Saturday, November 8, 2014

Election 2014: Gridlock 2.0:
The new Congress and the next stasis

THE POSTWAR world of the United States is slowly taking shape in Washington. Republicans are flush with victory after Tuesday’s election, the results of which confer unto the GOP the first Republican-dominated Congress in eight years, and the biggest Republican majority in the House of Representatives since Truman.

Kentucky Sen. Mitch McConnell, fresh off his own big re-election win, is set to become the new Senate Majority Leader; the drapes are being pulled out of Harry Reid’s old office as we speak. And with the election announcing a new Congress, there was a brief détente of sorts on Capitol Hill early this week. The peace dove was loose in the air.

On Wednesday, McConnell said that, under his watch as majority leader, “we’re not gonna be shutting down the government or defaulting on the national debt” — a pre-emptive budgetary olive branch to the Obama administration if there ever was one. President Obama, likewise making nice, spoke the same day in the East Room of the White House, saying “I would enjoy having some Kentucky bourbon with Mitch McConnell.” We can hear the Woodford Reserve splashing into glasses, neat.

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But before you cue up “Kum Ba Yah,” take note of something else: Wednesday was the same day that McConnell and House Speaker John Boehner published an op-ed for The Wall Street Journal, outlining GOP plans in the new Congress.

On the wish list of the 114th Congress: revising the tax code; legislative support of charter schools, more militarily muscular responses to ISIS and other terrorist threats; construction of the Keystone XL pipeline; and the big one, “renewing our commitment to repeal ObamaCare, which is hurting the job market along with Americans’ health care.”

“The skeptics say nothing will be accomplished in the next two years,” they wrote. “As elected servants of the people, we will make it our job to prove the skeptics wrong.”

It got worse. On Thursday, really feeling his oats, Boehner warned Obama not to take any executive action that would ban the deportation of undocumented immigrants, “When you play with matches, you take the risk of burning yourself,” Boehner said of the president. “And he’s going to burn himself if he continues to go down this path. The American people made clear on Election Day they want to get things done, and they don’t want the president to act on a unilateral basis.”

“I’ve made clear to the president that if he acts unilaterally, on his own, outside his authority, he will poison the well, and there will be no chance for immigration reform moving in this Congress,” Boehner said.

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WITH MCCONNELL and Boehner in the room, the president responded on Friday, pledging to implement an executive order authorizing perhaps as many as 5 million illegal immigrants to stay in the United States on at least a temporary basis, despite Republican objection. The Washington Post reports that the president “is expected to announce his intentions after returning from a visit to China, Burma and Australia, either this month or in early December.”

“The president has the authority to act by executive order on immigration,” House Democratic leader Nancy Pelosi told The New York Times later. “It’s in the law, but it’s also in the precedent of other presidents, whether it’s President Eisenhower, Kennedy, both Bushes, President Reagan — it just goes on and on.”

We’ve seen congressional-powered gridlock for much of the previous three years. Now we can anticipate a different kind of stasis, as President Obama (backed into an operational corner like never before) uses executive orders to advance his legislative agenda — and vetoes legislation coming from a Congress whose bills he’s rejected, but far more infrequently, before.

The source of gridlock we’ve become accustomed to is about to shift, moving from one between dueling halves of Congress to one between a unified Congress and a resistant White House — a variation of exactly what we’ve had for years already.

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In the heat of victory, Republicans have tried to keep their thumb on the scale over the meaning of Tuesday’s election and how its results are best interpreted. GOP thought leaders in recent days have become rather fond of certain tactical elocutions to define their idea of the coming course of action. They say the GOP’s victory on Tuesday means “the president must work with us” — which, by application of sound rhetorical logic, also means that they must work with the president. And why not?

According to the Associated Press, slightly more than 83 million people voted on Tuesday, about 36.6 percent of the voting-age population. So why does this victory by the Republicans, achieved with the lowest midterm voter turnout since 1942, have more traction, command more argumentative weight than the one by the Democrats in 2012, when 51 percent more Americans — 126 million — went to the polls?

Say what you will about what such a dismal midterm turnout says about Americans and participatory democracy; one of the takeaways of the Nov. 4th election is that it shouldn’t in any way be considered a mandate to run roughshod over the Obama White House. The turnout wasn’t nearly big enough for that to be true. If the vote on Tuesday was a vote for Republicans over Democrats, it was also a call for action over paralysis, productivity over partisanship. Despite being the winners on Tuesday, the GOP bears its share of blame for much of what made Tuesday’s vote possible.

And the stage is set for more of the same. Republicans’ fondest wish — that the president would just retire to the Residence with the wife and kids for the next two years, and let the Republicans run things without him — isn’t about to happen. And the Obama White House isn’t walking away from Obamacare, its signature domestic achievement, or the prospect of another major achievement on immigration reform, for the sake of advancing the Republican agenda.

Result? Another kind of gridlock.

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BUT MAYBE not. On Saturday, the president is expected to announce plans to nominate U.S. Attorney Loretta Lynch, now currently the U.S. Attorney for the Eastern District of New York, to replace Eric Holder as attorney general of the United States. If Lynch is confirmed by the new Republican-controlled Senate, she’d become the first African-American woman to be attorney general.

The climate surrounding Lynch’s confirmation hearings — whether they’re conducted in the bipartisan spirit the new Republican majority promises, or in the witch-hunt, pit-bull style of inquiry that’s common to hearings for Obama appointees — will say a lot about how serious the new congressional leadership really is about getting things done. She’s been confirmed by the Senate before, by the way. Twice.

The New York Times characterized the GOP’s first-blush response to Lynch as “guardedly positive.” Senator Charles E. Grassley of Iowa, senior Republican on the Judiciary Committee, said in a statement obtained by The Times that Lynch would get “a very fair, but thorough, vetting” by his committee.

“I’m hopeful that her tenure, if confirmed, will restore confidence in the attorney general as a politically independent voice for the American people,” Grassley said, in a cheap reflex dig at Holder.

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So yeah, hope springs eternal. There’s enough turmoil going on, enough energy loose in the capital as the year winds down, you think it’s maybe possible to hit the reset button on our expectations of government, and the wasteful, antagonistic opéra bouffe in Congress that’s compelled those expectations. Maybe the needle moves this time.

But when you look at the components of this new relationship in the cold political light of day, you have to be cautiously optimistic — with the emphasis on “cautiously.” Considering recent history, the parties in question and the stakes for both of them in two years, a new gridlock may yet morph out of the old one. Because when all’s said and done, the start of the 114th Congress in January ushers in familiar contrary forces, with work cut out for each of them:

A Democratic president who hasn’t been able to work with a divided oppositional Congress now has to work with a unified oppositional Congress, a body he’s never exactly rushed to embrace.

A Republican party that hasn’t been able to get unified in Congress now has to lead, as a presumably singular body, and work with a president it fundamentally doesn’t like.

A proud and competitive president unwilling to undermine or dismantle the legacy of his own administration. A new and newly emboldened Congress likely to feel obligated, sooner or later, to try to push him into doing just that.

If that’s not laying the foundation for the next gridlock, I don’t know what is.

Image credits: McConnell cover: TIME Magazine. Boehner and Obama: The White House. Election results graphic: The Huffington Post. Lynch: Michael Nagle for The New York Times.

Wednesday, November 5, 2014

Election 2014: Chronicle of a defeat foretold

THE TELEVISION schedules of everyone in America will now return to their regularly scheduled commercial programming. Our long national TV campaign-ad nightmare is over.

The defeat of the Democrats in their bid to hold on to the United States Senate — the defeat that pundits and analysts have been predicting for weeks — came to pass last night, as voters seriously vented, letting off steam in a number of battleground states and ushering in a unified Republican Congress for the first time in eight years.

A number of governor’s races went the Democrats’ way, and 147 ballot initiatives let liberalism ring, with approvals for recreational marijuana and a striking agenda for enhancing the minimum wage. But other governors’ races — Florida, lost by a hair; Wisconsin, lost in a walk — went the Republicans’ way. And the big enchilada, the Senate was gone.

E.J. Dionne, his timing pitch perfect, tweeted the comments of a Democratic consultant lamenting the outcome of the election while being relieved about D.C.’s vote to decriminalize marijuana: “At least we can get stoned tonight.”

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When is a wave not a wave? The anti-incumbent outrage that animated a lot of the political media never really materialized. Incumbents Democratic and Republican alike stayed on in states from Maine to Nevada, Iowa to New Jersey.

There was a wave, to be sure, one that solidifies control of the Congress by the Republicans. But with several incumbents held over, at the Senate and gubernatorial levels, it was clear that any anti-incumbent wave was a situational experience, not a wave but a wavelet, with voters assessing on a state-by-state basis who was doing well and who wasn’t, an overview that wasn’t subject to being applied across the board.

There were exceptions, some breaks in that wave for the Democrats. Progressive ideas advanced in red states, with ballot initiatives in four states approving new minimum wage standards. In Colorado, the regressive “personhood” amendment went down to defeat (for the third time). And in blue-state Oregon and red-state Alaska, voters approved measures decriminalizing marijuana for personal use.

But the throughline, the deeper story, is one that’s set Democratic objectives back, at least in the short term.

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THE BLAME game-on-the-Potomac is well under way. And there’s plenty enough to go around. Yes, Harry Reid, the outgoing Senate Majority Leader, deepened the divide in Congress with his own intransigence about what bills came to the floor for debate

And yes, President Obama engaged the GOP that was his legislative bête noire, but he did it diffidently, surgically, too calculated by half, acting like a man trying to psych his way out of a street fight.

But Democrats lost finally not because of any deficit of messaging, or any shortage of concern from President Obama and the White House over turnout or voter disenfranchisement, or the economic issues more regularly keeping Americans awake at night.

Republicans won in no small part because of the structural changes to the electoral map, their own tireless efforts at gerrymandering, and, simply enough, because many of the key Senate races this year were in red and/or purple states where longstanding political culture and history reflected the Republican identity, and where Democratic candidates’ reluctance to embrace their own leader favored the Republican message.

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Consider Iowa. Republican Joni Ernst won there in a squeaker over Democrat Bruce Braley in a race that shouldn’t have been that close. In a state like Iowa, it’s frankly a wonder that Braley was even remotely competitive. Much of the Democratic Party’s success in recent years has come through not only expanding the electoral map, but also expanding its outreach to a demographically evolving electorate.

Braley, whose party represents that expanding electorate, was up against a huge challenge in a state like Iowa, whose population is overwhelmingly whiter, older and — thanks to a long and grand tradition of farming and agriculture — necessarily more rural than most Democratic voters. Iowa is a stronghold of people more like Joni Ernst, culturally and politically speaking, than people like Bruce Braley. And it has been for years.

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DAVID CORN of Mother Jones, in a postmortem that went up so fast last night you knew he wrote it some time ago, observed how we got here:

Obama's wins have often been nuanced or mixed, especially from the perspective of his supporters. In the lame-duck session after the 2010 elections, he won a tax package that was a mini-stimulus—but at the cost of extending George W. Bush's tax cuts for the wealthy. His health care reform—the product of a long and ugly legislative tussle—did not include a public option, and then yielded the website fiasco. ...

He issued orders that protected certain undocumented immigrants—but deportations increased, and he delayed further action that would protect undocumented immigrants. He went along with GOP-pushed budget cuts to protect other spending priorities and to prevent a debt ceiling implosion. 

Through much of this, he had trouble presenting his side of the tale — and he was often reluctant to bash the Republicans because he believed he was obliged to keep trying to forge reasonable deals with the opposition. At times, the president did let loose on his Republican enemies, but this was done only intermittently, in specific circumstances, and Obama never developed a consistent plot line that depicted the GOP as a force of unwavering obstructionism.

Uncertain messaging, complex policy wins, compromise, and mess — it's not a surprise that members of the Democratic coalition with tenuous ties to the political process dropped out. ...

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For Corn, the way forward for Democrats should have meant taking a look backwards: “To beat back the expected oppositional waves of 2010 and 2014, he needed a playbook as unconventional, imaginative, and effective as those he used in 2008 and 2012,” he writes. “He needed to keep show-me independents on his side and Democratic-leaning voters, particularly those who otherwise would be unconcerned with politics, somehow engaged in the process. And he had to do this while presiding over a Washington that seemed to be a miasma of disorder and while contending with a troubled economy and all hell breaking loose overseas.”

Election 2014: North Carolina: Tar Heels for Tillis

AFTER HE won his Republican Senate primary on May 6 with 45.7 percent of the vote, Thom Tillis, the speaker of the North Carolina House, struck the right conciliatory chord, promising to “work across party lines to pass an agenda focused on generating growth and opportunities for middle-class families and small businesses.”

The message that carried him to victory in the state’s primary was strong enough to use again in the general election yesterday, to great effect. Tillis defeated Democratic Sen. Kay Hagan, 49 percent to 47 percent, flipping North Carolina’s Senate leadership to blue to red and winning the most expensive Senate campaign in American history.

Tillis’ message and his strategy have been nothing if not consistent. In May he smashed his weak primary-season challengers, Libertarian/Tea Party darling Greg Brannon (27 percent) and Charlotte pastor Mark Harris (17 percent). And he remained on message long enough, months later, to beat the incumbent Hagan handily.

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Hagan, who until the very end adopted the Democratic practice of staying at arm’s length from the president, suffered from associations with Obama just the same. But she was somewhat wounded by a Senate career that didn’t set the world on fire for some Tar Heel State voters.

“It’s as much an anti-Obama vote as any of the other reasons, but not entirely,” retired Charlotte neurosurgeon Jerry Greenhooot, told The Charlotte Observer. “I can’t think of one thing (Hagan) has done.”

One recent poll suggests Tillis has his work cut out for him in the likeability department, despite what happened last night. An NBC News/Marist poll conducted Oct. 19-23 showed Hagan's disapproval rating at 48 percent and Tillis' unfavorables at 44 percent. For some voters, it was a matter of not so much liking Tillis as it was a case of just disliking Hagan more.

Still, Tillis managed to capitalize on the viral discontent with Washington in general and the Obama administration in particular. Tapping into that broad sentiment didn’t make a big difference last night. Just big enough to win. We’ll see if the sweeping bipartisan overture he made in May holds up when he gets to Capitol Hill next year.

Image credits: Tillis: via Real Clear Politics.

Election 2014: Kentucky: Grimes’ rookie mistake

WHAT was already predicted to be a bad night for Democrats started, well, predictably. By the night’s end, though, the disaster of Alison Lundergan Grimes’s Senate campaign was a template for the serial Democratic disasters to follow.

Built into her losing effort — she fell to Sen. Mitch McConnell, the presumptive next Senate Majority Leader, by fat double digits, 56 percent to 40 percent — was the folly of other Democrats in this election: an unwillingness to stand with President Obama, the standard-bearer of the Democratic Party, and an inability to craft a clear, articulate, passionate message that stay-at-home voters could get their hearts around.

From practically the minute the polls closed last night, McConnell was declared the winner in a hard-fought, nasty campaign. She followed the news of McConnell’s victory with a sour grace note: a concession speech that didn’t concede anything.

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Grimes, the Kentucky secretary of state, launched a campaign that showed her to be a challenger eager to position herself and her campaign as a fresh alternative to the sclerotic leadership of McConnell, who’s long presented himself as a master of congressional gridlock.

Her campaign was seen as a long-shot to begin with; Kentucky is a reliably red state and has been for decades. But Grimes soldiered on for months, holding her own in the polling, focusing on several tractionable economic issues, and bolstering faint Democratic hopes of turning Kentucky blue at the congressional level.

Then Grimes committed the unforced error of a political novice. In an interview with the Louisville Courier-Journal, she stubbornly and repeatedly refused to say whether or not she voted for President Obama in either 2008 or 2012. Grimes rationalized — doubling down on her refusal as some kind of a stand of principle, saying that her past voting history had no bearing on what was facing Kentucky in the future.

It was the wrong principle to stand on. At least seven times in a week, Grimes refused to answer a question that should have been laughably easy.

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IT was the kind of inexplicable rookie mistake that might have been overlooked in a primary campaign, but not in this high-visibility general-election contest, with the Senate hanging in the balance. And there’s good reason to think that Democrats, especially black Democrats, didn’t forgive her.

A Bluegrass Poll conducted before Grimes’ Courier-Journal interview found HGrimes had a solid core of 80 percent support among the state’s black voters, 8 percent of the state’s total. A Bluegrass Poll after the interview found that black voter support had plummeted 20 points. McConnell’s favorables climbed by seven points. He never looked back after that.

The message from Grimes’ curious stand on the sanctity of the secret personal ballot was the wrong one to send. For loyal black Democrats, it sent the corrosive message that Grimes had no conviction — or at least no conviction she was willing to share out loud. And for stay-at-home Democratic voters, the Cousin Pookies of the Bluegrass State, it was just one more reason not to vote. Think of it: the Democratic candidate running for a Senate seat didn’t think enough of the leader of her own party to admit she voted for him. Why vote for her if she wouldn’t admit to voting for him?

Image credits: Grimes top: Alton Strupp/Louisville Courier-Journal. Grimes lower: Patrick Delehanty.

Tuesday, November 4, 2014

Election 2014: What anti-incumbent wave?

The election was characterized before the fact as likely evidence of an anti-incumbent wave, but to this point, that idea hasn't taken hold so far. Whether voters dump incumbents or keep them is a situationally specific matter, rather than something reflecting a broad "wave" sentiment. Incumbents in several key races have been called the winners tonight in Maine, Illinois, Tennessee, Massachusetts, Delaware, Alabama, Rhode Island and New Jersey. More to come.

Election 2014: McConnell in big early lead

This one may be over already. With 1 percent of the vote in in Kentucky’s Senate race, MSNBC reports that Senate Minority Leader Mitch McConnell is swamping Democratic challenger Alison Lundergan Grimes, 60 percent to 38 percent.

That’s with only about 12,000 votes cast. It’s early yet but if these early numbers hold up, it’ll be a long short night for Grimes.

Vote. Today.

YES, IT’S TODAY. The time for talk really is over now. It’s Election Day. The cliché machine is warming up in the punditburo’s bullpen. Watch for the phrase “stakes couldn’t be higher.” It’s a reliable phrase, one that’s been used before with varying degrees of accuracy.

Today, though, what hangs in the balance for the next two years justifies the word “stakes.” The tidal gravity of Congress is set to shift again; it all depends on turnout. It all depends on who shows up.

In a recent speech, President Obama called out to Democrats to show up today, conjuring a hypothetical “Cousin Pookie,” the archetypal stay-at-home voter tuned to the rhythms of an African-American audience. It was time, he said, to get Cousin Pookie off the couch and into the voting booth.

It’s axiomatic in American politics that, for midterm elections, the electorate reliably becomes a nation of Cousin Pookies of both genders and every ethnic slice. Turnout is consistently down compared to elections in presidential-vote years. And this year, more than previously, there’s a lot that’s up in the air.

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This vote could decide the arc of environmental regulations, the role and projection of America’s armed military might around the world, and the makeup of the Supreme Court for the next generation. It matters. Maybe the stakes really couldn’t be higher this time.

So, if you haven’t voted yet, go. If you mail your vote in, dig out the stamps under the bills on your desk. With control of the Senate hanging in the balance, and about 150 ballot initiatives up for decision across the United States, this election will set the stage, thematically and emotionally, for what’s coming in 2016. If you really want to understand how the big show works, you need to be at the dress rehearsal. This is it.

Go ahead. Get Cousin Pookie. Or Cousin Ethan. Or Cousin Indira. Or Cousin Fouad. Or Cousin Shaniqua. Or Cousin Ernesto. Do this thing. In a country that gets more enamored of numbers and data all the time, in a political age that’s smug in its certainties about civic apathy, there aren’t many opportunities to stick your hand up and say “I’m here! I’m in the house! I matter!”

This is one of those times. Don’t let it get away.

Wednesday, October 29, 2014

Election 2014: Looking for the weathervane

THE NEW MSNBC pre-election promo ad made its debut over the weekend. The refreshingly speech-free ad features a number of the channel’s hosts and personalities and friends, holding fingers to their lips — fingers marked with the word “VOTE.” After several seconds of this, the ad finally drops the big reveal in another card:

“The Time for Talk Is Over.”

All due props to the folks at MSNBC for this soundless call to civic action, but in some important ways, they couldn’t be more wrong. The time for talk may well be over for the punditburo —  the Beltway crowd and the analysts, the seers and Sabbath gasbags who’ve been talking about the upcoming election since the last one was over.

For most of the country, the time for talk — for a serious discussion of the issues local and national, among themselves and with the people they know and trust — is just getting started. And to go by a variety of recent opinion polls of those American people, they’re talking by not saying very much that’s committal one way or the other. At least out loud.

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As opinion polls come back with results as gridlocked and inconclusive as we think Congress is, what comes clear is an electorate wrestling with a choice of undesirable outcomes: two more years of stalemate and stratagem from a Congress determined to do as little as possible as long as possible; or two years of a unified Congress free at last to exact its own privatizing, corporatist agenda under a majority-Republican banner.

The early money said Republicans were a lock to recapture the Senate, if just barely. That may or may not happen, but what’s been missing in recent weeks is the cocksure certainty that it will happen.

To a great extent, recent polling, demographic assumptions and research used by mainstream media, political analysts and the campaigns themselves have been forced into a state of unknowing, an uncertainty  that suggests the election six days away may be more of a horse race than many have believed. They’re all looking for the weathervane to know which way the wind blows, and all that many campaign seers see right now is the dead calm of no discernible wind at all.

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IN THE Daily Beast on Oct. 22, veteran political reporter Eleanor Clift reported on a recent focus group of women in Charlotte, N.C., and posited their response on the candidates in their pivotal state as typical of voters around the country:

The women gathered around a table Monday night in Charlotte and in New Orleans are registered voters, but this election they’ve pretty much tuned out politics. It’s just too depressing when all the candidates do is bash each other. And world affairs are no comfort either, with Ebola surfacing as the latest scary thing.

Better to put on blinders, they say, and focus on home and family.

The fact that [Sen.] Kay Hagan in North Carolina and [Sen.] Mary Landrieu in Louisiana are women doesn’t much impress these voters, dubbed Walmart Moms for their shopping habits and having at least one child under 18 at home. When asked whether they would vote for Hagan or her challenger, Republican Thom Tillis, they resisted siding with either candidate. Asked if Hagan deserves reelection, not a single hand went up -- which is the same thing that happened when asked if she didn’t deserve reelection.

“All those ads and you don’t know one way or another?” the moderator pressed. Many millions have been spent on television ads in North Carolina, as groups on the right and left try to sway the electorate.

When would they decide? “When it gets closer to the time,” one woman said. How would they decide? “Google it,” said another. When? “Probably the night before.”

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WHAT CLIFT reported is both dispiriting and encouraging. It’s dispiriting because it dovetails so seamlessly with the longstanding political truism that midterm voters don’t show up, as a matter of course — and also because it suggests that, despite years of living with Hagan as their senator, these North Carolinians are even disengaged as to what she’s already done in the state they live and work and pay taxes in.

But it’s perversely encouraging too. It means that despite millions in TV ad money flooding the North Carolina market (about half and half for Democrats and Republicans alike, The Wall Street Journal reported), voters aren’t being pushed into deciding anything on the weight of those ad buys. At least not yet. Whoever wins or loses the ad war really doesn’t matter — not to the public those ads are aimed at, anyway.

Neil Newhouse is encouraged, too, but for other reasons, not necessarily correct. “If control of the senate goes through North Carolina, then these women are ripe for the picking,” said Newhouse, the Republican pollster whose Public Opinion Strategies firm conducted the Charlotte focus group, with Democratic strategist Margie Omero of Purple Strategies.

But if they’re “ripe for the picking,” why haven’t they been picked yet? The power of TV and direct-mail advertising isn’t to be overlooked in a hot race like North Carolina’s. But the question remains: With just days before the election, what more can you do to reach, to persuade these presumably persuadable voters that you haven’t already done?

Omero told Clift: ““There’s a much lower level of engagement than you’d expect given all the ads, and all the money. They’re tuning it out.”

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One reason for disengagement may have to do with efforts, loose in the nation, to suppress voter turnout altogether, and it’s in this matter the Republicans face the biggest risk of blowback — of people finally deciding to show up at the polls out of civic pique, people coming to the conclusion that even if they don’t want to vote, they’ll be damned if one party or the other is gonna stop them from voting.

Republican efforts to curtail exercise of the American franchise are an inherent contradiction. There’s something fundamentally twisted and wrong with a political party that wants the American people to cast a vote expressing their resentment at the same time that party’s doing everything it can to stop a lot of the American people from voting at all.

Undeterred, they’re taking a different familiar tack. The two epidemiological preoccupations of the moment — Ebola and ISIS — are being symbolically exploited by the GOP. Republicans in the states up for grabs and on Capitol Hill have been trying to nationalize the midterms, trying to make November 4th the date of the national immunization election — the date to purge themselves of all things Obama, and by extension the candidates of his party, and everything “bad” that’s happened under his watch.

Stairway to a settlement?

RANDY CALIFORNIA, the founding guitarist of the seminal Los Angeles-based rock group Spirit died on Jan. 2, 1997, in the act of rescuing his 12-year-old son Quinn from a vicious rip current off Molokai, Hawaii. He was 45.

He lived long enough to vent his spleen about something important with journalist Jeff McLaughlin in an interview in the winter 1997 issue of Listener magazine. “I’d say it was a ripoff,” California said. “And the guys made millions of bucks on it and never said ‘Thank you,’ never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.”

The “guys” referred to by California (given name: Randy Craig Wolfe) are the subjects of a lawsuit that, almost 18 years after the guitarist’s death, will revisit one of his songs and another one, a song that’s made its way into the pantheon of rock under other composers’ names.

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In 1968 Spirit released its eponymous debut album, which included the two-minute-37-second instrumental track “Taurus,” which was written by California, one of the band’s principal songwriters. What’s at issue in the lawsuit filed in May, in the U.S. District Court for the Eastern District of Pennsylvania, concerns the opening arpeggio of “Taurus” and its role in the composition of “Stairway to Heaven,” the eight-minute rock classic by “the guys,” Led Zeppelin, the famed British rock-blues band.

“What happened to Randy California and Spirit is wrong,” says part of the lawsuit. “Led Zeppelin needs to do the right thing and give credit where credit is due. Randy California deserves writing credit for "Stairway to Heaven" and to take his place as an author of Rock's greatest song,”

On Oct. 10, U.S. District Court Judge Juan Sanchez denied a motion to dismiss without prejudice, setting the stage for a jury trial to proceed — or, best case, a settlement to make a trial unnecessary. The case of Led Zeppelin et al. v. the Randy Craig Wolfe Trust is very much on.

From the June 2 Hollywood Reporter: “The plaintiff is demanding statutory damages, defendants' profits, punitive damages plus equitable relief in the form of an order that Wolfe is credited as a writer of ‘Stairway to Heaven.’ A footnote in the lawsuit indicates that funds obtained from the lawsuit will go into a trust whose proceeds go to buying needy children musical instruments.”

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UPI REPORTS: “To show infringement under U.S. copyright law, you generally need to demonstrate two elements: that an original work was copied to make something substantially similar, and that the copier had access to the original work.”

“Access” would certainly be provable. Led Zeppelin and Spirit toured together not long after the Spirit debut was released, and throughout 1969 — almost certainly sharing songs and ideas on the road, as bands have done forever.

UPI cites John Hartmann, a music scholar and lecturer at Loyola Marymount University in Los Angeles, who explained that if it comes to a trial, the case would become one of dueling musicologists battling over how similar the songs are or are not.

“In a court this would be measured by experts, and a jury would have to decide,” he says.

“Measured,” eh? O.K., just for the hell of it ... let’s try to do exactly that from the plaintiffs’ perspective. Let’s play lawyer pretend.

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“Good morning. Your Honor, we hold that the melody to ‘Stairway to Heaven’ is materially the same as the song by Randy California. And contrary to the assertions of defense counsel, the similarities don’t end with merely a repetition of the chord progression, which in and of itself isn’t protected by copyright. Nor do they end with ‘Stairway’s’ beginning. The “Taurus” melody is the literal underpinning for much of what follows throughout the eight minutes of ‘Stairway,’ not just the opening passages. And we contend it’s similarity not obscured by amplification or the lyrics on top of the melody.

“Please indulge a granular explanation:

“We contend that the opening two minutes and 15 seconds of ‘Stairway’ are a virtual note-for-note transcription of ‘Taurus,’ with little adornment or variation. It’s our position that this 28 percent of ‘Stairway,’ give or take, is indisputably the provenance of Mr. California.

“Further, Your Honor, the antecedent melody is used intermittently throughout the remaining six minutes, or 75 percent of ‘Stairway,’ interlaced with transitional passages originating with Led Zeppelin. ‘Stairway’ is a layer cake of a song, Your Honor — one you can actually put to stopwatch courtesy of any YouTube video with a recording of the song in question.

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THE FIRST inarguable Led Zeppelin passage occurs at 2 minutes 15 seconds, and lasts 25 seconds. That’s followed by a return to the California melody, about 28 seconds long (from 2:40 to 3:08). That’s followed by another Led Zep passage, lasting 21 seconds (from 3:09 to 3:30), which is followed by a return to the antecedent melody by Mr. California, lasting 29 seconds (from 3:31 to the 4-minute mark).

“Nineteen seconds follow from Led Zep’s brow, from 4:01 to 4:20. Then it’s back to the California melody for 24 seconds (4:21 to 4:45). Then back again to a Led Zep passage for 22 seconds (4:46 to 5:08), and again back to the California melody for 24 seconds (5:09 to 5:33). And then, we finally return to the closing hammer of the gods a la Led Zeppelin for the remaining 2 minutes and 26 seconds of the song.

“This last 2:26, Your Honor, is the greatest departure from Mr. California’s undergirding melody, and would seem to be wholly Led Zep’s own invention, as is the admittedly legendary guitar solo work by co-defendant Jimmy Page throughout that time.

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“Computing then: if we concede the final 2:26 is wholly Led Zep’s creative entity, that comprises about 31 percent of ‘Stairway’ whose origins with Led Zep is uncontested.

Tuesday, October 7, 2014

Evolution days: Marriage equality in America

THE SEA CHANGE by default that took place on the U.S. Supreme Court’s annual official first day of business marked another turning point in the nation’s slow acceptance of marriage equality. The first Monday on October wasn’t even over and the most judicially activist Supreme Court in years had made history by doing nothing at all.

With its refusal to hear appeals from a quintet of states that challenged lower court rulings legalizing same-sex marriage — Indiana, Utah, Oklahoma, Virginia and Wisconsin — the high court resisted its own reliably conservative tilt on social issues, opening the door for the most sweeping and seismic shift in civil rights since the era of the civil rights movement.

The Supremes’ no-ruling ruling also paved the way for legalization in half a dozen other states under the same lower courts’ jurisdiction. The Associated Press reported Monday that residents of Colorado, Wyoming, West Virginia, North Carolina and South Carolina “should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court's review.”

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It wasn’t an absolute slam-dunk. “Two other appeals courts, in Cincinnati and San Francisco, could issue decisions any time in same-sex marriage cases,” AP reported. “Judges in the Cincinnati-based 6th Circuit [Court of Appeals] who are weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, appeared more likely to rule in favor of state bans than did the 9th Circuit judges in San Francisco, who are considering Idaho and Nevada restrictions on marriage.”

But the raw numbers of population are compelling. Sam Stein and Amanda Terkel of The Huffington Post reported Monday that: “The total population of those states, based on 2013 estimates from the Census Bureau, is about 190 million. Just over 60 percent of the U.S. population now lives in a state where marriage equality soon will be legal.

“Prior to Monday, that total was just under 44 percent -- if you discounted states where same-sex marriage was legalized but there were still court challenges. In all, the Supreme Court's decision on Monday set the path for an additional 51,579,771 people to live in states with concrete same-sex marriage rights.”

Richard Socarides, a gay-rights advocate and former adviser to President Clinton, told Politico that’s Monday’s news “is a terrific result, for now. It’s a little bit incremental, but I think it’s a fantastic result and we should celebrate today.”

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THE COURT’S consistently liberal wing has taken a wait-and-see approach, apparently content to watch  how the state-by-state expansion of same-sex marriage plays out organically in the real world.

“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” Walter E. Dellinger III, acting United States solicitor general in the Clinton administration, told The New York Times. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”

And three weeks ago, at a lecture at the University of Minnesota Law School, Justice Ruth Bader Ginsburg warned that “there will be some urgency” for the court to act if the 6th Circuit breaks with the trend toward same-sex marriage accelerated on Monday. Otherwise, she said, there would be “no need for us to rush.”

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Conservatives were deafening in their silence on Monday. For a while anyway. Republican Sen. Mike Lee of Utah issued a statement, calling the court’s decision “disappointing.”

Lee’s statement, a weak retrenchment to conservative values, included a proposal that would make the issue of marriage equality subject to a hodgepodge of state laws. “Nothing in the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman,” he said. “Whether to change that definition is a decision best left to the people of each state — not to unelected, politically unaccountable judges.”

Kate Nocera of BuzzFeed reported Monday that Texas Sen. Ted Cruz planned to introduce an equally improbable constitutional amendment “to prevent the federal government or the courts from attacking or striking down state marriage laws.”
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