Wednesday, April 30, 2008

Before You Actually Vote for McCain

April 30, 2008, 6:30, 9:15 a.m.

If Senator McCain Had Opponents

Senator John McCain is coming to Iowa tomorrow (Thursday, May 1). With increasingly angry Clinton and Obama supporters threatening to vote for McCain if their favored candidate is not nominated at the Democratic National Convention, it's time this blog gives a little more attention to the Republicans' choice before he lands in Des Moines.

But first, have you begun to notice how the media and politicians seem to be holding Senator Obama to a different standard?

Take that matter of the flag lapel pin. Senator Obama is charged with being un-American, unpatriotic, and probably a supporter of terrorists and our other enemies because he doesn't wear one.

Now don't get me wrong. I love the flag as much as anyone, salute, say the Pledge of Allegiance, sing the Star Spangled Banner, participate in flying the flag on Memorial Day and appreciate those who put flags at veterans' graves that day.

But I've never been a big supporter of flag lapel pins. To me they just seem a little phony; a little too much "in your face;" as if putting a pin in your lapel (or a magnetic "support the troops" ribbon on your car) is somehow the equivalent of serving in the military.

I don't think attending church services makes you a Christian, and I don't think wearing a pin makes you a patriot. There are more substantive and meaningful ways in which one can demonstrate patriotism.

Beside, when I was a kid -- if I remember my Boy Scout "respect the flag" training properly -- there were laws that prohibited reproductions of the American Flag -- whether in signs or in pins. So it may actually be illegal to wear one.

In any event, they were big during the Nixon years, and my fellow FCC commissioners all (as I recall) wore them. Rather than protest by merely going without a pin of my own, I decided on a different strategy. I shopped for, and finally found and bought, the biggest, most garish, rhinestone-encrusted flag lapel pin in Washington. I wore it proudly each day. Gradually, over the next couple of weeks, my colleagues started leaving theirs in their sock drawers at home, until I was the only one sufficiently "patriotic" to wear one. Then, having achieved my purpose, I removed mine as well.

So I suppose I'm biased about flag lapel pins; I don't consider the failure to wear one a disqualifying character flaw in a presidential candidate.

But that's not my point.

My point is that neither Senator McCain nor Senator Clinton are wearing one either! Doesn't anyone else see the hypocrisy of their supporters criticizing Obama for doing (or, in this case, not doing) the very same thing as their favorite candidate?

Or what about their efforts to hang Pastor Jeremiah Wright's every outburst around Senator Obama's neck? What part of "No, those are not my views" don't they understand? And why are Senators Clinton and McCain seemingly immune from responsibility for the equally (or more) outrageous views of their ministers, lobbyists, and campaign contributors?

Once again the Press-Citizen's
Bob Patton has saved me from having to write, and you from having to read, hundreds of words to make a point he can put in a single editorial cartoon.

Bob Patton, "Hatorade on Parade: Extremist Speech, A Study in Black and White,"
Iowa City Press-Citizen, April 30, 2008, p. A12, posted April 29, 2008, 4:44 p.m.

In case the reproduced text is too small to make out, over the caption "Extremist Speech: A Study in Black and White," there is a small black panel and a much larger white panel. In the black panel is "Jeremiah Wright" carrying a sign reading "After Hiroshima and Nagasaki, 'America's chickens are coming home to roost.'" In the white panel are, from left to right, Jerry Falwell, Pat Robertson, John Hagee and Rush Limbaugh -- each with an "OK" ribbon awarded them. Their signs read, in the same order (Hagee has two): "9-11 was caused by 'the pagans, and the abortionists, and the feminists and the gays and the lesbians," "I totally concur," "Jewish 'disobedience' caused the Holocaust . . . Those who live by the Islamic Qur'an are mandated to kill Christians" and "Hurricane Katrina was God's punishment against New Orleans for gays and sin," "There should be riots at the Dems' convention in Denver."

Meanwhile, while Senator Obama is spending much of his time and skill evading these knives thrown by the media and Senators Clinton and McCain, Senator McCain -- with no remaining primary opponents -- seems to have little to dodge except his own statements, including those expressed with a seemingly uncontrollable anger. Michael Leahy, "McCain: A Question of Temperment," Washington Post, April 20, 2008, p. A1; Michael Gerson,"McCain's Anger Management," Washington Post, April 23, 2008, p. A21.

Sensing this vacuum, the staff decided to begin the task of filling it. (
And don't forget to check out State29, "10 Things You Should Know About John McCain," April 30, 2008, in his effort to do one better.) And thus was created's . . .

10 things you should know about John McCain (but probably don't)

. . . complete with footnotes.

1. John McCain voted against establishing a national holiday in honor of Dr. Martin Luther King, Jr. Now he says his position has "evolved," yet he's continued to oppose key civil rights laws.1

2. According to Bloomberg News, McCain is more hawkish than Bush on Iraq, Russia and China. Conservative columnist Pat Buchanan says McCain "will make Cheney look like Gandhi."2

3. His reputation is built on his opposition to torture, but McCain voted against a bill to ban waterboarding, and then applauded President Bush for vetoing that ban.3

4. McCain opposes a woman's right to choose. He said, "I do not support Roe versus Wade. It should be overturned."4

5. The Children's Defense Fund rated McCain as the worst senator in Congress for children. He voted against the children's health care bill last year, then defended Bush's veto of the bill.5

6. He's one of the richest people in a Senate filled with millionaires. The Associated Press reports he and his wife own at least eight homes! Yet McCain says the solution to the housing crisis is for people facing foreclosure to get a "second job" and skip their vacations.6

7. Many of McCain's fellow Republican senators say he's too reckless to be commander in chief. One Republican senator said: "The thought of his being president sends a cold chill down my spine. He's erratic. He's hotheaded. He loses his temper and he worries me."7

8. McCain talks a lot about taking on special interests, but his campaign manager and top advisers are actually lobbyists. The government watchdog group Public Citizen says McCain has 59 lobbyists raising money for his campaign, more than any of the other presidential candidates.8

9. McCain has sought closer ties to the extreme religious right in recent years. The pastor McCain calls his "spiritual guide," Rod Parsley, believes America's founding mission is to destroy Islam, which he calls a "false religion." McCain sought the political support of right-wing preacher John Hagee, who believes Hurricane Katrina was God's punishment for gay rights and called the Catholic Church "the Antichrist" and a "false cult."9

10. He positions himself as pro-environment, but he scored a 0—yes, zero—from the League of Conservation Voters last year.10

John McCain is not who the Washington press corps make him out to be.


1. "The Complicated History of John McCain and MLK Day," ABC News, April 3, 2008

"McCain Facts,", April 4, 2008

2. "McCain More Hawkish Than Bush on Russia, China, Iraq," Bloomberg News, March 12, 2008

"Buchanan: John McCain 'Will Make Cheney Look Like Gandhi,'" ThinkProgress, February 6, 2008

3. "McCain Sides With Bush On Torture Again, Supports Veto Of Anti-Waterboarding Bill," ThinkProgress, February 20, 2008

4. "McCain says Roe v. Wade should be overturned," MSNBC, February 18, 2007

5. "2007 Children's Defense Fund Action Council® Nonpartisan Congressional Scorecard," February 2008

"McCain: Bush right to veto kids health insurance expansion," CNN, October 3, 2007

6. "Beer Executive Could Be Next First Lady," Associated Press, April 3, 2008

"McCain Says Bank Bailout Should End `Systemic Risk,'" Bloomberg News, March 25, 2008

7. "Will McCain's Temper Be a Liability?," Associated Press, February 16, 2008

"Famed McCain temper is tamed," Boston Globe, January 27, 2008

8. "Black Claims McCain's Campaign Is Above Lobbyist Influence: 'I Don't Know What The Criticism Is,'" ThinkProgress, April 2, 2008

"McCain's Lobbyist Friends Rally 'Round Their Man," ABC News, January 29, 2008

9. "McCain's Spiritual Guide: Destroy Islam," Mother Jones Magazine, March 12, 2008

"Will McCain Specifically 'Repudiate' Hagee's Anti-Gay Comments?," ThinkProgress, March 12, 2008

"McCain 'Very Honored' By Support Of Pastor Preaching 'End-Time Confrontation With Iran,'" ThinkProgress, February 28, 2008

10. "John McCain Gets a Zero Rating for His Environmental Record," Sierra Club, February 28, 2008
Following which the staff adds:

Please help get the word out—forward this email to your personal network. And if you want us to keep you posted on MoveOn's work to get the truth out about John McCain, sign up here:

Thank you for all you do.

–Eli, Justin, Noah, Laura, and the Political Action Team

Now here are some excerpts from commentary about Senator McCain's own words . . .

It is 3 a.m., and the stillness of the White House night is shattered by the ringing of the red phone. President John McCain, rousing himself from a deep sleep, turns on the light and picks up the receiver. A U.S. embassy in a Middle Eastern country, he is told, has been blown up, and al-Qaeda is taking credit.

McCain takes a deep breath. "Character counts, my friend," he says. "Bomb Iran. Bomb, bomb Iran."

There is a rustling of blankets, and, brushing aside Cindy McCain, a concerned Joe Lieberman rises from the bed. "Not Iran, Mr. President," he says. "They hate al-Qaeda."

"That's right," the president says. "I remember now." He sighs with relief. "Good thing you're here every night, Joe."

But suppose, dear reader, that John McCain becomes president and Joe Lieberman doesn't bunk with the McCains on a nightly basis. How easily should the rest of us sleep? It's anything but an academic question after McCain's bizarre performance in Jordan last week.

There, he told reporters that he was "concerned about Iranian [operatives] taking al-Qaeda into Iran, training them and sending them back" to Iraq. "That's well known," he continued -- at which point Lieberman whispered a correction in his ear. "I'm sorry," McCain then said. "The Iranians are training extremists, not al-Qaeda."

What are we to make of this moment? Was it a senior moment? A jet-lagged moment? Or, worse, was it really a moment at all? After all, the evening before, McCain had told listeners of Hugh Hewitt's radio talk show that "there are al-Qaeda operatives that are taken back into Iran, given training as leaders, and they're moving back into Iraq."

So the al-Qaeda-Iran alliance wasn't just a passing thought. It was a thought that had taken up residence in McCain's brain for at least a day, possibly longer. Whether it was a simple mistake, a neoconservative delusion or a habit of mind that lumps together all of America's enemies (either sincerely or calculatedly, to build public support for military action), we cannot say. What we can say is that the idea of any or all of these options is profoundly disquieting. The very thought of a president who deliberately conflates or erroneously confuses our adversaries with each other is appalling, though not without precedent. We're mired in a war that has its roots in George W. Bush's both imagining and fabricating an alliance between Saddam Hussein and Osama bin Laden. Do we really want to perpetuate these habits of mind in the next administration? . . .

As early as 1999, McCain was recommending "rogue state rollback" as our policy toward such nations as Iraq. He remains an unabashed advocate of preventive war, as his comments on bombing Iran have made clear, and of permanent war, as his comments on remaining in Iraq have made clear. . . .

Hard to say what's more dangerous -- McCain's approach to the economy or McCain's approach to the world. The thought of him answering the red phone at 3 a.m. fills me with foreboding. Hell, I don't want him answering the red phone at 3 p.m.
Harold Meyerson, "McCain on the Red Phone," Washington Post, March 26, 2008, p. A19.

Now, before you actually vote for McCain . . .

So what do you think? However appealing the option may seem to them in April and May, come next November are 25% or more of the Clinton, or Obama, supporters really going to end up voting for Senator McCain if their candidate doesn't get the nomination? I doubt it.

In part, of course, it will turn on how the process unfolds.

If by early June Senator Obama is still the candidate who has won the most elected delegates, most popular votes, most states, and nearly as many super delegates as Senator Clinton -- and Clinton is perceived to have "stolen" the nomination by unfairly beating up on Obama with a the-ends-justify-the-means, mean spirited, win-at-any-cost, race-tinged campaign, with the suspicion that she wants him to be a nominee who loses to McCain so she can run in 2012, regardless of what it may do to the Party -- there will be hostile Obama supporters for sure.

They may not vote for McCain. They may vote for Ralph Nader or some other candidate. They may stay home. Some might even hold their noses and vote for Clinton -- but they're sure not going to go out and work for her as they have been, and would continue to, for Obama.

The better she does between now and June 3 the more this reaction will be softened: if she continues to win primary after primary by double digits, exceeds Obama's popular vote totals, comes closer to him in elected delegates.

And if the polls continue to indicate (as the AP poll did yesterday) that she runs stronger against McCain than Obama does. But the significance of even that, of course, turns on a state-by-state analysis of a McCain-Clinton and McCain-Obama match up, and the resulting electoral vote totals. (For example, if polls indicate that Clinton would win California by a larger margin than Obama, but that he would also beat McCain, and that Obama would also win more electoral votes than Clinton because of the smaller states he could win that she could not, then her national margins and vote totals mean much less.) See, Nicholas Johnson, "It's the Electoral College, Stupid!" April 22, 2008.

On April 25 I quoted at length from Tung Yin, "Who's the real '4 more years of George Bush'?" April 24, 2008. He begins,

I hear the constant refrain from the Clinton and Obama campaigns that John McCain can't be allowed to win, because that will be just 4 more years of the Bush Administration. It's not an implausible argument, given that McCain has started to repudiate some of his past views on taxes, for example.

However . . . this is focusing purely on political issues. Now, I'm not downplaying the importance of issues, since for many people, such things as Supreme Court appointments, tax policy, Iraq, and so on are key points. But I can't escape feeling that on a procedural level, the candidate who would represent 4 more years of the Bush Administration is . . . Hillary Clinton."
He persuasively develops this assertion.

In effect, what Professor Yin is telling us is that there are two considerations here.

(1) One, for Obama supporters, is whether they are willing to forgive Bill and Hillary Clinton, and their staff members and supporters, for the tactics and character they've displayed during the campaign in the event Senator Clinton were, in the end, to get the nomination. Would they vote for Clinton in the general election anyway, "come together as Democrats," and "let bygones be bygones." Or, would they be so "bitter" (to use Senator Obama's ill-fated word) that they would be willing to "punish" her (and many would say, "themselves") by staying home, or voting for Senator McCain (or some other candidate)?

(2) But there is now another and much more significant issue. If Professor Yin is right, all voters -- Democrats (whether supporters of Clinton or Obama), Republicans and Independents alike -- need to at least think about (whether it affects their ultimate vote or not) the qualities of character attributed by him to Senator Clinton, and the weight they as voters would assign to them, in evaluating who they wish to vote for in November. This is not a matter of retribution or anger, or judgment about what tactics are, or are not, acceptable and to be expected in a campaign. This is not about the effect of her "high negatives" on her ability to win an election. This is a judgment to be made as to the qualities of character one wishes to have in a president -- in light of what we've all learned about their relevance from 8 years of George Bush.

Nicholas Johnson, "The Best Bush" in "Bush and Giveaways to Sheraton," April 25, 2008.

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Tuesday, April 29, 2008

Random Thoughts on Law School Rankings

April 29, 2008, 9:00 a.m.

Note: If you are a present or potential law student who finds this blog entry of interest, you would probably also enjoy (and perhaps even benefit from) Nicholas Johnson, "So You Want to Be a Lawyer: A Play in Four Acts."

How to Pick Your Law School:
Random Thoughts on U.S. News' Law School Rankings

When the U.S. News' college rankings came out a couple of weeks ago some of our law students expressed concern to the Dean that the University of Iowa College of Law had dropped a couple of places.

Now that some time and temporary panic has passed, here are some random observations about the issue.

A couple of caveats: Obviously, these thoughts are mine alone; I know less about these matters than most of my colleagues, and I certainly don't speak for the UI or law school administration or faculty (none of whom has seen these comments before they appeared here). Moreover, I'm going to break from my usual practice and not even try to make the effort this morning to footnote (i.e., for a blog, "link" to) sources and data for all of the assertions and opinions that follow. (If you want more, a little bit of Google searching will bring up lots of material.) [For a consistent, 2010, analysis, see Jack Crittenden and Karen Dybis, "How Important is a School's Ranking," Back to School 2010, PreLaw Magazine].

Altogether too much is made of these U.S. News' rankings. For reasons discussed below, while the rankings can't be dismissed entirely -- largely merely because others give them disproportionate attention -- they really don't tell you much of value.

U.S. News' monopoly (of law school ranking systems) contributes to its disproportionate weight. For example, there are many sources of rankings of business schools. As a result, there are always some sources that any given business school can look to that will position it higher than other sources. Therefore, there is no single ranking that carries the public relations impact for business schools that U.S. News' does for law schools.

Iowa was a good law school, is a good law school and will continue to be a good law school. (a) Iowa's law school is doing just fine. While we're always agonizing over how we can improve, as individual faculty members and as an institution, there's no need to be defensive or apologetic for what we are -- in terms of the quality of our graduates, teaching, writing program, library, faculty research and writing, contribution to the global, national, state and local community, and so forth. (b) Iowa's overall ranking has fluctuated over the years, up and down -- as have the rankings of other good law schools. A single year's change is no cause for a law school's either dismay or cheering. (c) More significant, perhaps, is that Iowa's rank among public law schools has remained relatively consistently at number 7 over a number of years. (In other words, changes in Iowa's ranking is not so much a result of its comparative position among public law schools as it is the improved ranking of private law schools.)

The weight accorded various factors makes a dramatic difference in ranking. There's a Web site somewhere that dramatizes the impact on rankings of even slight shifts in the weighting of various U.S. News' factors. So (a) this enables anyone to find the schools with the best rankings on the factors they think most important, and (b) demonstrates how relatively irrational the composite rankings are.

The rankings have distorted law schools' decisions, and led to "gaming" the system -- and therefore unreliable and misleading results. (a) Because a law school's ranking is, in part, a function of its general and vague "reputation" among those included in the U.S. News' survey, money is diverted -- often in the $100,000 to $1,000,000 range -- to "marketing" the school, money that might be better used elsewhere.

(b) Data reported by law schools can be (has been and is) manipulated -- sometimes from outright misrepresentation, and sometimes from gaming the system. (None of the following, so far as I know, is being done at Iowa.)

[1] Average GPA/LSAT score numbers can be raised by only admitting the top half of the applicants normally admitted, reporting those scores, and then accepting lower-scoring transfer students (whose scores need not be reported) to fill up the seats -- and the tuition coffers. If night law school students don't count in the GPA/LSAT numbers, a school can admit lower GPA/LSAT students into their night law school program while the counting is going on, and then "transfer" them into the day program when they will no longer drag down the averages.

[2] A similar, but more unfortunate, strategy involves diverting scholarship money from quality students who genuinely need it to afford school, to those "merit" students with the highest GPA/LSAT numbers -- regardless of their need -- in a kind of bidding war.

[3] What percentage of a law school's graduates have jobs when they graduate? Virtually all of them -- if the school "hires" every graduate who doesn't yet have a job elsewhere at that time -- and then counts them as employed (as some do). Or the school can redefine what is a "job" -- counting waiters and taxi drivers as well as those employed as lawyers.

[4] How can a school improve its faculty-student ratio? Simply require all faculty to take their semesters of leave in the spring semester rather than the fall; count and report them in the fall, thereby improving the school's reported faculty-student ratio numbers, and let them go on leave in the spring when nobody's watching or counting.

[5] "Resources per student" can be manipulated by including the "free" access to Westlaw provided by the company for law students -- not at the amount of the blanket license charged the law school, but at what would have been the commercial value of the service if purchased by a law firm.

[6] Once "grade creep" learns to walk, and then run, all of a law school graduates' grades are "above average." See Catherine Rampell, "In Law Schools, Grades Go Up, Just Like That," New York Times, June 22, 2010, p. A1.

Given that the only limit on such manipulations are those imposed by the limits of the human imagination, the results obtained from the data used (as the old computer programmers' "GIGO" had it: "garbage in, garbage out") can be very misleading.

So what's a student to do when choosing a law school?

Distinguish between the "superficial" and the "substantive." Education, indeed life itself, can be measured by both the substantive and the superficial. I don't use the word "superficial" in a pejorative sense. What's on your resume, the schools you attended, the grades you made, the work experience you've had, all have their impact -- in getting that first interview. But how you do in that interview -- and, more significantly, on the job and throughout your career -- are a function of "what you know, not whom you know," your knowledge, your skills, your work habits, your performance -- in short, "substance," not "superficiality."

Substance: You have to "teach yourself the law" -- and you can. Coming away from a legal education with knowledge and skills, like coming away from poetry with a sense of its meaning, is 90% a matter of what you bring to it and how hard you work at it. An architect I know says he was told by his drawing teacher, "I can't teach you how to draw. I can try to teach you how to see. But you're going to have to teach yourselves how to draw." Or, as President Johnson used to say, "They call me 'Lucky Lyndon,' but I always found the harder I worked the luckier I got."

There was a time when some of our nation's best judges and lawyers "read law" in a lawyer's office, rather than going to "a law school," before entering the bar.

There's not that much difference between casebooks, and most any law school library will have access to the basic statutory material and other sources -- even if the school doesn't give you access to Westlaw and Lexis.

You can go to one of "the best" law schools on the U.S. News' rankings, and if you don't go to class, read the assignments, take notes, make your own outlines, learn to "think like a lawyer," write persuasively, argue, know cold the basic stuff and be able to figure out the rest -- you can tell everyone you graduated from whatever school it is, but you won't be able to function very successfully as a lawyer. (Not incidentally, you learn legal skills by making outlines, not by reading those of fellow students or commercial firms.)

On the other hand, if you do all those things, take your legal education seriously, and really put in the hours (President Richard Nixon once said that what it takes to get through law school is the "iron butt" one develops sitting for hours in the library), you'll do just fine as a lawyer. Wherever you went to school you'll know more law, and have more skills, than most of the 19th Century lawyers who "read law" -- and probably most of the graduates of other law schools.

Superficiality: How to pick the best law school for you. (a) If you have your heart set on getting a U.S. Court of Appeals (or Supreme Court) clerkship, or a job with one of the nation's largest and most prestigious law firms, you might want to give more attention to the top, say, half dozen law schools on the U.S. News' ranking -- if that goal is realistic for you, given your GPA/LSAT scores and the school's admission standards. But you might also want to keep a number of things in mind. [1] Your odds of getting a Supreme Court clerkship are about as good as your being picked to play basketball with an NBA team just because you were an OK basketball player in high school. [2] Your odds of graduating number one in your class (or even in the top 10 percent) are not terrific either -- regardless of your law school -- remember, all your classmates arrived at law school with about the same credentials you did. [3] And, in that connection, at least consider (I haven't figured this one out, and therefore don't have a recommendation) whether you would be better off (superficially, in getting that first job interview) to have graduated in the top 10% of a school ranked 15th to 30th -- or in the bottom 20% of a school ranked among the top six -- when you go out looking for a job. (You can't predict your ultimate class standing with precision, but how you rank among your classmates going in (where your GPA/LSAT places you relative to the others; your percentile ranking) can give you a very imprecise notion of where you may rank coming out.)

(b) If you don't have the GPA/LSAT to get into one of the top half-dozen or so schools -- or you have the scores, but you're neither a "trustafarian" nor the offspring of wealthy parents -- or you genuinely prefer smaller firms and towns -- what do the rankings mean to you? Not much. For all the reasons outlined above, while there may be at least a superficial difference between the top half-dozen or so and those ranked, say, 15-30, there is little if any meaningful difference between a school ranked 16th and one ranked 27th. There is certainly no reason to pick the former over the latter because of the difference in their rankings. Most of the top 30 schools would be considered "national" law schools, fully capable of giving you a legal education with both the substantive and superficial qualities you seek.

(c) In addition to changing jobs, most of us change careers a half-dozen times during our lifetime. So picking a state you're going to live in all of your life when you're just in your twenties is problematical. But, for example, if you can say with certainty that you know you're going to live in Montana the rest of your life, taking care of the ranch and other family businesses, there might very well be a point to attending the law school in Missoula. (And no, I have no guess as to how it's ranked.) There may be an occasional Montana quirk in the law you'll pick up. More important, your classmates will be the lawyers, judges and business people you'll be working with during your professional career.

(d) If you're choosing from among national law schools, you might also want to consider such things as the size of the student body and the town where the law school is located. At least I think when you get more than 600 or so students you begin to lose a valuable sense of community; and being in a major metropolitan area can offer more distractions, not to mention the sheer stress of getting about, than is most compatible with law study.

(e) Don't be blinded by factors that contribute to a school's superficial reputation, but may add little to the substantive quality of your education. To avoid the suspicion this is "sour grapes" on my part because Iowa scores poorly, I'll use a couple examples where it is (or has been) near top in the nation.

A few years ago the Iowa faculty was ranked (in an independent study run by neither U.S. News nor the Iowa law school) the most productive in research and writing of all public law schools, and second only to Yale among all law schools. (Needless to say, that ranking, were it done annually, also would go up and down over the years; and Iowa probably would not be ranked that high today.) Our law library is by any measure -- number of volumes, number of titles, and especially focus of the collection -- number one, two or three in the nation (depending on whom you ask) -- thanks largely to Professor Arthur Bonfield. Both the faculty's scholarship, and the library -- and other things Iowa could claim -- are nice "Iowa brags" of both substantive and superficial significance. They are important to the overall mission and contribution of the law school. Both contribute something to the faculty's teaching and law students' learning; I'm just not sure how much.

You may be attracted to a law school because of a superstar professor you've seen on TV, only to find once you get there that he or she is devoting so much time to television appearances, book writing, congressional testimony, litigation, and public lecturing that you will seldom if ever see him or her. Indeed, by the time you get to that law school he or she may have died, retired or moved on to a school or other position elsewhere.

What about the "quality" of the student body? At the outset, for the reasons detailed above, reports of average GPA/LSAT scores may be unreliable. To the extent they're accurate, and vary significantly, there's probably a marginal value to being surrounded by bright colleagues. There's some value to having a fellow student who always comes up with the right answers in class. But I'm not so sure that's more valuable to you than your coming up with the wrong answer, and working your way through, with a professor, to the right answer. You may benefit from a "study group" of fellow students. But my experience as a law student was that I learned more, better and faster studying alone.

So those are some random morning thoughts about law school rankings.

Bottom line: chill. Law school rankings don't tell you much, and can be and are manipulated. Rankings are of very little significance in terms of the substantive quality of the legal education you'll get, especially because you're going to have to teach yourself the law anyway. Superficially, rankings in the top half-dozen may make some difference -- if you're set on getting into the places where they can help open doors -- but even by that standard you may be better off with a higher class rank from a lower ranked school than a much lower class rank from a higher ranked school. And between schools ranked, say, 15th to 30th, there really isn't much basis for choosing one school over another.

Good luck -- and don't forget to apply at Iowa!

For consistent counsel regarding the rational selection of colleges for undergraduate education, see,
[F]or too many parents and their children, acceptance by an elite institution isn’t just another challenge, just another goal. A yes or no from Amherst or the University of Virginia or the University of Chicago is seen as the conclusive measure of a young person’s worth, an uncontestable harbinger of the accomplishments or disappointments to come. Winner or loser: This is when the judgment is made. This is the great, brutal culling.

What madness. And what nonsense.

For one thing, the admissions game is too flawed to be given so much credit. For another, the nature of a student’s college experience — the work that he or she puts into it, the self­examination that’s undertaken, the resourcefulness that’s honed — matters more than the name of the institution attended. In fact students at institutions with less hallowed names sometimes demand more of those places and of themselves. Freed from a focus on the packaging of their education, they get to the meat of it. . . . Education happens across a spectrum of settings and in infinite ways, and college has no monopoly on the ingredients for professional achievement or a life well lived.

Midway through last year, I looked up the undergraduate alma maters of the chief executives of the top 10 corporations in the Fortune 500. These were the schools: the University of Arkansas; the University of Texas; the University of California, Davis; the University of Nebraska; Auburn; Texas A & M; the General Motors Institute (now called Kettering University); the University of Kansas; the University of Missouri, St. Louis; and Dartmouth College.
Frank Bruni, "How to Survive the College Admissioins Madness," New York Times, March 15, 2015, p. SR1

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Sunday, April 27, 2008

Growing Iowa's Economy the Right Way

April 27, 2008, 6:15 p.m.

Growing Iowa's Economy Without Corporate Welfare:
Bob Patton & David Miles

Iowa City's pride, Bob Patton, has put pen to paper to portray, as no mere words can do, Sheraton's request for Iowa City taxpayers' money.

Bob Patton, "Share and Sheraton Alike,"
Iowa City Press-Citizen, April 26, 2008, p. A12; posted April 25, 2008, 3:14 p.m. (Elephant with "Sheraton" on its rear is carrying a sign reading, "This white elephant is now under new ownership." A street cleaner with "RBD LLC" (the new owner) on his sleeve and "TIF Request" on his wheeled container -- presumably cleaning up after the elephant -- is handing a street broom to an unnamed woman labeled "City of Iowa City.")

For explanatory background facts and opinion on this story see (with their links to more), Nicholas Johnson, "Call the Cops, Robbery in Progress," April 24, 2008, Nicholas Johnson, "Bush and Giveaways to Sheraton," April 25, 2008, and Nicholas Johnson, "Golden Rules & Revolutions: A Series - VIII," April 19, 2008 (with links to prior 7).

I guess the City Council is concerned that if it didn't bribe RBD LLC with enough taxpayers' cash RBD might just move the Sheraton to Chicago or somewhere.

And what's this "new parking agreement" deal? All we get from the Press-Citizen's report is that the demands "included asking for a new parking agreement in the Dubuque Street Parking Ramp, taking out the public access point through the center of the hotel and tax incentives to make repairs." Kathryn Fiegen, "Sheraton's case presented to city; Economic committee asks for more information on TIF," Iowa City Press-Citizen, April 23, 2008. It's RBD's and the City's responsibility, not the Press-Citizen's, but what are the details? Will Iowa City's taxpayers be paying not only the Sheraton's property taxes, but the parking fees for its employees and guests as well? Aren't citizens entitled to know that?

As for the "public access point through the center of the hotel," that was embodied in the physical structure of the building as well as the contractual agreements surrounding the removal of Dubuque Street (one presumes). One of the best proposals I've seen -- on the assumption that anything needs be done -- is in a comment on the Press-Citizen's editorial,

I think the best option with the Sheraton walkway would be to tear out the doors on either side [of the walkway, north and south] and make it an outside covered breezeway. Drunks would have little incentive to congregate there and it would still provide access between the hotel and the restaurant/bar and the public wouldn't feel put-off when passing through.
Editorial, "Don't close Sheraton walkway, but do discuss possible tax incentives," Iowa City Press-Citizen, April 25, 2008, p. A11, Reader Comment Posted by: HerbBhang on Fri Apr 25, 2008 7:25 pm.

Nor is this the only giveaway in Iowa City these days. Although the Sheraton robbery has overshadowed the story, the City is also in the process of selling off public land near the local airport -- with no obvious benefits to local residents. Kathryn Fiegen, "City in Talks to Sell Land Near the Airport; Nearby Business Worried About Looks," Iowa City Press-Citizen, April 18, 2008, p. A1 ("Jay Honeck, who owns the nearby Alexis Park Inn & Suites, told the council Monday he thought the rezoning to make the land suitable for heavy commercial use would be a "catastrophe." He said the proposed facility could make the area even more unattractive with exposed storage areas and heavy equipment everywhere. . . . Honeck told the council he didn't think the city was monitoring the condition of its south entrance. "I want them to be held to the same high standards we are when it comes to handling their property," he said. "Just look at the city-owned land next to us -- are they following their own rules?").

In my op ed column,
Nicholas Johnson, "Courage, Councilors," Iowa City Press-Citizen, October 3, 2007, p. A12, I itemized a number of categories of reasons why corporate subsidy, including TIFs and other forms of tax breaks, simply don't make practical sense -- regardless of what you think of the hypocrisy of the get-the-government-off-my-back crowd's asking for them. One of the 11 categories was,

Alternative approaches do work. Businesses look for more than taxpayers’ bribes; things like an educated and skilled workforce, transportation and communication infrastructure, and quality of life – schools, parks, theaters, neighborhoods, restaurants and natural settings. Those investments will both attract business and benefit the public.
So I was especially pleased to hear Iowa's pride in its new Board of Regents' President, David Miles, express a comparable view yesterday in Iowa City:

"We need to make the case that there is a very real public good for Iowa, the nation and the world to have an educated citizenry," [Iowa Board of Regents President David] Miles said. The way to attract businesses to the state is not through tax credits, but through having educated workers, he said.
Erin Jordan, "Regent says universities must be accessible," Des Moines Register, April 27, 2008, p. B2.

And note that Miles is not some "ivory tower Liberal." (I don't know whether he drinks lattes.) He's a business person -- in addition to his Board of Regents responsibilities he is the managing director of the Miles Group (investment business) and the former CEO of Countryside Renewable Energy (consolidating ethanol plants). So he knows what he's talking about when he says "the way to attract businesses to the state is not through tax credits."

I'd be inclined to give a lot more weight to his opinions on the subject than those of an Iowa legislator or city council member.

But wait, there's more.

We can't gamble our way to riches. I've often expressed here my skepticism regarding the wisdom of Iowa's legalization and promotion of gambling as a component of economic development. Recently there was a little confirmation in the report on 2007 gambling revenues: "Overall, revenue increases at the state's 17 racetracks and casinos fell 1 percent to 3 percent last year. . . . Some [casino managers] . . . said they planned to build more hotels and restaurants, or improve entertainment." Associated Press, "Gaming Revenues in Iowa Grow Little in 2007," The Gazette, April 19, 2008, p. B7.

"Build it and they will come" really works -- in the movies. There were many missing links in the chain of reasoning regarding the proposed indoor rain forest project. See Nicholas Johnson, Earthpark (2001-2007). Among them was the myopic focus on the costs of construction (for which not one dime was raised) to the exclusion of the challenge of creating and maintaining a cash flow adequate to keep it going. It's a common oversight when a community permits local booster enthusiasm to blind citizens' ability to see the need for basic business plans.

Now that perspective has been picked up by another author in another context -- the proposed Coralville venue:

Many communities build a performing arts center and then grow frustrated when it can't pay for itself. These centers can improve the quality of life, they can attract new businesses, they can provide both art and entertainment, but they can't turn a profit. . . . Like the race for new stadiums, communities often fail to factor the long-term costs required to make these projects successful. . . . If the people of Johnson Country want Coralville's proposed center to succeed, they will need to support it -- not just through its build, but also in every year of its operation.
David McGraw, "If You Build It, the Audiences Will Come, but the Audiences Alone Won't Pay for It," Iowa City Press-Citizen, April 19, 2008, p. A15 (McGraw teaches art management at the University of Iowa).

And taxpayers continue to fund for-profit businesses.

HUSCO International was awarded incentives to renovate, expand and equip an existing building in Maquoketa in an action by the Iowa Department of Economic Development board in Des Moines. . . .

The incentives included $800,000 from the Economic Development Set-Aside program and Enterprise Zone benefits.

The IDED board separately approved incentives for plants to produce wind turbine components, decorative metal containers, structural steel assemblies, ethanol and seed corn. They include:

-- Tax benefits and direct incentives to Trinity Structural Towers to convert a 300,000square-foot manufacturing building in Newton for assembly of wind turbine towers. Trinity is expected to qualify for $649,100 in state tax credits for the project under the High Quality Jobs Creation program, in addition to a $630,000 forgivable loan from the Physical Infrastructure Assistance Program. . . .

-- Tax benefits and direct incentives to Independent Can Co. for building and equipping a $5 million plant in Fort Madison to expand production of decorative metal containers. The IDED board approved $100,000 from the Community Economic Betterment Account program, tax benefits to expand in an Enterprise Zone, and the Targeted Jobs Withholding Tax Credit. . . .

-- Tax benefits and direct incentives to Pioneer Hi-Bred, a DuPont subsidiary, for multiple projects. They include a $4 million investment in a warehouse expansion and a new dryer at the Durant seed plant. The project is expected to create one job . . ..

-- Tax benefits and direct incentives to Golden Grain Energy in Mason City for a facility to produce biodiesel from corn oil byproducts of ethanol production. . . .
David DeWitte, "Maquoketa Attracts Hydraulic Controls Plant," The Gazette, April 18, 2008, p. B7.

Does this kind of corporate welfare pay? The answer is, at best, not clear:

One of the incentives used by Iowa . . . is the Research Activities Credit. . . . designed to offset some . . . research and development [expenses] . . ..

Even if the research tax credit amounts to more than a company’s state income tax liability, the state pays back — “refunds” — the difference. And the tax credit may be doubled (supplemental credit) if the business meets standards for high-quality job creation.

That seems like a generous incentive. . . .

Trouble is, we don’t know the true impact.

The Iowa Department of Revenue can tell you the total research tax credits awarded. From 2000 through 2005, there was an average of $29.7 million in annual claims. Most of it, $27.2 million per year, was paid out in “refunds.” However, by law, the specific amount each company receives is confidential . . .. Also, there appears to be no requirement to document whether the research tax credit actually works — as any public subsidy policy should.

The Department of Revenue . . . recently attempted to study the impact of the research tax credit in Iowa.

The analysis found no conclusive evidence that it increased research expenditures, research-related employment or patent activity.

[T]he Iowa Fiscal Partnership . . . noted this week that 85 percent of the tax credits went to just 10 companies in 2005. . . . Rockwell Collins of Cedar Rapids could be receiving an annual research tax credit of $8 million, the most of any company in the state, while its income tax liability may be less than that amount. . . .

[T]he program’s lack of transparency is troubling. So is the dearth of information verifying whether this subsidy is justified at present levels. The Legislature should review and consider changes that are more accountable to taxpayers.
Editorial, "Tax Credit: Too Generous or Justified?" The Gazette, April 18, 2008, p. A4. For additional details see the prior day's story, David DeWitte, "Report Raps Undisclosed Research Tax Credits," The Gazette, April 17, 2008, p. B8.

To which I say, "Amen, brother!"

Nor, of course, is this disparity in government's response to the needs of the poor and of the wealthy limited to cities and states -- as we've recently seen with the disparate response by the Congress and Federal Reserve to the plight of the Wall Street financial community on the one hand and that of homeowners being foreclosed against on the other . . .

This editorial cartoon; Credit: Copyright by David Horsey and the Seattle Post-Intelligencer, March 27, 2008 (used here as non-commercial "fair use" for purposes of commentary).

If you are unable to read the text, there are two panels, "The Prodigal Son" and "The Not-So-Prodigal Son." The Prodigal Son is saying, "Father! I got filthy rich in risky loans and then the real estate market tanked." The father replies, "My son has returned! I'll kill the fatted calf and bail you out!"
"The Not-So-Prodigal Son" is saying, "Father! I defaulted on one of those risky loans and lost my house!" To which the father replies, "Life's unfair, Kid. Deal with it."

# # #

Saturday, April 26, 2008

Moyers, Wright and Thoreau

April 26, 2008, 1:30 p.m.; May 1, 2008, 8:15 a.m.

Note: [May 1] This blog entry was written following the Bill Moyers interview, but before Reverend Wright's appearances before the NAACP and National Press Club. If those appearances, and his other statements, were intended to exact retribution from Senator Obama by weakening his chances to be nominated and elected, I think he succeeded. If they were -- reasonably and understandably -- merely intended to respond to his critics and regain his reputation, I think he failed. (As an Indiana voter was heard to say on NPR this morning, "I'm more interested in hearing about gas prices than the rantings of that 'jerk.'") Meanwhile, this morning's Register has a column well worth reading by those still interested in better understanding the Black church in South Chicago. Marc Hansen, "Pastors like Obama's abound, black Chicago native says," Des Moines Register, May 1, 2008.

[April 26] I write this blog entry well knowing that there will be some who will condemn me for it -- without either reading what I write, or knowing what Jeremiah Wright actually said on the occasions from which the out-of-context excerpts were lifted for less than honorable reasons. (Of course, there's always the distinct possibility those who do read through to the end, and are more familiar with Wright than I, will also condemn me for it!)

Having known and admired Bill Moyers for over 40 years, I watched the PBS broadcast of his interview of Pastor Wright last evening with open mind. Because my wife had another commitment at that time I ended up watching it a second time, from videotape, with her. "Bill Moyers' Interview with Reverend Jeremiah Wright," Bill Moyers Journal, April 26, 2006 (with links to both a video, and a transcript, of the program).

This morning, as I was still thinking about the interview, I was suddenly reminded of a story about Henry David Thoreau and Ralph Waldo Emerson.

Thoreau was not enthusiastic about supporting with taxes a government whose policies toward slavery and war he strongly opposed. As a result, he was jailed.

Emerson . . . criticized the imprisonment as pointless. According to some accounts, Emerson visited Thoreau in jail and asked, “Henry, what are you doing in there?” Thoreau replied, “Waldo, the question is what are you doing out there?” Emerson was “out there” because he believed it was shortsighted to protest an isolated evil; society required an entire rebirth of spirituality.

Emerson missed the point of Thoreau’s protest, which was not intended to reform society but was simply an act of conscience. If we do not distinguish right from wrong, Thoreau argued that we will eventually lose the capacity to make the distinction and become, instead, morally numb.
Wendy McElroy, "Henry David Thoreau and 'Civil Disobedience,'” Part 1, The Future of Freedom Foundation,posted July 25, 2005.

In short, with regard to who was inside the Trinity United Church of Christ in Chicago and who was outside, the question is not “Barack, what are you doing in there?” The question is, "What are we doing out here?”

I've attended Jesse Jackson's "church" in South Chicago, and AME churches in Iowa City and elsewhere. I keep a picture of Dr. Martin Luther King on my office wall. As an FCC commissioner and since I've greatly admired the media reform work of the United Church of Christ through its Dr. Everett Parker and the church's Office of Communications. But I've never set foot in Pastor Wright's Trinity UCC in Chicago -- and I should have. I would be the first to concede how little I really know of the history and role of the Black church in America. I am as guilty as any white male of what has been described as the most segregated hour in America: 11:00 a.m. Sunday mornings.

With that out of the way, at the outset let's put those out-of-context video excerpts of Wright's from past years back in context.

(1) The use of "God damn" in the reproduced "God damn America" excerpt was, for starters, a Biblical reference not the colloquial, use of "God damn" as an all-purpose swear word. Consider this statement of Wright from the transcript of last night's interview:

[I]f you look at the damning, condemning, if you look at Deuteronomy, it talks about blessings and curses, how God doesn't bless everything. God does not bless gang-bangers. God does not bless dope dealers. God does not bless young thugs that hit old women upside the head and snatch their purse. God does not bless that. God does not bless the killing of babies. God does not bless the killing of enemies. And when you look at blessings and curses out of that Hebrew tradition from the book of Deuteronomy, that's what the prophets were saying, that God is not blessing this. God does not bless it -- bless us. And when we're calling them, the prophets call them to repentance and to come back to God. If my people who are called by my name, God says to Solomon, will humble themselves and pray, seek my faith and turn from their wicked ways. God says that wicked ways, not Jeremiah Wright, then will I hear from heaven.
I'll return to this in a moment.

(2) Now let's deal with "America's chickens have come home to roost." As you'll see, for starters, these were not even his words; he was beginning with Psalm 137 and ending by quoting (or more likely paraphrasing) a white, American ambassador. (For more about Ambassador Edward Peck's views see Sam Stein, "Meet The (White) Man Who Inspired Wright's Controversial Sermon," The Huffington Post, March 21, 2008 2:00 p.m., with links to more.)

Here again, from last night's interview, the words of Pastor Wright:

I had to show them [in his first sermon following 9/11] using that Psalm 137, how the people who were carried away into slavery were very angry, very bitter, moved and in their anger from wanting revenge against the armies that had carried them away to slavery, to the babies. That Psalm ends up sayin' "Let's kill the babies - let's bash their heads against the stone." So, now you move from revolt and revulsion as to what has happened to you, to you want revenge. You move from anger with the military to taking it out on the innocents. You wanna kill babies. That's what's going on in Psalm 137. . . .

[What follows from here is within the video and transcript of the interview, but is from a video of Wright's sermon following 9/11]

The people of faith have moved from the hatred of armed enemies, these soldiers who captured the king, those soldiers who slaughtered his son and put his eyes out, the soldiers who sacked the city, burned the towns, burned the temples, burned the towers, and moved from the hatred for armed enemies to the hatred of unarmed innocents, the babies, the babies. "Blessed are they who dash your baby's brains against a rock." And that, my beloved, is a dangerous place to be. Yet, that is where the people of faith are in 551 BC and that is where far too many people of faith are in 2001 AD. We have moved from the hatred of armed enemies to the hatred of unarmed innocents. We want revenge. We want paybacks and we don't care who gets hurt in the process.

I heard Ambassador Peck on an interview yesterday. Did anybody else see him or hear him? He was on Fox News. This is a white man and he was upsetting the Fox news commentators to no end. He pointed out -- You see him John? -- a white man -- he pointed out -- an Ambassador! -- he pointed out that what Malcolm X said when he got silenced by Elijah Mohammad was in fact true.

America's chickens are coming home to roost! We took this country by terror away from the Sioux, the Apache, the Arawak, the Comanche, the Arapaho, the Navajo. Terrorism! We took Africans from their country to build our way of ease and kept them enslaved and living in fear. Terrorism! We bombed Grenada and killed innocent civilians, babies, non-military personnel. We bombed the black civilian community of Panama with stealth bombers and killed unarmed teenagers and toddlers, pregnant mothers and hard-working fathers. We bombed Gadafi's home and killed his child. "Blessed are they who bash your children's head against a rock!" We bombed Iraq. We killed unarmed civilians trying to make a living. We bombed a plant in Sudan to pay back for the attack on our embassy. Killed hundreds of hard-working people; mothers and fathers who left home to go that day, not knowing that they would never get back home. We bombed Hiroshima! We bombed Nagasaki, and we nuked far more than the thousands in New York and the Pentagon, and we never batted an eye! Kids playing in the playground, mothers picking up children after school, civilians -- not soldiers -- people just trying to make it day by day. We have supported state terrorism against the Palestinians and Black South Africans, and now we are indignant? Because the stuff we have done overseas has now been brought back into our own front yards! America's chickens are coming home to roost! Violence begets violence. Hatred begets hatred and terrorism begets terrorism.
A white Ambassador said that y'all, not a Black militant. Not a Reverend who preaches about racism. An Ambassador whose eyes are wide open, and who's trying to get us to wake up and move away from this dangerous precipice upon which we are now poised.
The fact is that the history of America, indeed much if not most of what many would consider its "progress," is strewn with the speeches and writings of those who showed their love of the country through their efforts to make it even better.

We have also benefited from time to time from our cheerleaders and Dr. Feelgoods. But they've never been very effective in either diagnosing or curing our ills.

From Thomas Paine's Common Sense (1776) to Howard Zinn's A People's History of the United States: 1492 to Present (1980) ( and here) -- with thousands of other examples before and since -- we are deeply indebted to those who have shown their patriotism with a revelation of the greatest truths about our past and present condition, and proposals for our future -- rather than limiting it to the wearing of a flag lapel pin.

Pastor Jeremiah Wright is, in my present judgment, a part of that tradition.

Would I phrase it precisely as he does? Of course not. Do I believe everything he believes? No. He no more needs my defense than I am obliged to provide it.

But I do now believe, as I formerly only suspected, that the efforts of Senator Obama's opponents, and what Pastor Wright calls the "corporate media," to brand these out-of-context excerpts into the cerebral cortices of 300 million Americans was a deliberate, unfair, unpatriotic and mean-spirited act.

And now, to close, here are some excerpts from Thoreau's "Civil Disobedience," circulated throughout the America of 1849. As you read them think about the extent to which Thoreau's themes resonate with today's Libertarians, or Republican tax-cutters, as well as progressives -- and the sermons of Pastor Jeremiah Wright, when listened to in their entirety.

How does it become a man to behave toward this American government to-day? I answer that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave’s government also. [7] . . .

Practically speaking, the opponents to a reform in Massachusetts are not a hundred thousand politicians at the South, but a hundred thousand merchants and farmers here, who are more interested in commerce and agriculture than they are in humanity, and are not prepared to do justice to the slave . . .. I quarrel not with far-off foes, but with those who, near at home, co-operate with, and do the bidding of those far away, and without whom the latter would be harmless. . . .

There are thousands who are in opinion opposed to slavery and to the war, who yet in effect do nothing to put an end to them; who, esteeming themselves children of Washington and Franklin, sit down with their hands in their pockets, and say that they know not what to do, and do nothing; who even postpone the question of freedom to the question of free-trade, and quietly read the prices-current along with the latest advices from Mexico, after dinner, and, it may be, fall asleep over them both. . . .

A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority. There is but little virtue in the action of masses of men. When the majority shall at length vote for the abolition of slavery, it will be because they are indifferent to slavery, or because there is but little slavery left to be abolished by their vote. . . .

Those who, while they disapprove of the character and measures of a government, yield to it their allegiance and support, are undoubtedly its most conscientious supporters, and so frequently the most serious obstacles to reform. . . .

But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does it always crucify Christ and
excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?
[16] . . .

I know this well, that if one thousand, if one hundred, if ten men whom I could name, — if ten honest men only, — aye, if one honest man, in this State of Massachusetts, ceasing to hold slaves, were actually to withdraw from this copartnership, and be locked up in the county jail therefor, it would be the abolition of slavery in America. For it matters not how small the beginning may seem to be: what is once well done is done for ever. . . .

Under a government which imprisons any unjustly, the true place for a just man is also a prison. The proper place to-day, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. It is there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to plead the wrongs of his race, should find them; on that separate, but more free and honorable ground, where the State places those who are not with her but against her, — the only house in a slave-state in which a free man can abide with honor. . . . A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight. If the alternative is to keep all just men in prison, or give up war
and slavery, the State will not hesitate which to choose. . . .

Confucius said, — “If a State is governed by the principles of reason, poverty and misery are subjects of shame; if a State is not governed by the principles of reason, riches and honors are the subjects of shame.” . . .

The progress from an absolute to a limited monarchy, from a
limited monarchy to a democracy, is a progress toward a true respect for the

Is a democracy, such as we know it, the last improvement possible in government? Is it not possible to take a step further towards recognizing and organizing the rights of man? There will never be a really free and enlightened State until the State comes to recognize the individual as a higher and independent power, from which all
its own power and authority are derived, and treats him accordingly. . . .
Henry David Thoreau, "On Civil Disobedience" (1849), The Picket Line. And you might want to read Martin E. Marty, "Prophet and Pastor; To his former professor, congregant, and friend, Jeremiah Wright has been both," The Chronicle of Higher Education, April 11, 2008 (Marty is a professor emeritus at the University of Chicago Divinity School).

# # #

Friday, April 25, 2008

Bush and Giveaways to Sheraton

April 25, 2008, 6:45, 8:15, 10:15, 11:55 a.m.

Who's Best Bush? And, Raising Taxes to Increase Corporate Profits

Best Bush? Who is most likely to give the American people "four more years" of President George W. Bush? Professor Tung Yin's analysis may surprise you.

Sheraton's Scandalous Subsidy. Most Iowa City residents' response to the City Council's enthusiasm for handing over taxpayers' money to the Sheraton is either uproarious laughter or "I'm mad as hell, and I'm not going to take this anymore!" -- including virtually all of the authors of the 26 comments currently residing on the local newspaper's Web site. But the idea apparently passed the Press-Citizen's laugh test. I guess the editors know a class of "residents" who refuse to give the paper their responses in writing, because they editorialize this morning, "Don't Close Sheraton Walkway, but Do Discuss Possible Tax Incentives."

More on both stories to come.

The Best Bush

Tung Yin asks in yesterday's blog entry. "Who's the real '4 more years of George Bush'?" April 24, 2008. Here are some substantial excerpts from his analysis -- although you really need to go to his site to also see the videos that drive his point home.

He begins,

I hear the constant refrain from the Clinton and Obama campaigns that John McCain can't be allowed to win, because that will be just 4 more years of the Bush Administration. It's not an implausible argument, given that McCain has started to repudiate some of his past views on taxes, for example.

However . . . this is focusing purely on political issues. Now, I'm not downplaying the importance of issues, since for many people, such things as Supreme Court appointments, tax policy, Iraq, and so on are key points. But I can't escape feeling that on a procedural level, the candidate who would represent 4 more years of the Bush Administration is . . . "
Whom to you suppose he has in mind? Care to guess?

Hillary Clinton.

How can I say that? Let me explain.

Obviously, I don't mean that Clinton, if President, would duplicate Bush's policies. Rather, what I mean is that she strikes me as most likely to replicate the Bush Administration's approach to dealing with the opposition and the public: a malleable understanding of truth and reality; and questionable judgment about and excessive devotion to blindly loyal subordinates.

Malleable understanding of truth and reality

As far as I can tell, nothing ever matters except what the Clinton campaign says at this very moment; certainly, not anything that was said in the past by any member of the Clinton campaign. The best example of this is the "3 am ad" that Clinton ran against Obama in the days leading up to the primaries in Texas and Ohio. The ad asked voters to consider whether the person in White House would be up to answering the phone at 3 am to deal with a national security crisis.

The suggestion here is that Obama is not ready, and the country would suffer if he were the President. Yet, in 2004, Bill Clinton, when campaigning on behalf of John Kerry, told a crowd that if one candidate was selling fear (i.e., Bush) and one was selling hope (i.e., Kerry), you better vote for the one selling hope(!).

Is this at all consistent? Of course not, because all that matters is the present, and in the present, Clinton needed to sell fear.

There are so many other examples of this kind of malleable, "reality is what we say it is" attitude, including:

She admits here that she said some things she knew not to be true. Why? If she's willing to lie about something this trivial, what else would she lie about that matters to her? What is especially galling about the Bosnia sniper lie is that it was so brazen -- as if to say that the public is a bunch of dupes who wouldn't possibly find out the truth.

Another example of Clinton's reality: Florida and Michigan. . . .

Questionable judgment about and excessive devotion to blindly loyal subordinates

One of the key complaints that I've heard about the Bush Administration is that it made mistakes in appointing people like former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, and of course, Vice President Dick Cheney. It compounded those mistakes by not listening to "good" appointments, like former Secretary of State Colin Powell and the generals who advised the President not to invade Iraq, at least not without committing 500,000 troops. . . .

Then there's her former campaign director, Mark Penn, who was able to keep his day job as the CEO of his lobbying firm, Burston-Marsteller. Of course, he was fired when it became known that, while Clinton was opposing a free trade deal with Colombia, Penn was representing Colombia in that same deal. Why didn't Clinton think that it was a problem to have Penn continuing to work as a lobbyist while running her campaign? Heck, even Dick Cheney resigned as the CEO of Halliburton!

Is this an example of what her "35 years of experience" has led her to conclude is an acceptable arrangement without a conflict of interest?!?

Of course, she didn't even fire Penn -- he remains on her campaign as an advisor!

Speaking of questionable judgment about subordinates, I have to end with this observation. We have a mess in Iraq in part because Bush did not listen to the generals who warned him about invading. Lesson: military commanders might know what they are talking about.


Hillary Clinton declared Thursday she will begin withdrawing troops from Iraq within 60 days of becoming president, regardless of what her military advisers say about the situation on the ground at the time.
True, invading and withdrawing are different. But the bald-faced willingness to dismiss what military commanders have to say evinces a similar attitude of disrespect toward the professionals and a ruthless desire to advance one's own agenda regardless of the facts. . . .

[T]here would obviously be differences between Hillary Clinton and John McCain on a range of issues. But that is focusing on what the President does, and ignoring how the President will do it. Both are important, and when it comes to replicating how the Bush Administration is perceived to do things, I see the danger as coming from Hillary Clinton more than John McCain.
(Tung Yin's posting contains, as well as more text, videos supporting the statements to which he refers.)

In effect, what Professor Yin is telling us is that there are two considerations here. (1) One, for Obama supporters, is whether they are willing to forgive Bill and Hillary Clinton, and their staff members and supporters, for the tactics and character they've displayed during the campaign in the event Senator Clinton were, in the end, to get the nomination. Would they vote for Clinton in the general election anyway, "come together as Democrats," and "let bygones be bygones." Or, would they be so "bitter" (to use Senator Obama's ill-fated word) that they would be willing to "punish" her (and many would say, "themselves") by staying home, or voting for Senator McCain (or some other candidate)?

But, (2), there is now another and much more significant issue. If Professor Yin is right, all voters -- Democrats (whether supporters of Clinton or Obama), Republicans and Independents alike -- need to at least think about (whether it affects their ultimate vote or not) the qualities of character attributed by him to Senator Clinton, and the weight they as voters would assign to them, in evaluating who they wish to vote for in November. This is not a matter of retribution or anger, or judgment about what tactics are, or are not, acceptable and to be expected in a campaign. This is not about the effect of her "high negatives" on her ability to win an election. This is a judgment to be made as to the qualities of character one wishes to have in a president -- in light of what we've all learned about their relevance from 8 years of George Bush.

Subsidizing the Sheraton

See yesterday's, Nicholas Johnson, "Call the Cops, Robbery in Progress," April 24, 2008, regarding this Sheraton subsidy, and Nicholas Johnson, "Courage, Councilors," Iowa City Press-Citizen, October 3, 2007, p. A12, regarding TIFs and corporate welfare generally.

And, of course, you won't want to miss State29, "Just Say No to Corporate Welfare," April 25, 2008 (sample: "They could reduce the price to $29 a night and you couldn't get me to stay there").

(The Press-Citizen's description of the details of this attempted unarmed robbery can be found in Kathryn Fiegen, "Sheraton's case presented to city; Economic committee asks for more information on TIF," Iowa City Press-Citizen, April 23, 2008 (the demands "included asking for a new parking agreement in the Dubuque Street Parking Ramp, taking out the public access point through the center of the hotel and tax incentives to make repairs"), and this morning's editorial endorsement of giving the idea serious consideration in Editorial, "Don't close Sheraton walkway, but do discuss possible tax incentives," Iowa City Press-Citizen, April 25, 2008, p. A11.)

Ms. Fiegen's story reveals some other interesting facts:

Columbus, Ohio-based RBD LLC announced this month that it bought the 234-room Sheraton for $9.5 million, the property's third owner since 1999. The company has said it wants to invest $11 million to replace everything in the hotel from the carpets to the roof. . . .

"The cost to fix the hotel is far greater than what it's worth as it stands," Geshay said [Thom Geshay, senior vice president of business development for Davidson Hotel Company [which] operates the Sheraton].

According to 2007 assessor data, the property is worth $6.7 million. At its height, the Sheraton was worth $12.1 million. Geshay said it hovers a little above a 60 percent occupancy rate, with the average room rate at $109 a night.
Note the following:
o We're negotiating with the operator, not the owner.

o There have been three owners of the hotel in the last 9 years. And just why is it we think "RBD LLC" -- whatever the hell that is -- is going to last any longer? And do we propose to underwrite the next owner's refurbishing as well?

o The owner planned to put $20.5 million into this project when it bought it -- $9.5 for the building and $11 million to refurbish -- notwithstanding its 60% occupancy rate. That was the marketplace decision of this multi-billion-dollar corporation: that it could make money from a $20.5 million investment in a hotel in downtown Iowa City. It doesn't care about "Iowa City" -- downtown or otherwise. Had it thought it could make a better return on a $20.5 million investment in $900/ounce gold it would have done that. It's thought this Sheraton purchase through and concluded it's a "go," a prospective profitable return equal to, or better than, whatever it can get on its $20.5 million in pocket change if invested elsewhere. It's not like we're attracting a new business that, but for our bribe, would never build the new plant, hotel, or other business.

o Given that the property -- once worth $12.1 million, and for which it's paid $9.5 million -- is assessed at $6.7 million, isn't the company already receiving a significant break from taxpayers?
In "Courage, Councilors" I list 11 categories of reasons (each of which could have numerous examples) why TIFs and other corporate subsidies don't make sense for taxpayers.

Notwithstanding our Mayor's belief that those who oppose TIFs "are simply philosophically opposed to city’s providing financial support to corporations," I don't consider myself either an ideologue or a philosopher. I like to think of myself as a pragmatist: What works? Where's the data? "What do you mean, and how do you know?" "How would we know if we had ever been 'successful'?"

Indeed, a major reason for my persistence on these issues is that, so far as I know, none of the TIF-and-corporate-subsidy advocates has ever addressed those 11 categories I identify in "Courage, Councilors" -- any one of which should be enough to dissuade them from corporate welfare. They cite instances in which TIF-benefited businesses have not gone bankrupt or otherwise run off with taxpayers' money before providing any return. They say, "Well, but everybody's doing it." It's not that they've made no effort to defend their giveaways. It's just that they have not, yet, ever taken on the task of disproving what seem to me to be 11 serious flaws in their approach.

Whatever they may think, the fact is that I am open to persuasion and often change my mind. I have to. I live in the midst of law professors. In faculty seminars, offices, hallways, over lunch, and the reading we do there is a constant challenging of data, assumptions and analyses regarding a wide range of legal and public policy issues and proposals. (Yesterday it was the impact of "sentencing guidelines" on federal judges sentencing of criminals.) I love the process much more than any preconceived notions I may bring to school any given morning, and often end up changing my position by the time I leave for home -- as was the case yesterday.

So somebody, anybody, tell me what's wrong with my "Courage, Councilors" analysis. I'll listen. I'll react. I'll test and push both your analysis, and mine. I may well change my mind.

For example, although I haven't yet investigated the program and its payback rates, I'm intrigued by another story in this morning's paper, Kathryn Fiegen, "City Loans Help businesses Get Started; Number of Applications for program Has Almost Tripled," Iowa City Press-Citizen, April 25, 2008, p. A1.

So how can I be so repulsed by a tax break for the Sheraton and potentially attracted to a loan program? Because of differences I find significant-to-decisive:

o The Sheraton subsidy involves local taxpayers' money going to a for-profit business (as distinguished from an appropriate governmental function, or even a City-owned business). The loan program utilizes a federal grant administered by the City, but not local taxpayers' money.

o Loans are paid back; grants and tax forgiveness are not.

o The loan program goes to new, start-up businesses owned by local residents. This TIF would go to a substantial, well-funded, pre-existing out-of-state business for a pre-existing building and business in Iowa City.

o The primary beneficiaries of the gift to the Sheraton are the owners of the Sheraton; the secondary beneficiaries are the downtown merchants who will benefit from selling stuff to the folks who stay at the Sheraton. Few Iowa City residents and taxpayers will ever stay at the hotel or otherwise benefit directly from this corporate welfare. The primary beneficiaries from the loan program will be the loan recipients. The secondary beneficiaries will be the Iowa City residents and taxpayers who use and benefit from these new businesses.
In "Courage, Councilors" I made clear that I see no problem with alternative ways for a community's residents to encourage business.

Alternative approaches do work. Businesses look for more than taxpayers’ bribes; things like an educated and skilled workforce, transportation and communication infrastructure, and quality of life – schools, parks, theaters, neighborhoods, restaurants and natural settings. Those investments will both attract business and benefit the public. [Note, not incidentally, that notwithstanding the Mayor's belief that some people "are simply philosophically opposed to city’s providing financial support to corporations," many of the kind of City expenditures mentioned here would not be at all controversial, even though one of the consequences would be "providing financial support to corporations" -- along with everyone else.]

Try “seed funds.” There’s nothing to keep the business community from creating group venture capital efforts called community seed funds – as it has. Those are investments of private money, not gifts of public money.
The potential problems with government loan funds are at least that (a) they are unfairly competing with the banks and credit unions that are in the same business, and (b) they create at least the potential risk that taxpayers (whether local or federal) will be left holding the bag. "Seed funds" and venture capitalists, because they use private funds, avoid those problems.

A global model that has been quite successful is what are called "micro-loans." Often even $200 can make an enormous difference to a third-world entrepreneur -- when available at reasonable loan rates. That is what the organization Kiva makes possible -- in part because of payback rates to Kiva from its borrowers that are far in excess of those our own banks have been getting from Americans recently. I encouraged readers to consider loaning $25 or $50 to such worthy entrepreneurs last December. Nicholas Johnson, "Kiva: The Gift You Give, Keep and Give Again," December 26, 2007 ("The Charitable Gift That Literally Keeps on Giving . . . and Costs You Nothing").

With Kiva, as with venture capitalists, an advantage is that economic development is kept entirely separate from government. Such efforts are run by private citizens, using their own money. This makes for smarter decisions than when government officials are giving away someone else's money. It helps hold down the costs of government -- and the taxes paid by citizens.

I would be troubled not at all if the downtown merchants who stand to benefit from a Sheraton upgrade (if, indeed, they think they would), and the members of the City Council and Press-Citizen editors who think it's a really swift idea, would take up a collection and make a loan, or gift, to Sheraton. That's their choice -- and their money.

It's just that no one has ever asked the rest of us if we'd like to support this for-profit enterprise with our money, and I, for one, were I asked, would decline the opportunity.

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Thursday, April 24, 2008

Call the Cops, Robbery in Progress

April 24, 2008, 7:15 a.m.

The Iowa City Mayor, Regenia Bailey, writes:
"As many of you know, the new owners of the Sheraton have approached the economic development committee to talk about support for their efforts to revitalize the property. I have heard from many of you already and I know that many are simply philosophically opposed to city’s providing financial support to corporations.

"I’d be interested in hearing from you about how we should approach our dropping market share in visitors in downtown Iowa City, which I would contend is linked to the poor condition of the hotel. As you may have read in the downtown market study, visitors are significant to the retail businesses in our downtown. I see a City interest here in capturing more of the conference and visitor market. I know from my work on the Iowa City/Coralville Convention and Visitors Bureau board that we are bringing fewer conferences to downtown Iowa City. I am interested in your thoughts about how we should approach this challenge."
Regenia Bailey, "Economic Development and the Sheraton downtown," Update From Regenia Bailey (e-mail list), April 23, 2008.

How insulting! "[M]any are simply philosophically opposed to city’s providing financial support to corporations," indeed! How dismissive! How presumptuous that the only possible position of right-thinking citizens and officials is to assume that there is, of course, "a City interest here in capturing more of the conference and visitor market" -- or any other market. A "city" interest, yes; but a "City" (i.e., a governmental) interest? No.

Having made her assumptions, she moves immediately to "how we should approach this challenge" -- that is, what would be the best way for City government to get involved, the most effective way to turn taxpayers' money over to for-profit businesses.

Since she says she is "interested in your thoughts," here are mine:

I don't see the "challenge" as one of how we can get more taxpayer money transferred to for-profit enterprises, or how the City can best go about improving their "markets." No, the "challenge," in my view, is how we can get elected officials to concentrate on doing well those things that are within the appropriate role of government -- when it is so much more fun and prestigious for them to be able to play "business" with our money and their corporate playmates.

You want to know how best to expand "markets"? Leave the "challenge" to the free market -- individual local businesses, the Downtown Merchants Association, the Chamber of Commerce, the Iowa City/Coralville Convention and Visitors Bureau (on whose board you've served).

As for the philosophical opposition, it is you, Madam Mayor, who ought to be philosophically opposed, not I. The philosophical opposition, the ideological opposition, ought to come from those who champion the virtues of business, competition, and the free private enterprise system; those who want to "cut taxes" for the rich and then the programs for the poor; those who want to "privatize" everything from schools to prisons. Those are the folks who ought to rise up in righteous ideological indignation and philosophical opposition at the first whisper of "corporate welfare."

My objections are far more practical than philosophical.

In my open letter to the Iowa City City Council the last time a whiff of a TIF was in the air, I listed 11 categories of reasons (each of which could contain many examples) why corporate welfare in general, and TIFs in particular, simply don't make practical, good business, sense -- both anywhere at any time, and especially in Iowa City, Iowa. Nicholas Johnson, "Courage, Councilors," Iowa City Press-Citizen, October 3, 2007, p. A12.

Those categories included such things as opportunity costs, numerous past failures of various kinds, inability to verify "need," lack of transparency, officials' poor business judgment, better alternatives -- read the column if you're interested in more.

Ironically -- because I never anticipated a proposal as totally bonkers and corrupt as the Sheraton proposal to come along so quickly -- I've just concluded an 8-part series about the role of money and lobbyists in politics and government generally (which, if you're interested in this stuff, you might also enjoy taking a look at). See Nicholas Johnson, "Golden Rules & Revolutions: A Series - VIII," April 19, 2008 (the last in the series, but with links to the prior seven).

Looks like I'm going to have to get back into the subject, for this scandalous Sheraton proposal is only one of many current corporate welfare disasters -- as recent reports are documenting.

But for today, as a concession to the limits on the time you have to read and I have to write, I'm going to let a local business person speak for me.

One of my categories of concern about corporate welfare in that Press-Citizen column, but that I did not itemize above, read as follows:

"Corporate welfare tilts the playing field. It’s fundamentally unfair to ask businesses to compete against a favored few funded by government. It upsets a smoothly working free market to no one’s benefit – except the lucky recipient."
It's always been a mystery to me why more members of the business community don't speak up about this -- especially when their own business is dealt a blow as a result of the corporate welfare that keeps dropping to their competitors' bottom line.

The Press-Citizen ran a story about this potential theft on Wednesday. Kathryn Fiegen, "Sheraton's case presented to city; Economic committee asks for more information on TIF," Iowa City Press-Citizen, April 23, 2008.

As of this morning [April 24] that story had 23 posted comments from readers -- virtually all very negative (regarding the proposal, not Ms. Fiegen's story).

State29, with his usual insight, has contributed a blog entry of his own to the dialog which you will want to read. State29, "Er, Then Why Did You Buy It?" April 23, 2008. It is that blog entry which brought the following comment to my attention.

Indeed, State29 raises an issue that deserves much more media attention. Why did the new corporation buy this property? Sadly, I can only see two possibilities.

(1) The principals are really dumb business people (unlikely, given their very successful multi-billion-dollar operation), who bought a property they knew would lose money without taxpayers' contributions, without getting an assurance from the City in advance that the money would be forthcoming -- in which case they have assumed potential liability in a shareholders' suit.

Or, (2) They did get prior assurances from the pro-TIF wing of the City Council that TIFs and other benefits could be delivered, before those applications had run through channels -- in which case Iowa City voters have equally serious complaints about their City Council.

Here, then, is the take of a real, honest-to-God, successful and unsubsidized business person on the subject of corporate welfare:


Please, not again!

Posted by: jjhoneck on Wed Apr 23, 2008 6:23 pm

In 2002 my wife and I bought the old Alexis Park Inn next to Iowa City's airport. It was in bad shape, with a checkered reputation, but we knew a diamond in the rough when we saw it.

Since then we have spent these last six years remodeling and refining our service, until we now have the top-rated hotel in Iowa City. We have seen double-digit increases in both revenue and occupancy throughout that period -- a result few would have predicted.

The lesson? Offer a great lodging experience at a fair price, and you will prosper.

During those six years we never applied for nor accepted government assistance. We did not incur any debt, choosing to fund the renovations with the cash flow from the business. This is MUCH harder to do, and takes much longer -- but, in the end, it's the only way to assure success in a business with razor-thin margins.

Also during those six years we have sat idly by as our own Gummint became our #1 competitor in the market. You probably don't know it, but since 2002 YOU, the taxpayer, have funded the addition of over 500 hotel rooms to this already saturated hotel market, including:

- The Marriott, built with $60+ million in taxpayer dollars
- The Riverside Casino, built by an unholy alliance of gummint and organized crime
- The Hotel Vetro, built with yet another TIF

Despite this, we have prospered, while the Sheraton has declined. Why?

The Sheraton is a bloated, top-heavy chain that provides little value for what it charges. Most of the rate they charge goes to national advertising campaigns, with little devoted to the local property.

And what IS spent locally is spent in the wrong ways. When the original Sheraton franchisee bought the property (which was then a ramshackle Holiday Inn) their main focus was on remodeling the lobby, gobbing marble and brass everywhere. The end result was that Sheraton guests paid $179/night for a tiny Holiday Inn room, and a really nice lobby. In addition, sleep was optional, because for that absurd rate they were forced to listen to the ped mall cacophony all night long.

In contrast, our smallest suite is bigger than their largest suite, costs just $70 bucks a night -- and includes a delivered breakfast in the morning.

There is no mystery behind their failure. If you don't provide good value for the dollar, you will fail. It's "Economics 101".

Now we're supposed to believe that the Sheraton's new owners need corporate welfare to survive? The purchase price has already been adjusted dramatically downward to take into account the diminished value of this property. There is NO WAY they (or any other private business, for that matter) should receive city aid.

I suggest that the Sheraton owners follow our example. Roll up their sleeves, get to work, one floor at a time, one room at a time, and fix up their OWN business. Who knows, in 5 or 6 years they might have a nice place down there.
Comment entered on Kathryn Fiegen, "Sheraton's case presented to city; Economic committee asks for more information on TIF," Iowa City Press-Citizen, April 23, 2008.

Watch this space -- there will, undoubtedly, be more to come on this story.

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