft." said Mr. McSwirly . And theft, continues Mr. McSwirly, "although replete with debatable moral questions," has its "upside for cost cutting at ShopN'Shoppe." Theft has become so popular a customer choice during this economic downturn that ShopN'Shoppe decided to eliminate store security, thus saving on operating costs. "The customer comes first at ShopN'Shoppe," says Alfred Johnston, scion of the family whose 1,200 ShopN'Shoppe stores worldwide have revolutionized the department store business. "And we've securitized our risk on theft through a variety of reliable credit default arrangements with the Federal Reserve." In a very real way, Mr. McSwirly adds, "we've made theft pay, for the customer and for ShopN'Shoppe, and, too, it makes us a very real partner in the country's response to the credit derivatives crisis."

I asked the pair about their overall business plan, based primarily upon keeping costs per sale as low as is humanly possible. "After all, it is as a direct result of our cost savings measures over the years that we so reduced our costs that customer thievery no longer impacts our bottom line."

A Whole Lot of Nothing. Mr. Johnston continued, "For example, we have no salespeople at all in our stores. Not a one. In a spirit of cooperation, we encourage our customers to assist each other." At the huge ShopN'Shoppe outlet in Des Moines, Iowa, I witnessed this in action. It's quite something to see too, as customers band together to find items without sales help or stores organized by sections or signage. Mr. McSwirly explained, "We also reduced costs by not placing items in specified sections of the store. When something comes in on a truck, we simply have them dump it in the store wherever there's room." In addition, although met at first by a controversial Surgeon General's warning, ShopN'Shoppe also led the way in cost reduction by eliminating bathrooms. "Our Body Waste Committee found that traditional bathrooms are a cost nightmare," Mr. Johnston observed. "All that flushing adds up financially. The committee found that most people can learn to 'hold it' for an adequate amount of time to complete their shopping, and those who cannot have learned the advantage of purchasing Depends which we now offer at the entrance of each store."

Although they have reduced their human labor needs to an industry leading minimum, ShopN'Shoppe does employ a few workers per store and many more at the corporate managerial level to manage those few employees. As for ShopN'Shoppe's labor relations, well, that is something they point to with pride, although others do not, including the Pope, who on numerous occasions has criticized management as "vicious inhuman rat bastard snotbags for whom Hell would be a minor penalty." ShopN'Shoppe defends though, "Through basic capitalistic principles that we all revere, the 'invisible hand' guides us in cutting the costs expended to keep our employees barely alive, just enough to complete their working day, and still have the minimal amount of energy to return to work the next day." Johnston also points to an internal study that indicated that, for 2008, employee deaths from attempted union membership had declined for the fifth straight year, and employee injuries requiring massive invasive surgery and new limbs had declined by a third to just over one-half of the work force. "As a result of these improving numbers, union organizers see no point in organizing our shoppes," says Mr. McSwirly with a beaming countenance.

Civic Minds. And "Wall Street loves us," says Mr. Johnston, "These cost savings benefit millions of shareholders, including," he adds with a glint in his eye, "our own employees who benefit from the mandatory stock purchase pension plan." Also, we encourage workers to plan their hourly earnings so that they qualify for government programs. After all, Mr. Johnston asserts, "in a real sense, our employees pay for these programs through their taxes, at least those who make enough to pay taxes, so why not use the very programs they pay for?" ShopN'Shoppe offers employees assistance in applying for Medicaid, food stamps, and other government programs that provide, for example, artificial limbs. Mr. McSwirly notes, with what looks like a tear welling in his eye, "We're darn proud of this - what we call our 'Cornucopia Program.' It's a civic duty we embrace: helping people take a direct role in their government when they use Medicaid to visit the hospital or food stamps to purchase foodstuffs." Most of ShopN'Shoppe employees use Medicaid on a regular basis and often sleep in publicly financed parks.

Furthermore, as Mr. McSwirly points out,

"we go above and beyond in many areas. There is our positive impact on the disabled community. You see, our management dietitians learned that the caloric needs of an average worker can be radically reduced by hiring people of small stature and volume. And, in doing so, we also take pride in striking a blow for diminutive workers everywhere, who have suffered rank discrimination throughout history."

Global Warming Not Welcome Here. Finally, as a way to positively impact the earth and environment, ShopN'Shoppe offers a financial bonus for those employees who stay "kid free for the environment." Mr. McSwirly explained,

"This is an example of where ShopN'Shoppe helps the environment and realizes cost savings for shareholders. We realize that employees with kids desire higher pay, and kids, it is well known, cost a lot and pollute the environment. Our emphasis on zero growth is a 'win-win for the world,' we like to say."

To handle those occasional unplanned births, ShopN'Shoppe provides a low cost adoption agency for employees who "slip up" but still want to take advantage of the "kid free" bonus. And Alfred Johnston says, "facilitating adoptions is also good."

Goin' Globalistic. Globalization is key to company growth. Most of the company's employees are located in foreign locales, since, Mr. McSwirly observes, "it's sad, but it just costs too much to keep American workers barely alive, even the illegals." In addition, "Haiti and Sierra Leone are often considered 'vacation destinations' by American workers, so those fortunate enough to actually live and work there get a double benefit." It's true too, as their Science Advisor, Heinrich Himmel reported in a 2006 federally financed study: "the fresh sea air in the Dominican Republic, for example, has been shown to increase an employee's health while reducing his or her caloric requirements." Alfred Johnston adds, "Sun is free; food costs money!"

Rumblings from the Far Left. Another win-win for ShopN'Shoppe? Well, some disagree. The socialist leaning American Red Cross accuses ShopN'Shoppe of running nothing more than a worldwide "ShopN'SWEATShoppe." McSwirly shakes with rage, "Yeah, so our workers sweat. Who doesn't sweat in Haiti or remotest Africa? And what about the old-fashioned idea of 'sweat equity," huh?" The left leaning United Nations also doesn't think very highly of the Johnston empire, but Mr. Johnston ignores their criticism and offers a cogent defense. "We keep people barely alive as well as any U.N. sponsored dictatorship in the world today! You hear that?" He goes on, showing real anger for the first time during this interview, "We are number one among the entire world's dictatorial powers in measures of usable life span among our workers! They live longer, produce more, and have strong feelings of pride during their regrettably short periods of time on this earth. No one gives us any credit for that 'pride value' we add to their lives!"

The Final Vote. Leftie critics aside, the real measure of their success, of course, is that Wall Street loves them.

"With thousands of stores, they're clearly too big to fail," says NYSE analyst John Wadsworth, "and we streeters see that as a no risk investment. For Heaven's sake, the chairman of the Federal Reserve shops there! President Bush just gave Alfred Johnston the Medal of Freedom. ShopN'Shoppe can condone outright theft among its customers and still turn a profit! What's not to love?"

This reporter, for one, sees nothing to disagree with in that summary. And tonight, for my last minute holiday shopping, I'll be donning my Depends underpants and heading to you know where . . .

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And for counterpoint, the great Richie Havens' Freedom, sung at Woodstock in July 1969, well before ShopN'Shoppe was even a twinkle in capitalism's eye . . .

Congressional Overpay Raise

"If they will only do their job that is all that they are being overpaid for."

David O. Selznick, on actors and actresses

As the economy caves in, our elected officials will soon be cashing in. Their pay raise, that is. It seems small, a 2.8 percent increase in pay next year, equal to about $4,700, but at a full salary of $174,000 could we be overpaying just a bit? Congresspeople would likely, if asked, say "yes, my friend." After all, these days national politicos of all persuasions seem particularly unglued by the spectre of overpayments everywhere. My gosh, those unions! That gets Republicans of all stripes into a raging maniacal hurly burly. And those Wall Street and Big 3 executives - that gets my beloved Democrats equally undone.

But, yet they are strangely silent about their own salaries. As Daniel O'Connell, chairman of the Senior Citizens League said recently, "As lawmakers make a big show of forcing auto executives to accept just $1 a year in salary, they are quietly raiding the vault for their own personal gain" via the annual Congressional pay raise. Mr. O'Donnell suggests, "the money would be much better spent helping the millions of seniors who are living below the poverty line and struggling to keep their heat on this winter." And for a million other things . . . I'm wondering. Perhaps our elected reps just don't realize they have a raise in the pipeline. They've been pretty busy, for sure, looking under every desk and in every closet for union folks and welfare queens and those pesky Wall Street fat cats. I'm thinking they've just not been informed. Let's let them know!

Seriously, Though. As movie mogul David Selznick said of actors and actresses, "If they will only do their job that is all that they are being overpaid for." Sound familiar? Members of Congress currently make an annual salary more than double the median household income of $78,978 for the Washington, D.C. metro area., in the top three of expensive areas in the U.S. This doesn’t include taxpayer funding of very generous "platinum parachutes" (pensions), health plans, allowances for travel, staff, and office expenses, including franking privileges (free mailings).

Well, most voters hold Congress in particularly low esteem these days, somewhere between roadkill and Nazis. You'd think salt-of-the-earth Congressfolks would be looking for ways to pump up their standing, at least to overtake roadkill. We know how they feel about the nasty bail out "symbolism" that the loan package for the Big 3 brings with it. Isn't it time for Congress to aim its always wagging fingers at itself and vote to say no to their automatic (not voted upon) 2009 pay raise. In fact, for this Congress, it's way past time to do so. Doing so must be their first article of business on the first day of the 111th Congress, January 3, 2009.

Don't Cry For Me, My Beloved Constituent. They cannot with a straight face blame anyone but themselves. Our Constitution provides that Congress set its own salaries. "The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States." U.S. Constitution, Article 1, Section 6. Clause 1. (The so-called "ascertainment clause" is in italics.) It's that simple, and it's rarely been challenged, and when challenged, the courts have stepped aside in deference to the legislative branch.

A February 2008 Congressional Research Service report, Salaries of Members of Congress: A List of Payable Rates and Effective Dates, 1789-2008, provides a summary of the historical and legislative background:

Prior to 1969, Congress [determined its own pay] by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Congressional salaries initially were $1,500. By 1968, they had risen to $30,000. Stand-alone legislation may still be used to raise Member pay, as it was most recently in 1982, 1983, 1989, and 1991, but two other methods — including an automatic annual adjustment procedure and a commission process — are now also available. Under the annual adjustment procedure, Members are scheduled to receive a 2.8% adjustment in January 2009. . . By law, Members may not receive an increase greater than the increase in the base pay of GS [General Schedule, federal] employees.

Note that their pay raises (what they strategically and euphemistically call "cost of living adjustments" (COLA)) are granted without an affirmative vote of either chamber. Indeed, to their credit, they have from time to time refused their own pay raise, as recently as 2007. They generally, however, just let the COLA take effect on the down low.

Some members of Congress and others have argued that the automatic system of COLAs violates the "ascertainment clause" of Article 1. Reasoning that the Founders intended that Congress operate in clear view of the public, the thinking in their legal challenges is that the ascertainment clause requires Congress to vote affirmatively on its own salary via legislation, not on auto pilot. Courts, however, have not been sympathetic since they've determined, for example, COLAs are not "pay raises," and Congress has a vast legislative tool box that it can use to vote against its automatic pay raise, if it only will.

Generally note that courts, for separation of powers reasons, do not like crafting solutions to these kinds of problems when the legislative branch has its own constitutional methods of doing so. In one of the the lead cases on this matter, Humphrey vs. Baker, the D.C. Circuit Court of Appeals, in 1988, stated it this way (and the Supreme Court declined to review it), "Congress retained ultimate power to set its pay through the already mentioned devices, such as rejection of the President's recommendations. In short, those devices, in varying degrees, remain efficaciously available to Congress." In English: Congress can vote to deny itself a pay raise, er, I mean, COLA.

Have A Nice Cool COLA. One good thing that has occurred in the pay raise (er, I mean, "COLA") area is called the 27th Amendment: "No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened." This was proposed in 1789(!), and finally ratified in 1992(!), and is intended to serve as a restraint on the power of Congress to set its own salary during the session it sits. But, remember the use of the term "COLA" as a stand-in for "pay raise"? Why do that? Well, now you know why: since its 1992 adoption the 27th amendment has not stopped Congresspersons (MCs) from receiving nearly annual pay raises because, legally, a COLA is not a pay raise.

About 15 years ago none other than lovable wingnut Rep. John Boehner (R-Ohio), 27 additional MCs, and other interested parties brought suit (Boehner vs. Anderson) to determine the constitutionality of the COLA index, arguing, among other things, that it violated the ascertainment clause because it didn't require separate legislation for each COLA adjustment. In other words, it was a self-perpetuating formula. Boehner maintained that violated the 27th Amendment because it permitted what were in reality pay raises to occur annually without a House election intervening. However, the court rebuffed this claim for a variety of reasons, most importantly:

Neither of Mr. Boehner's arguments that the COLA provision is unconstitutional draws any support from either the original Constitution or from the twenty-seventh amendment. The Constitution does not define a law except to say (at least implicitly) that it is the product of the legislative process.
. . .

We see no reason whatsoever why the Congress cannot, for convenience, instead specify an index or formula with the same effect. In sum, it has been the law since 1989 that a COLA would be made on January 1, 1991 and each year thereafter pursuant to a specified formula.

As the 1988 Baker case (above) had held, "the Ascertainment Clause was not to be read inflexibly so as to require Congress to establish specific figures in specific legislation. Rather, it sufficed that the procedures eventuating in the specific figures were set, i.e., ascertained, by law." So, as the British say, "Bob's your Uncle" target="'_blank": "Just pass a self-perpetuating law, craftily define a 'pay raise' as a 'COLA' to bypass the 27th Amendment, and Bob's your Uncle!"

Never Go Begging. One question I've begged thus far, and an important one: Do we want a system whereby MCs are paid a minimal salary, and where they have to cover their own office expenses, etc.? I think it's a relatively easy "No." Unless we want all our MCs to come from substantial wealth, or, on the other hand, to have even more incentive to play the "pay to play" game, we are best served by a relatively well paid Congressional class. They presently receive nearly $170,000 per year, with substantial other benefits. That, to me, seems a relatively high salary, a bit too high for a public service job; after all, it's more than double the median salary of the relatively well off D.C. area. I'd think $120,000 would, these days, be enough to both compensate handsomely and provide incentive to honesty, particularly considering the exceptional benefits they receive. That's subject to debate, but what isn't is that we don't want an impoverished Congressional class bent upon enriching itself simply due to salary restraints. They've got enough temptations already, and the indictments to prove it.

Do We Have the Constitution for a New Amendment? So what to do? There are a few legislative proposals still hanging around in the 110th Congress that would prevent the $4,700 COLA taking effect in 2009, but let's face it, the prospect of Congress returning to Washington between now and its next session to alter its pay downward approaches zero . . . O.K., it is z.e.r.o. It's actually laughable.

The solution lies in the upcoming 111th Congress. You can view the proposals introduced (and going nowhere) in the 110th Congress both for text and to see which Members sponsored or cosponsored them, i.e. primarily Ron Paul Lites and wingnuts (where are our guys on this?). Some, the wingnut proposals, try to tie Congressional salaries to deficit reduction, yet the sponsors are often the very ones who time and again voted lock step for Bush policies that ballooned the deficit with, well, you know. Remember when reading these proposals that President Clinton left office in 2000 with a rather nifty budget surplus. Other proposals simply state, in effect: "let's not take the COLA this year." The courts are a definite non-starter, as we've seen.

A long term solution is needed, however. I propose a new constitutional amendment that repeals the 27th Amendment and replaces it with a stronger one, making the pay raise "dance" visible to the American public. Visibility requires affirmative Congressional legislation requiring action rather than a self-perpetuating indexed system inviting inaction:

Congressional Salary Amendment

SECTION. 1. Amendment XXVII. The XXVIIth Amendment is hereby repealed.

SEC. 2. Article 1, Section 6, clause 1 of the Constitution. The term "ascertained by law" shall require affirmative legislation. Congressional salary adjustments require legislation prior to the adjournment of each two year Congressional session. Such legislation shall include the Congressional salary scale for each year of the upcoming Congressional session, and may originate in either house of Congress.

SEC. 3. Time Periods. Pay raises or reductions for the first year of the next Congress to convene may not exceed the applicable percentage pay raise or reduction of the upcoming fiscal year General Schedule (GS) pay scale of the Office of Personnel Management, or its designee or successor. The salary for the second year of the next Congress to convene shall be within the same legislation as for the first year and shall set Congressional salary at the same percentage of the average pay increase or reduction of the previous five years as certified by the Office of Personnel Management, or its designee or successor.

SEC. 4. Exception. Should it be determined by the appropriate Committee or Subcommittee of either house that adjustments, up or down, to Congressional salary are advisable at any time during the two year Congressional session, such legislation requires a recorded vote of 60% of each house for a pay raise, and a simple majority for a pay reduction, and any salary increase may not in any case, other than stated national emergency, be greater than a positive 10% of the applicable fiscal year General Schedule, and may not be applied retroactively.

SEC. 5. Effective Date. This Amendment shall take effect as of the first session of the next Congress to convene after the date of final ratification by the states.

Join Me in "Something Else" I know my proposal needs work, and as the chart shows, it's longer than a long shot, but it's a start. For example, the proposed role of the OPM, an executive branch agent, is replete with separation of powers and comity issues, inviting principled objections from all sides. Perhaps the designation of the Government Accountability Office, a legislative agency, is a possible solution, yet, it too, as a legislative agency, is clearly subject to possible (probable?) and direct improper influence by Congress. The better suggestion would likely be an independent commission; however, politically, who today wants to set up another independent commission? This and other possible objections aside, the proposal does bring more "sunshine" to the process. The pay raise process would become a feature of national discourse, not an aside, and would gain the attention of the public, particularly, I believe, with the requirement of a recorded vote for pay raises that would prevent your Congressional delegation hiding within "voice vote" invisibility (although it would not prevent "absences" from the vote). So join the "Proud Four Percenters" and tell your MCs you want to support "something else," like a Congressional Pay Amendment.

For Now, Two Things to Try. (1) Should you want to contact your Representative or Senators regarding this issue, their contact e-mails, etc. may be found at the official House site and the official Senate site. As we've seen, the only pressure that can be brought to bear is the good old-fashioned politics of yelling.

And (2), from Advertising Age, Jen Wheaton, 12-17-08, PR Challenge of the Day: Congressional Pay Raises, do ahead, give it a try! (I failed miserably.) "Pretend you work for Congress, are upset by [an] interest group's press release and have to spin Congressional pay raises in a positive light. No cheating: You can't have your pretend client opt out of the pay raises."

See, those Press Secretaries do not have easy jobs . . . they definitely deserve a pay raise, if only there wasn't all that constant lying . . .

Hitler Alive and Well in Pennsylvania, and Drinking from a Sippy Cup.

1/15/2009: Given the recent news about the Campbells, this is an update of my original post. In this post I have italicized those quotes by Mr. and Mrs. Campbell that I made up to drive the satire along a bit. The real quotes are in regular type, and actually, rereading them, are outrageous enough without my additions . . .

**********************************

Last week, an Easton, Pennsylvania family was refused a birthday cake with their son's name on it by a New Jersey supermarket. Heath Campbell, 35, and his wife, Deborah, 25, (pictured at left, with son) say they are upset at the decision made by their local ShopRite not to write Happy Birthday Adolf Hitler across the cake for their three-year-old boy, Adolf Hitler Campbell. ShopRite maintained that it would amount to "appeasement" should they have "caved in" to the Campbell's demands, stating that last year "we produced a Happy Birthday Benito Mussolini cake and the very next day the entire Mussolini family had taken up residence in the store's Fresh Produce section and was eying Fresh Meats. Never again," said ShopRite manager, Harold MacMullen. "What next," he asked, "Ivan the Terrible Bundt cakes, Vlad the Impaler Jelly donuts?" The local Walmart, however, later goose-stepped forward to satisfy the Campbell's demands, who consequently canceled their plans to invade Poland.

Mr. Campbell explained he named his son after Adolf Hitler because "no one else in the world would have that name." When reporters mentioned that no one else in the world had the name "Colon Cleanser," or "Please Kick My Ass," or "Sewage Waste," Mr. Campbell, undaunted and unconvinced, struck back, "People need to accept a name. A name's a name. The kid isn't going to grow up and do what [Hitler] did," although the proud Pops never once took his eyes off young Adolph who was busily and gleefully setting fire to the couch nearby, and supervising the spinning of the family cat by its tail from the overhead fan.

The Campbells also explained that, in the face of criticism, they named their child Adolf Hitler, but "there's a new president and he says it's time for a change; well, then it's time for a change." An Obama Transition Team member was not available for comment, and stated "furthermore, we will never be available for comment on this particular issue." Three year old Adolph responded to this news by chasing his sisters, JoyceLynn Aryan Nation and HonszLynn Hinler* Jeannie, into the neighbor's swimming pool which he had earlier claimed was his own and always had been so.

Observing his son's gleeful pillaging, Pops smiled at what he called "Adolph's expansive personality," and mused, "I think people need to take their heads out of the cloud they've been in and start focusing on the future and not on the past." Campbell, immediately invoking the past, however, explained that his ancestors are German. But when asked to explain their "whereabouts during the years 1939 to 1945," he turned and ran. When later discovered in the family basement, he continued and spoke of his love of Hunterdon County, "and the adjacent counties, and, indeed, the counties adjacent to those as well, and so forth." He sported a pair of black boots he said were worn by a German soldier during World War II, and offered to display his authentic National Socialist Party underpants, but the press politely - and very carefully - declined.

The Campbells, summing up, claimed they were not raised to avoid people of other races, but were told to not mix with them socially, romantically, or in any other way get within less than thirty miles of them. But they said they would try to raise their three children differently. "Say Adolph grows up and hangs out with black people. That's fine, I don't really care," Pops said. "That's his choice." Mrs. Campbell is proud that one of Adolph's young playmates, Idi Amin Matthews, for example, is African American, and Richard the Third Bifferton, is, she explained, a "product of pure English blood." Mom Campbell went on, explaining the boys love of geography, "The boys often happily spend hours discussing invasion routes into Europe and the Caucasus."

The Campbells hope that the furor dies down, and that young Adolph grows to maturity without emulating other Campbells who, they explained with obvious embarrassment, "became lawyers or politicians." As for Adolph's birthday party next year, they hope it will not involve holding Walmart families hostage.

* CORRECTIONS DIVISION: I misreported the name of HonszLynn Hinler Jeannie Campbell as HonszLynn Himmler Jeannie Campbell. I apologize for this oversight, particularly to the Campbell family who apparently are either history-challenged, spelling-challenged, or, my bet, both. Now that's an apology!

The No Regrets of the Regrettable Frank Gaffney, Jr.

Who Knew? For those two or three humans now alive who don't understand that Dick Cheney was uninterested in compiling honest intel prior to the Iraq invasion and occupation, that doubt was erased by "he who shall be obeyed" himself. Yesterday, during an ABC News interview where he also charmingly defended torture, Cheney strongly disagreed with Karl Rove's recent statement (i.e. lie) that the United States would have avoided war in Iraq if the Bush administration had known there were no WMDs. "I disagree with that," and then added, "As I look at the intelligence with respect to Iraq, what they got wrong was that there weren't any stockpiles . . . What they found was that Saddam Hussein still had the capability to produce weapons of mass destruction. He had the technology, he had the people, he had the basic feedstocks."

A gaffe? No. What Cheney had is called a "Michael Kinsley Moment," a subset of the traditional "gaffe." Known for the man who coined it, it's "when a politician tells the truth." As in accidentally, or as in "White House to Cheney: We'd much rather you hadn't put it quite so . . . well, truthfully." After all, remember how much the specter of the "mushroom cloud" was drilled into our heads during the run up to war? Remember, the VP's "Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction." Well, we know now, and knew then, that the evidence for WMDs was being manufactured from the Cheney-Rumsfeld fifth column of the unvetted views of a few intelligence analysts, the rantings of isolated disaffected Iraqis, and, when that and other methods failed, from the thinnest of thin air.

The Chickenhawk Shuffle. So, tonight, the chickenhawk's cheerleader extraordinaire, Richard Gaffney, Jr., was on Chris Matthews' Hardball and, rather than denying that we would've gone to war regardless of the existence of WMDs, leaped to defend not merely the VP's statement, but its "truthinesss" too, i.e. as Colbert explained, "the truth we want to exist." Gaffney, a protege of the indescribable Chickenhawk-in-Chief, Richard Perle, is among the more radical neoconservatives and believes that war dissent is tantamount to treason. A consistent reinventor of truth, he sprang to Cheney's defense, returning insistently to wingnut talking points that:

(1) Hussein was a bad bad bad bad bad man, really really really bad;

(2) the White House operated with the best intel available at the time (forgetting to mention that the intel was fabricated and ran counter to the predominant opinions of the vast majority of seasoned intelligence analysts, even among our allies);

(3) virtually everyone who had access to the White House's intel agreed that Hussein had WMDs (again, apparently forgetting to mention that the intel that people were relying on was fabricated);

(4) after the invasion, when no stockpiles of WMDs were unearthed, it was still discovered that Hussein had possessed the possible components of possible WMDs and could have possibly at some future date produced some "aerosol cans of" vaporized bad stuff that might have at some point entered the United States and wound up being possibly inhaled by people like Frank Gaffney, Jr.;

(5) when, during the run up, neoconservatives said there was "no doubt" that Hussein had WMDs, particularly nuclear weapons, but afterwards discovered that, of course, they did not have any at all, they were still correct because . . . well, see number 4 above; and

(6) Hussein was a bad bad bad bad bad man, really really really bad.

A Cooked Chickenhawk. On Hardball tonight, Gaffney, ostensibly there to face off against Mother Jones' Washington bureau chief David Corn, found himself increasingly on defense against the host himself. While Corn had much to offer, he spent most of his time as a bemused bystander watching Matthews barely able to stifle launching himself against Gaffney's projected image. It was cheering to see. (Where is that kind of rage from the Democratic party when we need it? Will they ever learn it?)

Gaffney chickenhawked on about Hussein's capabilities. Failing at that, Gaffney maintained - again, inaccurately and dishonestly - that the Bush administration's post-invasion evaluation of Iraq's WMD status, the so-called Duelfer Report, that Iraq had the "capability" to reconstitute its WMD programs, and to quickly fabricate "aerosol cans" of poisonous substances. The Duelfer Report did nothing of the sort, as the Washington Post reported:

Duelfer, whom the Bush administration chose to complete the U.S. investigation of Iraq's weapons programs, said Hussein's ability to produce nuclear weapons had "progressively decayed" since 1991. Inspectors, he said, found no evidence of "concerted efforts to restart the program. . . The findings were similar on biological and chemical weapons. . . The former regime had no formal written strategy or plan for the revival of WMD after sanctions. Neither was there an identifiable group of WMD policy makers or planners separate from Saddam" tasked to take this up once sanctions ended."

Richard Gaffney, Jr. Sends His Regrets. Again, Bush's own report concluded "No W. M. D." Gaffney, though, didn't budge. In the fashion so well developed by chickenhawks without conscience, he wore on, with a nauseatingly memorable, "it is regrettable that any Americans died, it is regrettable that they had to die, but I believe they did have to die." He, Richard Chickenhawk Gaffney, Jr., believes that other people had to die.

Both Matthews and Corn tried to represent the reality-based community, but Gaffney would have none of it, and fought off any suggestions that the war was "sold" to the American public. Matthews, in no uncertain terms, set him straight:

[P]eople in the middle supported this war because they believed that America was threatened by nuclear - possible nuclear attack - from Saddam Hussein. I believe that was the reason that sold the war to the middle of the country politically, and now to step back and say, "Well, it didn't matter, they didn't have any weapons over there, they didn't have nuclear stockpiles . . . You know the capability is not the case that was made. . ."

Matthews finished, flushed with anger. The "shamelessness of our VP Dick Cheney . . . is profound." Profound in the very worst sense.