Anatomy Of An Environmental Scare

I've been reading a new book, "Green Tyranny," just out from Encounter Books, written by a Brit named Rupert Darwall.  The overriding theme is that the project to transform society by doing away with fossil fuels is fundamentally inconsistent with the basic American ideals of freedom and democracy.  As Darwall puts it (p. 263-64):

[T]he United States is the biggest political obstacle to transforming society through deep decarbonization.  America is different from every other nation, something many non-Americans admire and many others deeply resent. . . .  Such a transformation and the means to achieve it are not compatible with the idea of freedom for which Americans declared themselves independent in 1776. . . .  

The book is filled with one instance after another of leaders of the decarbonization movement appearing to be far more concerned with imposing authoritarianism on society than with any meaningful goal having to do with protecting the environment.  I could choose any of several of Darwall's examples to illustrate the point, but for today, I'll pick just one -- the so-called "acid rain" scare of the 1970s to 90s.  

Have you even heard of the "acid rain" scare?  By the mid-1990s it had almost entirely dissipated, so it's likely to mean nothing to you if you are under 30.  But in the 1980s it was big -- far bigger at the time than the global warming scare, that was then just getting under way.  The idea was that burning coal and other fossil fuels in power plants to generate electricity put chemicals into the atmosphere (e.g., sulfur dioxide) that then caused the rain to turn acidic.  If allowed to continue, the acid rain would kill off the forests, wipe out the fish in lakes, destroy ecosystems, and more generally render the earth uninhabitable.  This was indeed a planetary crisis.  The proposed solution?  Eliminate fossil fuels!

Among many activist groups pushing acid rain hysteria at the time, Darwall focuses on a 1981 Report put out by the National Research Council of the National Academy of Sciences.  (You will recognize the NAS as a big player in pushing the global warming scare today.)  The Report was titled "Atmosphere-Biosphere Interactions: Toward a Better Understanding of the Ecological Consequences of Fossil Fuel Combustion."  It asserted great scientific certainty as to the imminent ecological crisis to be caused by the acid rain.  Excerpt:

"Perhaps the first well-demonstrated widespread effect of burning fossil fuel is the destruction of soft-water ecosystems by 'acid rain.' . . .  Owing to the concentrated efforts of scientists in the Northern Hemisphere, most notably in Scandinavia during the past decade, we have a much more complete knowledge of the causes and consequences of acid deposition than we have for other pollutants. . . ."  Long-term [acidic] precipitation "is likely to accelerate natural processes of soil leaching that lead to impoverishment in plant nutrients.  When freshwater effects are considered, the positive effects are greatly outweighed by the negative."

Obviously then, government directives to the populace to decrease the use of fossil fuels would be imperative to save the planet!  From the Report:

Strong measures are necessary if we are to prevent further degradation of natural ecosystems, which together support life on this planet. . . .  In the long run, only decreased reliance on fussil fuel or improved control of a wide spectrum of pollutants can reduce the risk that our descendants will suffer food shortages, impaired health, and a damaged environment.        

As you undoubtedly know, governmental restrictions on the use of fossil fuels did not start at all in the 1980s, and only barely got under way with the Kyoto Protocol in 1997.  Surely, then, the acid-rain-induced ecological catastrophe must have been upon us by the mid-1990s?  Actually not.  Not only did the evidence of catastrophe fail to emerge as predicted, but in addition the government funded a big study called NAPAP (National Acid Precipitation Assessment Program) to the tune of some $570 million (!).  NAPAP released an interim Report in 1987, and a final version in 1991.  Some of the conclusions of the NAPAP Reports (in Darwall's paraphrase except the part in quotes):

[T]he effects of acid rain were neither widespread nor serious and less than had been anticipated ten years before.  There was sufficient uncertainty to preclude determination of the need for, or the nature of, abatement strategies such as emissions reductions. . . .  "The vast majority of forests in the United States and Canada are not affected by [acid-rain-induced] decline."

So what happened to the people who had demanded a transformation of the economy and a vast loss of freedom in order to avert the coming ecological catastrophe?  Did they lose their reputations and jobs, and become subject to ridicule and scorn?  Of course not!  Instead, the whole acid rain thing just faded away as if it had never happened:

The world had moved on. . . .  Acid rain had not been "solved."  It faded away. . . .  Scientists claimed trees were being damaged and forests would die.  The evidence showed that they weren't. . . .  At no point did any environmental regulator or any of their political masters acknowledge that the scientific basis for policies against acid rain had gone.  

Indeed, Darwall states that as of the time of his writing the book, EPA's website still falsely proclaimed that "acid rain is a serious environmental problem that affects large parts of the United States and Canada."  (That line appears to have been removed in the recent re-write of EPA's website by the Trump administration.)

Many of the parallels between the acid rain scare and current global warming hysteria are obvious, and come in for extensive discussion in Darwall's book.  But he also insightfully draws the following distinction:  the promoters of forced decarbonization were not again going to make the mistake of having fulfillment of their goal turn on a hypothesis that was falsifiable "in the present tense."  For the next round, the prognostication of planetary disaster would be a good 100 years out.  But don't worry, the certainty of the prediction of disaster is expressed completely without qualification or doubt.  As it was with the acid rain scare.    

Inside The Ignorant New York Times Echo Chamber

Yesterday, the New York Times ran an article reporting on the goings on at EPA as the agency moves toward rescinding the Obama administration's regulations aimed at controlling the weather by tripling your cost of electricity.  The headline was "Trump Takes a First Step Toward Scrapping Obama’s Global Warming Policy."  Lede:

The Trump administration will repeal the Clean Power Plan, the centerpiece of President Barack Obama’s effort to fight climate change, and will ask the public to recommend ways it could be replaced, according to an internal Environmental Protection Agency document.

I noticed that there were a couple of hundred comments on this article, so I decided to take a look.  This was quite a revelation.  Of course, the comments ran about 30 to 1 negative to what EPA is proposing to do; but I expected that.  And of course, many of the comments had a high degree of anger and vitriol and name-calling in them; but I expected that as well.  No, the revelation was the extraordinary extent to which the commenters at Pravda show themselves to be completely ignorant and uninformed on the issues relevant to the debate.  But then, these people rely on Pravda as the principal source of information on this subject.  I guess I should not have been so surprised.

For example, a substantial number of commenters had somehow gotten the impression that implementation of Obama's Clean Power Plan would be an effective measure toward staving off a catastrophic global warming.  For example, we have this from "Austin Al":

The planet is cooking, so strong actions are necessary to reduce greenhouse emissions. Going backwards is not the answer. We need to cooperate to insure survival of the species, apparently Mr. Pruitt doesn't get it.

Or, from "winthropo muchacho" of Durham, NC:

The power industry knows full well the consequences of continued unabated carbon emissions to the atmosphere and deliberately chooses profitability over the health of humankind and numerous other species threatened with extinction.  It's that simple.  

From "RLW" of Chicago:

To all of you out there who have children and grandchildren, be aware. This Trump presidency is on the way to destroying the planet for your grandchildren and all who follow.

From "SR" in the Bronx:

[T]heirs is a homicidal streak, that will roast us all in a stormy cauldron of hurricanes, ozone, and CO2 that no witch trio would want.

OK, NYT readers: Do you have any idea how the CPP is supposedly going to stop the "planet" from "cooking" and avoid "roasting us all" and "insure the survival of the species"?  The CPP has as its goal the reduction of greenhouse gas emissions from the U.S. electric power sector by about 30%.  The electric power sector is about 40% of U.S. greenhouse gas emissions, so the overall reduction in U.S. emissions from this regulation, assuming that it is fully implemented and that it completely works as intended, is about 12%.  Can we please calculate how much global warming by the year 2100 will be avoided by this reduction?  If you think that the whole "GHGs cause global warming" thing has not been proved and is a scam, your answer will be "zero."  But I ask you to assume for purposes of this question the accuracy of the worst-case models used by the U.S. government associating GHG emissions with increasing world temperature.  

Patrick Michaels and Chip Knappenberger at Cato undertook that exercise when the CPP was announced back in 2015.  For their calculations, they used the government's own model, known as MAGICC.  The results:

The EPA’s own policy analysis model, called MAGICC*, tells us how much global warming will be prevented by the new plan:  0.019°C by the year 2100 (based on procedures similar to those we detailed here).  That’s the amount of temperature change a person will experience in about every second of life. It is simply impossible to detect this change in any global temperature history.

Even that is an overestimate of the actual impact of the plan.  The EPA has also published a “base case” which includes emissions reductions expected from existing state and federal regulations.  The difference between the plan and the base—i.e., the future temperature savings directly attributable it drops to 0.009°C—let’s be generous and call that 0.01°C. 

Yes, this whole thing is to avoid 0.01 deg C of anticipated warming.  Frankly, it's pathetic.  No world temperature measuring system in existence or conceivable could even measure if such a reduction of previously-anticipated warming (over nearly a century!) had been achieved.  Of course, you can scour the archives of the New York Times, and you will never find this information.  

And how about the economic impact of the CPP?  The whole idea here is to force premature closure of a few hundred perfectly functional power plants running on coal and oil, and their replacement with new sources, many of which will be much more expensive and intermittent solar and wind facilities.  It's impossible to put a precise number on the costs, because the CPP leaves it up to states and utilities how they will respond to the new strictures.  But it's hard to imagine that the costs could be less than several hundred billion dollars.  These costs will go into your electric bill.  Is there any possible way that this could be anything but a gigantic negative for the American household?

Well, here is how a few commenters at Pravda view the economics.  From "leptoquark" in Washington:

It's so sad that Trump et al. would cede the enormous economic opportunity available in cleaning up power generation. He, and the GOP, can't hold back the country forever, though. At least the dam seems to be breaking on electric vehicles.

So in leptoquark's calculus, spending hundreds of billions to replace cheaper energy with more expensive energy is "ceding an enormous economic opportunity."  From "Jim" in California:

That the Trump-Pence administration, claiming to possess keen business acumen pursues a fiscally idiot policy of pouring funds into high cost coal energy is beyond idiotic.

Jim has somehow got the idea that EPA is proposing to "pour funds into high cost coal," rather than simply rescinding regulations that restrict coal.  From "Blue Moon" in Old Pueblo:

China will pick up the slack by developing green energy alternatives; the U.S. will be left behind. China will wind up being the key in staving off global warming and climate change . . . .    

It's the old theory that the way for the people to get rich is for the government to waste as much money as it can as fast as it can.  Where did we learn that economic theory?  Oh, I remember -- Paul Krugman!  But here's the news for Blue Moon:  while China is putting out press releases about some Potemkin village wind and solar projects, what it is actually doing is flooding its own territory and the world with coal power.  

They read their Pravda every day, and they think they know what is going on in the world.  Sad.

What Is The Biggest Corruption In Politics Today?

Over the past few years, this blog has discussed the prosecutions of numerous prominent politicians accused of corruption.  Those have included Joe Bruno (former Majority Leader of New York State Senate), Sheldon Silver (former Speaker of New York State Assembly), Bob McDonnell (former Governor of Virginia), Dean Skelos (another former Majority Leader of New York State Senate), and Bob Menendez (current Senator from New Jersey).  In each case the question was, how can you tell when one of them has crossed the line from normal constituent service for friends and donors and into corruption?  You will note that the first four of these individuals were all convicted at trial, but all four then had their convictions reversed or vacated by appellate courts.  Bruno was actually acquitted on re-trial.  The original Menendez trial is ongoing at the present time.

One of the remarkable things about each of these cases has been that the amounts of money involved in the alleged corruption have not been particularly large.  The linchpin of the Bruno case was alleged forgiveness of an $80,000 debt for an (allegedly worthless) racehorse.  That case also involved a few hundred thousand dollars in allegedly mischaracterized "consulting fees."  The McDonnell case involved about $175,000 in personal gifts, allegedly as quid pro quo for setting up meetings with officials of the Virginia state university system.  Skelos had allegedly leaned on supporters to provide "no-show" employment to his son, in total amount of about $220,000.  With Menendez, we get up to about $600,000 in contributions to super-PACs supporting his campaign, plus some private jet travel and stays at resorts.  Silver's case is the only one of the bunch that breaks the million dollar barrier, with about $4-5 million of "referral" fees for asbestos injury cases going to the former Speaker.

Of course, with all of these convictions reversed or vacated, it's not clear that any of these people committed actual crimes.  You could get the impression that all of these prosecutions are just to divert your attention away from the really big corruption that is occurring right under everybody's noses and never prosecuted.  Surely, if the whole game of politics is "inherently corrupt" as the Manhattan Contrarian contends, and with the federal and state governments passing out trillions of dollars per year to favored interests, there must be far bigger corruptions than these paltry hundreds of thousands of dollars (or maybe single-digit millions)!  

What is your nomination for a really significant corruption?  Note that there is no requirement for an actual prosecution, or even an investigation, for a nominee to be considered.  Indeed, for a given corruption to get really, really big, it is almost a given that either the perpetrators will be too big for the prosecutors to take them on, or that the whole scheme must have received a legal blessing of some kind.

I know what you're thinking -- the Clinton Foundation!  Now we're on the scale at least an order of magnitude or so bigger than any of the instances mentioned above.  That Foundation raised some $2 billion over the period 2001 - 2016, during most of which time Hillary was either a sitting U.S. Senator, and/or known to be about to run for President, and/or Secretary of State, and/or known to be about to run for President again.  Even if you assume that all of the allegedly "charitable" work of the Foundation was legitimate (an assumption that has been challenged in many quarters), that still leaves many tens of millions of dollars that went to cover the Clintons' travel and hotel expenses, and expenses for assistants and a full staff of campaign-in-waiting, all somehow declared exempt from the strictures that apply to gifts to government officials and outside of the limits on campaign contributions.  And the donations were tax deductible!  It's obvious that many to most of the contributors had some kinds of interests before the U.S. government for which they were hoping for or expecting favorable treatment.  You can't tell what all the interests are from reviewing bare lists of contributors, but some of the connections have been widely reported.  For example, we have Canadian mining magnate Frank Giustra, who had purchased a bunch of uranium assets and wanted to sell them to the Russians, which he did in a series of transactions from 2009 - 13 (basically Hillary's tenure as Secretary of State).  Giustra donated over $60 million to the Clinton Foundation, significant portions of it during Hillary's tenure at State.  Or there's the country of Qatar, which seems to have made a fairly regular $1 million annual donation, including while Hillary was Secretary of State.  There are plenty of other examples.

That is a very excellent example of a very large unprosecuted corruption.  But I have an even bigger and better one:  the forced contributions by public employees to their unions that are then used for the political and electoral support of the Democratic Party.  This particular corruption takes place under what I called above a "legal blessing," in this case a Supreme Court decision from 1977 called Abood, where the Supremes upheld forced deduction from public employee salaries of moneys that are then used for political advocacy of various sorts, almost always on behalf of Democrats and/or issues supported by Democrats.

A recent amicus brief filed in the Supreme Court by the Competitive Enterprise Institute details some of the extent of the use of forced contributions for political advocacy by one public employee union, AFSCME.  Matters for which forced dues were used included:  advocacy for the Hillary Clinton campaign, against right-to-work legislation, for gun control, for higher public infrastructure spending, for higher public spending on education, for paid family and sick leave, against private contracting of municipal services, for a higher minimum wage, for gun control, for D.C. statehood, and on and on.

What is the total annual value of the legally enforced annual contributions, all going to one side of the political divide?  I can't find a recent and definitive analysis.  But this analysis from the Wall Street Journal from 2012 (may be behind pay wall) puts the total of union cash plus in-kind political contributions in the range of $600 million to $800 million per year.  That includes both public and private sector unions.  Since the public sector unions are about half of the total membership, that would put the public sector piece at around $300 million to $400 million per year.  It makes the Clinton Foundation look small time.  And it has undoubtedly gone up since 2012.

You may know that the Supreme Court just accepted cert in a case called Janus that promises to revisit the rule of Abood.   The betting is that Abood is highly likely to be overruled.  However, here's the incredible piece:  the four "liberal" justices (Ginsburg, Breyer, Kagan, Sotomayor) are virtually assured to vote to keep Abood in place.  In a case (Friedrichs) raising the same issue that reached the Supreme Court earlier this year, after the death of Justice Scalia, the result was a four-to-four affirmance of the Ninth Circuit, with the four "liberals" all unable to recognize that this was an extreme example of corruption.  For them, momentary partisan advantage for the Democratic Party appears to be more important than the integrity of our democracy. 

Political Corruption 102: The Case Of Robert Menendez

Now that you have educated yourself on the law of political corruption via yesterday's post, try applying your newfound knowledge to a currently-pending case -- that of Robert Menendez.  We'll call this course Political Corruption 102.

Robert Menendez is the sitting Democratic Senator from the state of New Jersey.  In April 2015 he was indicted by the federal prosecutors in New Jersey on multiple counts of bribery in relation to his dealings with one Salomon Melgen, a wealthy eye doctor from Florida.  It is relevant to know that in April of this year, according to the Washington Post, Melgen was convicted by a Florida jury for stealing up to $105 million from the Medicare program.  Menendez's trial on his own charges is currently underway at the federal courthouse in beautiful downtown Newark, New Jersey.  

I'm completely prepared to agree that this Menendez guy is as corrupt a pol as ever strode the corridors of the Capitol.  But that doesn't necessarily make his conduct a federal crime.  The amounts of money that Melgen sent the way of Menendez certainly make Dean Skelos look small time by comparison; and in return Menendez seems to have devoted endless hours of his own time and that of his staff working to get the federal bureaucracy to do Melgen's bidding.  So -- criminal or not criminal?  

The same Washington Post article linked above summarizes the particulars of the quid and the quo that allegedly constitute the Melgen/Menendez bribery.  Here's the quid:

• Menendez took 19 free rides on Melgen's private jets to luxury resorts around the world, sometimes bringing guests.
• Melgen made more than $600,000 in campaign donations to super PACs to get Menendez reelected in 2012.

And the quo:

• Menendez helped three of Melgen's foreign-born girlfriends get visas to visit the United States.
• Over a period of four years, Menendez held several meetings with U.S. health officials to help Melgen settle an $8.9 million Medicare payment dispute, at one point asking then-Senate majority leader Harry M. Reid (D-Nev.) to help out.
• As Melgen was emailing Menendez's staff in April and May 2012, promising to donate to Menendez's campaign, prosecutors allege Menendez reached out to top State Department officials to urge them to enforce a port-security contract with the Dominican Republic that would benefit Melgen's company.

The obvious problem here is that the things that Menendez was trying to accomplish for Melgen were not things that Menendez could do on his own authority.  Rather, all Menendez could do was to try to get the bureaucracy to help his friend.  So he arranged meetings and held conversations.  Maybe even lots of meetings and lots of conversations.  Maybe he even yelled at some of the bureaucrats.  So?  

Yesterday's New York Times reported on the progress of the trial.  On Thursday a guy named Todd Robinson was on the stand.  Robinson is the current U.S. Ambassador to Guatemala, but in 2012 worked for the Ambassador to the Dominican Republic, and was the point person on discussions about the port security contract that was of interest to Melgen.  From the Times:

The government’s questions framed Mr. Menendez’s actions as not merely acts of friendship, or typical work on behalf of constituents, as defense lawyers have argued. Instead, they seemed carefully calibrated to show that the meetings and conversations the senator arranged were “official acts,” the bar that the United States Supreme Court has recently established must be met for actions by elected officials to rise to the level of corruption.

So what if anything takes this case beyond the mere setting up of meetings that has been determined by the Supreme Court as not being enough to constitute bribery?  From the Times's account of Robinson's testimony:

Mr. Menendez warned that he would convene a Senate hearing, Mr. Robinson testified, if the State Department did not help Dr. Melgen resolve a contract dispute between the Dominican government and Dr. Melgen’s company.  “The senator noted displeasure very clearly with the current state of affairs and threatened to hold a hearing on the matter if we don’t meet his deadline,” a State Department official wrote in an email to Mr. Robinson. . . .  Mr. Robinson added, “It was not likely to be a friendly hearing, because you have the word threat in the email.”

Nothing in the Times report indicates whether any such hearing was ever held, or whether the State Department ever actually did what Menendez asked them to do on behalf of Melgen.  It's a fair bet that if either of those two things had occurred, the prosecutors would be emphasizing those facts.

So it looks like the case comes down to whether the prosecutors can get friendly witnesses to characterize the setting up of meetings and the holding of conversations in semantic terms that make these things seem like something really serious.  He didn't just set up a meeting, he "threatened to hold a hearing"!  But what is the "official act" that Menendez did on his own authority?  We're still waiting to find out.  And what distinguishes his conduct from that of every other member of Congress?  

At least this trial is an eye opener in revealing how the pols actually allocate their time.  Do you think they spend their days deeply engaged in the project to create perfect justice and fairness in human affairs?  Actually, we find out that their priority number one is trying to get the bureaucracy to do favors for the big contributors.  Surprise!  

The Skelos Reversal: How Do You Tell The Corrupt Politician From The Non-Corrupt?

I first dabbled in commenting on the Dean Skelos prosecution within days after the first criminal complaint was issued against him back in May 2015.  In that first post on the subject, I characterized the charges against Skelos as "remarkably thin."  However, a jury convicted him.  Three days ago the Second Circuit Court of Appeals vacated the conviction.  (That link is to a news article from New York Magazine. The opinion itself is available on the court's PACER system, to which you probably do not have access.)  The vacatur of the conviction does not preclude re-trial.  

For non-New Yorkers who don't recognize the name, Skelos was -- up until he was charged with corruption -- the (Republican) Majority Leader of the New York State Senate.  If it somehow surprises you that the State Senate in this bluest of blue states is (and long has been) controlled by the Republicans, you will start to get an idea of why it might have been a priority for the Democrats to get rid of Skelos.  Skelos's prosecutor was Preet Bharara, whose job, prior to being named by Barack Obama to be U.S. Attorney for the SDNY, was counsel to Chuck Schumer.  

Was the Skelos prosecution just nothing more than the most naked of naked politics?  You can be the judge.  In that May 2015 post I compared the allegations in the criminal complaint against Skelos to some of the well-known facts as to Hillary Clinton -- facts in which Bharara could not have been less interested.  For example:

Seems that Skelos managed to get his son a consulting gig that paid about $200K over four years, $50K or so a year.  Chelsea Clinton somehow got a $600K per year job at NBC News -- a job that even loyal Clinton supporter New York Magazine called "fake."  Of course, nobody took the trouble to tape every phone conversation that Bill or Hillary may have had with NBC or affiliates over the last several years to see if there was any "pressure."     

The important question is, by what criteria can you tell which of these and other actions by politicians is corrupt and which is not?  In the May 2015 post (and elsewhere) I have expressed the view that politics is inherently corrupt; but our legislators and prosecutors and judges seem to be of the view that they have some system or criteria to tell the difference between the corrupt and honest pols.  Today, let's look at the background and the result of the Skelos case, and see what guidance we can get.

My conclusion is, the federal law of political corruption provides no meaningful basis for making a useful distinction between what conduct of politicians is corrupt and what is not.  This hands completely unacceptable discretion to prosecutors to use the laws to get rid of whichever politician they don't like.

As readers of my previous posts know, the current state of the law in this area derives from prior efforts of the U.S. Supreme Court to put some boundaries on the ridiculously vague anti-corruption statutes enacted by Congress.  The most ridiculously vague of the statutes is the so-called "honest services fraud" provision, 18 U.S.C. Section 1346, which makes it a criminal fraud to "deprive another of the intangible right of honest services."   Kindly advise what you think that might mean.  Needless to say, Skelos was prosecuted under that statute (among others).  I would say that that statute should have been declared void for vagueness by the Supreme Court when it got a chance, but in the 2010 Skilling case, instead of doing that, the Supremes saved the statute by saying that it survived as long as the allegations amounted to "bribery" or a "kickback."  And thus there was imported into the "honest services fraud" statute the requirements of the federal bribery statute, including that the quo granted by the politician for the quid from the briber be some "official act."

Is it getting any clearer?  Next, in the 2014 prosecution of Governor Bob McDonnell of Virginia, the alleged "official acts" proved by the prosecutors consisted of the setting up of a series of meetings with state bureaucrats.  (And after the meetings, the bureaucrats never did what McDonnell's benefactor wanted them to do!)  Good enough?  McDonnell was convicted, and his conviction affirmed by the Fourth Circuit, but the Supremes reversed unanimously.  The opinion by Chief Justice Roberts was definitive that merely setting up meetings was not enough to be an "official act" and thus to prove a bribe.  That opinion came down in April 2016 -- after Skelos had been convicted, and while his case was on appeal.

Back to the Skelos case.  Although McDonnell had reached the Supremes, and was in the process of briefing, when the Skelos trial took place, the prosecutors in their usual hubris assumed that affirmance was a sure thing, and thus many of the supposed "official acts" that they proved as to Skelos consisted of setting up meetings.  The prosecutors asked for and got a jury instruction that defined "official act" as "any act taken under color of official authority," without an exclusion for setting up meetings -- basically an almost identical instruction to the one found erroneous in McDonnell.  And the Skelos prosecutor proceeded to argue to the jury specifically that setting up meetings did constitute "official acts."  ("So the defense wants you to think that things like setting up meetings or making calls about a few thousand dollars don’t really count as official actions. It’s just wrong. Flat wrong.”)  Oops!  And thus was the conviction doomed.

But, after vacating the conviction, the Skelos court then takes up the question of whether he can be re-tried.  That issue turns on whether there is sufficient evidence to prove a bribe even after exclusion of the setting up of meetings as being the "official acts."  The court finds that there is sufficient evidence to justify re-trial.  The remaining alleged "official acts" are in two categories:

1. Voting on a statute, allegedly in a way favorable to the interest of the briber.  The court quotes from its own prior decision in a case called Rosen for the proposition that legislative votes, even routine ones, can be sufficient to constitute the quid pro quo for a bribery case.  ("Payments to State legislators may constitute bribes even if the legislator’s resulting actions are otherwise ‘routine’—such as voting in a certain manner or supporting grants to certain businesses. . . . ")  It appears that the particular vote in question in this case was Skelos's vote on the periodic renewal of New York City's rent regulation regime.  
2. "Using influence" to obtain approval of a measure by another legislature of which Skelos was not a member.  The particular issue here is that Skelos was trying to get his son a job with an environmental consulting firm, and that firm wanted a contract with the government of Nassau County, which contract required (and got) approval from the Nassau County legislature.  Skelos was not a member of the Nassau County legislature, and did not vote on the matter.  The Second Circuit states:  "Using one’s influence as a high ranking state official to push through county legislation and to bestow a county-issued contract are indisputably formal exercises of governmental power constituting official acts under McDonnell." 

Well, start with number one.  Every single state legislator raises campaign contributions from dozens or hundreds of contributors, and every single state legislator casts dozens or hundreds of votes in the legislature, large numbers of which votes are favorable in some way to some campaign contributor.  The same of course also applies to members of the federal Congress.  If that's all it takes to make a bribe, then definitely every state legislator and every Congressperson is guilty.

And that's a huge problem.  It's a huge problem because if the statutes and case law make no practically useful distinction between corrupt pols and all the other pols, then it inevitably falls to the prosecutors to pick on whatever politician they don't like or want to get rid of, with the assurance that the evidence to prove the "crime" can always be found.  Will prosecutors then abuse this power to get rid of the particularly annoying leading politicians of the opposing political party?  Of course they will.

And as to number two:  It's "indisputably" an "official act" to "push through" (what does that mean?) legislation in a legislature of which you are not a member and in which you have no vote?  Really, Second Circuit?

The current (interim) U.S. Attorney for the SDNY has made a perfunctory statement that he intends to re-try the case.  I tend not to believe the office will carry through on that, particularly if President Trump ever makes an appointment to the office.

Meanwhile, the important lesson here is that the federal law of political corruption absolutely makes no useful distinction that enables you to tell which are the corrupt and which are the non-corrupt politicians.  Or that enables politicians to figure out how to conduct themselves in a way that will not get themselves prosecuted.  Maybe there is no way to draft statutes to make those distinctions in a useful way.  The fact is that politics is inherently corrupt.  The only meaningful way to address the problem is smaller government.

The Cruel, Heartless Expansion Of Medicaid Under Obamacare

You have undoubtedly noticed that the official Democratic talking point about any and all efforts to repeal or even modify Obamacare is that this is "cruel."  OK, sometimes it's "heartless."  Or maybe "a human tragedy."  You are taking away "healthcare" from the people and leaving them to suffer in the streets!  People will die!!!!

Just to warm you up for this post, here is a small roundup:

• Sen. Richard Blumenthal (D-CT), commenting on the Graham-Cassidy bill on September 20:  "We are on the precipice of one of the most cruel and outrageous legislative acts in recent history."
• Washington Post, July 20, commenting on the then-current Republican "repeal only" plan:  "CBO again confirms the cruelty of GOP’s ‘repeal-only’ plan."
• The New Republic, March 14, commenting on another earlier version of Obamacare repeal/replace known as the American Health Care Act:  "[T]he incredible cruelty of the Republican legislation didn’t become clear until Monday, when the Congressional Budget Office . . . estimated it would undo nearly all of the coverage gains we’ve seen under the Affordable Care Act, creating human tragedy on a scale far greater than even pessimistic analysts imagined.
• New York Magazine, September 5:  "[Trump's position on immigration] contains the same mix of cruelty and desperate incompetence as his position on repealing Obamacare."

Etc., etc., etc., etc.  I mean, isn't it completely obvious that people who have "healthcare" are going to have superior health outcomes to those who don't?

Well, some things that seem like they obviously must be true turn out not to be true at all.  I have linked many times to the famous randomized study from Oregon published in the NEJM in 2013 that spectacularly failed to demonstrate any health gains from putting people on Medicaid.  Then in a post from March of this year, I went through the then-just-published neighborhood-by-neighborhood health data for New York City for 2015 to examine whether those neighborhoods with very high Medicaid participation rates had better or worse health outcomes than the other neighborhoods in the City.  Uniformly and without exception, the high-Medicaid-participation neighborhoods had worse health outcomes, and by large amounts, and on every metric considered.  

And finally, in a post in August of this year, I noted that the full implementation of Obamacare in 2015 and 2016, instead of being accompanied by an increase in life expectancy, had been accompanied by a decrease in life expectancy.  How could that have happened?  I asked:

Could it be because expanded Medicaid is paying for opioids for the vulnerable?  That's a very reasonable hypothesis, although there are not yet enough data to prove it.

It's only been a little more than a month since that post, but some data are starting to trickle in.  And sure enough, those data strongly suggest that large numbers of new Obamacare Medicaid recipients are using their "healthcare" to obtain and use (or maybe sell) opioid painkillers, with very bad follow-on health effects.  An op-ed by Allysia Finley in Monday's Wall Street Journal, "Does Medicaid Spur Opioid Abuse?", collects some facts and figures, which were originally put together by CDC at the request of Senator Ron Johnson (who lost a nephew to a heroin overdose).  Some particularly dramatic examples:

Data from the Centers for Disease Control and Prevention show that overdose deaths per capita rose twice as much on average between 2013 and 2015 in states that expanded Medicaid than those that didn’t—for example, 205% in North Dakota, which expanded Medicaid, vs. 18% in South Dakota, which didn’t. . . .  Between 2010 and 2013, overdose deaths rose by 28% in Ohio and 36% in Wisconsin. Between 2013 and 2015, they climbed 39% in Ohio, which expanded Medicaid, but only 2% in Wisconsin, which did not.

I wouldn't call it definitive proof yet, but all data I have seen so far indicate that a big use of expanded Medicaid has been to obtain prescription painkillers.  Some -- indeed, many -- of those prescriptions will inevitably be abused.

Of course there has been some push back.  Here is an example from the AP, August 31, "Medicaid fueling opioid epidemic? New theory is challenged.":

[U]niversity researchers say Medicaid seems to be doing the opposite of what conservatives allege.  “Medicaid is doing its job” by increasing treatment for opioid addiction, said Temple University economist Catherine Maclean, who recently published a paper on Medicaid expansion and drug treatment. “As more time passes, we may see a decline in overdoses in expansion states relative to nonexpansion states.”

Seems like Ms. Maclean has no data to support her position, but speculates with great confidence that the government program will end up having a positive effect since, I guess, all government programs must inevitably have positive effects because their proponents are such great experts and such good people and so well-meaning.  Right!

Or there's the theory that people do much better in life striving to make it on their own than they do by accepting government handouts.  Anyway, if deaths keep going up more in the Medicaid expansion states than the others, then which one is "cruel" -- Medicaid expansion or not?