Posted 7:18 PM by Robert

O! Linda!

Read the terrific undressing of Linda Greenhouse by Kausfiles today.

Is there anyone out there who thinks - or is even willing to argue - that those new Times ethics rules do anything to dispell the horrible odor of rank partisanship from a Greenhouse column such as this one?

Maybe she's just all pent up, since those ethics rules do keep her from marching in today's D.C. anti-war/anti-Bush rally. Perhaps she's just ventilating her political frustration through her "reporting."

In other words, have the new ethics rules just made her obvious partisanship worse?

And one might also consider Ms. Greenhouse's repeating duet with the Professor Thomas Merrill, who Kausfiles correctly describes as the sole Supreme Court lawyer she actually names. The Professor has played straight man to Ms. Greenhouse previously - supplying all kinds of curious, fatuous comments about the Court while Ms. Greenhouse fails to disclose even which justice he clerked for. Aren't there other Court specialists that the Times can interview for attribution? Or is it just that Professor Merrill is the one that Ms. Greenhouse can count on to say what she wants - a kind of legal academic sock puppet? The whole, repeating context suggests some kind of, well, friendship or political or other special relationship between the two of them. Is that unethical - or at least does it present the possible appearance of the unethical?

Posted 6:52 PM by Robert

UPDATE: The Big Kill

Both Balkin and Siva Vaidhyanathan have constructive preliminary thoughts as to how Eldred might be used to gnaw at some of the more problematic new extensions of copyright protection - especially taking aim at the Digital Millennium Copyright Act.

As Vaidhyanathan says: Ginsburg's expression of faith in the power of the idea/expression dichotomy and fair use does not recognize that both these rights are under attack in Congress and lower courts right now. I think that's not quite right - since those attacks were not shown to be effected through the Bono Act under challenge in Eldred. But as I note in my prior post, proper cases can and should be found in which the idea/expression dichotomy has been at least arguably transgressed by expansion of copyright protection, and in which "fair use" is restricted. Balkin is right to focus on such expansions in his earlier post - although I do not agree that any serious First Amendment impact was shown to be created by the mere extension of the copyright term effected by the Bono Act itself, especially at the extreme level of generality at which the Bono Act opponents chose to argue and position the case (starting with the selection of plaintiffs - since it seems that the lawyers selected the plaintiffs in this case). The new economics of intellectual property should also be brought to bear, but carefully - certainly without inviting the courts to incorporate academic artifice or extraneous economic theories into the Constitution as was so unwisely attempted in Eldred.. The First Amendment - not the Copyright Clause - should be the focus of the challenge, as both Vaidhyanathan and Balkin also note.

I am not convinced that the DMCA is the right place to start. Balkin certainly goes too far by suggesting that Justice Ginsburg's opinion renders that Act "constitutionally suspect." At most Eldred's approach does not insulate the DMCA as much as it does the Bono Act - but that is far from rendering the DMCA "suspect." But the general approach seems sound.

Posted 1:05 PM by Robert

Gotcha!

Professor Lessig writes today (Saturday) in the New York Times on behalf of his clients to promote a proposal that once copyrights get old (he suggests 50 years) copyright owners be required to pay a small fee each year or risk the passage of their copyright into the public domain. The scheme is intended to address the problems supposedly created by difficulties in finding the owners of old copyrights which are no longer being exploited commercially. One might wonder how serious a problem this is for the nation, since the copyrights which are the focus of the scheme are by assumption not being exploited commercially - although his proposal seems to go beyond that class.

It is refreshing to see Professor Lessig abandon the Olympian heights of his prior assertions that the Constitution already gives his clients what Congress will not. But there is still a disturbing element of excess in what Professor Lessig proposes here - even if all of his assumptions are accepted on his own terms.

Specifically: why should the consequence for repeated failure to pay Professor Lessig's proposed fee be forfeiture of copyright to the public domain? For example, why should someone who finds an unknown, unpublished manuscript by, say, F. Scott Fitzgerald, have the right to publish it just because the author's heirs haven't paid the fee? A homeowner who doesn't pay real property taxes doesn't risk forfeiture of an old house - although the house may be seized and sold at auction with the excess of the sale price over the taxes returned to the homeowner. Anyone proposing that a non-taxpaying homeowner forfeit his home would be universally considered to be advocating a wildly excessive idea. And that is also true of Professor Lessig's proposal. Indeed, even a public auction of the copyright would be a nasty, excessive and inconsistent with the customary reliance on licenses - not sales - for rights exploitation in the field of copyright.

Assume all of Professor Lessig's assertions and concerns are true and valid, and further assume the copyright owner's repeated failure to pay the proposed fee. Why isn't it enough for the law to deem the copyright subject to a license at the option of a would-be user (Professor Lessig's client) on terms stipulated in the statute and for a statutory royalty payable on demand to the copyright holder? The user/licensee/client could be required to pay the royalty to the Copyright Office on behalf of the copyright owner, or to provide contact information to the Copyright Office and maybe in some publications or on the internet so that the copyright holder could demand the royalty.

And why should the copyright owner not be able to cut off the license with respect to future actions by the licensee just by paying the fee arrearage and notifying the licensee? That is, if one of Professor Lessig clients has already created something (say, a book) using the copyrighted material while the statutory license is in place, it is perhaps reasonable that the law would allow all existing copies of the book to be sold - and perhaps allow an already-contracted run of the book to be printed for some period of time specified in the statute. Other than those and similar considerations that could be dealt with in the statute, why should the copyright owner not be allowed to terminate a third party's right to use the copyright through notice and perhaps bringing the fee arrearage current?

Professor Lessig analogizes his scheme to one already existing for patents. But a copyright automatically arises upon the mere creation of every original work by its author - where one obtains patent rights from the government through a long, specialized, expensive process. Unlike the patent case, the scheme Professor Lessig proposes in the copyright field would be an invitation to technical, absent-minded, unjustified forfeiture - and not consistent with the means by which copyrights are created. In short, it would be a nasty, excessive "gotcha!"

It's not just equity that abhors forfeiture. Most reasonable people are wary of them. Making this scheme less excessive might make it or something like it more likely to be adopted.

Posted 8:51 AM by Robert

What Has Eldred Wrought?

Many of those disagreeing with the Supreme Court decision in Eldred v. Ashcroft continue to assert that the Court was just wrong because the additional time added to the copyright term just can't provide meaningful incentive for the creation of new works.

But Eldred seems to have even worse news for those people: The Copyright Clause allows Congress, if it so desires, to enact a copyright system that is not designed or intended to spur production of new works at all. The Copyright Clause language states only: Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing [to Authors] for limited Times . . . the exclusive Right to their . . . Writings. There is nothing in this language that says Congress can only promote the Progress of Science by granting up-front incentives, although the Bono Act opponents keep saying that.

That's really not bad news, since as pointed out in a prior post, some economists are now arguing that the old "limited-monopoly-for-production-of-new-works" calculus may have been a mistake from the beginning. [Note: these economists challenge more than that particular assumption - including possibly some things suggested here.]

The Eldred majority correctly points out that:

The "constitutional command" we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a "system" that "promote[s] the Progress of Science." ... We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives.

Eldred used this approach to the Copyright Clause to justify its refusal to take seriously the argument tendered to the Eldred Court that the Bono Act violated the Copyright Clause because the additional time added to the copyright term just can't provide meaningful incentive for the creation of new works. That kind of determination is for Congress the Court held.

The Eldred principles reach beyond the specifics of the case, as do the principles of most Court decisions: Suppose some economist convinced Congress that the "incentive to create new works" theory was all wrong, even counterproductive [see above reference to what some economists are up to]. Congress doesn't have to continue to depend on that particular disgraced theory. Eldred held that any copyright system that a rational person could believe promotes the progress of science, and grants copyrights only for limited times and only to authors, is authorized as far as the Clause is concerned (other provisions of the Constitution are a different story). In short: Congress could completely eliminate all traces of the "incentive to create new works" approach from the federal copyright system. I think that is what Eldred stands for - and I think that it is mostly right. Of course, if Congress wanted to adopt such a new approach it would not have the benefit of all the past precedent upholding the rationality of the (always questionable and questioned) "incentive to create new works" theory.

And that is a good thing. One of the problems with Professor Lessig's approach is that it became fixated on the copyright term and conflated the very real "limited times" provision of the Copyright Clause with the quite separate role of "monopoly-incentive-for-production-of-new-works," which is not mentioned in the Copyright Clause. But the Copyright Clause applies to every aspect of copyright law - not just the term. For example, in 1976 Congress realized that financing the exploitation of intellectual property is important - and therefore made it easier to mortgage a copyright. Was it a violation of the Copyright Clause for Congress to pass a law specifically intended to ease financing of such exploitation - even if there is no intent to spur the creation of new works? Professor Lessig's approach seems to lead to that result unless one deems a decision by Congress to facilitate financing of existing copyrights to be "necessary and proper" in relation to creating incentives for new works. But facilitating the financing of existing copyrights is no more "necessary and proper" to this end than is extending the terms of those same copyrights. The Constitutional focus on "monopoly-incentive-for-production" is just wrong - there are lots of other perfectly good ways of promoting the progress of Science other than dangling the copyright monopoly in front of a potential author in the hope she will create something new in exchange for some market power. Of course, exactly that focus is perfectly appropriate for those practicing under the existing copyright statutes - since Congress has chosen that focus most (but not all) of the time in those statutes.

Preserving ownership rights arguably (and probably) does promote the Progress of Science by preventing overexploitation and under exploitation of the work. Of course, as noted above, there are fancy new economic theories that suggest otherwise - but Congress is not bound to accept current academic fashion, especially current minority academic fashion. So if Congress wants to enact a "system" that focuses on effects other than spurring new production of copyrightable works - say, by focusing on the benefits of ownership rights in existing copyrights granted or preserved to an author (with no pretense that the system is spurring the creation of new works) - then that's up to Congress. And that's exactly what the Copyright Clause says.

And neither Eldred nor the Copyright Clause stops even there. Could Congress have granted Stravinsky a copyright in the Rite of Spring years after he wrote it or some original copyright expired? The language of the Clause says "Yes" - and I think Eldred does, too. Could Congress grant to me a copyright in the Rite of Spring? No - I am not the author of that work under any acceptable theory. Could Congress grant to foreign authors copyrights in their own works even though those authors had not previously had copyrights in this country or any foreign country (suppose they even live in a country with no copyright law)? Of course. And these results are what the Framers intended.

In consequence, contrary to Professor Lessig's belief - it is the case that Golan was settled by Eldred. And although Professor Lessig is now attempting to radically distinguish the premises of Eldred and Golan, even the Golan complaint intertwines them. Again, there is much truth in old cliches: Hope does spring eternal.

A paragraph from Breyer's dissent touches on these matters:

Third, several publishers and filmmakers argue that the statute provides incentives to those who act as publishers to republish and to redistribute older copyrighted works. This claim cannot justify this statute, however, because the rationale is inconsistent with the basic purpose of the Copyright Clause as understood by the Framers and by this Court. The Clause assumes an initial grant of monopoly, designed primarily to encourage creation, followed by termination of the monopoly grant in order to promote dissemination of already-created works. It assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence. This view of the Clause does not deny the empirical possibility that grant of a copyright monopoly to the heirs or successors of a long-dead author could on occasion help publishers resurrect the work, say, of a long-lost Shakespeare. But it does deny Congress the Copyright Clause power to base its actions primarily upon that empirical possibility lest copyright grants become perpetual, lest on balance they restrict dissemination, lest too often they seek to bestow benefits that are solely retroactive.

His argument is confused and tautological and highly disingenuous. It's confused because Congress cannot just grant rights to those who merely act as publishers - only to authors. So the whole paragraph is a mess to begin with. Could Congress "grant ... a copyright monopoly to the heirs or successors of a long-dead author?" An interesting fine point, but the real question is: Could Congress grant a copyright to a living author whose copyright has lapsed or never existed - like Stravinsky? Of course Congress can do that. But Justice Breyer doesn't dare address the actual point: not "publishers", not "heirs" - his approach would prohibit protection of real living authors, like Stravinsky, who was actually screwed by Disney over the Rite of Spring's use in Fantasia exactly because the then-still-very-much-alive Stravinsky had no American copyright in it. Does Justice Breyer or Professor Lessig think the Constitution prohibits Congress from fixing that? Do they think all notions of "unjust enrichment" were squeezed out of the Copyright Clause and rendered constitutionally "irrational?" Apparently they do - although Justice Breyer doesn't have the honesty to just come out and say it. (Professor Lessig flatly says: "The opinion of the Court gives no support to restoring copyrights once expired," which is just wrong.) They are both wrong. And I have seen nothing that proves that the Framers intended to enact these particular theories of these two men.

Worse, Justice Breyer's argument is tautological, and the majority rightly rejects it. The Copyright Clause requires that the copyright monopoly be restricted to "limited times." That means Congress will have to revisit the extension of the monopoly repeatedly if expiration is to be avoided – which is exactly what Congress has been doing from time to time since 1790. On each revisit, Congress has to pass a bill extending the monopoly for another limited period - and each such extension must satisfy the same constitutional requirements. The Clause does not say that the monopoly must ever in fact expire, although each extension must comply with the "limited times" requirement and not be a disguised attempt to avoid it. It may become harder and harder with each extension to justify a further extension - but nothing in principle rules that out. In short, Justice Breyer just made that part up because it yields his desired conclusion as a nice tidy tautology.

Posted 2:28 PM by Robert

Justice Breyer Dissents

Stuart Buck cites to Justice Breyer's dissent in the Supreme Court's recent Eldred v. Ashcroft decision. Stuart is an able and engaging writer, but I cannot share his enthusiasm for this dissent. In particular, a discussion of this dissent seems a proper place for reviewing a straightforward question raised here by Justice Breyer: What copyright-related benefits might justify the statute’s extension of copyright protection?

After raising this general question, Justice Breyer himself proceeds to focus on his version of the now-common argument that extensions of the copyright monopoly cannot induce additional creative production when the extension is retroactive or begins far in the future. He even cites to the Economists Brief. I am not going to address those arguments because they are not the only potential benefits from extending copyrights. [The majority finds other benefits, which I also do not address, although I do note that most of Justice Breyer's points are quite effectively rebutted in the majority opinion's footnotes.]

The answer to Justice Breyer's question is as follows: The maintenance of an "owner" who will have an incentive to make certain that the copyrighted property is used in, and only in, ways that maximize the value of, and financial return from, the copyright are copyright-related benefits justify the statute’s extension of copyright protection. These benefits arise especially with respect to already existing copyrights. Justice Breyer does not mention these benefits, although he accepts that the standard of review is "rationality" - so if a rational person can believe such benefits exist, Justice Breyer seems to be wrong by his own standard. The Justice is writing in dissent, his dissent will have no effect - and he appears to take full advantage of the freedom from judicial responsibility that allows him.

Justice Breyer also asks, again rhetorically, if the logic behind the Bono Act Would ... justify continuing to extend copyrights indefinitely, say, for those granted to F. Scott Fitzgerald or his lesser known contemporaries? But the answer to his rhetorical question is "yes" - the benefit of having an owner would continue to provide a rational basis with which Congress could justify its iterative decisions to extend the copyright monopoly. And as long as each extension is limited there is no difficulty under the Copyright Clause (the First Amendment might be another matter in some cases). So what?

Justice Breyer's rhetoric surely reaches a nadir with his dismissal of the possibility that a major artist might be influenced by anything happening with his work, say, 50 years after his death: What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum?

But this rhetorical flourish seems particularly off base since it focuses pretentiously on great artists, who often care about huge effects flowing far into the future - Justice Breyer should have restricted himself to expressing his concern only for what motivates mediocre or bad artists, as I noted in a prior post:

Arnold Schoenberg used to say towards the end of his life: "In fifty years even the mailman will be whistling my tunes." Mahler expressed similar thoughts about how long it would take his music to come into its own. And Mahler's evaluation of his music's future was essentially correct (the prospect of hearing my mailman whistling at least later Schoenberg, I confess, is still unlikely). Mahler died in 1911. Much of his music had been performed during his life, but most of it was controversial and underappreciated. His work never completely fell from the repertory, but only really began to come into its own and be fully appreciated by the broad audience it deserved and he desired until the 1960's, fifty years after his death - especially in the United States, where it blossomed under the inspired championship of Leonard Bernstein. In short, Mahler seems to have lived and written music expressly for a future beginning a half-century after his death - and his hope came true. But the opponents of the Bono Act seem to deny that such expectations are meaningful to society.

We know at least some great music was created in specific contemplation of its performance in the time period captured by the Bono Act, although not with the expectation of financial return. How is the Supreme Court supposed to determine how much other art has been lost because the needs and thinking of such exceptional artists go far beyond what happens "the minute they completed their work" (as the New York Times charicatures the issue in its editorial discussed below)? Are the Justices going to pull out their Constitutional crystal balls, or think themselves from the comfort of their Washington chambers into the mind of the next Mahler who might or might not write a note without copyright protection for that very period of time he or she is thinking about? If they do, maybe the Justices could drop a footnote explaining how they did it to the rest of us.

In his dissent, Jutice Breyer engages in considerable mind reading of dead artists: "What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?" Nice. Did the good Justice have a seance in his chambers to confer with Mr. Melville on this point? Or perhaps the Justice thinks that he's sufficiently gifted to know what one of the greatest literary minds in history would have thought about any given matter without the need for a chat? This particular aspect of Justice Breyer's rhetorical style proves that it is possible for judicial arrogance to reach a Biblical scale. Perhaps that has something to do with why not a single other Justice - not even his fellow dissenter, Justice Stevens - cared to sign Justice Breyer's dissent.

Posted 11:38 AM by Robert

I've Seen These, Too

Robin Roberts recounts a curious but inevitable side effect of the Blogosphere - and offers wise counsel in dealing with it.

Posted 11:33 AM by Robert

Krugman's Latest

Steve Verdon scribes a very good, down to earth take-down of Paul Krugman's latest flight of partisan fancy.

UPDATE: Among other observations, Steve makes the correct call that most of the benefits of the tax cut go to the "rich" mostly because only the "rich" pay taxes. There's some room to fuss about this argument, but it's essentially correct - and it helps explain the curious dynamic of tax cut proposals:

First, a tax cut is proposed by Republicans.

Second, Democrats and their liberal media camp followers condemn the cut because "most of the benefits of the tax cut go to the rich."

Third, most people polled say that the tax cut favors the "rich" - not them.

Fourth, Democrats and their liberal media camp followers ballyhoo the poll results and predict disaster for the tax cut and the Republicans pushing it.

Fifth, the non-rich more or less figure out that their taxes are not going up even though the Democrats and their liberal media camp followers are hooting that the non-rich are being disadvantaged. Arguments about deficits and interest rates rises and bad things that hoity-toity economic arguments predict will supposedly stem from tax cuts are mostly wrong. Remember in the 1980's when Democrats argued ad infinitum that the trade deficit was just flat out caused by the Reagan tax cuts and the "resulting" federal budget deficits? Well, taxes went up and the budget deficit went away in the 1990's but the trade deficit just kept on rising. Are hoity-toity economic arguments mostly not understood or cared about by the non-rich? Do most people of modest means decide to care only when someone wants actually to raise their taxes or cut their benefits or interest rates go up or some other bad thing actually happens? I think there is more to it than that.

Sixth, most of the tax cut passes in Congress. Republican popularity goes up.

It will probably happen this time, too. Of course, as the 1993 tax rise shows, the whole thing can work in reverse.

MORE: From Jay Caruso.

Posted 11:22 AM by Robert

The Big Kill

One of the more unfortunate effects constitutional law, especially at the Supreme Court level, has on its traffickers is the inclination to go for the big kill: the Brown v. Board of Education, the Eire v. Tompkins or similar breakthrough decisions. The effect - and the concomitant inclination to adopt a rhetoric of the gods in discussing one's position - is especially strong on academics. The Court hates that and the Chief Justice has on more than one occasion warned those appearing before the Court against it – but the Justices often have to endure it anyway. The Court hates it because the Justices feel obligated to address important constitutional issues, and they don't appreciate very clever people dressing up and structuring cases that could be treated in more ordinary fashion as urgent big deals - especially when the Court and accepts the case before a good layer of lower court precedent is created. Professor Lessig, who unsuccessfully challenged the Bono Act before the Supreme Court on assorted constitutional grounds, a very intelligent man and apparently an excellent legal academic, is a sad victim of these forces.

While is may be hard for the opponents of the Bono Act to accept their defeat - and all too easy to predict amorphous dire consequences from the Court's decision - in fact the Court's decision leaves plenty of room to gnaw at the more inappropriate aspects of copyright law. But my suggestion is that to exploit the Court's new ruling to limit the reach of copyright and government, interested people should start by limiting their own rhetoric, stop talking like gods and start talking like lawyers.

The good news: The Court accepted that the First Amendment does have a lot to say about the protection of ideas even where Congress acts through its copyright clause powers. Sadly, the case before the Court was a facial, across-the-board attack on the copyright term. There is no proof that copyright law generally restricts ideas - if it did then that restriction would probably exist with a term of 15, 30, 50 or 70 years. Faced with a sweeping facial attack couched in rhetoric of the gods, the Court responded with a sweeping overview of the copyright power generally - and found that in general copyright by its terms does not allow for restriction of an idea, but only restricts use of a particular expression of an idea. That alone pretty much demolishes the First Amendment argument against the Bono Act at the Olympian scale chosen by its opponents. [Of course, sweeping rhetoric is much more appropriate - at least in many cases - on the Blogospere than it is in a Court brief. But even on the Blogosphee it can be disadvantageous if it begins to blur one's judgment or divert an argument. The risks from "reading one's own press releases" do not stop at the edge of the Blogosphere.]

But the scope of copyright law has recently been extended wildly to include many things that are quite arguable themselves "ideas" - not just the expression of an idea. For example, in the 1970's software essentially could not be effectively copyrighted - but all that changed in the 1980's and the ambit of copyright has continued to grow. Worse, characters and structural aspects of novels and other creative works have been brought under the protection of copyright - although they are quite arguably "ideas." The Court's language opens the way for First Amendment challenges to such arguably pernicious extensions of copyright law into new areas. But such challenges will be effective only if they take the form of old fashioned lawyering - and not if they are couched in godlike constitutional rhetoric by legal academics looking for the big kill. Perhaps the best case would be one in which the emerging new economics of intellectual property seems plausibly applicable and the case is limited to onew in which the copyrighted material is arguable an "idea."

If one does not want to wholly give up employing divine rhetoric, one could tarry a bit in the briefs over what an "idea" is (and how it differs from the expression of an idea) under the First Amendment and copyright law. For example, perhaps a long footnote considering the question of whether a thought occurring to someone in a forrest who never has a chance to write it down or otherwise express it is really an "idea" might be enough to slake this particlar thirst.

One of the worst aspects of the now-defeated assault on the Bono Act was the failure to make the assault in modest, ungodlike, incremental stages, thereby building up a more appropriate body of precedent. It is worth noting that the Court’s decision evidences a serious disapproval of the abuse of precedent by the Bono Act opponents – and on that point the Court is, in my opinion, correct. Lacking a solid foundation in precedent and having decided to launch their premature assault anyway, the Bono Act opponents should have at least recognized that they needed to make compelling economic and structural arguments. But, as I have often pointed out, the economic arguments offered to the Court against the Bono Act were primitive, incomplete and embarrassing. Similarly, the structural arguments offered up - centering on “limited government” considerations which attempted to establish a false parallel between the Copyright Clause (which does not have a notorious history of having been stretched by political considerations) and the unique, bloated and unparallel Interstate Commerce Clause – were also quite weak.

Posted 6:31 PM by Robert

Fearful Asymmetry

In the Wall Street Journal Burton G. Malkiel writes elegantly about the proposed elimination of federal income taxes on dividends:

The president's proposal would have important long-term benefits. It will eliminate the tax-induced incentives that make corporations adopt overly leveraged capital structures and contribute to a misallocation of corporate resources. It will boost stock prices, improve credit equity, and strengthen corporate governance. The proposal is worthwhile because it will both stimulate the economy and have important effects on long-run efficiency.

The present system has had two undesirable effects. First, it has encouraged a dangerous buildup of debt at the expense of equity financing. ... Second, the tax system has encouraged a dramatic change in corporate dividend behavior. To the extent that stocks are held outside of tax-advantaged retirement plans, dividends are taxed at regular income-tax rates while capital gains are taxed at much lower rates if realized. More important, the tax on unrealized capital gains is deferred and can be eliminated completely if stocks are bequeathed to one's heirs. ...

By eliminating the personal income tax on dividends, the tax system will become more even-handed in the treatment of debt and equity. While debt financing will retain the advantage of allowing interest to be deducted from corporate taxes, interest received will continue to be fully taxable when held outside of tax advantaged retirement plans. Dividend payments will come after the payment of corporate taxes but the recipients will not be taxed. Assuming an average marginal corporate and individual tax rate of, say, 35%, both debt and equity would be treated in roughly an equivalent fashion. ... My guess is that eliminating the double taxation of dividends would lead to a powerful rally in stock prices ...

That all seems to fit together fairly well. But aren't there a few asymmetries here that might matter? The most basic way of measuring the value of a stock is to discount its expected dividend yield. In that sense, the proceeds of the sale of a share of stock can be thought of as essentially dividends on the stock received by the seller in advance. If income taxes on dividends are to be eliminated, then why tax the proceeds of stock sales at all? Professor Malkiel correctly points out that under the current system capital gains are taxed at much lower rates [than ordinary income] if realized. More important, the tax on unrealized capital gains is deferred and can be eliminated completely if stocks are bequeathed to one's heirs. But why should shareholders have incentive to hold stock until they die? A main point of the capital markets is to place ownership (stock) in the hands of the best owner - but capital gains taxes obstruct that. The elimination of dividends taxes makes a stock worth more if one buys and holds - but stock prices are the price one receives if one sells. Won't continuing to tax the gains from stock sales have a rather strong dampening effect on that powerful rally in stock prices that Professor Malkiel is hoping for?

More generally, what is the justification for the tax system distinguishing between a tax free dividend and a taxable sale of a security that in many respects amounts to nothing more than a stream of expected tax free dividends? Many tax experts and economists express concern at the huge efforts expended under the current system in the pursuit of capital gains treatment for commercial transactions. But the gap between the proposed 0% tax rate on dividends and capital gains rates is larger than the gap between capital gains rates and Professor Malkiel's posited average marginal tax rate of 35%.

The remaining asymmetry between dividends and stock sales seems to leave many opportunities for tax mischief in place. For example, consider a corporation that sells all of its assets. The profits from a sale of appreciated corporate assets are taxable to the corporation. But what happens if the corporation instead borrows against its assets, pledging the assets to the lender, passes the loan proceeds up to shareholders as a tax-free dividend and then defaults on the loan? The lender will foreclose on the assets, pay off the loan and return very little to the corporation with which it can pay the tax bill arising from the foreclosure sale. The shareholders are not liable for the tax bill unless the entire transaction can be characterized as a "fraudulent conveyance" or the like - which is very hard to do. Of course, under the current tax code the shareholders and the corporation already have an incentive to engage in this kind of transaction - but the sale proceeds received by the corporation are subject to high "double taxation," so the incentive is less.

For example, suppose the asset is not a “capital asset" and the sale proceeds are $100. That means only $65 is left after the corporation pays its taxes - and the shareholders retain only $42 after they pay their taxes (assuming, with Professor Malkiel, an average marginal corporate and individual tax rate of 35%. With the phony loan alternative the shareholders retain $65 under current tax law - so under the current law the loan scam is worth $23 to the shareholders.

If corporation sells its assets after the proposed reform is enacted, it still retains $65 after paying corporate income tax to be passed as dividends. If it uses the phony loan scam, it has $100 to pass as dividends. Dividends are tax free, so the shareholders retain all $65 in the sale case but retain $100 if the phony loan structure is used. The loan scam is therefore worth $35 to the shareholders under the proposed tax reform - a substantial increase in the incentive to commit tax fraud from the $23 incentive under current law. Indeed, the incentive to commit tax fraud increases by about 50% in this simple example.

The main justification for the asymmetry between dividends and stock sales appears to follow from the corporate income tax. In the simplest case, again suppose a corporation owns nothing but one appreciated asset, which it sells. The profits from a sale of appreciated corporate assets are taxable to the corporation. Only the after-tax profit from the sale would be available for dividends. But if the shareholders could sell their stock tax free, they could receive all of the sale proceeds tax free. Retaining the capital gains tax on the stock sale makes the stock sale and the asset sale have similar tax consequences (makes them more symmetric!) - and that's good tax policy. But it's good tax policy only if one assumes that the corporate income tax is a given.

The corporate income tax is unwise in the first place - and it's strange to see it apparently driving this aspect of the proposed reform. There are many good arguments - many of them economic - against the corporate income tax. But all of those economic arguments have a single, simple answer: they can't work politically in an atmosphere charged with the rhetoric of class warfare. Elimination of the corporate income tax is presented in this atmosphere as a boon to the rich. So I would like to note one argument against the corporate income tax which is mostly political and not economic: the corporate income tax mostly hurts the very public corporations that people of more modest means invest in. Private companies with small numbers of owners can form themselves as "limited liability companies" or "partnerships" or "S-corps" - none of which pay taxes. The owners do pay taxes on the distributions (dividends) received from these entities - which is exactly the reverse of what happens in the corproate case under the proposed reforms. Another suspect asymmetry!

Why should a good class warrior want public corporations - which are the only companies in which most people of modest means may and do invest - to be disfavored by the tax code? If passage of the President's reforms becomes more certain, doesn't it make more sense for the Democrats to argue that simple elimination of the corporate income tax across the board while retaining taxation on dividends, is a more, well, democratic, alternative?

Posted 11:33 AM by Robert

Blogspot In China

John Ray reports that China has unblocked Blogspot.

Posted 11:23 AM by Robert

More Lieberman Agonistes

Prior posts have noted the infatuation of a portion of the media with the candidacy of Joe Lieberman - and how that infatuation ignores Lieberman's inconstancy on many of what he has presented as his core issues. Ben Shapiro has brought his own related views to bear.

Today John Fund does a fine job of amplifying and extending such observations.

Posted 10:39 AM by Robert

UPDATE: Victory For The Dead Hand Of Sonny Bono

Steve Verdon (also a new perma link) posts and links to an article that provides an overview of work by David Levine and Michele Boldrin on intellectual property rights - arguing that the they may often - or generally - reduce societal wealth.

The articles are interesting, but I have some serious concerns about even the foundations - not just of the Levine/Boldrin work, but of this and related fields that the article discusses (which, interestingly, touches on Paul Krugman and the "new trade theory" in which he is heavily involved). By way of example only, consider this paragraph regarding Paul Romer, a Stanford University economist whose work is the focus of much of Boldrin and Levine's critique, and who considers the Boldrin/Levine logic flawed and their assumptions implausible:

Central to Romer's theory is the idea of nonrivalry, a property he considers inherent to invention, designs and other forms of intellectual creation. “A purely nonrival good,” wrote Romer, “has the property that its use by one firm or person in no way limits its use by another.” A formula, for example, can be used simultaneously and equally by a hundred people, whereas a wrench cannot. The formula is a nonrival good, the wrench is rivalrous.

Boldrin and Levine take a closer look at this "nonrivalry". The article describes as a "fundamental tenet of current conventional wisdom" the assumption that that knowledge-based innovations are subject to increasing returns because ideas are nonrivalrous: One person's use of an idea (or song, movie, book, software, etc.) doesn't diminish anyone else's. ...

Boldrin and Levine challenge that "fundamental tenet" on the grounds that the economic application of ideas is inherently rivalrous because ideas “have economic value only to the extent that they are embodied into either something or someone.” And because ideas must be realized in the physical world, “valuable ideas ... are as rivalrous as commodities containing no ideas at all, if such exist. ... “To be used by others it needs to be copied, which requires resources of various kinds, including time. To be usable it needs to reside on some portion of the memory of your computer. ... When you are using that specific copy of the software, other people cannot simultaneously do the same. ... Once again, there is no free lunch.”

I agree with Boldrin and Levine that the need to physically manifest "ideas" subjects them to restrictions that are worth studying. But the "nonrivalry" assumption seems to have bigger, even more serious and central problems. As pointed out in prior posts, the value of many intellectual property rights such as the copyright of songs and novels - are definitely affected by their uses. Song owners are normally very careful about the context in which their songs are used for exactly this reason. And novelists are often very wary of allowing their works to be made into movies out of concern that the public's associations and understanding will be damaged or degraded by the movie - the current Harry Potter movies being a famous and wildly successful example of the novels' author reportedly retaining great control over the finished movie. I have several times pointed out that absence of legal rights probably results in both underuse and overuse of intellectual property.

Consider even the wrench/formula example cited by Romer above. It is simply not correct generally that a formula can be used simultaneously and equally by a hundred people without their interfering with each other in many critical ways. For example, suppose one discovered a market imperfection in the interaction between, say, stock markets and options markets, and reduced it to a formula. The more people use the formula to enrich themselves from arbitrage positions constructed with the formula, the more the market imperfection and the value of the formula will be reduced by the resulting arbitrage. Yes, all those people can simultaneously do the formula calculation - but so what? Suppose they all shared a computer and each of them had to wait in line, say, a second (or whatever smaller period of time it takes to cause the other temporal features of their arbitrage trade to swamp the significance of the delay) before their shared computer used the formula to run their separate arbitrage calculations? Does the result change meaningfully because they had to wait a bit? And how different is all this from the wrench being placed in an equipment or parts pool - such as airlines and motorpools use - so that it can be used by many mechanics to fix many cars or planes in a single day? Worse, the wrench probably has a long useful life - so it's not a bad estimate to assume that each use leaves the wrench unchanged. But every time an arbitrage position is exploited in public markets the use itself communicates information about that position to the market - so repeated use by many people may cause the formula (or its meaningful trading content) to become public information. At that point the formula's value will be driven to its minimum exactly because a lot of people are using it at the same time. Is the wrench more of a "nonrival good" than the formula?

The above paragraphs are not intended to show that either Romer or Boldrin/Levine is wrong. But I am left with a troubling sense about the approach.

Prior posts on this topic have pointed out that the economics and mathematics behind any decision to overturn the Bono Act would have to be ferociously complex - orders of magnitude beyond what's in the embarrassing "Economists Brief." The Boldrin/Levine papers are a step in the necessary (if not exactly desirable) direction towards complexity - but if their approach is sometimes appropriate, it seems unlikely to apply generally. And even their calculations seem likely to need refinement and further complexity to address the differences in markets and property. For example, most copyrighted materials in fact contain no significant original matter and hence the copyright confers no market power on the author. But the existence of the copyright gives the author a curious legal position, which one expects to differ significantly from, say, that of the position of Ms. Rowling - the author of the Harry Potter books.

The possibility that the intellectual property monopolies might actually restrict wealth creation is a very old idea. In fact, a lot of people in the 17th and 18th centuries were pretty convinced of that - and most good intellectual property courses with an economic focus point out this problematic underpinning. From a legal standpoint that's really a big legal analytic problem for the opponents of things like the Bono Act, since the constitution conferred the intellectual property power on the Congress notwithstanding the serious doubts of the framers' generation about whether they were doing economic good. Suppose after some such fancy economic analysis one could show that the copyright monopoly always restricts wealth creation. Would it follow that Congress could not constitutionally enact a copyright law? Not likely. Weaker economic results with the same flavor just raise the same problem indirectly or by implication.

On a separate point, I want to state my opinion that the intensity of conviction in of some of the people in the Blogosphere who disapprove of the Bono Act is a bit over the top, for what it's worth. That intensity of conviction may have distorted the judgment of some otherwise fine minds.

Posted 9:15 PM by Robert

Perhaps Those Who Object to Anonymous Bloggers ...

... will want to reconsider their positions - in more than one way - after reading this.

Posted 3:10 PM by Robert

The Jewish Case Against Joe Lieberman

Ben Shapiro has the goods.

Posted 2:13 PM by Robert

FURTHER UPDATE: Despite All This Speculation ,,,

President Bush has now said personally that he considers Michigan's racial preferences to be unconstitutional:

The program "amounts to a quota system that unfairly rewards or penalizes prospective students solely on their race," Bush said in announcing that his administration would file a legal brief in the case with the Supreme Court on Thursday.

Posted 1:18 PM by Robert

Perils Of Paulin

The Man Without Qualities is no fan of anti-Semitic poet Tom Paulin, and the report relayed in today's Best of the Web that Columbia University won't offer him a permanent position comes as quite a relief.

But it is a real stretch to refer to Mr. Paulin as "Irish," as Best of the Web does and has done - and MWQ has also done. That description is seriously misleading. Most people use the word "Irish" (as opposed to "Northern Irish") mostly to refer to those from the Irish Republic (or whatever their current politics allows them to call that particular piece of land) - and that's not Tom Paulin. As noted in a prior post:

In fairness to the Irish, poet, critic and playwright Tom (Thomas Neilson) Paulin was born in Leeds, Yorkshire, on 25 January 1949 but was raised in Belfast in Northern Ireland, where his father was the headmaster of a grammar school and his mother was a doctor. He was educated at Hull University and Lincoln College, Oxford.

In other words: Tom Paulin is as British as John Bull.

Posted 10:42 AM by Robert

Victory For The Dead Hand Of Sonny Bono

As predicted in several MWQ posts, the Supreme Court today upheld the Sonny Bono Copyright Term Extension Act (Bono Act) against Constitutional objections formulated under both the Copyright Clause and the First Amendment. The 7-2 vote was not close. The Court correctly defered to Congress on the Copyright Clause argument ("`We find that the [extension] is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be''). But the decision also properly does not appear to be a naked deference to Congress with respect to the First Amendment argument.

MWQ had also predicted, contrary to some other legal commentators, that Justice Scalia would vote to uphold the Bono Act - and, in fact, he did join today's majority. The Court also rejected the intellectually embarrassing "Economists Brief" - also as predicted by MWQ. The Economists Brief was hardly more than a simplistic discounting calculation which avoided serious consideration of even basic economic considerations such as the famous Tragedy of the Commons (or "Overexploitation of the Common Pool") which often arises where property rights are terminated.

Even if the economic logic - which was given quite a lot of prominence by some people other than the Court - had been correct and complete, the Court found those arguments of little significance, also as predicted by MWQ: "Of course, not a jot of evidence has been adduced that any early Congress even dreamed that interest rates mattered for this purpose, although it is critical under the reasoning now advanced to the Court". Today the Court noted: "It is doubtful, however, that those architects of our Nation, in framing the "limited Times" prescription, thought in terms of the calculator rather than the calendar." The Court also correctly pointed out - in a line that reads as if it was inserted by Justice Scalia - that "To comprehend the scope of Congress’ Copyright Clause power, 'a page of history is worth a volume of logic.' ... History reveals an un-broken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime.”

The Court's analysis of the First Amendment considerations is sophisticated and appears to be correct:

By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” ... In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations.

First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. .... As we [have] said [in prior cases], this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” ... Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. ...

Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. ...

Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those “must-carry” provisions, we explained, implicated “the heart of the First Amendment,” namely, “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adher-ence.” ...

The CTEA, in contrast, does not oblige anyone to repro-duce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas.

This is a complex area. The Court's results may or may not be correct - although MWQ is fairly confident that the Court is more correct than wrong.

But at this juncture one thing is clear: The Court has done a heck of a better job than the opponents of the Bono Act did in arguing its case and in dealing with all of the necessary complexities.

Posted 10:58 PM by Robert

Visionary Art

A much larger version of this object of visionary art might make an ideal feature for the middle of San Francisco Bay - and a fitting symbol of the spirit of that great city.

The nearly apocalyptic image in the gloaming (or is it a sunrise?) particularly stirs the soul.

Posted 1:30 PM by Robert

Those Elusive Retail Sales

The official Commerce Department numbers on December retail sales are out today. The Wall Street Journal reports:

Retail sales climbed in December, but the gain came entirely in the auto sector as department stores suffered through a lackluster holiday shopping. ... Retail sales rose 1.2% after a revised 0.9% gain in November, the Commerce Department said Tuesday. But without auto sales, retail sales would have been unchanged for December. November retail sales were previously estimated as a 0.4% increase. ...

Despite the gain in December, consumers sharply slowed their spending during the fourth quarter of 2002, economists said. They believe the growth rate for spending will be only half the 4.2% pace recorded in the third quarter. The slow consumer spending, which accounts for two-thirds of economic activity, is expected to push growth in gross domestic product for the fourth quarter below an annual rate of 2%. The government will release its first look at fourth-quarter GDP later this month.

Sales at nonstore retailers, which includes mail-order and Internet sales, rose by 3% in December.

Sales at clothing and accessory stores rose 0.8%, while department-store purchases fell 0.3%.

Sales at gasoline stations rose 0.7% for the month, partly reflecting higher prices.

Retail sales were up by 4.6% on a year-over-year basis. On a seasonally unadjusted basis, 2002 retail sales rose 3.4% ....

Reuters also has a report.

One curious omission for each of these reports is their failure to mention the rapidly growing influence of gift cards on holiday sales. Gift cards are puchased and given as gifts, but are not recorded as sales by retailers until the card is actually used to obtain merchandise. That means many people may have received gift cards in December but not yet have converted them into gifts. That effect possibly explains at least part of reports that retailers have seen modest gains in sales so far this year, according to the latest weekly data.

Posted 12:26 PM by Robert

Why Get Ethical At The New York Times Now?

Mickey Kaus and Donald Luskin are, of course, correct to point out the hollowness of the new New York Times ethics policies.

But why now? Perhaps I missed it, but the Times seems to have provided no satisfactory explanation of why these rules are more important for the paper now. As Kausfiles points out:

Will this fool anyone? That would seem to be the idea. As Michael Kinsley has noted, such rules ban only the appearance of bias, not the actuality of bias. NYT Supreme Court reporter Linda Greenhouse marched in a big pro-Roe, pro-choice demonstration a few years back. Does anybody think she's changed her mind since?

Isn't the promulgation of these new rules without a good explanation tantamount to an admission by the Times that it needs to defend itself from an increasing perception that it's coverage is more biased than it was in the past?

Some explanation has been provided about limited portions of the new rules. For example, according to Editor and Publisher, a Times representative explained: "In the past, we had discouraged a lot of this, but it was not this explicit." Is that really an explanation? The Times representative also explained that tighter stock controls are required because of "the growth of 401(k) stock" and the need, post-Enron, for greater scrutiny of companies. But the new stock ownership limitations apply to senior management - who have always owned stocks, with or without 401(k) accounts.

Further, the new ethics rules go much further than limiting stock ownership. Doesn't this "explanation" of the stock ownership limitations just emphasize that imposition of the other new rules need and lack explanation?

Posted 10:14 AM by Robert

More German Unilateralism

One of the first lessons one learns in basic lifeguard training is that a drowning person is likely to grab anyone attempting a rescue, thereby causing both to perish.

Germany may be approaching that point. The Economist reports:

Germany has already bust the 3% limit on national-budget deficits imposed under the European Union’s stability and growth pact, and the European Commission has given Germany a deadline of May 21st to take urgent action to ensure that this year’s deficit is within the limit, or face the prospect of heavy fines.

The EU imposes that 3% limit to address the temptation that will inevitably arise for a financially strapped member of the Euro monetary zone to use a combination of a large budget deficit and membership in the Euro to export domestic financial strain onto other members of the Euro zone. Germany's willfull breach of this limit will therefore likely undermine any attempt to bring Britain into the Euro.

But the German breach has more disturbing significance for the EU than Germany's disregard of applicable law and the importance of future British membership in the Euro. The EU is largely held together by internal economic subsidies, and over time Germany has been the main subsidizer. Ireland, for example, has prospered greatly from EU subsidies - and the EU has just admitted a good many new members hoping to follow the Irish route to prosperity. That Germany is now, in effect, unilaterally demanding to be subsidized by other Euro members necessarilly raises the question: who can pay for EU subsidies now and in the future?

Could any reasonable person expect Germany to resume its traditional role as the utter for Europe?

There is a growing understanding - especially outside of Germany - that deep reform is needed to rescue Germany. That reform almost certainly consists largely of moving closer to an American model of national economic policy. But, as Andrew Sullivan points out:

German popular culture seems to be becoming more and more pathologically anti-American. Take a look at this week's cover of Der Spiegel. They even turn Old Glory into a version of the Hammer and Sickle. Truly repulsive.

But anyone looking to help this particular country now "imploding in a miasma of anti-Western resentment and socio-economic stagnation" should keep that lifeguard training in mind.

Posted 9:49 PM by Robert

UPDATE: Despite All This Speculation ,,,

As expected by a prior post, the Associated Press reports:

White House and Justice Department lawyers, acting on guidance from the president himself, are drafting a proposed Supreme Court brief arguing against programs that gave black and Hispanic students an edge when applying to the University of Michigan and its law school, three senior administration officials said.

MORE

Posted 9:35 PM by Robert

Genetic Defects Found In Cloned Opinion Columns

Why has it taken Paul Krugman so long to discover the easy way to write his New York Times column?

He can just click to some Jane Galt postings, such as this one and this one. After a pointless leftish twist, his own column on the same subject can then more or less be a fun house version of Jane's effort - only not as succinct, insightful, correct or good.

It does save time and the research quality can't be beat!

But what will Brad DeLong do?

He, too, should learn to steal only from the best!

Posted 9:20 AM by Robert

FURTHER THOUGHT: The Man From Hate

The look and feel of the Democrats' handling of the re-appointment of Charles Pickering resembles in potentially key respects their handling of the catastrophic Paul Wellstone "Memorial." That's probably not a coincidence, since the leadership of the Democratic National Committee and Senate Democrats remains unchanged. And although the attack is nominally coming through Senator Schumer, the heavy hand of the Clintons - and their cat's paw Terry McAuliffe - is everywhere suggested in both cases.

In the Pickering case as with the Wellstone matter, the Democrats start from an apparently successful precedent: Jean Carnahan's election following the campaign aircraft death of her husband in one case, the demotion of Trent Lott and prior successful blockage of Pickering in current case. But here, as in the Wellstone case, the precedent appears flawed and, perhaps more important, the Democrats are probably greatly overexploiting what validity there is in the precedent while misjudging public (and interest group) sentiments.

The Democrats convinced themselves that Jean Carnahan had defeated John Ashcroft mostly through an unstoppable wave of public sympathy following the death of her husband - and concluded that the fulsome Wellstone "Memorial" would intensify that same effect in Minnesota. That interpretation of precedent almost willfully ignored that Jean Carnahan never joined the partisan fray, instead playing the role of the grieving widow until the Missouri governor appointed her to the Senate, and that John Ashcroft voluntarily stopped campaigning following the death of his opponent. The tone of the Wellstone "Memorial" and Democratic demands that Coleman stop campaigning in Minnesota accordingly grossly overplayed whatever validity there was in the already flawed interpretation of the Caranahan/Ashcroft precedent. The result was a catastrophe for the Democrats that probably put Coleman in the Senate and may have had a nationwide effect. Broad attempts by the Democrats and the mainstream liberal media to justify the "Memorial Service" and demands that Coleman cease his campaigning simply lacked credibility.

Top Democrats seem to have convinced themselves that Charles Pickering's prior nomination was defeated because the image of his career confected by the Democrats was accepted by the liberal media - who then persuaded the public. Top Democrats also seem to have convinced themselves that Democrat-friendly mainstream media could have convinced the public that Lott's racially insensitive comments justified his removal as Majority Leader - if only the media hadn't been completely insensitive to the significance of Lott's remarks. The resulting strategy places Senator Schumer to lead the charge against confirmation with the mainstream liberal media (and the liberal part of the Blogoshere) arguing the case to the public in hopes of stirring up an emotional response against Pickering and the President.

Of course, Trent Lott's history simply isn't parallel to that of Charles Pickering. Efforts by Democrats and their liberal media camp followers intended to establish a false parallel are more likely to result in public rejection of the evident excess - and long term loss of Democrat credibility among swing voters and many African-Americans who will resent the Democrats' attempts at fraudulent manipulation. Indeed, the liberal mainstream media were barely able to provide cover for the Senate judiciary committee's vote that refused to allow the full Senate to vote on the prior Pickering nomination. A committee vote comes and goes in a minute, but a filibuster has a much higher profile as it ties up the Senate - and the public finds filibustering intrinsically much more suspect than a committee vote. There is no indication that the mainstream liberal media have sufficient power or credibility to justify the Democrats' planned abuse of the filibuster tradition - any more than such media were able to justify the abusive Wellstone "Memorial."

Further, it took the credibility of the conservative part of the Blogosphere and the Wall Street Journal [Best of the Web] to get the ball rolling over Trent Lott. Some left wing bloggers provided helpful information, but Trent Lott was not removed because of pressure from left wing bloggers - or the mainstream liberal media. Those conservative media are mostly applying themselves against the Democrat efforts in the Pickering case - with the purpose of exposing those efforts as excessive and fraudulent - as they did with the fraudulent emotionalism and partisanship of the Wellstone Memorial.

In short, the outcome of Democrat excess in the Pickering case seems likely to resemble the outcome of Democrat excess in the Wellstone case.

Posted 9:19 AM by Robert

Texas Reality Check: Mr. Bush's Republican Party

Rich Galen today makes a point omitted from the mainstream liberal media coverage of Republican fortunes and strategy in the South:

The people of Texas elected three African-Americans to statewide offices this past November. Wallace Jefferson and Dale Wainwright were both elected to the Texas Supreme Court and Michael Williams was elected chairman of the influential State Railroad Commission. All three officials elected are Republicans.