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July 06, 2012

With Friends Like the Wall Street Journal....

Who needs the DNC? In today's edition of Blitheringly Idiotic Republican Own Goals (they're fast becoming a daily occurrence!), Rupert Murdoch's Wall Street Journal makes the front page of the NY Times!

To hear Rupert Murdoch tell it lately, Mitt Romney lacks stomach and heart. He “seems to play everything safe.” And he is not nearly as tough as he needs to be on President Obama.

Mr. Murdoch’s thoughts on the Republican presidential candidate’s prospects? “Tough O Chicago pros will be hard to beat unless he drops old friends from the team.” Chances of that? “Doubtful,” he tapped out in a Twitter message from his iPad last weekend.

Then, on Thursday, Mr. Murdoch’s flagship newspaper, The Wall Street Journal, published a blistering editorial criticizing Mr. Romney’s campaign, accusing it of being hapless and looking “confused in addition to being politically dumb.”

Hmmm.... being hapless, confused, and politically dumb seems to be something of a team sport these days:

Today the Journal’s editorial page savaged Romney for his campaign's insistence early in the week that the mandate is a penalty, not a tax. Yesterday, Romney announced that, upon further consideration, the mandate is, in fact, a tax.

The Journal grudgingly notes this change of heart in the ninth paragraph. Yet nowhere in the entire, frothing-at-the-mouth editorial is there any discussion of why it thinks Romney surrogates were wrong on the merits when they insisted the mandate is a penalty, not a tax.

It’s bizarre. The conservative dissent to Roberts decision -- the one the Journal and most Republican elected officials say they agree with -- is founded on the proposition that the individual mandate is not a tax. The justices say it plainly on page 24 of their dissent: “Congress imposed a regulatory penalty, not a tax.” When the Journal insists that Romney should “declare accurately” that the mandate is a tax, it is saying that Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito were all wrong.

Question for the ages: if it's hapless, confused, and politically dumb to say the mandate is a penalty (not a tax) then why was the Wall Street Journal saying exactly the same thing just a few days earlier? Here's a brief summary of the WSJ's take as of July 2nd:

1. Calling the mandate a tax is dangerous.

2. It's not a tax - it's a penalty. (Hey! Isn't this what Romney sa... oh nevermind).

Roberts' ruling tried to convert a penalty into a tax, but he can't do that because the words "tax" and "penalty" have well defined meanings. They are not interchangeable. Regardless of which label Roberts chooses to slap on the mandate, it's still a penalty.

3. If we call the mandate a tax, there's no limit to what Congress can tax! There's nothing to stop them from doing this.

Being of the hapless, confused and politically dumb sort our ownselves, we took away one thing from the Journal's July 2nd diatribe: CALLING THE MANDATE A TAX IS WRONG AND DANGEROUS. AND STUPID. So imagine our surprise to read the following WSJ salvo a mere three days later:

If Mitt Romney loses his run for the White House, a turning point will have been his decision Monday to absolve President Obama of raising taxes on the middle class. He is managing to turn the only possible silver lining in Chief Justice John Roberts's ObamaCare salvage operation—that the mandate to buy insurance or pay a penalty is really a tax—into a second political defeat.

...In a stroke, the Romney campaign contradicted Republicans throughout the country who had used the Chief Justice's opinion to declare accurately that Mr. Obama had raised taxes on the middle class.

Once we recovered from the severe whiplash induced by the Journal's lightning fast volte face, we couldn't help asking a question normally reserved for the Paper of Record: do the Editorial Staff of the WSJ bother to read their own editorials?

Let's review the events of the past few days:

1. On July 2nd, the WSJ sternly commands us NOT to call the mandate a tax (CJ Roberts' wrongheaded labels to the contrary). Oh, and all you ignoranuses who think there's a silver lining in this? You're wrong.

It's a penalty, peoples.

2. Two senior members of the Romney campaign, undoubtedly persuaded by the searing logic of the Journal's fiery editorial, gamely agree with the 4 conservative justices who dissented from Sebelius AND the Editorial Staff of the WSJ:

It's a penalty, peoples.

3. The candidate himself opines that he although he doesn't agree with the Roberts decision (like the 4 conservative justices and the WSJ, he thinks it's a penalty), the highest court in the land just ruled that the mandate is a tax and that's the reality we need to move forward from.

3. The WSJ, astounded that anyone would be so dumb as to refuse to lie to voters about accurately summarize what just happened, much less agree with obviously confused opinions like those penned by Justices Alito, Scalia, Thomas, and Kennedy OR the editors of the WSJ a mere 3 days ago, blasts the Romney campaign for stupidity and incompetence. John Roberts, who was politically incompetent on July 2nd (as were "conservatives" who saw a silver lining in Roberts' monumental blunder), was suddenly the architect of a political victory THAT MUST UNDER NO CIRCUMSTANCES BE UNDERMINED, LEST WE LOSE THE ELECTION!!!11! Remember that silver lining that didn't exist? Well now it's the key to winning the White House in 2012.

Hallelujah: it's a tax again, peoples!

4. The NY Times publishes a front page hit piece article detailing the many faults of Mitt Romney, courtesy of none other than Rupert Murdoch and the WSJ....

...who are definitely not confused about whether the mandate is a penalty or a tax. Just ask them.

Posted by Cassandra at July 6, 2012 07:55 AM

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Comments

What're clear to my awesomely discerning mind are these things:

1) What Romney was disagreeing with in the CBS interview (granting that I heard a snippet and not the whole thing) was the Supremes' ruling of constitutionality. He also thought the thingy was a penalty and not a tax, but he accepted the Court's ruling that it was a tax.

2) Romney's waffling before that interview was foolish. The rest of the Republican leadership readily accepted the Court's finding of tax--whether for political or other reasons--and pressed ahead with their messaging. The Technocrat got too far into the weeds and over-engineered his response. The Court said it was a tax, so it's a tax. Go with that.

3) Romney's reluctance to attack the matter under the tax guise seems to go back to his mandate and tax/penalty/whatever under Romneycare. But this should be utterly irrelevant, and he should be calling out the Democrats for their continued red herring-dragging of "how can he decry the tax/penalty and the mandate when that's what he did in Massachusetts?"

Romneycare and Obamacare have nothing to do with each other, as Romney has said more than once, but not forcefully enough and not lately. Nor is there any relevance to his having touted Romneycare to the other states. This is a purely 10th Amendment issue--which he should be hammering on, asking why Obama doesn't think the 10th Amendment matters. He had an idea he thought worked and which he recommended to other states, but: it's a state choice, and an idea working in one state is not justification for forcing that idea--the 10th Amendment bit again--on all the states by Federal diktat.

I really get tired of Republicans' inability to talk principles to the people in their Presidential campaigns.

Eric Hines

Posted by: E Hines at July 6, 2012 01:13 PM

1. He also thought the thingy was a penalty and not a tax, but he accepted the Court's ruling that it was a tax.

So he also disagreed with their ruling that it was a tax. And he thought it was a penalty. Which is what the WSJ said, before they got scared and decided that the illusory silver lining some conservatives saw in the ruling was not in fact illusory or insignificant at all.

In fact, it was now essential - ESSENTIAL, DAMMITALL!! - to winning the election :p

2. Did he waffle? When?

Given the complexity of this decision (and the fact that it completely blindsided even legal experts), I think it's smart to wait a bit before opining.

In fact, that's exactly what I did, and for the same reasons.

3. This is opinion, not fact. Again, you are inferring his motivation, probably because you've seen about 90000 editorials saying that was his motivation.

See how annoying it is when other people try (on no evidence) to tell you why you think what you think? :)

/flouncing off into the sunset :p

Posted by: Cassandra at July 6, 2012 01:37 PM

...he accepted the Court's ruling that it was a tax.

I thought this was pretty clear.

Did he waffle? When?

Here. Or are you going to argue that Romney's senior adviser is not speaking Romney's pre-approved words? Or are you going to ask how I know Fehrnstrom is a Romney senior advisor, since I only have Huffington Post's word on it?

This is opinion, not fact. Again, you are inferring his motivation....

In the end, everything is opinion, since the first instance in unprovable. This argument simply carries things to a ridiculous extreme.

See how annoying it is when other people try (on no evidence) to tell you why you think what you think?

I wouldn't know; you'll have to ask the WSJ: Which is what the WSJ said, before they got scared....

Eric Hines

Posted by: E Hines at July 6, 2012 03:41 PM

Or are you going to argue that Romney's senior adviser is not speaking Romney's pre-approved words?

No, I'm going to argue that Romney has always said (via Ferhnstrom) that he thinks it's a penalty.

And then Romney comes along and says, "Yes, I think it's a penalty, but the SC says it's a tax and their ruling carries more weight (all the weight, really, since no one can overrule them) than my personal opinion.

Please explain how this is "waffling".

Or are you going to ask how I know Fehrnstrom is a Romney senior advisor, since I only have Huffington Post's word on it?

No. I simply note that the two statements are in no way inconsistent. Hence my request that you explain how "Romney" waffled?

Posted by: Cass at July 6, 2012 03:51 PM

Arguing about whether the mandate is a penalty or a tax is like arguing over whether the kitchen knife in the dead guy's back is a utensil or a weapon.

They aren't mutually exclusive.

Posted by: Yu-Ain Gonnano at July 6, 2012 03:51 PM

I wouldn't know; you'll have to ask the WSJ: Which is what the WSJ said, before they got scared....

Ah, so you *do* understand my point! :)

Seriously, what is your explanation for a 180 degree about face with no admission of the inconsistency occurring over only 3 days?

They realized they were wrong but didn't want to admit it, so they tried to bluff and hope no one would notice that what they said on the 5th was 180 out from what they said on the 2nd?

I'm open to suggestions!

Posted by: Cass at July 6, 2012 03:53 PM

Arguing about whether the mandate is a penalty or a tax is like arguing over whether the kitchen knife in the dead guy's back is a utensil or a weapon. They aren't mutually exclusive.

Personally, I happen to agree with you. Case in point...

By the way, you have NO idea how much self control it has taken me not to mock the Houston city council within an inch of its miserable life.

But Roberts' ruling seemed to say that a tax was only punitive (and thus unconstitutional) if it was large enough to be coercive. Personally I thought that was a rather good point - especially considering that the main criticism of the supposed "penalty" is that it's so small relative to the cost of buying a policy that no one in their right mind would buy a policy merely to avoid the penalty :p There's no downside to just paying the "taxalty" - you'll be able to get a policy if you get sick later bc you can't be refused one.

Just large enough to p*ss people off, but not large enough to actually do what they said it was intended to do. You've gotta love the Dems.

Posted by: Cass at July 6, 2012 04:02 PM

...what is your explanation for a 180 degree about face with no admission of the inconsistency occurring over only 3 days?

Well, my explanation was that he waffled, but you've rejected that. 2. Did he waffle? When?

I'm curious of your characterization of this 180 reversal.

Eric Hines

Posted by: E Hines at July 6, 2012 04:29 PM

So "waffling", to you, is when your advisor says you think it's a penalty. Then later on, you say you think it's a penalty but your opinion is legally irrelevant b/c SCOTUS just ruled it was a tax.

Really? Facing reality is "waffling"?

There is no 180 reversal wrt to the Romney campaign, unless you arbitrarily redefine the meaning of the term. He didn't change his opinion - he originally said it was a penalty and that didn't change. Restating the obvious - that his opinion has no binding legal effect, is not "waffling".

You didn't answer my question about the WSJ - to what do you attribute their 180 degree about face?

Here are all the reasons I can think of:

1. They are shameless partisan hacks who argue one thing on Monday and the opposite on Thursday.

2. They're confused and in over their heads but won't admit it.

3. They're morons.

4. They hate Romney so much they'll use anything to attack him, even if it contradicts what they said earlier. Which leaves them the option of voting for Obama, once they've gone out of their way to torpedo their own candidate.

This is known as "smart politics".

5. They genuinely changed their minds sometime between Monday and Thursday, but won't admit this. But no one else is allowed to change their mind (not that Romney did this) because that would be "waffling".

That's all I can think of for now. Your turn!

Posted by: Cass at July 6, 2012 04:44 PM

So, you insisted early on that Romney reversed his position ...a 180 degree about face with no admission of the inconsistency occurring over only 3 days....

and now you're insisting There is no 180 reversal wrt to the Romney campaign....

Hmm....

Eric Hines

Posted by: E Hines at July 6, 2012 04:59 PM

Eric:

What are you talking about? Where did I say Romney had changed his position? The italicized part you keep citing refers to the WSJ.

Posted by: Cass at July 6, 2012 05:00 PM

Since you offered your 180 out remark without referent in the context of a discussion of my characterization of Romney's waffling, I took that to concern Romney, also.

Frankly, aside from a bit of my snark, I blew off your Comment WSJ argument when you opened it by ascribing motive after decrying me for...ascribing motive.

I guess I'm just not smart enough to keep up.

Eric Hines

Posted by: E Hines at July 6, 2012 05:44 PM

I guess I'm just not smart enough to keep up.

When discussions begin to get personal, it's time to move along.

I'm not sure what the point of your comment is. Certainly I would not be wasting time talking with you if I believed you were not smart enough to keep up, nor do I think I have implied that.

Misunderstanding and miscommunication is always a problem. It seemed to me that we were talking about two different things: you said I had earlier claimed that Romney did a 180. That doesn't make sense in light of my repeated comments arguing that he did no such thing, but since you say you "blew off" my comments, the confusion is understandable.

Obviously I have caused offense where I did not mean to. You don't seem to see anything objectionable about ascribing base motives (or just motives) to people you disagree with, but very much object to having less than noble motives ascribed to the WSJ or yourself.

I'm not sure what principle is illustrated by this, except perhaps that it might be better not to ascribe motives to others at all?

Being human, I will never be perfect or free from error. My flaws, however, don't mean that I should never aim for a higher standard. People lie and steal, but lying and stealing are still wrong and harmful.

In the comment about the WSJ being "scared", I tried to signal that I was partly joking - being sarcastic - with lots of smilies and emoticons. But as I've said before, online communications are hard to interpret and I am far from perfect.

I thought it was clear from the context that I was trying to illustrate the problem with ascribing motive by doing it in a deliberately over the top way that I thought was out of character for me. I don't think you are stupid for not understanding what I was trying to say. The more likely explanation is that I failed to be clear.

I'm going to try one more time to make myself clear:

1. I don't see how Romney can be accused of "waffling" when both he and his advisors consistently said he thought the mandate was a penalty. Romney later added that SCOTUS declared it a tax, and said he disagrees with this but his opinion has no legal force.

I'm still waiting for someone to explain to me how having two advisors say Romney thinks it's a penalty, followed by Romney himself saying he thinks it's a penalty, but SCOTUS disagrees, is in any way inconsistent.

2. The WSJ, on the other hand, said on July 2nd that it was factually wrong and DANGEROUS TO BOOT to call the mandate a tax, because it's really a penalty.

Three days later, they reversed course, excoriated the Romney campaign for agreeing with them (and the 4 dissenting justices) that it's a penalty, and called him an incompetent boob for not saying that it's a tax.

Apparently when the WSJ says it's a penalty, that's smart. When Romney says the same thing, he's dumb.

When - a mere 3 days later - the WSJ takes Romney to task for not parroting an argument the WSJ had just dismissed as stupid and misguided (the "silver lining" theory they sneered at on July 2nd), they are principled, logical, and consistent (i.e., "not waffling"). When the Romney campaign says the same thing repeatedly during the same time period, they are being inconsistent (waffling).

If someone would explain the underlying logic to me, I would be extremely grateful.

Posted by: Cass at July 7, 2012 09:10 AM

Once again, you've not offended. I fail to understand the assumption that when two old dogs woof at each other, there must be offense involved, and not simply enthusiastic discussion.

You don't seem to see anything objectionable about ascribing base motives (or just motives) to people you disagree with, but very much object to having less than noble motives ascribed to the WSJ or yourself.

Once again, we're not communicating. What I objected to was your objection to ascribing motive followed by your doing exactly that vis-a-vis the WSJ. That I missed your jape is just another such failure to communicate.

I have no problem ascribing motives or having them ascribed to me. I think motive assessment is entirely appropriate--it's a method by which we form a framework for predicting future behavior.

Back to the original discussion: my view of Romney waffling centers on this: at t0, a Romney adviser says "it's a penalty." At t1, Romney says he accepts the Court's ruling that it's a tax as dispositive and he accepts it: Well, I said that I agreed with the dissent, and the dissent made it very clear that they felt it was unconstitutional. But the dissent lost. It's in the minority. And so now the Supreme Court has spoken. We obviously attach different interpretations to that statement.

If you're applying 2) to me, it's your strawman; you defend it. None of my argument--misunderstandings and all--ever addressed the WSJ. If you're not applying 2) to me, then there's no strawman.

Eric Hines

Posted by: E Hines at July 7, 2012 01:22 PM

I'm better at commercial and bankruptcy law than at Con law, but here's my understanding. For purposes of the Spending Clause, the term "tax" includes what we normally call taxes as well as what we normally call penalties, as long as they're collected via the I.R.S. For many other purposes, we sharply distinguish between the two. For instance, taxes get a very high priority and preferential treatment in bankruptcy, but if Congress calls something a tax and the courts think it's really a penalty, it gets heavily subordinated to other creditors' claims. Penalties are generally disfavored under other areas of law as well, especially an area in which equitable principles are emphasized (which includes bankruptcy).

Unfortunately, the distinction between taxes and penalties has been getting fuzzier every year, as we move more into a system in which taxes are expected to influence behavior rather than to raise revenue. I'd like to see Congress's ability to use taxes as social engineering tools drastically cut back.

Posted by: Texan99 at July 7, 2012 05:58 PM

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