Religious issue tests Bill of Rights

People are supposed to be protected from an overly powerful government by the guarantees in the Bill of Rights.

While it was never intended to be a complete list of individual rights, it was written to curb the excesses colonial Americans experienced under the British king.

The Bill of Rights contains general statements of principle but almost no details.  Sometimes Congress and sometimes the Supreme Court fill in the details.

A current case illustrates how this works.  The First Amendment says the federal government cannot “prohibit the free exercise” of religion.  Under the Religious Freedom Restoration Act, it cannot force religious organizations, opposed to contraception, to provide health insurance coverage for it.

The Affordable Care Act requires such organizations to inform insured employees that they do not provide this coverage but that it is provided without charge by insurance companies.  Presumably, its costs are covered in the premiums charged to all employers.

Some say that even providing this notice forces them to support contraception and want the notice requirement lifted.

The Supreme Court has asked the organizations to consider simply negotiating insurance contacts without this coverage and notice requirement, leaving it to the insurance companies to inform their employees.  The government says it would agree if this arrangement ends all lawsuits.  

The Court has already found that, only when there is a “compelling” governmental interest, can the federal government override religious objections to a law.

For example, it ruled a Quaker must pay taxes, even if some of the proceeds support the military, because taxation is a “compelling” government function.  Jesus’ statement, "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's" was about paying taxes.

Such cases show that religious freedom is not an absolute guarantee.  Yet some disagree and believe that these rights are absolute.  They say that government cannot take any action to limit them.

That is the essence of the current case.  Can government take any action that would limit what a religious group considers the “free exercise” of its beliefs?

If the answer is that it cannot, then the Bill of Rights recognizes the authority of people outside of government to determine for themselves whether the law applies to them.

Does individual freedom overrule the public interest?  The issue arises with respect to several parts of the Bill of Rights.

After decades of arguing about the meaning of the Second Amendment, the Supreme Court decided that it protects the right of individuals to own and use firearms.  Some see this right as absolute, preventing the government from placing any limits on their use.

They ignore the Court’s decision itself, which states that, to protect public safety, government may place reasonable limits on this right.  The opponents of this conditional decision, who seek to have government refrain from any limits, say that the presence guns themselves will be the best protection of public safety.

Perhaps most famously, the First Amendment says government can make no law “abridging the freedom of speech.”  This is perhaps the broadest of the rights and one distinguishing the United States from most other countries.

The Supreme Court has decided that making political campaign contributions is “speech” and that, in effect, no limit can be placed on the amount of such contributions.  Its decisions have given enormous power to a relative handful of extremely wealthy people.

In an earlier First Amendment case, the Court decided that a newspaper may report negatively on public officials provided it does so without knowingly misstating the facts.  This was a major support for freedom the press.

But there are limits on freedom of speech.  The government may pass laws to allow average people protection from outright lies, though public figures get somewhat less protection.  And you cannot unjustifiably yell “fire” in a crowded theater, though the common belief the Supreme Court said so is not accurate.

In the current political scene, it has become more common to hear claims that the Bill of Rights contains absolute freedoms that government cannot limit.  The so-called “originalist” view of the Constitution wants to apply the text literally and keep government out of picture.

That’s one reason why the next appointments to a delicately balanced Supreme Court are important.  Ultimately, the Court decides on whether limits can be placed on rights and what those limits can be.

The next president will undoubtedly have the opportunity to appoint new justices to the Court.  Much depends on the outcome of the presidential election for the determination of major constitutional questions that can affect everyone.

Political Thoughts 9 -- Are we there yet?

Post New York primary.  Did you notice how many more people voted in the Democratic primary than in the Republican?  Clinton remains the national vote-getting leader.  By the time of the conventions, she should have a pretty good start on winning the national popular vote in November.  That does not mean an automatic win.  Just ask Al Gore.

Complaints mount that the process is “rigged”.  The process predated most of the candidates, so how is it rigged against Trump or Sanders?  The process is based on political experience in terms of motivating the party faithful who work outside of the campaign season and, in the case of the 

Democrats, giving their office holders some guaranteed influence.  Closed primaries make sense if political parties still make sense.  Should dedicated party workers have to battle for a candidate selected by visiting voters who have no link with the party?

Trump.  It looks like he may be trying to appear more “presidential” (whatever that means) now that he is closer to winning the GOP nomination.  Will a more serious Trump continue to have his strong appeal for those who originally boosted him?  Maybe he now has “the big mo”, momentum toward the nomination.  Of course, his problem, though only in the general election, would be in trying to run away from some of the things he said earlier in the campaign.

Cruz. He has no realistic chance of getting enough delegates, so he wants to make sure Trump doesn’t.  As the saying goes, “he’s drinking his own bath water”.  That’s because he believes Trump’s delegates will desert him after the first ballot and swing to Cruz.  Who knows?  Maybe if Trump is really close to what’s needed, delegates would feel it a mistake to deny him the nomination, meaning that Cruz delegates would defect.  And Cruz might not be an appealing general election candidate.  Remember, he’s more conservative than Trump and he’s nasty and means it.

Kasich.  The New York Times thinks he should stay in the race though he trails Rubio who dropped out.  It says: “Mr. Kasich is not an exciting candidate, or even a political moderate.  But he is the most sane-sounding individual in the Republican field, and has been from the start.  Unlike his rivals, he’s shown a willingness to play by the rules.”  Thrilling endorsement.  The GOP nominee should pass a sanity test.  Kasich’s faint hope is that a deadlocked convention will turn to him.

Clinton.  She is the Democratic nominee.  With that in mind, she should calm down and look more “presidential”.  She lets Sanders make her so angry you could wonder how she would deal with America’s adversaries or even Republicans.  Too much emphasis is placed by the media on her unfavorable ratings.  The question will be if voters prefer her to the other candidates.  In fact, that is the way it has always been.  And she should more explicitly show concern about Sanders’ issues.

Sanders.  He has raised serious questions but the answers really do require the revolution he wants.  No revolution this year, though the Democrats have a real shot at the Senate.  The Times thinks he should stay in the race like Kasich, in this case to keep Clinton pulled toward his positions and to keep his supporters from wandering away.  OK, so long as he does not let his desperation become a way to damage Clinton.

A personal comment on Sanders.  In his Vatican talk, when he talked about his country, he was only critical of it.  A U.S. senator in an international forum ought to have something positive to say about a country in which “Democratic Socialist” Bernie Sanders can become a serious candidate for president.

Conventions and polls.  The media likes to say who would beat whom if the election were held today or what will happen at the GOP convention.  The media is wrong, though it is impossible to know what’s right.  People react as the process moves along and their perceptions change.  Maybe Trump will win the nomination on the first ballot and turn out to be a strong challenger to Clinton.  Maybe Clinton has it locked up and this is all a waste of time.  More people will make up their minds after October 1 than may provide the margin of victory.

States push for higher minimum wage, while Washington stalls

A national debate rages about the minimum wage.

One side argues the current federal minimum of $7.25 an hour yields a family income below the poverty line.  On the other side, businesses argue they cannot afford to raise wages without raising prices and losing sales.

Each side can find reputable economists to support its position.  However, it’s easy to conclude that many economists make up their minds on the issue first and then develop studies supporting their views.

All of this goes on in a charged political atmosphere.  Democrats generally support increasing the minimum wage, while Republicans usually oppose any increase.

The federal minimum was last set in 2009 and has not kept up with even the relatively modest inflation since then.  Traditionally, the federal rate has only been revised when it had lost some of its purchasing power as the result of inflation.

Attempts to raise the federal level have failed, because the GOP has the votes to block any increase from passing Congress.  President Obama has issued an executive order raising the minimum to $10.10 for some federal contract workers.  The Labor Department said the order could affect hundreds of thousands of workers.

Many states set a minimum wage above the federal $7.25.  Maine’s is $7.50, but, with a referendum pending, it is likely to be raised.  Impatient with Washington inaction, some states have decided to phase in higher rates and automatically link them to the rate to inflation.  California just set its rate for 2022 at $15, the highest in the country.

Most economists agree on at least some characteristics of the minimum wage.

The income produced by the federal minimum wage will likely keep families poor.  They will seek public assistance to help meet their basic needs.  Higher incomes would reduce their eligibility for such assistance.

Businesses required to pay a higher minimum wage may reduce profits, raise prices, lay off workers or adopt a combination of these measures.

People receiving an increased minimum wage are likely to spend the added income rather than save it.  That should boost business, though not necessarily the same businesses paying higher wages.  

Increases in the minimum wage come so seldom that it lags behind climbing living costs caused by inflation, constantly eroding the buying power of low-income people.

And we can identify those jobs that are most affected.  Many of them are in restaurants among cooks and wait staff.  Women and young people are more affected than men.

Even if these points may be generally accepted, problems arise when economists try to measure the impact of each of them. 

At what point do higher wages result in fewer people being hired?  That point would show the value of labor, but it varies by the type of business and even by area.

How much do prices have to increase so that a business will lose sales?  For example, if the price of a specialty hamburger goes up from, say, $2.75 to $2.85, will people buy fewer of these burgers?

In fact, the biggest debate when it comes to proposals to raise the minimum wage is about the effect of increased labor costs on sales.  It may seem logical to assume that any increase in costs will result in a decrease in sales.  But that linkage may not kick in immediately, and it varies by industry.

Whatever the resolution of these questions, one aspect of the minimum wage has become more obviously in need of repair.  Right now, employers are allowed to pay less than the federal minimum wage to workers receiving tips – at a wage level that has not be changed since 1991.

Investigative reporting has found that some tips added into credit card charges never make their way to the intended recipient.  And there’s no sure way of knowing if the tip income makes up for the loss in wages unless employees report all their cash tips to the boss.

To end a system in which there are plenty of reasons to cheat, employees receiving tips should also receive the minimum wage, as is required in California.  That would help retirees be assured of fair Social Security benefits because of correct employer and employee contributions.

Federal Reserve policy seeks a two percent annual inflation rate to provide a cushion to keep a slowdown from throwing the economy into reverse with a loss of jobs.  Shouldn’t the minimum wage keep pace with this planned inflation?

Given the unresolved economic debate, the minimum wage issue calls for a political agreement on the correct current rate and then a permanent inflation adjustment that could finally halt the endless debate.

Poltical Thoughts 8 -- Conventional wisdom

Though important primaries remain in both parties, there is now an unusual focus on the conventions.  It seems at least some of the candidates don’t fully understand their own party.

By way of background: delegate selection.  There is no single method and the two parties differ.  Important to remember that the selection of the candidates is not an official government function.  The parties are essentially private organizations that get to set their own rules.  The same is true for the conventions.  They are not continuing bodies, so they get to set their own rules each time they convene.

It may seem self-evident to many, but the selection of nominees is a political process, meaning that 

politicians will try to turn it to their advantage.  Nothing unusual about politicians being political, right?  Not governmental (though that’s pretty political, too).

GOP.  Republicans select delegates state-by-state.  Some are winner-take-all if the leader gets more than 50% of the vote.  Some states select delegates both statewide and by congressional district. Some use proportional voting.  Many really select delegates to county or state conventions who are supposedly pledged to a presidential nominee.

Trump.  Apparently, he thought delegate selection was like a public election, and he should get the national delegates proportional to his popular vote.  He protests that isn’t happening.  (Funny, I don’t remember hearing him protest Bush-Gore 2000 result.)  He has had too little campaign organization and probably failed to have a staffer working on delegates one-by-one.  That would have ensured people selected as Trump delegates were really loyal to him.  In fact, they may be bound to vote for him for one ballot but can desert him afterwards.  In fact, his share of delegates is higher than his popular vote share.

(A pause here for Civics 101.  In the presidential election, we vote for Electors who formally vote for the president.  (Maine gets 4.)  Even they can and sometimes do renege on their commitments.)

Cruz.  He seems to think he can snare some Trump delegates, infuriating the Donald.  About the best Trump can do is win even bigger majorities.  Cruz also wants new GOP convention rules to favor his selection.  The rules will be written by a committee dominated by whoever is the frontrunner and decided on the floor.  Cruz obviously believes he needs better rules because he won’t have enough delegates.

The Ryan Rule.  When he took his name off the presidential table, Speaker Ryan said the nominee should be someone who has contested for the nomination.  In theory, that could be anybody from Fiorina to Carson to Christie to JEBush.  What he probably meant was Kasich.  The statement went a long way to legitimizing the continued campaign of the Ohio governor who has only won in one state.  Guess?

The GOP Convention.  More people say it will be contested.  I continue to say that it either will go to Trump or be negotiated.  If negotiated, that will take place before the first ballot based on commitments, many of which will not be kept later.

Democrats.  Have masses of superdelegates who don’t have to run for the honor.  State delegates awarded proportionately.  The purpose of the superdelegates is to replace the “smoke filled room” by people who have to face their own re-elections and don’t want to be sunk by an impossible presidential nominee (see GOP, though it actually has a handful of similar delegates).  The media have pushed the myth they will simply go along with the candidate having the most elected delegates.  May have worked that way in practice but not a rule, though it will again work that way.

Clinton.  Unless I’m wrong about superdelegates, all Clinton has to do is win a reasonable share of the remaining delegates to be elected.  If this matters to anybody, she has more popular votes than any other candidate in any other party.  Barring a major gaffe (minor ones will pass), she has it locked up.  Probably will slide on the emails, unless somebody can prove harm was done.  Oddly, she’s probably protected by Snowden’s revelations.

Sanders.  He was a better candidate when he was free to be decent because he thought he had no chance.  Unless he steps hard on his friendly PAC, it will look like he thinks it’s all right to harass Clinton delegates, who are loyal.  Does not ingratiate a candidate with his (is it his?) party.

Democratic Convention.  Boring.  But looking forward to Sanders’ speech.