City of Keene, NH seeks "Bearcat" Military Tank; America's Police continue to Militarize

The United States appears to be rushing head-long into a full-fledged Police State. Tasers. Pepper Spray. NDAA. Drones. And now, military tanks as “police” vehicles.

On June 6, 2011, in Oakland Park, Florida, James Doe, who was 31 years old and only 130 pounds, was tasered by police while he was handcuffed and locked in the back of a cruiser. He fell limp, and was pronounced dead upon his arrival at Florida Medical Center. James was just one of 40 deaths that occur every year as a result of the unnecessary or excessive use of Taser equipment by law enforcement officials.

Backtracking: In Chicago, a team of research scientists and doctors at the Cook County hospital trauma center stunned 6 pigs with two 40-second Taser discharges. All six animals exhibited heart rhythm problems. Two subsequently died of cardiac arrest. A San Francisco cardiologist and electrophysiologist, Dr. Zian Tseng, determined that a healthy individual could die from a Taser discharge, depending on electrode placement on the chest and pulse timing. Taser International then contacted him, asking him to reconsider his statements to the media on the subject, and then offered him “funding” to further his research. CBC News Story.

But Taser International is hardly the only private firm that profits by militarizing local police forces.

This Blog has been particularly critical of the increasing use of Pepper-Spray by Police forces. Excessive and indiscriminate use of the chemical has been used with increased frequency across the nation, particualarly at Occupy Protests; several photos and videos that caught pepper spray incidents in New York and at U. California–Davis went viral and heightened public attention and condemnation of the practice.

(see U C Davis Pepper Spray and NYPD Pepper Spray )

Police reactions in both cases initially consisted of lies and cover ups which couldn’t stand up to the evidence in the videos, and the officers in both of those cases were disciplined. Unfortunately, even as I write this, the state of Florida is now investigating the case of Nick Christie, a 62-year old mentally ill man who was bound, restrained and tied to a chair in a Flordia jail and coated with pepper spray in 2009. He died two days later.

Pepper spray was approved in the US for police use in spite of objections by US military scientists in 1991, and is now in use in 2,000 local jurisdictions. Subsequent to that approval, it was discovered that Thomas W. Ward, the head of the FBI's Less-Than-Lethal Weapons Program who approved pepper spray’s use on civilians, received payments from Luckey Police Products, a pepper spray manufacturer, while authoring the FBI study that led to its use. Ward received $57,500 in increments of $5,000 a month paid through his wife. He was sentenced to two months in prison.

In the meantime, various courts have declared its use to be cruel and excessive, and twelve citizens die each year from pepper-spray induced asthma attacks or asphyxiation.

News of the increased militarization and forcefulness on the part of American officers “of the peace” are accelerating with frightening speed. Congress recently passed the NDAA bill, permitting the military to detain US citizens without trial or charge indefinitely; the Obama administration has admitted to the expanded use of spy drones over the United States; and after the Super Bowl this past weekend, state and local police arrived in riot gear and on horseback at the University of Massachusetts–Amherst campus, “in anticipation” of student crowds. When the police decided the crowd on the public, state-owned property was "too big,” they moved in and dispersed students who, up to that moment, had broken no law and caused no damage.

And so, in this atmosphere of the growing American Police State, the city Council of Keene, New Hampshire has attempted to purchase a military tank, without public input, for the purposes of “rescue missions."

The City of Keene recently announced that its would use a grant of $285,933 from the Department of Homeland Security to purchase a "Bearcat" vehicle from LENCO, a company that prides itself on developing and selling vehicles for military and SWAT-team use. Of 15 City Councilors, only one – Terry M. Clark – opposed the purchase.

After the Council vote, citizen response was swift. A petition in opposition to acquiring the Bearcat was delivered to the City Council, signed by 144 residents. The opposition has crossed political lines, uniting conservatives, liberals, and libertarians. Initially, the City Council decided that they would simply “accept” the petition without discussing the issue again. Council Member Terry Clark then formally requested that the issue be returned to the City’s Finance Committee for a public hearing; the Council agreed, and this Thursday, Feb 9 at 5:30 pm the first public hearing on the issue will be held.

In the meantime, LENCO is attempting to backtrack. The Bearcat purchase is being ‘recast’ as an effort to purchase a “rescue” vehicle that will help Keene citizens in need. The LENCO website, however, approaches this issue quite differently. On its Website advertising six varieties of Bearcats (its domain name is, tellingly, “SwatTrucks.com”), LENCO describes the vehicles as having the following attributes:

“Primary APC used by SWAT & SRT, Military Police, and Security Forces”

“Designed for Military personnel. Military-style turret can be configured for .50 caliber Dillon Mini-Guns and CROWS.”

“All Military Spec Steel construction. Currently used by SWAT and Special Op Teams at high security facilities.”

“V-Hull Blast Shield protects against grenades and IED attacks”

None of these sounds like the attributes of a “rescue” vehicle. In fact, LENCO had a video advertisement on YouTube that promoted its product: it showed military and SWAT teams exiting the vehicle, firing military weapons, drilling holes through house walls, and spraying toxic gases.

In the heat of the controversy, LENCO pulled the video ad off of YouTube.

But thanks to our friends at CopBlock, the video is included here. You watch, and you decide, whether this is a “rescue” vehicle or another military toy to facilitate the police state’s intimidation and control over the citizenry:





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9th Circuit Overturns Prop 8. Ruling, History, and Next Steps

The 9th Circuit Federal Appellate Court has just ruled in a 2-1 decision that Proposition 8, the California initiative that ended Marriage Equality in California, is Unconstitutional under the 14th Amendment of the US Constitution, which guarentees citizens the equal protection of the law. The three-Judge panel consisted of Stephen Reinhardt, an appointee of President Carter; Michael Daly Hawkins, an appointee of President Clinton; and N. Randy Smith, appointed by President George W. Bush.

From today's ruling:

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort."

In making this ruling, the Court (which has federal jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, and the territories of Guam and the Northern Mariana Islands) made two other rulings: it held that the lower federal district court Judge, Judge Vaughn Walker, who initially found Prop 8 Unconstitutional, did not have to disqualify himself from the case simply because he himself is gay; and it affirmed the right of a conservative citizen's group to defend Prop 8 in Court. This ruling represents the first time that an Appellate federal Court has held that discrimination against gays and lesbians seeking to marry violates the US Constitution, and accelerates the likelihood that the entire US Supreme Court will hear the issue in the next term.

This Blog has followed the Prop 8 case closely because of its national significance. Here is a "plain language" timeline of the events leading up today's ruling:

May 15, 2008: The California Supreme Court rules 4-3 in In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384
that Marriage is a fundamental right, and California's statutes prohibiting same-sex marriage were therefore Unconstitutional under the State Constitution. Same-sex Marriages began in California shortly theafter.

Nov 4, 2008: California citizens, through a popular referendum vote of 52%-48%, adopted a Constitutional Amendment to prohibit same-sex marriage. The ballot question was known as Proposition 8 ("Prop 8" for short).

May 26, 2009:Supporters of same-sex marriage bring suit in State Court, challenging the process by which Prop 8 was adopted. The State Court rules, 6-1, that the process was valid, and Prop 8 was a valid amendment to the State Constitution.
(see Blog post )

Aug 4, 2010 – In a move initially seen as controversial by some gay rights activists, supporters of same sex Marriage then chose to sue in Federal District Court, claiming that Prop 8 violated the Federal Constitution. Federal District Court Judge Walker agreed, and overturned Prop 8. (See details at
Blog Post Walker's order declaring Prop 8 Unconstitutional was then stayed ("put on hold") pending appeal to a higher level (the 9th ircuit Appellate Court).

Nov 17, 2011 – Governor Schwarzneggar refused to appeal the ruling on behalf of "The State," enraging conservative activists who sought standing to challenge Walker's ruling on appeal. The Federal Appellate Court was asked to overturn Walker's ruling by conservatives, but that court first had to decide whether the conservatives even had "standing" (or "the right") to sue in the first place, since the Governor and Attorney General of California would normally be the parties involved in defending the law. The Federal Court chose to ask the California State Court whether a citizens group had the right to sue under State law. The state court ruled that indeed, the conservative citizen group had the right to sue, (see Blog Post .)

With that as background, the 9th Circuit Appellate Court had to decide the following questions before it:

(1) Did the conservative citizen's group also have the right to sue in federal court?
(2) Did Walker have to disqualify himself?
(3) Was Walker's ruling overturning Prop 8 correct as a matter of Law.

The Last point is particularly important. In legal cases, *only* the Trial Court (the lowest court) hears and determines issues of *fact.* That means that evidence concerning the effect of discrimination on gays, the history and purposes of marriages, and psychological and medical facts surrounding homosexuality was all entered into the record and decided in Walker's Courtrom. It can not be questioned on appeal. It has been widely acknowledged by people on all sides that the conservatives arguements were extremely poor and not well supported by evidence; several of their witnesses even backed out of testifying at the last minute.

This is critically important for the next steps.

Chances are, this ruling today will be stayed ("put on hold") pending another appeal by conservatives to one of two bodies:

They can appeal to the FULL 9th Circuit. The current decision was issued by a panel of three justices from the 9th circuit, which is standard procedure. The conservatives can request that a "full bench" hear the case(called a hearing "en banc"), which would involve 11 of the 9th circuit's 28 justices.

Or, they could appeal directly to the U.S. Supreme Court. Many observers are skeptical that the US Supreme Court would take the case however, because the 9th Citcuit wrote their decision very narrowly: they decided that the California law, in light of the process followed in California, violated the US Constitution; they did not rule that prohibitions against same-sex marriage "in general" violated the U S Constitution.

According to Shannon Minter, legal counsel for the National Center for Lesbian Rights:

"Given the reasoning of the Ninth Circuit's decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case. The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications. The Ninth Circuit's California-focused decision presents neither of those circumstances. Unless the Supreme Court breaks with its own tradition and intervenes in the case, it's possible that wedding bells will be ringing in California again before the end of the year."

In any event, the issue of same-sex marriage as a federal Constitutional right is not yet established...but it is one step closer.

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Why a Gay Man Gets Excited About Super Bowl XLVI

It’s the stuff that Disney feel-good movies are made of: my single memory of playing football in junior high school was accidentally catching a ball that somehow landed right in my hands - - and then running in the wrong direction.

I have a similar memory from basketball. I would always allow myself to be blocked, so that there would never be a chance that I would actually catch a pass. But one time it somehow happened (I think the opposing team just gave up on bothering to cover me). I caught the ball. In my panic, rather than pass it or dribble it, I ran with it. Ooops.

There was the wrestling demo in grade school, where the gym coach flipped me around and my neck cracked as it bent backwards and I ended up seeing stars for 30 minutes. And the little league game where the pop-up fly landed not in my glove, but hit my voice box square-on, causing me to black out.

Now, I shouldn’t make it sound like I’m a TOTAL dork...I can play volleyball pretty well, I’ve finished (poorly) in a few 10k foot races, I used to ski fairly well, I can bowl and shoot, and I found some major mojo in the gym once I saw the results in my arms and chest from a lot of hard work while weight training.

Still, it is a little odd that the kid who used to find any excuse in the world to escape gym class; who openly identifies with the gay community; and who only learned at the age of 51 how to throw a football with a spin (thanks to his teenage son) – can actually get excited about the Superbowl.

And that excitement is not just limited to the Superbowl - as an adult, I have enjoyed the World Cup in a gritty pub in Holyhead, Wales; followed the NY Mets during the US Baseball season; and remain fascinated by rugby and the culture surrounding it. Somewhere I decided that my relative incompetance and ignorance in sports skills did not have to last forever. But for the most part, I am still a very ‘late bloomer’ compared to my male counterparts when it comes to sports, so it stretched me to my limits six years ago when I created a college-level course in Sports Economics. When it comes to discussing the media revenue streams to the NFL or the salary structure of pitchers in MLB, I can hold my own – but when my students start throwing around names and statistics and player numbers, I get that butterflies-in-the-stomach feeling I got when that football somehow landed in my hands in junior high.

Reading through the threads on Facebook today, many of my gay friends are making funny comments about the Superbowl, and being kind of campy about it…looking forward to Madonna’s half-time show, wondering how well the uniforms will fit, preparing to make Cosmos, and musing about how good-looking the ‘goalies’ will be. All in fun, all acknowledging in a sideways kind of ways that they, too, like me, were the “outsiders” as kids who never “got into” sports, and for whom sports was a dreaded opportunity for humiliation.

But aside from the tongue-in-cheek and campy threads, there are many more that are basic “hurray-for-our-side” or “Who are YOU supporting today?” threads. And therein lies, I think, one of the reasons for the pervasive hold that professional sports has on our society.

In teaching that Sports Economics course, the very first topic we seek to answer is a deceptively simple question:

What is the product that professional sports is selling?

Students who take the course are often sports-a-holics; with the exception of one or two females per class, they are exclusively male; and they are often the kinds of jocks with whom I had *nothing* in common in junior high or high school. As they grapple with this question, they often wrestle with the idea that Professional Sports is ‘selling’ leadership, teamwork, safe expressions of warrior-hood and male aggression, unrealized dreams, superstar brands, and entertainment; and to be honest, there are elements of all of these things at work in sports.

But the conclusion they always reach is that Professional Sports teams are selling something much more elusive in today’s society: Identity.

Both of my grandfathers worked their entire lives in a single company. My dad worked in several capacities for the same government unit his entire life, and my mom worked for one company for the majority of her adult life.

On the other hand, between the ages of 24 and 52, I have worked at nine different jobs.

My mom and dad got married and bought a house that was 3 blocks from where my mom was raised, and one mile from where my dad was raised. When they retired, they moved to smaller condominiums and apartments within two miles from there (They originally moved to Florida for a short time, but realized they wanted to be "home" and they came back to NY). My mom still lives in the same community in which she was raised. My father’s distant relatives remain in the NYC, all within an hour of where his ancestors stepped off the boat 370 years ago.

On the other hand, though I was born and raised in NY, I left there at the age of 30: I have since lived for 8 years in Massachusetts (in three different houses) , and 14 years in New Hampshire (in six different places). Statistically, I’m typical of most Americans: according to the 2010 census, the average American moves 12 times in a lifetime (which explains why I am about ready to ‘retire’ and settle down a bit!)

In this fast-paced century, where people have Facebook ‘friends’ they have never met on the other side of the world, where they move every 8 years, and where they change jobs 10 times before the age of 42 – “where is home?” What is “home?” With a growing integration of ethnicities into the American salad bowl, a growing number of US citizens simply call themselves “Americans” on the US Census rather than holding to older European nationalities (I did this myself on the 2010 Census: it was easier than choosing more than 10 ethnicities).

And so, with global communications and fast-paced mobility, Professional Sports Teams offer a sense of ‘belonging,’ of identifying with a particular location regardless of one’s ‘temporary’ or ‘transient’ station in life. Today’s Facebook threads are full of people emphatically supporting the NY Giants or the New England Patriots – and the strongest fans are precisely those who see one of these teams as their “home team.” Their identity is, in some way, wrapped up in these non-military warriors representing the “homeland.” Native New Yorkers living in California will root for the Giants; native Bostonians in Texas will be cheering for Tom Brady.

And for that reason, this gay man who couldn't throw a football until last year is preparing the guacamole dip, reading the online sports news, spicing the shrimp soup, picking up some more beer, watching his boyfriend wire up the surround sound system, and getting out the ingredients for some kick-ass Hero sandwiches.

And routing passionately for Eli Manning and the New York Giants.

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Washington State Senate Approves Marriage Equality; Governor Promises to Sign

By a vote of 28-21, the Washington State Senate has just approved SB 6239, moving that state just a few days away from being the eighth American jurisdiction to establish Marriage Equality for same-sex couples. A companion bill in the State House, HB 2516, is widely expected to pass by a comfortable margin, and Governor Chris Gregoire has already announced that she will sign the bill if it gets to her desk. With California’s Marriage Equality law suspended while courts rule on the legality of “Proposition 8,” Washington would become the only western state at the current time to grant full equality to same-sex couples.

The issue was scheduled to be voted on at 6:00 pm Pacific Time, but due to seventeen amendments that were offered and breaks for party caucuses, the final vote did not take place until almost 8:00 pm. Most of the amendments were written to safeguard religious institutions and organizations, not unlike the clauses that were added in the New Hampshire and New York Marriage Equality debates, but were actually redundant as they reiterated protections already codified in state or federal constitutional law. One of the amendments included protections for faith-based social service agencies, which would exempt religious adoption agencies from litigation for refusing to place children with gay families. Proponents agreed to 13 of the 17 amendments, including the exemption for adoption agencies, and these were adopted unanimously with little fuss on the floor.

A few amendments did spark controversy, however. Amendment 15 sought to exempt public officials from performing same-sex marriages if they harbored personal religious objections. It was rejected on a voice vote.

Amendment 14 would have exempted businesses from providing services for gay ceremonies; in an early test of the eventual fate of the bill, Amendment 14 was defeated on a roll-call vote of 22 yeas and 27 nays.

Of all the amendments offered, Amendment 10 was the critical test. Amendment 10, the so-called "Referendum Amendment," sought to subject the eventual decision to a public vote. A call to "let the people vote" is a tactic that opponents of Marriage Equality have used as a rallying call in numerous states, including Maine (where voters repealed an Equalty law) and New Hampshire, where Marriage Equality remains intact. The effort to require a public vote failed by a vote of 23 to 26, foreshadowing the final vote.

Just before the vote was taken, Democratic Senator Kevin Ranker (40th District, San Juan Islands) delivered an emotional speech on the floor about his own father's coming out process and the impact of shame and discrimination on families, ending his statement saying, "today I am proud to stand on the right side of history, to fully support marriage equality and mostly, proud of my father."

While the Senate split largely along party lines, four Republicans, including Cheryl Pflug of Maple Valley and Steve Litzow of Mercer Island crossed the aisle and supported the measure, while three Democrats bolted opposed the bill.

Washington has wrangled non-stop over this issue for almost 15 years, and the vote tonight represents a seismic shift in opinion over those years.

In 1998, state legislators voted to ban same-sex marriage altogether, endorsing a state-wide version of the so-called federal DOMA (Defense of Marriage Act) statute. But in 2006, legislators also adopted Washington’s first civil rights statute for gays, followed one year later with a mechanism that allowed for the registration of Domestic Partnerships. Soon thereafter, lawmakers adopted a civil unions statute that awarded same-sex couples the same rights as opposite-sex couples, except for the title of “marriage.” Conservative groups gathered enough signatures to bring this measure up for a popular vote on November 3, 2009, known as Referendum 71 (or “R-71” for short). But in a stunning turnaround of popular opinion, voters in Washington approved the measure by a vote of 53% - 47%.

The current effort to enact full Marriage Equality came down to the wire, as supporters came into the vote seemingly one vote shy of the necessary of the 25 Senate votes needed. Last week, Sen. Jim Kastama of Puyallup announced he would support the measure in the Senate, bringing the number of Senators in favor of the measure to 24, where support appeared to stall, and 6 Senators remained undecided. Reminiscent of the battle in New York State, intense lobbying ensued, with formal support being offered by Nike, Starbucks, and Microsoft, three of the state’s most visible employers. In October, a University of Washington poll found that 43 percent of Washington residents supported the measure. While still less than a majority, this was a significantly higher percentage than the 30% who supported such a measure in a poll taken in 2007. During the debate on the amendments, news services reported that Seanator Brian Hatfield announced that he would provide the 26th vote in favor of the Bill.

Assuming the bill is passed in the House and signed by the Governor, as expected, the law would take effect in June unless opponents find a mechanism to forestall its implementation in court or through petition and referendum.

Court Nomination of Bruce Harris Should be Opposed

[MAY 25 UPDATE HERE]
In spite of the fact that the latest census reveals that 41% of the residents of New Jersey are minorities, the New Jersey Supreme Court remains an embarrassingly monolithic 100% white. In an effort to show sensitivity to issues of diversity, Governor Chris Christie recently nominated two new court members – Phillip H. Kwon, a Korean immigrant, and Bruce Harris, an openly gay black man. The nomination of Harris was initially greeted with excitement in civil rights circles, especially since Harris is both openly gay and partnered.

Unfortunately, Harris’ appointment is conditional upon his recusing himself from any same-sex marriage issues. Governor Chris Christie is on record as opposing same-sex marriage. Christie insists that Harris voluntarily offered to recuse himself, supposedly because three years ago he wrote to several state senators asking for their support of a same-sex marriage bill.

Whether this is Harris’ unsolicited offer or Christie’s requirement is immaterial: it is a dangerous (and illogical) precedent that enables the Executive and Legislative branches to stick its collective noses into the outcomes of judicial cases where it doesn’t belong.

Every Court nominee arrives at the bench with a history of advocacy, either through the legislative process, or through written judicial opinions. This is nothing new. What is new is the pre-emptive strike against specific judges from hearing certain issues.

When President Obama nominated the Hon. Sonia Sotomayor to the United States Supreme Court, there was a brief storm of opinion when she commented, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, who was ultimately confirmed to the Court, was not suggesting that Latina women were somehow smarter than white men; rather, she was expressing a well-settled understanding that diversity is important in the legal system. Those who have struggled to answer a police officer’s question because they do not speak the language; a woman who has feared for her life in spite of a restraining order issued against her abusive boyfriend; an immigrant afraid to report a crime because of their residency status; and a gay man who is denied justice after being beat on the street by someone who then claims the ‘gay panic defense' - understand life and the American legal processes in ways that are different than those who do not have to deal with such issues. That is why diversity is important, especially in the Judiciary.

To be certain, Judges should recuse themselves from some issues. Title 28 of the United States Judicial Code set standards for judicial recusal, naming four specific occasions. A federal Judge must recuse himself:

1) "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"
(This would not apply to Harris, since there is no particular case with identified parties at hand)

2) when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome;
(This would also not apply to Harris, since there is no specific case at hand)

3) when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding. (This would not apply to Harris, since there is no particular case with any identified financial interests at hand)

4) in any proceeding in which his impartiality might reasonably be questioned.

This is the only criteria where, on its surface, Harris might be accused. A logical analysis, however, as well as history, shows this to be utter nonsense.

Having an opinion on a legislative issue (what “should be”) does not inply that impartiality on a judicial issue (how the law “is” to be applied) is compromised.

First of all, being gay does not disqualify Harris from ruling on marriage issues. If it did, his being a black man would also disqualify him from racial discrimination cases. Furthermore, if being gay disqualifies him from cases involving same-sex marriage, then being heterosexual or married would also disqualify most other judges, since the opponents of gay marriage claim that same-sex marriage harms traditional marriage. This would disqualify both gays and judges in traditional marriages, thereby creating the unacceptable situation of only allowing single judges to rule in such cases.

Second, Harris’ advocacy on behalf of gay marriage can not possibly be deemed to render him impartial in a legal case. As stated above, advocacy for legislative issues does not imply impartiality in Judicial cases. As proof of this, I offer none other than Reagan-appointed Supreme Court Justice Sandra Day O’Connor.

As a State Senator in Arizona, O’Connor not only advocated, but acually cast a procedural vote in favor of a bill to repeal the state's criminal-abortion statute. Later, she voted against a measure to prohibit abortions in Arizona state hospitals. In spite of this, no one ever suggested that O’Connor needed to recuse herself from abortion cases before the Court, and she was confirmed by a vote of 99-0.

Later, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), which upheld some restrictions on second trimester abortions, O’Connor not only participated, but wrote a concurring opinion in which she explicitly opposed overturning the landmark Roe v. Wade abortion decision. In 1990, she was the critical swing vote in Hodgson v. Minnesota, 497 U.S. 417 (1990), which looked at whether a state may require notification of both parents before a minor can obtain an abortion. Again, O’Connor not only participated, but provided the swing vote with the liberals in ruling 5-4 that a state could not do this, and then also provided the critical swing vote with the court conservatives in ruling 5-4 that such a law would be valid if there was a judicial by-pass in place of notifying both parents.

Never in the course or aftermath of these decisions was it ever suggested that Sandra Day O’Connor should have recused herself due to having a position on abortion issues as a state legislator.

The notion, then, that Harris should recuse himself from same-sex marriage cases simply because he favored same-sex marriage legislation in New Jersey is not only unprecedented, it is dangerous: it eviscerates the entire purpose of appointing a representative, diverse court, and calls into question a judge’s integrity before he or she has even had the chance to hear a case.

The caveat that Harris recuse himself is an unacceptable condition of his approval. If this is Christie’s doing, shame on Christie; if it is Harris’ offer, then shame on him.

Either way, this nomination deserves to be defeated as a rejection of the politics of control over judicial rulings.


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Capital Gains Should be Taxed at Full Value: A Response to Dan Mitchell

Once a subject left to financiers and members of congress, the Capital Gains Tax has seen a much broader discussion this week. The combination of growing income disparity, Mitt Romney’s release of his income taxes two days ago, and President Obama’s call for more “tax fairness” in his State of the Union address last night has voters considering the societal implications of capital gains tax treatment as never before.

In brief, the Capital Gains Tax is a tax on income gained through the sale of capital assets, ie, income made by investing in a company, or by buying assets such as stocks and bonds at a low price and then selling them at a higher price. This type of income is taxed at a far lower rate than income earned through drawing a paycheck. Currently, if someone earns $100,000 from working at a job, that person falls into the 28% marginal tax bracket. However, if that person makes $100,000 by buying and selling stocks, they only pay a 15% on those earnings. The result has been that those who labor get taxed at one level, while those who sit back and “invest” by placing buy and sell orders with their online broker (and who produce *nothing* for the society) get taxed at far lower levels. This is the main reason why Mitt Romney, who made 20 million dollars last year, paid barely 15% of his total income in taxes, while average Americans making as little as 35,000 end up in the 25% marginal income tax bracket.

As Americans take a hard look at ending this preferential tax practice all together, corporate financiers have begun to circle the wagons to protect one of their most lucrative sources of income. On May 3, 2010, a video narrated by Dan Mitchell was uploaded onto YouTube titled, “Six Reasons Why the Capital Gains Tax Should be Abolished.” Mitchell is a former advisor to the Senate Finance Committee and currently a senior fellow at the Cato Institute, a libertarian think-tank. The video has been uploaded and embedded in right-wing and pro-corporate sites all over the web, including the National Review Online, Freedom & Prosperity.org, Kudlow’s Money & Politics Blog, Townhall.com, For Freedom’s Sake, the Lincoln vs. Cadillac website, and others. The original video can be found here.

In the video, Mitchell lists six reasons why the Capital Gains Tax should be abolished altogether.

This Economist takes the opposite position, and suggests that most capital gains should be taxed at the same rate as earned income. In support of our position, we will list refute Mitchell’s main proposition, which underlies all 6 of his arguments:

“The Capital Gains Tax results in less investment.”

This is the primary argument made by those who oppose the capital gains tax. They argue, with some validity, that the growth and expansion of business relies on investment; if potential investors are taxed for a successful investment, they will be more likely to place their capital somewhere where both risk and taxes are less, including in other nations.

I agree with part of this argument. The error, however, is his assumption that most capital gains actually come from ‘investment’ that assists an actual struggling or embryonic business. The vast majority of capital gains do NOT come from investing in a business; most capital gains come simply from stockholders buying and holding stock from other stockholders.

When someone with capital to invest purchases stock directly from a company issuing the stock, or uses its resources as “venture capital” in a private transaction to help grow a new company, there is direct investment. But when someone simply buys and sells equities on the stock market, not one penny is flowing to the business; rather, it is simply cash trading hands between shareholders. Such a purchase provides ZERO additional dollars to the business. Such “investors” generally do not participate in the corporations decision-making, governance, hiring, or expansion decisions. They use their wealth to purchase stock in an online transaction, follow it for a year, and ignore everything except how their ‘investment’ – which was purchased from another such ‘investor,’ not from the company – is doing. When the time is right, they access their account and hit the sell button…and make instant cash.

They produce nothing. They hire no one. They create nothing. They provide no expansion possibilities for businesses. And they are given preferential tax treatment for this.

The following table provides some indication of the number of these kinds of transactions for 10 random companies from different industry sectors (based on company quarterly filings and Yahoo! Finance compilations). The first figure represents the number of shares of stock issued by the company, over their lifetime, for which they received a payment, or investment, once. The second figure represents the number of shares traded between traders in ONE year, for which for the company received nothing, but which still qualifies as an ‘investment’ for capital gains purposes.

(Click to Embiggen):

In each case, the number of shares traded between traders in a single year far outweighs the amount of investment recorded by the company over that company’s lifetime.

The “problem” of a capital gains tax limiting investment can be fixed very easily: eliminate the ability of sales and purchases between traders to qualify as “capital gains,” while continuing it for actual direct investment. Such a change would incentivize direct investment in a company, make online gambling less lucrative, increase necessary tax revenues, and begin to end the system whereby honest laborers subsidize stock gambling.

Mitchell goes on to make the argument that the capital gains tax makes the United States less competitive in world markets. He argues that numerous nations have no capital gains tax whatsoever, and suggests that American companies and US investors would be likely to relocate or invest elsewhere because of this. Further investigation reveals that his video contains serious errors in this area. For instance, he lists the following nations:

Belgium, the Czech Republic, Mexico, and Portugal – He is simply wrong. Capital Gains are taxed at the Ordinary Tax Rate in Belgium and the Czech Republic. (There is in exception in the Czech Republic when between a parent company and a subsidiary). Mexico capital gains are taxed at 35%; Portugal taxes capital gains at 20%.

Hong Kong – while it is true that Hong Kong does not charge a capital gains tax, they *do* tax corporate executives on the full value of any stocks or stock options they receive as part of their compensation – at full value.

The Netherlands – He is correct in that the Dutch do not impose a capital gains tax based on the actual profit made on the sale of a capital asset; they actually do something far more onerous. They impose an Annual Wealth Tax on all assets, assuming that all assets will increase by 4% in value every year, whether they do or do not, and whether the asset is sold or not. It is, in effect, a presumed annual capital gains tax.

Switzerland – Corporations pay capital gains at the same rate as ordinary income; there are no capital gains taxes for individuals, *if* they are Swiss citizens, rendering Mitchell’s concern that US investors would flee to Switzerland moot.

Tax treatment that values gambling over the creation of goods and services, and that values “wealth making wealth” rather than compensating labor, is indeed class warfare…it is a declaration of war against laborers by the “investor class.” It is time to stop treating gambling as if it was investing, and to recover the wealth that has been steadily accumulating in the hands of the 1% because of our unequal treatment of income, as the following graph so vividly shows: