29 Jul

In the House of Representatives, it could soon be impeach season

It might be about time to get tickets for the Barack Obama impeachment trial.

This isn’t because Obama has piled up an impressive pile of high crimes and misdemeanors, or that he has big plans to replace the border crossings with neon signs reading “Y’all Come!” It’s because the House of Representatives had the power to impeach him, and is having increasing trouble thinking of anything else to do.

Legislating, after all, it gave up on a while ago. Unlike the Senate, it doesn’t have federal nominations to act on, or not act on.

What it can do, and what it’s going to hear more and more demand from its base to do, is impeach the president. Whether there’s any real chance of conviction and removal, GOP House members can figure, isn’t their problem.

It’s the Senate’s, and the House isn’t really worried about its problems.

Back in the last century, a Republican House that was 16 years less extreme than this one impeached Bill Clinton because it could, although the chance of the Senate producing a two-thirds vote for conviction was about the same as Newt Gingrich getting elected president.

The House that comes into office after the elections this November may not be much more Republican, but it’s likely to be more extreme. Over the August recess, and the fall campaign, the members will hear from the people demanding to know why Obama hasn’t been impeached and chased back to Kenya already.

Sometime in the next year or so, the House may impeach Obama, just because it can.

And because it can’t do anything else.


29 Jul

In Oregon politics, at least we talk to each other

In 1982, when Vic Atiyeh was governor, the Oregon Legislature had liberal Republicans from Washington County, Ashland and Salem. There were conservative Democrats from Grants Pass and Klamath Falls.

Those days, and those bridge-builders, are gone. Now, the ideological lines, and the geographic lines, are sharper. The division is worse in Congress, where studies now show that just about the most conservative Democrat is more liberal than the most liberal Republican.

Talk radio, Fox News and ungodly amounts of outside money have changed politics. Now, congressional Republicans fear attacks and primary challenges if they’re seen dealing or even speaking with Democrats, and Congress can’t carry out basic responsibilities, like producing budgets or voting on presidential nominations.

But while party lines like World War I trenches have paralyzed Congress, the Oregon legislature, even with deeper divisions, manages to function. In last year’s special session, to reform PERS and find some more money for schools, Democrats and Republicans worked together. Each of the different parts of the deal had a different coalition behind it, with the leaders of both parties supporting the whole thing.

It’s not an ideal situation. It’s not even 1982.

But in the Oregon legislature, Democrats and Republicans still talk together, and sometimes even work together. In today’s politics, that’s something.

NOTE: This commentary appeared on KGW-TV, 7/26/14

29 Jul

If you don’t execute anybody, maybe you should stop pretending you have a death penalty

In a state where it’s tough to find long-term housing, one great exception has been Oregon’s Death Row. Since criminals continue to be sentenced to capital punishment in Oregon, but the state has executed just two people in 50 years – and those by the convicts’ request – anyone sent to Death Row is pretty clearly moving in until a hand higher than the state ends his residence.

In the words of federal judge Cormac J. Carney of Orange County, California, such a situation makes execution “so unlikely that the death penalty carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”

Carney’s phrase came from a decision earlier this month that set the California capital punishment system against the Eighth Amendment’s ban on “cruel and unusual punishment.” Carney, a George W. Bush appointee, concluded that whether or not capital punishment was considered cruel, it was hard to deny that in California, it had become pretty clearly unusual. On that basis, Carney declared it unconstitutional.

The ruling by district judge Carney will go through federal appeals court and possibly the Supreme Court, and the full legal process could take a while – although not nearly as long as a capital punishment sentence. But if there is support for Carney’s argument – that a vast gap between the number of criminals sentenced to die and the few who actually executed invalidates the system – then his reasoning clearly extends to the long-term housing project that is Oregon’s Death Row.

The Golden State’s capital punishment system, outlined by Carney in his decision, is a different branch of the Hotel California: Convicts can’t leave, but it’s highly unlikely they will ever draw a final check-out from the state.

Since 1978, he notes, California has sentenced more than 900 people to death, but has conducted only 13 executions. Of the rest, 94 have died of other causes and 39 have had their death sentences set aside by federal judges, leaving 748 in extended residence. The mandated appeals process, through state and federal courts, goes on for Dickensian decades.

By the time the sentence has proceeded through the state courts, the process will likely have lasted 17 years. The convict who was the subject of the case before Carney was sentenced to death in 1995.

To Carney, the death sentence under these conditions is not only random and arbitrary – not to mention “unusual” – but unlikely to be much of a deterrent. “The realistic expectation of an individual contemplating a capital crime in California is that if he is caught, it does not matter whether he is sentenced to death – he realistically faces only life imprisonment,” noted Carney. “Under such a system, the death penalty is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going out in the rain.”

Oregon, being a legal footnote to California in these matters, has 36 people on its Death Row, not 750. But its frequency of actual execution is comparable, with two executions since the death penalty was restored by voters in 1984. Four of the convicts on Oregon’s Death Row have been there since 1988, and four more since 1989.

There could, of course, have been one more execution this year, when Gary Haugen asked to be executed, apparently the only way capital punishment can happen in Oregon. But Gov. John Kitzhaber, who was also governor for the other two executions, refused to sign off on another. If Kitzhaber is re-elected, that means no executions until at least 2019.

GOP candidate Dennis Richardson took a poke at Kitzhaber on the issue during their first debate. But while Richardson’s election might open a pathway to eternity for Haugen, it would be unlikely to move Oregon to a Texas-style execution pace.

Oregon has rested in a very Oregon-style compromise on capital punishment, having a death penalty and death sentences but not executing anybody. It seems it’s an arrangement Oregonians can live with – except, apparently, Haugen – but it does involve a certain philosophical contradiction, and an expenditure of state time and money.

“In California, the execution of a death penalty is so infrequent, and the delays preceding it so extraordinary,” ruled Carney, “that the death penalty is deprived of any deterrent or retributive effect it might once have had.”

Carney is just one judge, and in this and every other way, California is different from Oregon.

But the math looks familiar.

NOTE: This column appeared in The Oregonian, Sunday, 7/27/14.

22 Jul

To gain a a high-tech advantage, let more smart immigrants in

A couple of years ago, Oregon Rep. Suzanne Bonamici went to a meeting with a couple of dozen local high-tech people to see what they wanted from government. People rarely have trouble coming up with a wish list, but the table full of techies focused on one single hope:

Let more tech immigrants in.

Forget the reality that immigrants have always driven American technology, from Andrew Carnegie to Albert Einstein to Sergei Brin of Google. Forget the priority that high-tech leaders from Microsoft to Facebook to Yahoo have given to an immigration-reform political action committee.

Just think of the issue from an Oregon viewpoint, from the perspective of a place where high tech is the biggest and fastest-growing employer. Supplying its workforce needs is Oregon’s great economic challenge, both in strengthening our higher education system and in providing access to really smart people from foreign countries.

Opponents claim that more tech immigrants will take jobs from Americans. But the immigrants will start companies, and projects, that will create jobs for Americans.

The very smart tech people that an expanded visa program would admit here are going to build high-tech companies and strengthen the economy, and they could do it in Beaverton.

Or we could make them do it in Bangalore.

NOTE: This commentary appeared on KGW-TV, 7/19/14

22 Jul

Legalized marijuana in Washington will send Oregon a smoke signal

Rolling over the Interstate Bridge into Legalization Land a few days ago, you could immediately sense a difference long before catching a whiff of anything in the air.

The rotating illuminated signs on Interstate-5, the ones that typically welcomed you to the Evergreen State, now declared “Drive High/Get a DUI.”

Maybe it’s not the most effusive greeting, but it does promise personal attention.

Coming back the other way across the bridge last week, you could see the approach of an Oregon marijuana legalization initiative, although we haven’t yet noted it on our highway signs. Maybe something like, “Welcome to Oregon, and just hold your breath for a few months.”

Between now and November, developments on both sides of the river will run together, in a kind of Columbia River Crossover.

Oregon doesn’t typically pick up much from Washington; if we did, we’d have a stronger state university system. But watching how four months of legalization works across the river could have a considerable effect on what happens with the Oregon marijuana measure this fall.

No doubt the five Oregonians reportedly first in line when the Vancouver marijuana shop opened this month were just trying to get a head start on filling in their mail ballot.

Colorado has already been operating its legalization system for six months, and has produced some lessons, such as how much of a marijuana-infused candy bar you should eat at one time. (Spoiler alert: not all of it.) Last week, Washington’s Liquor Control Board ruled that state marijuana stores could not sell cannabis candy, although they could sell cookies and brownies.

Oregon, of course, has always had a sizable bloc of chocolate-priority voters.

Colorado’s Department of Revenue, in a recent report on “Market Size and Demand for Marijuana in Colorado,” found that a disproportionate share of buyers were tourists – with legalization possibly stimulating the tourist business – but that was enough to provide significant tax revenue.

The same pattern appears to apply in Washington, whose situation will be more closely noticed in Oregon. Although Washington took in $150,000 in marijuana taxes in the first three days, and the Washington Office of Fiscal Management projects $1.9 billion in revenue in the first five years, the long-thriving underground market seems poised to continue to flourish, especially in Seattle.

Current dealers still retain an advantage in price and in established customer relations, and supply doesn’t seem to be a problem; last month a Seattle bust brought in a record 2,663 plants. Jake Ellison recently wrote on the Seattle Post-Intelligencer web site that the new state stores would have no effect on the current market in Seattle, especially since the penalties for buying from private dealers have now virtually vanished.

That still leaves the question spelled out in high-powered lights on Interstate-5: In the new world, how many drivers sharing the road with you at night are going to be higher than the cab of an 18-wheeler, and how will anybody know?

Last week, two retired Multnomah County prosecutors, Norm Frink and Mark McDonnell, came out against the proposed Oregon marijuana initiative, partly because of a lack of standards for impaired driving. (As Noelle Crombie reported in The Oregonian, Frink and MacDonnell want a warrantless blood test for drivers, which might have some trouble itself with Oregon voters.) They say that Washington’s system for dealing with marijuana-impaired drivers works better, but just how many people are picked up in Washington this fall for driving not only above the speed limit but also above the clouds is still a number likely to be noticed on this side of the river.

Possibly, the momentum for marijuana legalization in Oregon is already irresistible, and nothing short of the entire state of Washington lying on the couch, smiling vaguely and eating Twinkies could raise questions about Oregon’s direction. Ten years from now, it’s been speculated, Oregon will have a craft cannabis industry the way it now has a craft beer industry, and people might not want to get in the way of a nature-based job creator with a non-GMO product.

But throughout August, September and October, the pattern of how legalization works across the river will play a role in how the debate develops here. The system that just went into operation there may be different from the one created in the Oregon initiative, but our neighbor to the north will send us a message about how things could work.

From now until the end of the World Series, Washington will be sending us a smoke signal.

NOTE: This column appeared in The Oregonian 7/20/14.

16 Jul

Blumenauer’s transportation fix plan: No leadership required

Earl Blumenauer has a major reason why he thinks his plan to avoid a transportation funding collapse could work. His plan, he says hopefully, “allows politicians to exercise no leadership,” a condition that has otherwise stood immovably before any achievement in this Congress.

“The issue is just get out of the way,” explains the 10-term Portland congressman, although even that requirement has been more than enough to stop any progress in the past year and a half.

This summer, the federal government’s Highway Trust Fund, the major source of federal funding for roads, bridges and other infrastructure, runs out of money. This will be a considerable blow to construction projects, especially during the summer construction season – earlier this month Transportation Secretary Anthony Foxx said the feds would shortly begin reducing payments to states – as well as weakening both the economy and Americans’ chances of successfully getting anywhere.

The fund is underwritten by the federal gas tax, which has not been increased since 1993. Over that time, gas tax revenues have been reduced by an increase in miles per gallon and the growth of hybrid and electric cars, while the cost of building a bridge that can keep your Toyota from falling into a river has increased. With the current numbers, says Blumenauer, federal support for infrastructure would drop by 30 percent over the next decade.

His proposal to deal with the issue, at least for the foreseeable future, is simple: Raise the gas tax. The problem here is the number of Republicans in Congress who are sworn not to raise taxes – and the number of Democrats who don’t want to be seen raising taxes – even if Genghis Khan were marching on Pittsburgh.

A few other voices have suggested the idea, notably two senators, Tennessee Republican Bob Corker and Connecticut Democrat Chris Murphy, who proposed it last month. The idea was immediately dismissed by Orrin Hatch, ranking Republican on the Senate Finance Committee, who declared, “You’re not going to get anywhere with it. Many feel that it’s a logical thing to do since it’s the users that are paying for the roads, but thus far I don’t think you’d have that support for it.”

Because, how far is logic going to get you in Congress?

Sen. Ron Wyden, D-Ore., Finance Committee chairman, proposed a tax increase on heavy trucks just to get through the summer construction period, an idea alive for about two days before GOP opposition made Wyden drop it. With Congress’s return from its July 4 recess this week, it now has only few weeks until its August recess and the trust fund running dry. This week, the House passed a measure scraping up $10 billion from various places that can’t be called taxes to try to get through the summer.

Yet Blumenauer points out that rather than see construction take a major hit, interest groups representing the people who would pay the increased tax – the Chamber of Commerce, the AFL-CIO, trucking organizations, the American Automobile Association – are willing to support it.

This is what he means by Congress just needing to get out of the way.

He even has an idea how it might work.

First, Congress will – because it has to – pass something limited for a short-term fix. The approach will be, he says, “Close your eyes, hold your nose, and stop the summer shutdown.”

Then, for a longer-term solution, look to what seems like the only time Congress gets anything done: the lame-duck session after the November election. With no election for another two years, with no Tea Party primaries facing Republicans for a year and a half, with about 10 percent of members about to leave Congress, something could actually happen.

But if nothing could happen before the lame-duck session, nothing is likely to happen afterwards in the new Congress, with a Republican House, a Democratic White House and a more closely divided Senate, whether Democratic or Republican. Besides, the 2016 presidential campaign begins almost immediately.

But in the lame-duck session, things will have to happen quickly, and measures will be attached to other measures. “If it were debated fully, as stand-alone legislation, it wouldn’t go,” says Blumenauer. “But it will.”

And if this isn’t exactly the textbook version of how legislation works, says Blumenauer, “I’ll rise above principle.”

It’s hard to say whether this is a bleak view, because it gives up on any regular congressional process, or a hopeful one, because it insists that something can still somehow happen.

“There is no good alternative,” says Blumenauer, who after all his time in Congress still believes that can be a compelling argument.

Besides, his plan doesn’t require anybody to exercise leadership.

06 Jul

In Hobby Lobby, folks at the top get to exercise their religious freedom for everybody else

In a ringing decision last week – or at least as ringing as a 5-4 decision could be – the U.S. Supreme Court declared that “closely-held” corporations had religious rights, even if you hardly ever saw the corporation in church. Such corporations could, ruled the court, excuse themselves from the obligations of the Affordable Care Act to cover certain birth control procedures that interfered with the corporation’s deepest beliefs.

Corporations, declared the lord chancellor of Great Britain in the 18th century, have neither bodies to be kicked nor souls to be damned, but the Supreme Court has perceived a corporate soul. Judging by the treatment of banks after the collapse of 2008, the body to be kicked is still elusive.

The decision, initially described as limited, soon appeared expansive enough to spread into multiple other legal areas and other places, including Oregon, where it surfaced the next day. Like a number of court rulings, the decision seems likely to have started more arguments than it settled.

“Today the nation’s highest court has re-affirmed the vital importance of religious liberty as one of our country’s founding principles. The Court’s decision is a victory, not just for our family business, but for all who seek to live out their faith,” declared Barbara Green, a co-founder of Hobby Lobby, a chain of arts and crafts stores.

But if it was an endorsement of the Green family’s religious liberty, it didn’t say much for the religious liberty of their 13,000 employees. They apparently have the right to live out their employers’ faith.

If there’s a precedent here, it may be the Peace of Augsburg, the 1555 sorting out of Reformation Germany that decided that the religion of the prince – Catholic or Lutheran – would be the religion of his state. Ordaining that the people on top can make the religious decisions for everybody has a certain surface clarity.

In the initial Hobby Lobby ruling, issued last Monday, Justice Samuel Alito insisted that the court focused only on particular contraceptive approaches to which the Greens objected, considering them to be early-stage abortions. But by Tuesday, the court had ordered rehearings of three other cases where businesses had religious objections to paying for any contraceptive coverage for employees.

And there’s no reason to think the principle of business religious exemption is limited to health care. As Jeff Mapes reported in The Oregonian last week, the attorney for Gresham’s Sweet Cakes by Melissa, under investigation by the state of Oregon for refusing to bake a cake for a same-sex wedding, notified the state that he would be citing the Hobby Lobby decision in his defense.

And although Oregon labor commissioner Brad Avakian said he didn’t see the decision challenging the state’s laws against discrimination against gays, it’s not hard to see that it could. By the end of last week, a group of religious leaders requested a broad religious exemption to a planned Obama executive order banning discrimination against gays by federal contractors.

After the Hobby Lobby decision, said Michael Wear, who organized the letter, “the administration does have a decision to make whether they want to recalibrate their approach to some of these issues.”

Although the request was for an exemption just for religious groups, the Supreme Court has now seen no difference between specifically denominational groups and “closely-held” businesses with religious owners.

Although lots of other people see a difference.

“Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community,” wrote Justice Ruth Bader Ginsburg in dissent. “…The court, I fear, has ventured into a minefield.”

The minefield leads directly toward us.

“I believe religious claimants now have a strong argument to raise that there is a federal constitutional basis” for breaking through state laws, Steven Green, professor of law and director of the Center for Religion, Law and Democracy at Willamette University, told the Statesman Journal. “It’s almost kind of a back door way of this applying to places like Oregon.”

The discovery of a religious route around the law for “closely-held” private businesses has implications beyond any particular means of contraception, beyond all contraception, and possibly beyond anti-gay discrimination laws. It’s likely to be coming soon to a court, and to a locally valued principle, near you.

And even the Peace of Augsburg, enforcing the religious choices of the man on top, didn’t really fix things.

It was followed by the Thirty Years War.

NOTE: This commentary appeared in The Oregonian, July 6, 2014.

06 Jul

What we know about marijuana is that what we’re doing doesn’t work

The question isn’t whether people should smoke marijuana, or whether we want people to smoke marijuana. The question is how many people we want to put in jail for it, and how many prison cells and police officers we want to dedicate to it.

And sometime during the last fifty years of the War on Drugs, lots of Oregonians decided on a new answer to that question.

This fall, Oregon voters will face an initiative to legalize recreational marijuana, and like the voters of Washington and Colorado, they’re likely to pass it. They’ll pass it not because they’re all stoners – although that is a certain Oregon voting bloc – or even because they’re dreaming of hefty tax revenues.

They’re for it because they know our current system has failed. It’s ruined people’s lives, filled our prisons, and done very little to discourage marijuana use.

If we tried legalizing marijuana, we could regulate it, we could still discourage kids from using it, we could give people honest information instead of telling them things they don’t believe. There will still be problems, but probably fewer than there are with alcohol – which we already gave up prohibiting.

We don’t know exactly how this will work. But we know that what we’re doing now doesn’t.

NOTE: This commentary appeared on KGW-TV, July 5, 2014.