Yoo appeared last night at a meeting of The Commonwealth Club of California, a forum where political and social personalities can give speeches and answer questions (and promote their books). Outside the building were a bevy of protesters calling Yoo a torturer and demanding that he be fired from his job as a law professor at the University of California, Berkeley’s Boalt Hall School of Law.

Yoo’s hour-long speech and Q&A was interrupted about half a dozen times by protesters standing up and shouting at him that he was a torturer, that his victims will get their justice, that he’s a murderer, etc. The forum’s moderator, Stanford Law School professor Allen Weiner, insisted that we keep this civil and not resort to “self-indulgent theatrics.” I quite agreed with him, actually. Honestly, who did these people think they were talking to? If John Yoo thinks he’s responsible for torture, then he already knows it. If he doesn’t think he’s responsible, then the Harvard- and Yale-educated lawyer isn’t going to be persuaded by some people yelling at him. Plus, I paid $12 to listen to John Yoo try to justify his opinions about torture, not to listen to protesters scream.

Anyway, Yoo’s book. In a nutshell, it is about how presidents assuming authority during crisis situations isn’t anything new. Yoo’s philosophy is very deferential to the executive branch; in telling a story about George Washington and the Senate, he insinuated that the Senate was composed of egotistical demagogues who would rather give speeches than get anything done. While that may have been (and continues to be) true, it doesn’t justify seizing power from Congress all in the name of getting things done.

According to Yoo, “good” presidents “fully utilize the powers the Constitution grants them.” He then proceeded to talk not about how presidents used powers granted to them by the Constitution, but about how presidents have taken power in the absence of either Congress taking power first or Congress making a swift decision. This is one of the flaw’s in Yoo’s argument: the examples he gives are of presidents operating in an area of ambiguous power; far from utilizing powers granted to them by the Constitution, people like Washington, Lincoln, and Franklin Roosevelt took power that was not explicitly granted to them. He made reference to a president’s “commander in chief power,” apparently unaware that those powers do not grant a president carte blanche to do whatever he pleases all in the name of expediency.

He takes a dim view of Congress; Yoo would rather have a powerful executive that acts quickly instead of a deliberative body that takes a long time to make decisions. In this regard, he seems to be both a poor historian and a poor lawyer. Slowing down the decision-making process was the whole point of requiring decisions to go through two houses of Congress and a president. That is why Congress, and not the president, is granted sole authority to declare war; the authors of the Constitution wanted a declaration of war to be discussed before it happened, not signed at the whim of a single man. In Yoo’s perfect world, the opposite would be true.

Yoo seems to think there are three classifications of presidents:

1. Good presidents seize power that is not theirs, and good outcomes result.
2. Bad presidents do not seize power when they should, and bad outcomes result.
3. Bad presidents seize power that is not theirs, and bad outcomes result.

Pretty much, the ends justify the means. James Buchanan was a bad president because he didn’t declare war on the South when he could have. Richard Nixon is a bad president because his use of extra-constitutional powers ended badly. But Abraham Lincoln comes out smelling like roses because his use of extra-constitutional powers ended up going well for the United States. Of course, this requires the question, how do we know that good outcomes will result when a president takes power that is not his to take? Yoo didn’t have an answer to that; I do. The answer is, “If the Constitution doesn’t permit you to do it, then you can’t do it.” It’s really quite simple. He chided James Madison for not declaring war on Britain in the War of 1812; Madison didn’t think he had that authority. Why would Yoo think that Madison did have that power? There is no place in the Constitution where the president is granted the authority to declare war; only Congress has that ability. And Madison would be in a position to know what the Constitution said; he wrote the thing, after all.

Yoo’s expansive view of presidential power is not only startling in itself, but it’s startling that it’s so poorly argued. Again, Yoo went to Harvard and Yale. You’d think he’d be better at this. And as a lawyer, you’d think he would care more about the actual language of the Constitution rather than what Yoo would like the Constitution to say. Frighteningly, he dismisses the notion of due processes for terrorism suspects, suggested that our only options are torture and “reading them their Miranda rights.” I expect such a pejorative statement about one of our civil liberties from Sarah Palin, who is untrained in the law and in understanding the Constitution in general, but hearing a Justice Department lawyer speak so scornfully of an important right makes me queasy. If he doesn’t want to enforce that right, then what other rights does he think don’t need to be enforced?

After the speech, Weiner asked Yoo a few questions, both of his own and those that were submitted by the audience. He first took Yoo to task for mentioning only those usurpations of authority that ended well, instead of the ones that ended badly. He cited examples of people who were imprisoned for “sedition,” that most famously ambiguous and jingoistic of charges, for speaking out against World War I. Yoo responded that he did, in fact, mention people like Franklin Roosevelt, who ordered the interment of Japanese Americans during World War II, or Andrew Jackson, who forcibly removed Indians from their own land. “The Constitution doesn’t protect against bad decisions,” he said. I submit that it does: in the form of the deliberation I mentioned above. By requiring that decisions go through several people before being made, the Constitution tries to minimize the damage caused by people making bad decisions.

Then came the torture talk. Yoo admitted that he is not above the law, and if the Obama administration wanted to pursue criminal charges against him, it would be free to do so. Of course, no administration will willfully prosecute former administration officials; that would invite a precedent that people in power do not want. He invoked the spectre of September 11, saying that the War on Terrorism is a different war that required different tactics.

And then he said something interesting. Yoo said that he was merely doing his job. His office was asked by the CIA to decide whether or not they would be able to do certain things to high-value terrorism suspects. Yoo was tasked with coming up for a legal framework for it. Now, it’s highly probable that Yoo merely told them what they wanted to hear, or that they wanted a cover-your-ass type of legal justification. But at the end of the day, Yoo merely provided legal advice to his client, the United States. It was up to the people in power to decide whether or not to implement that advice. Yoo is not the boogeyman that he has been made out to be. While his justification of torture is evil, there are more evil people than him; namely, the people who made the decision to put that advice to work. To see Yoo, he is ambivalent about the torture issue. And he is ambivalent because he doesn’t think he actually did anything wrong. In his mind, he was merely providing advice; the truly bad people were the people who implemented the policy when they could have not implemented it.

And he’s sort of right. While Weiner criticized his memos, saying that any first-year law student would recognize them not as legal memos but “advocacy briefs” that didn’t advise his client about the legal policy risks, at the end of the day Yoo is not the most responsible party here. He was asked for legal advice, and he provided it. Yes, the advice was poorly defended, and yes, it is morally reprehensible for implicitly authorizing torture, but ultimate responsibility rests with the people who took that advice: the president, vice president, attorney general, et al.

This requires the question: should John Yoo be prosecuted for torture, as the protesters wanted? Consider the scenario if Yoo were a lawyer in private practice, advising a client. He may be guilty of shoddy lawyering, but determining actual malice would be hard, given that he can bring a defense that he was giving advice and doing his job like he should have been. (And let’s not start making hyperbolic comparisons to the Nuremberg “I was just following orders” defense; those people materially killed people. As in, performed the action. Yoo, not so much.) At the end of the day, Yoo is nothing more than a sub-par lawyer trying to imprint upon the Constitution a broad interpretation of executive authority that just isn’t there. While he mentioned that the founders of the country abandoned the Articles of Confederation in favor of a stronger central government, he ignores the debates they had about still having a limited government; fresh from their experience under a king, they didn’t want to be ruled by a strong executive again. Hence Congress’ ability to declare war and not the president’s, for example. And let’s not forget that the buck stops with President George W. Bush and former Attorney General John Ashcroft, who both signed off on these memos. While Yoo may have given them advice, they are the ones who took it and implemented it.

A look at the ruling

This week, we found ourselves faced with Citizens United v. Federal Election Commission, a case that should not have had to deal with corporate personhood, but which, nevertheless, has upheld some truly nefarious practices as being completely legal, in spite of their resoundingly negative public policy implications. Just as the Dredd Scott decision upheld slavery even though there was no finding in law for such a practice, the Supreme Court yesterday upheld corporate personhood even though it has no basis in law. (And, for the record, I am not suggesting that slavery is morally equivalent to corporate personhood. Put your pitchforks away.)

The case begins in January, 2008, when the nonprofit corporation Citizens United released a documentary about then-candidate Hillary Clinton, titledHillary. The Bipartisan Campaign Reform Act of 2002 (hereafter, BCRA) prohibits “electioneering communication” within 30 days of a primary election or 60 days of a general election. BRCA also prohibits corporations and labor unions from using their general treasury funds for “express advocacy,” which is explicitly encouraging voting for or against a named candidate. Express advocacy is determined by the “appeal-to-vote test,” which is described in BCRA.

With every grant of certiorari, the Supreme Court publishes a list of “questions presented” for a case. These questions limit the scope of the discussion. In the case of Citizens United, the Court wished to deal with only four issues:

1. Whether “disclosure requirements” for “electioneering communications” were resolved by the previous challenge to BCRA, McConnell v. FEC;
2. Whether the disclosure requirements impose an “unconstitutional burden” on communications that are not express advocacy (the appeal-to-vote test);
3. Whether the parameters of the appeal-to-vote test are clear enough;
4. Whether the Hillary movie is subject to regulation under BCRA’s “express advocacy” restriction.

If you didn’t notice the words “free speech” and “constitutionality of BCRA,” then you’re not alone. This case was never about the constitutionality of the BCRA per se; it was always about whether or not Hillary was electioneering communication. Period. End. I have always been of the opinion that it was not, since a documentary that casts Hillary Clinton in a negative light is not necessarily an entreaty to vote against her.

In addition to limiting when electioneering communication could take place, BCRA placed limitations on the amount of money that could be donated to political parties. Referred to as soft money, these donations were theoretically limitless before BCRA; the point of the legislation was to protect the political process from undue financial influence. BCRA also prohibited corporations from funding political advertisements, which is why, in the 2004 election, so many single-issue groups popped up, like Swift Boat Veterans for Truth. These “527 groups” (so named for the section of BCRA that allowed them to exist) filled the void left by corporate-sponsored political ads.

Justice Anthony Kennedy and the conservative wing of the Supreme Court disagree with all of this. From the outset, they decided that the case could not be decided without bringing the First Amendment into play. As such, they broadened the scope of the case from the four questions presented above to include the constitutionality of the BCRA’s spending limits.

The ruling comes in sixty-five-dozen parts. Hillary does constitute “express advocacy” under the BCRA and is therefore illegal. However, the free speech implications of BCRA must be looked into; specifically, the corporate expenditure ban. Kennedy, et al. suggest that, while limitations on corporate expenditures do not constitute prior restraint per se, the complexity of the regulations are tantamount to prior restraint (the legal term for censorship). Therefore, § 441b of BCRA — the part limiting corporate expenditures — is unconstitutional because its “prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.” This means that the restrictions on campaign expenditures by corporations upheld in 1990’s Austin v. Michigan Chamber of Commerce — for the purpose of preventing unfair corporate influence — is overruled. So much for stare decisis.

Some speech is freer than other speech

Throughout the opinion, Justice Kennedy cited the First Amendment and the need to prevent censorship as the reason for the ruling. The implicit argument is that any regulation of speech amounts to prohibition of speech. Corporations were not permitted to use general treasury funds to finance candidates or messages. They were, however, permitted to form their own political action committees (PACs). This is exactly how nonprofit corporations are currently required to work: in exchange for tax-exempt status, nonprofits (which include churches) cannot use their general treasury funds to lobby for candidates or legislation. But they can form affiliated lobbying organizations, so long as the money for the political organization does not come from the tax-exempt organization. (For example, the ACLU is not tax-exempt because it lobbies for candidates and legislation; however, the ACLU has an affiliate organization called The ACLU Foundation that is tax-exempt.)

Whither nonprofits? If for-profit corporations cannot be limited in the amounts of their expenditures, why should nonprofits be so limited? Whyshouldn’t churches be able to implore their congregations to vote for this candidate or that candidate? Under Citizens United, such a restriction amounts to censorship.

The majority opinion also ignores the “reasonable restrictions” that have always been placed on speech. These restrictions limit the “time, place, and manner” of speech because, to use the textbook example, yelling “Fire!” in a crowded theater could lead to people’s deaths. Religious organizations cannot proselytize in airports because — guess what? — airports are not a “public forum.” (Interesting fact: due to the language of the California Constitution, California is the only state in which a public shopping mall is a “public forum.”) You can shout all you want on a street corner, but your ability to use a megaphone can be restricted by law due to the nuisance a megaphone causes. Corporations themselves are even restricted in advertising; “commercial speech” must be true, so that a company cannot make outrageous claims about its product or use advertising to slander other products. All of these “reasonable restrictions” are in place to balance the free speech needs of a speaker with the needs of government to protect the rights of others.

Using the Constitution to rule on issues of corporate personhood is stupid on its face; the Constitution does not deal with the issue, and neither did the authors of the Constitution anticipate that corporations would need to be governed in such a way. Using the trope of a “person” to describe a corporation is advantageous in that it bestows upon the corporate entity the ability to file lawsuits. But the Constitution is ill-equipped for the job of deciding whether or not a corporation is a person. This is where, contrary to Chief Justice Roberts’ statement that justices are like umpires, the Supreme Court needs to make up the law. In the absence of guidance from the Constitution or from Congress, the Court becomes an instrument of public policy, and it can use that power for good or for ill. Specifically, the Court can decide to do what is best for the nation. In this case, it has not. Speech is not protected by allowing corporations — who, again, can neither vote nor hold public office — to influence elections. We do not allow non-citizens to vote, but nor do we allow them to donate money to campaigns (with the exception of permanent residents, which is a poor idea that should be changed) or hold public office.

The majority would like this case to turn on the issue of free speech, but more basic than that, it should turn on the issue of whether or not corporations areentitled to that freedom. I submit that they are not. The ball is now in Congress’ court to craft a statute that limits the rights of corporations and affirms, once and for all, that they are not “persons” the same way that flesh-and-blood humans are “persons.” Thomas Jefferson, et al. believed that humans were entitled to fundamental rights by virtue of their status as reasoning beings. Corporations cannot reason; they have no mind of their own. They are no functionally better than sock puppets, and the last time I checked, Kermit the Frog was not allowed to donate money to a political campaign.

Corporations’ rights must be limited and enumerated. While it is convenient for them to have some of the rights of human beings, it is not necessary — nor is it good for the public at large — for them to have all of the rights of human beings.

Naturally, the outpouring of global sympathy in the form of monetary donations, particularly in the form of text messages, has inundated this heartbroken region and will hopefully continue beyond the immediate aftermath.

So one would expect Pat Robertson, a man of the cloth and self-appointed spokesmen for Jesus, to lift the spirits of these poor unfortunate souls with some heavenly compassion.

Yes, according to Pastor Pat, the earthquake wasn’t brought on by a country resting on geological fault lines with a natural propensity for earthquakes. No, instead, it was a giant red devil that caused this disaster. Well, at least homosexuals and feminists were in the clear for once.

In the event that you’re head did not just spontaneously combust, allow me reiterate Pat Robertson’s explanation for this week’s horrific earthquake:

“Something happened a long time ago in Haiti, and people might not want to talk about it,” he said. “They were under the heel of the French … and they got together and swore a pact to the devil. They said, ‘We will serve you if you’ll get us free from the French.’”

“True story. And the devil said, ‘OK, it’s a deal,’” Robertson said. “Ever since, they have been cursed by one thing after another.”

For those of us with a fully functional cerebral cortex who are not permanent residents of Kookistan, what  actually occurred in Haiti near the turn of the 19th century was quite historic. In the 1790s, having witnessing the French Revolution, Toussaint L’ouverture inspired a successful slave rebellion against the French in the Haitian Revolution. The insurrection proved so powerful that it directly led to France selling most of its territories in the New World, or the Louisiana purchase, and inspired networks of American slaves to contemplate their own rebellions right up through the Civil War.

However, to be fair,  I actually consulted with a lawyer with respect to Pat Robertson’s claim and it seems that it was completely null:

First, it was NOT signed in blood. That maybe old fashion but that’s the rules. Second, NO blood sacrifice clause. Considering how long they have suffered, I think this a big loop. Third, NO certification about who won the fiddle contest.

So, using my expert source, it seems that Pastor Pat is miserably uniformed.

But in all seriousness, I strongly urge each and every one of you to take two mouse clicks or QWERTY keypad buttons and donate as much as you can to the suffering people of Haiti. I realize that many of you are skeptical about whether this money is actually going through the proper channels and reaching the right people, which is why I urge you to never text “madoff” to any charity whatsoever.

And now we’ve reached U.S. District Court for the Northern District of California, the Honorable Judge Vaughn Walker presiding. Judge Walker is a fan of the law, not of politics. He has shown that he has no qualms about ruling against the Bush administration when it comes to warrantless wiretapping; however, once Congress passed a law granting the administration immunity from prosecution, Judge Walker was forced to dismiss the case. Whatchagonnado, eh? (Michelle Malkin has unsurprisingly called Judge Walker a “liberal activist judge” despite his being a Republican. You stay classy, Michelle.)

Judge Walker heard oral arguments this morning in Perry v. Schwarzenegger, in which Judge Walker will decide whether or not Proposition 8 violates the federal Constitution’s Fourteenth Amendment guarantee of equal protection and Fifth Amendment guarantee of due process. A motley crew of litigants will appear before Judge Walker, including former U.S. Solicitor General Theodore B. Olson, a George W. Bush appointee, who will be arguing against Proposition 8.

Judge Walker wanted the trial broadcast on YouTube, but the U.S. Supreme Court, which has ultimate jurisdiction over all federal courts, blocked the coverage.

The trial is a very big deal for civil rights advocates. If the case were to make it to the U.S. Supreme Court (which it will no matter what; neither side would fail to appeal if it lost), every state statute and constitutional amendment forbidding same-sex marriage would hang in the balance, as would the federal Defense of Marriage Act, which prohibits the federal government from granting the rights of heterosexual marriage to same-sex couples.

Highlights from the oral arguments include Judge Walker wondering why the state even needs to be in the business of regulating who can marry whom, and how anti-miscegenation laws were once believed to be just as valid as anti-same-sex marriage laws are today.

Charles Cooper, speaking on behalf of Proposition 8, framed the defense this way: the voters approved it, so it’s the law now. And same-sex couples have California’s domestic partner statute, which explicitly states that no right given to married couples by the state can be denied to domestic partners. Cooper also argued that same-sex marriage laws are different from miscegenation laws because the former are designed to preserve “traditional marriage.” Cooper then raised the spectre of marriage being “pro-child,” but curiously does not address why, if that is true, the state does not require fertility testing as a condition of obtaining a marriage license. Clearly, if one of the state’s reasons for regulating marriage were to promote mating, then it would not permit infertile couples to marry. This issue is often not addressed by proponents of the marriage-is-for-children argument.

How could this end up? Lots of ways. Assuming that marrying someone of the same sex is a right (and, indeed, assuming that marriage is a right at all), the amendment is unconstitutional on its face. It denies “equal protection of the laws” to same-sex couples and denies them “liberty” without “due process of law.” The appropriate avenue for this to be legally supported would be the same way that anti-miscegenation laws were struck down.

The court could rule a different way; namely, that same-sex marriage is not a right. This would be difficult to support, given the fact that sexuality — like skin color, gender, or ethnicity — is clearly not a choice. It should also be disturbing to Judge Walker that the California Constitution allows a simple majority to deprive a minority of “life, liberty, or property” without “due process of law.”

The trial continues.

After reading all 20 questions and responses, along with other arguments all over the Web, it becomes clear that this is largely a politics versus policy debate. For an additional example from the politics camp, here’s ex-Hollywood producer turned left-wing blogger Jane Hamsher with her own ten reasons to defeat the bill. Her main conclusion is as follows:

The Senate bill isn’t a “starter home,” it’s a sink hole. It needs to die so something else can take its place. It doesn’t matter whether people are on the right or the left — once they understand the con job that’s about to be foisted on them, they agree. That’s why Harry Reid and President Obama are trying to jam it through as fast as they can, before people get wise. So email the list to your friends and family, tweet it and spread the word.

In the policy camp, here’s an example with health care wonk Ezra Klein answering one of Hamsher’s claims (his full 10 answers to Hamsher can be viewed here):

5) Paid for by taxes on the middle class insurance plan you have right now through your employer, causing them to cut back benefits and increase co-pays.

“You” probably don’t have these plans, which are tilted towards the rich, not the middle class. Your plan probably doesn’t cost more than $23,000 a year. And if it does, the only part that gets taxed is the part in excess of $23,000 a year. The average family health-care plan costs about $13,500 — almost a full $10,000 less than the plans this policy taxes. If we don’t manage to slow the growth in health-care costs, this policy will, over time, hit plans that are less generous. But economists consider the excise tax, which functions as a tax on insurers who let premiums grow too quickly, one of the most effective cost-control mechanisms in the bill.

There’s an equity aspect here, too: The problem with the excise tax is that it doesn’t go far enough. All plans should be fully taxable. This policy begins to chip at the edges of one of the most regressive elements of our system: Health benefits, which are mostly given to better-off workers, are protected from taxes, while income isn’t. A worker at Wal-Mart with no health benefits sees his entire paycheck taxed. If that worker goes to buy insurance on his own, the money he uses to buy it is taxed. A worker at Goldman Sachs with a $40,000 health-care plan is getting $40,000 of his paycheck tax-free. It’s wildly regressive, and not something that liberals should support.

Of course, the main reason for political opposition to the bill from the left is associated with the demise of the public option. While the public option would have been a small step forward in providing more competition in certain markets, its merits were largely overemphasized for political reasons. According to the Congressional Budget Office (CBO), the public option passed by the House of Representatives would have covered approximately 6 million or 2% of the 282 million Americans under the 65 years old. The CBO also estimated that this version of the public option would have had higher premiums for consumers, since it would likely have had severe adverse selection, attracting sicker patients on average. A single payer or robust public option would have obviously done more to control costs, but those options were never serious policy options even if President Obama had had the backroom negotiation skills of Lyndon Johnson. In whole, the proposed Medicare expansion would have covered even fewer people than the public option passed by the House.

For many on the left, this was, of course, never about the policy implications of the public option. Rather, the whole debate has been largely about the politics of the public option and what it meant for left-wing morale. After being steamrolled from 2003 to 2007 by a GOP trifecta, the left understandably wanted revenge. The public option was seen as a first step toward the eventual goal of single payer. While the public option would have been a good addition for policy wonks who care about cost control, in reality it was a very small part of the overall bill and the lack of a public option does not necessarily do anything more to preclude future moves toward single payer. (Admittedly, however, the Medicare expansion was perhaps more of a legitimate move toward single payer. Perhaps this should have been the goal of the left from the beginning?)

More importantly, the debate over the public option largely misses the point. The public option, Medicare expansion, and anything else up to and including single payer do not necessarily by themselves do anything to control costs in the long run. Yes, in the short run, they likely do eliminate some excess administrative costs. However, in the long run they do nothing to control runaway increases in costs that, subsides or not, will end up bankrupting the public, the government, or both. Coverage reforms by definition only involve what individuals are covered or not covered by what type of insurance; nothing more, nothing less. Real cost reforms go beyond this to reforming how care is paid for.

Unfortunately, Washington has historically viewed payment reform in the context of payment cuts. This of course leads to limiting of payments but does little to control costs. Real reform that actually bends the proverbial cost curve involves changing incentives and how providers are paid in ways that encourage collaboration, cost control, risk sharing, and sensible evidenced-based rationing. Yes, despite what Sarah Palin may be tweeting, the United States already rations care, largely by socioeconomic status, age, existence of a preexisting condition, and different knowledge levels about how to navigate the insurance appeal process. Rationing by evidence-based effective care and paying for quality instead of quantity are two needed long-term solutions. The Senate and House bills tiptoe in this direction with various demonstration projects. While at first glance, this is too little and too slow, respected health care writer, clinician, and wonk, Dr. Atul Gawande, takes the opposite viewpoint in his latest New Yorker article about how the Senate bill would potentially contain costs.

Another aspect of reform that largely has been forgotten in the political battles over the public option is access, which goes far beyond coverage. Simply insuring individuals does not ensure that there are a sufficient number of providers to care for these newly insured. This is especially true in many rural areas where there is already a severe shortage of primary care providers. Again, here, the Senate and House bills move in the right direction (e.g., payment incentives for primary care and general surgeons who practice in underserved areas), but probably don’t go quite far enough.

Senate vs. House vs. Status Quo

After digesting all of this from a policy standpoint, I would give the Senate and House bills and the status quo the following scores:

Senate:
Coverage: A-
Access: C+
Cost Control: C
Overall: B-

House:
Coverage: A-
Access: C+
Cost Control: C+
Overall: B/B-

Status Quo:
Coverage: C-
Access: D
Cost Control: D+
Overall: D+

Compared to the current system, the bills that have passed each house of Congress achieve much improvement over the status quo, and there is little overall difference between the House and Senate bills.  Both bills will achieve monumental improvements over the status quo in the area of coverage, adding more than 30 million individuals to the ranks of the insured.  Both bills will make more modest gains in the areas of access and cost control. With that said, thousand of lives could be affected at the margins, and it is important for policy wonks and politicos alike to continue to put pressure on Congress to produce the best bill out of conference. However, considering previous attempts at health care reform over the past 60 years, the current political environment, and the arcane Senate filibuster rules, it is outright naive to assume anything better than a “B/B-” was achievable in the first place. Considering the status quo, those who demand that the current bills be killed in favor of the status quo and the faint hope of a better bill are clearly deciding to put politics over policy. Such political calculations matter little to the estimated 45,000 Americans who die each year due to lack of insurance coverage.

Any views expressed here do not necessarily represent the views of any organizations that the author is in any way affiliated with.

A Bomb in Every Issue: How the Short, Unruly Life of Ramparts Magazine Changed America

by Peter Richardson, 247 Pages, The New Press, $25.95.

After struggling for the right superlative for Ramparts – Was it the most important magazine of its day? The most representative of the New Left? – I settled on one that wasn’t subject to debate: Ramparts was my favorite magazine – ever.  If we were to name the most significant magazine of the twentieth century American Left, it would be hard to deny The Nation, which has lasted the entire hundred years. Yet a couple of others arguably burned more brightly, although far more briefly.  The Masses, which ran from 1911-1917, comes to mind – and Ramparts, which spanned 1962-1975.

Ramparts didn’t just report news; it made news. It was a politically radical magazine with style. If you thought left wing politics ought to be hip, Ramparts was probably what you read.  And if it, indeed, had a bomb in every issue, as its nemesis Time Magazine once said of it, then we might say that Peter Richardson’s zippy new biography of the magazine has a firecracker on every page.

Ramparts was on quite a different course, however, when Edward Keating started it as a liberal Catholic magazine the year Pope John XXIII set about to renew the Church in the Second Vatican Council.  The first issue contained a symposium on author J.D. Salinger, but soon the magazine published Thomas Merton, the Trappist monk author of a widely-read autobiography, “The Seven Storey Mountain,” who was then in the process of engaging with Martin Luther King and the civil rights movement.  And then came an article by the magazine’s future editor, Robert Scheer, examining New York archbishop Francis Cardinal Spellman’s enthusiastic support for the Vietnam War.  Ramparts was, Scheer said, “The only place willing to publish it.”  Warren Hinckle, a recent student newspaper editor at the (Jesuit) University of San Francisco who was also rising to power at the magazine, explained the transition from there: “It was the idea of the church being wrong: If the church was wrong, then the government wasn’t far behind. If the government was wrong, then hell, all bets were off. Why should you believe anybody?”
National notoriety followed with the publication of an interview with German playwright Rolf Hochhuth, whose new play, The Deputy, prompted international furor with a portrayal of a Pope Pius XII generally indifferent to the fate of the Jews under the Nazis.  Or more precisely, the notoriety came when the San Francisco based magazine held a press conference at the Waldorf Astoria Hotel in New York City in defense of the play’s right to be performed on Broadway. The event typified the qualities that Hinckle – a figure about San Francisco to this day – brought to the magazine – brilliant promotion (Bloody Marys served at the press conference) and a flagrant disregard for budget.

Jessica Mitford, the author of “The American Way of Death” who loaned her name to the magazine masthead, described Hinckle and Scheer as “brilliant young bandits doing an extraordinary job,” but bemoaned their “ruthless handling of people.” This would include the ouster of founder Keating who had “found himself in the eye of a hurricane,” in the eyes of Ramparts art director Dugald Stermer, when Ramparts “became a national force. I don’t think any of us had that in mind when we started out.”  Keating himself said, “They threw me out like an old shoe.” The “bandits” were brilliant enough, though, to maintain connections with such Keating finds as Eldridge Cleaver, recently released from prison and on his way to fame with the Black Panther Party.

Until its final demise (it survived one bankruptcy), the magazine would play a signal role in the blowing apart of prior conventional wisdom that “the Sixties” are rightly or wrongly identified with.

Ramparts would never be accused of carrying concealed weapons – oftentimes the bomb in the issue was right on the cover: The December 1967 issue showed four hands holding the burning draft cards of Hinckle, Scheer, and two other staffers.  They later told a New York grand jury that those were their draft cards, but not their extremities – the photographer had used hired hands.  (No one was indicted.)  The April 1969 cover featured a young boy holding a Vietnamese National Liberation Front flag with the caption: “Alienation is when your country is at war and you want the other side to win.” And if irony was your style, there was all-American artist Norman Rockwell’s May 1967 cover drawing of Bertrand Russell for an issue highlighting the British philosopher’s withering critique of American foreign policy.

In its customary budget-be-damned style, the magazine sent ten reporters to cover the 1968 Democratic Convention in Chicago where they produced a daily Ramparts Wall Poster. Contributors of the day included Tom Hayden, who would be indicted for conspiracy to disrupt the convention and stand trial as part of the Chicago Eight; Adam Hochschild, future founder of Mother Jones magazine; Paul Krassner, editor of the intermittent and infamous The Realist magazine; past Students for a Democratic Society president Carl Oglesby, author of the seminal but now largely forgotten book, “Containment and Change;” and Richard Rothstein, future New York Times education writer. Pete Hamill and Hunter Thompson were also in the wings.

In 1970, David Horowitz – before his abrupt about-face denunciation of his New Left days and long career as a leading intellectual figure of the New Right – emerged as the new editor when a staff collective ousted Scheer (who remains a working journalist of the left to this day.)  Hinckle had already left to found the short-lived Scanlan’s Monthly that famously paired Hunter Thompson with cartoonist Ralph Steadman and sent them off to the Kentucky Derby to drink mint juleps and report the decadence they found. The magazine lost the impish touch of the Hinckle/Scheer days, but its politics remained largely unchanged.

Ramparts published Che Guevara’s Bolivia diary and Robert Kennedy’s final interview. It exposed the Central Intelligence Agency funding of the National Student Association and gave early attention to New Orleans District Attorney Jim Garrison’s investigations of the JFK assassination. Sports psychologist Harry Edwards’ article about the use of steroids was decades ahead of the curve. It interviewed Huey Newton and John Lennon, and published Susan Sontag, Noam Chomsky, Howard Zinn, Kurt Vonnegut, and Seymour Hersh. When the stories themselves weren’t enough, Keating, Scheer, and Stanley Scheinbaum, another magazine affiliate, all ran antiwar campaigns in the 1966 Democratic congressional primaries. None won, but each shocked the local establishment with how many votes a newcomer could get by advocating withdrawal from Vietnam.

By the time its finances finally brought it down, Ramparts had touched upon – and usually in a memorable way – the lion’s share of the issues that dominated the remainder of the century.

Asked about alleged text messages to the former Alaska governor, Woods spoke emphatically . “No, no, no.  I didn’t tell her she’s ‘hot.’ I said it’s hot in Florida. I said I could use some of that seaside view of Russia right now. I wasn’t interested in her romantically, and my intentions were purely honorable and political in nature.  Why couldn’t she release a copy of her birth certificate? I said. I figure as long as she’s a birther, let me see hers. How do I know she’s not a Russian?”

In Ohio, meanwhile, eyewitnesses reported seeing 14 to 17 former Woods mistresses spill out of an errant UFO-like helium balloon when it crash-landed and sustained a tear in the fabric. The young women were not immediately available for comment because they were busy scrambling through a nearby cornfield, reading their text messages.

Elsewhere, Libyan president Moammar Gadhafi admitted to reporters that all of his famed female bodyguards were Tiger Woods’ girlfriends. “These brave Libyan women withstood the colonialist-imperialist hegemony of American infiltration, of ruthless penetration into our glorious purity. Death to golf!”

A spokeswoman for the Dallas Cowboys Cheerleaders, meanwhile, could not be reached for comment because she was also busy reading text messages. NFL officials say they are still investigating why the Cowboys cheerleaders have “for months been cheerleading golf tournaments instead of football games and disappearing into the club house afterwards.”

“This is highly unusual and most irregular,” said one official who asked not to be identified. “Normally, football cheerleaders cheer-lead football games, not PGA tours. I have to wonder what they’re thinking. Well—to be honest, we don’t get the pick of Rhodes Scholars. Most of our pom-pom girls think ‘foreplay’ is a golf term.”

Friends of Tiger Woods identify Carrie Prejean, the former Miss California and anti-gay marriage activist, as one of the golfer’s minor conquests. Asked for comment, Prejean said opposite sex marriage is a holy sacrament and that she had believed Woods when he’d told her he was single. “Duh, I think music is the universal language,” she said, “and my hope is for world peace. My ambition when I graduate from community college is to help the hungry children of the world.”

Woods refused to comment on the alleged relationship, but did respond to rumors about a liaison with U.S. Secretary to the United Nations Susan Rice. “Hey, Susan is undeniably babe-alicious, and I mean hot,” Woods said in a news conference. “But she’s way out of my league. She’s beautiful but too cerebral for me. Her brain is to the UN what my golf swing is to the PGA tour. Wow, I tried, though. I swung and I missed, if you’ll pardon the baseball metaphor.

“But I categorically deny having anything to do with the Sisterhood of the Traveling Pants. That was a nasty rumor started by Angelina Jolie. She’s always jealous, that little so-and-so, just because I jilted her. First she tells Brad all about me, hoping the guy would beat me to a pulp, but it didn’t happen. So she makes up this nonsense about me bonging everybody in the Sisterhood of the Traveling Pants. Didn’t happen. Except for Amber Tamblyn and America Ferrera. They’re just so hot. Come on, give me a break—what sporting man could resist?”

“You seem pretty calm, Tirk,” I say. “The Taliban are howling at the door, and not a NATO soldier within 50 miles, yet you calmly tiptoe around the sheep dip without a care in the world. What’s that all about?”

“Did ye not know, oh infidel? The American drones circle above like eagles—I can certainly hear them, as they interfere with the bah-bah-ing of my sheep and therefore I cannot sleep when I’m trying to count my sheep. Anyway, there are not only drones but the CIA has also secretly inserted Serena Williams into the foothills of the Forbidden Mountains.”

“What? Serena Williams? Come on.”

“Indeed, it is true, oh unbelieving one. She has been sighted on several occasions, cursing the wolves and frightening them to death. She even outruns them and eats them for breakfast.”

“If this is true, Kirk, it’s still incredible. She makes the Special Forces look like girl scouts.”

“It’s Tirk, not Kirk. My full name is Tirkluckless. How many times must I remind you of that, oh clueless Trekkie nerd? Be careful or I shall smite you. I come from a rough neighborhood. Last week, down near the capital, I was watching a full-scale battle between NATO forces and Taliban insurgents, and a ladies’ tennis match broke out.”

“Good heavens, that is a rough neighborhood. I take it Serena was there?”

“Yes, she was. She is a one-woman Special Forces, to be sure. Already she has crushed many a Taliban with her powerful thighs and decapitated others by hurling tennis rackets with superhuman agility and accuracy. Still others she curses to death with unimaginable slurs calculated to defeat their manhood. Yes, oh beardless one, the mountain villagers sing folk songs about her. They call her the Wild Woman With Huge Haunches and Thighs That May Crush a Man into Ragged Pieces. Oh—I’m getting excited; I had better to stop now.”

“Uhm—no, please, go on. I’m sure you can control yourself.”

“She is also veddy beautiful, you know, and she’s having breasts like mangos!”

“I seem to recall that line from A Passage to India.”

“What, those Shiva-worshipping heathen?”

“Now, now, I think the Serena-lust is getting the better of you.”

“Well, there are always my sheep with which to—“

“Ahem. You were saying?”

“You must understand this is a lonely place, sahib. Indeed, before you there was ne’er a white man to be seen in these hills since the days of W.C. Fields in the 1930s. He had lost his corkscrew, you may recall, and was forced to survive on food and water.”

“Such a contingency would be unfortunate, yes.”

“The word in the hills is that Osama bin Laden watches ladies’ tennis on satellite TV and he shivers with fright as we speak. I have seen a sneak preview of a new video he will release, denouncing women in sport—and women in general, of course. He promises to hack off the arms of any female who dares to bare her arms, let alone use them to hurl tennis rackets at him.”

“How do you feel about this?”

“Well, he’s not all hell and brimstone, actually. He has a heart. He says the point is negotiable and that if the USA will call off Serena, he will settle for a ladies’ tennis referee position at the US Open.”

“He really is scared.”

“He said the officiating call was in error; there was no foot fault and therefore as punishment the referee’s tongue must be removed and Serena’s fine must be canceled.”

“A man of mercy, I see.”

“Praised be to the heavens, Serena shall return home and I shall return to my sheep in peace. If we run out of wolves and Taliban, she might develop a taste for lamb.”