Healthcare: Appeals Court Agrees That “Fair Share” Plans are Not Legal Under Existing Law

By Carroll Andrew Morse | January 18, 2007 |
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It’s been a few months since I’ve written about it…
Yet it’s back in the news…
And it’s important, with impact on a major policy debate…
So humor me, and pretend that it’s an exciting topic…
With this introduction…
Loyal Anchor Rising readers will know…
That it can only be…
[Dramatic pause]…
[Unorthodoxly long dramatic pause now bordering on campy]….
ERISA — The Employee Retirement Income Security Act of 1974!!!!
The Fourth Circuit Court of Appeals has upheld a July lower court ruling striking down Maryland’s “fair share” health coverage law as illegal under the aforementioned Federal ERISA law. Fair share laws are state mandates requiring large companies either to provide health insurance to their employees or pay an additional payroll tax used to fund a state-managed healthcare plan. The courts agreed (as they always have) that the ERISA statute prevents states from regulating employer-provided benefits – any benefits, healthcare included — any more stringently than the Federal government does.
The strikedown of the Maryland law may have immediate consequences beyond Maryland, potentially ripping the heart out of Governor Arnold Schwarzenegger’s universal healthcare proposal for California. Without the tax on employers, the additional tax-increases on doctors and hospitals proposed in the California plan probably won’t be enough to pay for it. (By the way, I haven’t yet seen a satisfactory explanation of why ERISA doesn’t also doom Mitt Romney’s universal coverage plan for Massachusetts.)
In its coverage of the ruling, the New York Times mentions an interesting alternative to “fair share” laws that may have some cross-ideological appeal, because (at least in theory) it helps separate health care choices from employment…

Maryland lawmakers may also choose to rewrite the law, using an approach upheld in several other states that requires companies with uninsured workers to pay them higher wages that can be used for health care premiums, said Paul Sonn, deputy director of the Brennan Center for Justice at New York University School of Law and an expert on fair share health care legislation.
I’d be interested to know if the law in these other states requires employers to pay their employees only what would have been spent on health insurance, of if it requires the pay increase to be enough to pay for an individual health insurance policy, which would be substantially larger. If the second case is true, then this is less a reform proposal than it is a backdoor attempt to force everyone into (and thus continue) America’s strange system of employment based health coverage. That would be a bad thing, as it would retard the building momentum for decoupling health insurance from the workplace.

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Observation of an RI Naif

By Justin Katz | January 15, 2007 |
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I don’t know whether it was something that he’d recently read or a memory sparked by something that I said, but during a telephone conversation with my Jersey Boy father last night, he said (paraphrasing), “Rhode Island is essentially a playground for the rich, and the rich don’t need a middle class.” The point being, I suppose, that circumstances in this state will have to go beyond intolerable — beyond the point at which any rational citizenry would insist on change — before change will even be conceivable.
The frightening thing is that the few native Rhode Islanders with whom I was able to share the commentary today replied, “Sounds about right.”
Not surprisingly, the context for my father’s explication was my continued interest in staying in this state. My reply, when whittled down to its essence, was that I find a certain attraction to contributing to the thorn, the buzz, the hiss, the whiff of truth that this playground comes at an unacceptable cost.

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Remembering Dr. King

By Marc Comtois | January 15, 2007 |
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mlk.jpg

In remembrance of Dr. Martin Luther King, Jr., take some time to read his “I Have a Dream” speech. Also, there are quite a few pieces extolling the inherent conservatism (and Republicanism) of Dr. King. For instance, the Heritage Foundation held a lecture in 1993 concerning “The Conservative Virtues of Dr. Martin Luther King” and posted a piece about “Martin Luther King’s Conservative Legacy” last year. Then there is a new piece by Francis Rice explaining “Why Martin Luther King Was Republican.” Finally, Andrew Busch responds to some criticism he received on an earlier piece he had written on Dr. King and Conservatism.
I suppose it could appear as if I’m overly-politicizing here. Yet, my intention is to present the conservative viewpoint on Dr. King in hopes of showing that he did indeed speak to–and for–all Americans.

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What Conservatives Ought to Explain to Working Families About Minimum Wages

By Justin Katz | January 14, 2007 |
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Although I can’t recall any particular instances of his using it, except when helping me with my homework, I associate the phrase “think it through” with my father. It has always seemed, I suppose, to summarize a particular approach to the world — almost a philosophy — that he emphasizes.
Not to leap too quickly from general philosophy to economic specificity, but the phrase comes to mind now because I wish people would apply the principle to the issue of the minimum wage, which is in the news of late. The most recent example in the media is the accusation of Nancy Pelosi’s hypocrisy, upon the House of Representatives’ voting to raise the minimum wage from $5.15 to $7.25 per hour (or about 41%). Not to single him out, but in a comment to Marc’s post on that story, Scott Bill Hirst writes:

I support an increase in the minimum wage. … I do not believe the GOP needs to be a puppet of organized labor but it needs to reach out to working class Americans more. Serious issues of affordable health care and affordable housing are issues that put great financial pressures on Rhode Island households and need to be adequately addressed in our state.
I am still a Republican and Republicans need to facilitate addressing their positions on these issues. We need to look at imports and the respective policies of those countries on how they treat labor.

“Thinking through” the minimum wage brings to the fore the superficial, cynical, and injurious nature of this sort of “reaching out.” As I noted in the comments, conservatives and Republicans ought to concentrate on explaining to working families that market forces confound efforts to force-raise wages, often to the detriment of those ostensibly intended to benefit.
Businesses Will Do as Business Requires
First consider the issue from employers’ perspective: a business that suddenly finds itself having to pay 41% more for low-end, unskilled labor will have to find that money somewhere else in the budget. In the fantasy land of progressives, perhaps companies would shift resources from the higher ends of their payrolls, but in the real world, isolated excesses aside, those jobs pay better for a reason. More likely, companies will decrease their low-end employment, shifting their tasks either up the pay scale or to technology.
They will also increase their prices. Doing so may push smaller companies past the threshold of being able to compete, ceding the field to category killers (such as Home Depot) that bring economy of scale to their business models. In industries with captive customer bases (e.g., retail), these companies can pass increased costs on to consumers almost as a matter of course. In other words, the cost of goods — often essentials — will go up for everybody, including those at the minimum wage, as well as those who were just barely getting by before. In industries that aren’t as tied to particular locations (e.g., high tech), companies that raise their prices too high will lose their ability to compete with firms elsewhere or will have to move elsewhere, themselves.
So, to sum up the effects of aggressive minimum wage hikes from the employers’ point of view:

  1. Fewer employees at the low end of the pay scale
  2. Additional work for those higher up the pay scale
  3. Higher prices
  4. Fewer small companies
  5. Fewer big companies operating locally

Workers Will Go Where the Money Is
To consider the issue from the perspective of employees, I’ll draw from my own experience of jobs that required roughly the same level of prior experience (i.e., very little), estimating current pay ranges:

  • Music store clerk: very simple, low stress, few discomforts, no danger, not strenuous, $5.30–6.50
  • Laborer in seafood retail: very simple, low stress, moderate discomforts, low danger, strenuous, $7.00–9.00
  • Laborer in construction: very simple, moderate stress, significant discomforts, high danger, strenuous, $10.00–12.00

(Note that these pay ranges are purely for argument’s sake; they don’t have to be but so accurate.)
Although I’m simplifying the dynamic involved, there are direct and clear reasons that each form of low-end work has to, or can get away with, paying employees at the relevant rate. Jobs that are more difficult, dangerous, and strenuous have to pay better to attract employees from jobs that are more comfortable. If the music store must now pay employees $7.25 to hang out and watch the register, then the seafood store is going to have to up the ante to find laborers. If the seafood store breaks the $10.00 mark, the construction company is going to have to maintain the margin of remuneration. If laborers approach the wages of carpenter’s helpers, then they aren’t going to want to begin investing in tools and attention unless that rung moves higher, too, and if carpenter’s helpers begin earning at a rate similar to carpenters, then the latter aren’t going to take on more responsibility. And so on and so forth, throughout the economy.
Thus, costs rise for companies throughout the pay scale, and prices inflate to cover them. Plainly put, the pay scale just shifts, without an increase in the buying power of anybody involved. And in a globalized economy — with technology always threatening to replace human workers, if there’s sufficient incentive for companies to invest in it — it shifts toward a ledge of layoffs and bankruptcies.
A Wage to Die By
In New England, government-types have been toying with the more insidious idea of a “living wage,” which, in Norwalk, CT, means “115% of the poverty threshold for a family of four,” currently $11.05 (via RIFuture). In Providence, the heated debate is over $11.97 per hour (or $10.19 with healthcare). I use the word “insidious” for four reasons:

  1. The idea that salaries should be determined starting with the worker, rather than the work to be done, while sounding like a compassionate approach, takes no account of the market forces that have made capitalism such a powerful system — and a force for good. We might as well just divvy up the nation’s capital and allow people to do whatever work they want (except jobs that nobody wants, and we’ll, I don’t know, take turns at those), which everybody except deluded socialists understands to be an unworkable fantasy. The first indication that this is true is that any sort of “living wage” proposal is necessarily so unrealistically above the current minimum wage.
  2. The formula for determining a “living wage” carries implicit social engineering. Just the idea that a single 40 hour per week should be forced to be sufficient for a “family of four” brushes away layers of social and cultural input and creates incentives that are deleterious to social and cultural well-being. The incentives emphasize the single person. If a single person can, working even the lowest-level job, earn at the rate that a family of four needs, then there will be fewer families of four. There will be less motivation to form marital unions, and the motivation for advancement that a family naturally provides will begin to seep from our society. Alternately or simultaneously, the policy will create a perpetual inflation machine, as the prices of goods and services increase in response to what families will initially see as disposable income.
  3. These proposals (being unrealistic for a realm in which market forces apply) tend to focus on employees of the government or organizations that do business with the government. And when the government has to come up with more money, it doesn’t raise prices in the hope that customers will still find its deals attractive; governments raise taxes, taking the money they need by force of the law, taking from those who make the minimum wage in the private sphere as well as those who were just barely getting by before. As far as organizations that do business with the government are concerned, mandating pay rates that simply won’t work in the private sphere creates bifurcated industries, in which the majority of companies are locked out of government work, while the smaller playing field and limitless revenue flow keep the prices that the taxpayers dish out absurdly high.
  4. Giving government industry such an imbalanced edge in the job market drains the private sector — the home of entrepreneurship and innovation — of talent, often (I’d say) luring those who might make the greatest contributions, given the push of necessity, into a static complacency.

The Conservative’s Advice
Something is clearly wrong when we’ve reached the point of treating the government more as an employer than as a shared resource. There are activities that government structures are best positioned to undertake; driving the economy is not one of them. Neither is micromanaging employment relationships.
Well-intentioned people who want to help working families — as opposed to “reaching out” to them — should be able to discern, while considering the likely effects of forcing up the minimum wage, the place in which influence would best be applied: getting them past that low-end, clerk/laborer slot by opening up opportunities, not other people’s wallets. I’ve gone on too long to explore them, here, but two areas for action toward that end are education and entrepreneurship, with the emphasis on the latter.
One difficulty with education, as a means toward broad social advancement, is that it will tend to mean advancement across industries. The college-educated laborer will not be inclined to return to the construction site and will not generally recoup his investment of time and money if he does. In contrast, manipulating government policies in such a way as to encourage small businesses — making the leap from employee to business owner more plausible in a world of Big Box stores, category killers, and multinational corporations — would harness Americans’ natural drive to succeed and make every ground-floor job in every industry just a first step in each worker’s quest to increase his or her own minimum wage.
ADDENDUM:
For more on the living wage movement, see this May 2006 post by Don Hawthorne.

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Alas, Block Island is Too Close (and Probably Too Expensive) For a Shot at International Glory

By Carroll Andrew Morse | January 13, 2007 |
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I know this kind of thing happens in James Bond movies, albeit usually involving more ambitious goals, but I didn’t think it could happen in real life (h/t Drudge)…

Swedish file-sharing website The Pirate Bay is planning to buy its own nation in an attempt to circumvent international copyright laws.
The group has set up a campaign to raise money to buy Sealand, a former British naval platform in the North Sea that has been designated a ‘micronation’, and claims to be outside the jurisdiction of the UK or any other country….
The “island” of Sealand, seven miles off the coast of southern England, was settled in 1967 by an English major, Paddy Roy Bates. Bates proclaimed Sealand a state, issuing passports and gold and silver Sealand dollars and declaring himself Prince Roy.
When the British Royal Navy tried to evict Prince Roy in 1968, a judge ruled that the platform was outside British territorial waters and therefore beyond government control.
The British government subsequently extended its territorial waters from three to twelve nautical miles from the coast, which would include Sealand, but Prince Roy simultaneously extended Sealand’s waters, claimed that this guaranteed Sealand’s sovereignty.
I hope this doesn’t give anyone in Rhode Island strange new ideas for siting a casino…

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RE:Should Democrats be Criticized for their No-Plan Iraq Plan?

By Marc Comtois | January 12, 2007 |
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Of course, as Linda Chavez points out, there was a time when they did have a plan for staying, too:

Democrats were early to recognize the threat of sectarian violence in Iraq and have consistently been skeptical of democracy taking hold in Iraq in an atmosphere of uncontrolled violence. For much of the war, prominent Democrats were in the forefront of arguing we needed more troops in Iraq, and the president was the one resisting, claiming that his generals assured him they had the resources they needed.
When he was the Democratic nominee for president in 2004, Sen. John Kerry, D-Mass., told USA Today, “If it requires more troops in order to create the stability that eliminates the chaos . . . that’s what we have to do.”
Sen. Hillary Clinton, D-N.Y., went even further. “A number of us have been sounding this alarm. We have to face the fact we need a larger active-duty military,” she told the Fox News Channel in May 2004.
Sen. Joe Biden, D-Del., began calling for more troops in 2003 — and he argued that we would need to stay in Iraq for several years. In April 2004, Sen. Biden told Jim Lehrer on PBS, “We don’t have enough troops there.” And he argued, “It’s going to take at least three years to train up an Iraqi police force, it’s going to take that long or longer to train an Iraqi army. The truth of the matter is there is no security but U.S. security, a few Brits, a few Spaniards and a few Poles. It is the United States of America.”
So why have the Democrats suddenly changed their tune?

So now that the President has asked for more troops, these same Democrats are opposed. Why? I think we know, don’t we?

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Pelosi: Raise the Minimum Wage! (Er, Except if it Affects a Company in my District)

By Marc Comtois | January 12, 2007 |
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Heh. Something fishy is going on:

House Republicans yesterday declared “something fishy” about the major tuna company in House Speaker Nancy Pelosi’s San Francisco district being exempted from the minimum-wage increase that Democrats approved this week.
“I am shocked,” said Rep. Eric Cantor, Virginia Republican and his party’s chief deputy whip, noting that Mrs. Pelosi campaigned heavily on promises of honest government. “Now we find out that she is exempting hometown companies from minimum wage. This is exactly the hypocrisy and double talk that we have come to expect from the Democrats.”
…The bill also extends for the first time the federal minimum wage to the U.S. territory of the Northern Mariana Islands. However, it exempts American Samoa, another Pacific island territory that would become the only U.S. territory not subject to federal minimum-wage laws.
One of the biggest opponents of the federal minimum wage in Samoa is StarKist Tuna, which owns one of the two packing plants that together employ more than 5,000 Samoans, or nearly 75 percent of the island’s work force. StarKist’s parent company, Del Monte Corp., has headquarters in San Francisco, which is represented by Mrs. Pelosi. The other plant belongs to California-based Chicken of the Sea.
“There’s something fishy going on here,” said Rep. Patrick T. McHenry, North Carolina Republican….A spokeswoman for Mrs. Pelosi said Wednesday that the speaker has not been lobbied in any way by StarKist or Del Monte.

Yes, it’s all just one big coincidence!!!
And golly gee, I was quite surprised to discover that this was missed by those who were going to be “holding the Dems accountable” and wouldn’t just “monitor” (cheerlead) them as new bills went through the House and Senate. (Well, maybe they’ll get around to it eventually). To help ’em along, perhaps they should also read this from the Saipan Tribune:

Democrats have long tried to pull the Northern Marianas under the umbrella of U.S. labor law, accusing the island’s government and its industry leaders of coddling sweatshops and turning a blind eye to forced abortions and indentured servitude.
Samoa has escaped such notoriety, and its low-wage canneries have a protector of a different political stripe, Democratic delegate Eni F.H. Faleomavaega, whose campaign coffers have been well stocked by the tuna industry that virtually runs his island’s economy.

Faleomavaega has long made it clear he did not believe his island’s economy could handle the federal minimum wage, issuing statements of sympathy for a Samoan tuna industry competing with South American and Asian canneries paying workers about 67 cents an hour.
The message got through to House Education and Labor Committee Chairman George Miller, D-Calif., the author of the minimum wage bill who included the Marianas but not Samoa, according to committee aides. The aides said the Samoan economy does not have the diversity and vibrance to handle the mainland’s minimum wage, nor does the island have anything like the labor rights abuses Miller claims of the Marianas…
…But in American Samoa the tuna industry rules the roost. Canneries employ nearly 5,000 workers on the island, or 40 percent of the work force, paying on average $3.60 an hour, compared to $7.99 an hour for Samoan government employees. Samoan minimum wage rates are set by federal industry committees, which visit the island every two years…
When StarKist lobbied in the past to prevent small minimum wage hikes, Faleomavaega denounced the efforts.
“StarKist is a billion dollar a year company,” he said after a 2003 meeting with StarKist and Del Monte executives. “It is not fair to pay a corporate executive $65 million a year while a cannery work only makes $3.60 per hour.”
But after the same meeting, Faleomavaega said he understood that the Samoan canneries were facing severe wage competition from South American and Asian competitors.
Department of Interior testimony last year before the Senate noted that canneries in Thailand and the Philippines were paying their workers about 67 cents an hour. If the canneries left American Samoa en masse, the impact would be devastating, leaving Samoans wards of the federal welfare state, warned David Cohen, deputy assistant secretary of the interior for insular affairs.{emphasis added)

Faleomavaega understands that it makes economic sense to pay a lower wage and keep all of those jobs on his island instead of forcing a higher wage on employers who may then move the jobs elsewhere. I guess “sweat shops” aren’t “sweat shops” when “market forces” are just too strong to impose a higher minimum wage in a Democrat’s district.
Yup, this looks exactly like the sort of hypocrisy they claimed they’d be on the lookout for. Can’t wait to see ’em in action!

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Should Democrats be Criticized for their No-Plan Iraq Plan?

By Carroll Andrew Morse | January 12, 2007 |
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Garance Franke-Ruta of the American Prospect’s weblog misunderstands David BrooksNew York Times column on the Iraq surge. Here’s Ms. Franke-Ruta’s criticism of Brooks first…

I had to read this column a couple of times before I could get what exactly David Brooks was trying to say, but as far as I can make out he’s mad at the Democrats for not having yet figured out a way to save America from Bush’s lies and folly, despite the fact that the president ignores everything they and many members of his own party say. Brooks is also mad at Democrats for not coming up with a strategy for staying in Iraq that’s different from the president’s strategy for staying in Iraq, when that’s not, in fact, what they want to do.
But Brooks does not criticize Democrats for not coming up with an alternative plan for staying, he criticizes them for not presenting a convincing plan for withdrawing
The liberals who favor quick exit never grappled with the consequences of that policy, which the Baker-Hamilton commission terrifyingly described. The centrists who believe in gradual withdrawal never explained why that wouldn’t be like pulling a tooth slowly. Sen. Joe Biden, who has the most intellectually serious framework for dealing with Iraq, was busy Wednesday, at the crucial decision-making moment, conducting preliminary fact-finding hearings, complete with forays into Iraqi history.
But the case for withdrawal is prima facie convincing, you say? Then why haven’t the Democrats convinced themselves of it yet? If withdrawing from Iraq is what the Democrats want to do, as Ms. Franke-Ruta implies, then why haven’t they re-introduced the Kerry or Reed-Levin amendments or, even more directly, rescinded the authorization to use military force in Iraq, now that they control the Congress?
It is fair to characterize the position of many anti-war Democrats within government as wanting to create conditions that will force the US to surrender in Iraq, but take no responsibility for it, and that is the position that is bothering David Brooks.

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RE: House Dems Like Earmark Reform. Senate Dems? Not so much…

By Carroll Andrew Morse | January 12, 2007 |
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Here are few notes on Marc’s earlier post on Senate Democrats trying to kill the earmark reforms passed by the House of Representatives. Rhode Island Senators Jack Reed and Sheldon Whitehouse both voted against the reform package.
It appears that Senator Whitehouse, as feared, sees himself less as a representative of the views of ordinary Rhode Islanders, and more as a Rhode Islander whose job is to go-along-to-get along with the elite governing culture in Washington D.C.
Senators James Webb and John Tester voted in favor of serious earmark reform, so the vote was not simply a matter of freshmen Senators having to obey the established party leadership. Maybe there really is something to the idea of the new Democrats being more conservative than the old-guard of the party. And if I wasn’t voluntarily embargoing any commentary about the 2008 Presidential election until June, I would note that Barack Obama voted in favor of earmark reform, while Hillary Clinton did not. (New Democrats being more conservative than old-line leadership again?)
UPDATE:
The strong version of earmark reform has been approved, so the paragraph below no longer applies. Details available in Marc’s post immediately below.
{Be aware: the new disclosure rules have not passed the Senate yet; the vote taken yesterday was only on whether to table a final vote on the reform or not. Democratic Majority leader Harry Reid is going to try to offer an alternative proposal, which according to Senator Tom Coburn (via the Associated Press), would have required full disclosure on only 534 of the 12,852 earmarks in Senate bills last year.}

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House Dems Like Earmark Reform. Senate Dems? Not so much…

By Marc Comtois | January 12, 2007 |
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Ah yes, see how much has changed! Looks like the House Democrats earmark reform bill is being supported by most Senate Republicans and a few Democrats….but the heartiest opposition is being put up by Sen. Majority Leader Harry Reid (via Glenn Reynolds). TPM Muckraker has one report and Andy Roth at the Club For Growth kept a running commentary on the goings on. Roth also posted a follow-up, which included this bit:

Senator Jim DeMint offered strong reform to the most egregious spending abuses in Congress-a proposal that was sponsored by Speaker Nancy Pelosi and that passed the House just last week. After trying, and failing, to kill the DeMint proposal, Senate Majority Leader Harry Reid, Senator Ted Kennedy and other Democrats used stall tactics to delay a final vote. Ultimately, the Senate was forced to postpone it.

I had heard that some local “new media” outlets sympathetic to the Democrats were starting up some countdown or something to track all of the “change” that was going to happen. (Funny, I checked them out and haven’t seen anything about this yet. Maybe they’ll get around to it. That is, of course, once they work out how to frame it as a positive for “their side.”)
Which gives me an opportunity to offer a little advice for those new to the porkbusting/earmark reform movement in particular. You’re either “all in” by going after anyone of either party who is a roadblock to said reform or you’re not “in” at all. That means that you really, truly have to hold people accountable, even if, you know, you really, really like them, and all. So, yes, you actually have to put the pom-poms down every once in a while and throw a “boo” and “hiss” their way. Or you can just keep being a Party cheerleader.
Then, of course, maybe some Democrats supported earmark reform only because it was the GOP running Congress, right? Nah…..couldn’t be that.
UPDATE: Looks like Senator Reid has acquiesced (via CFG quoting a Congressional Quarterly $$ article):

After losing a critical floor vote Thursday and scrambling in vain to reverse the decision, Senate Majority Leader Harry Reid, D-Nev., found the spirit of bipartisan compromise more to his liking Friday morning.
Reid offered an olive branch to Sen. Jim DeMint, R-S.C., agreeing to embrace his amendment to a pending ethics and lobbying overhaul (S 1) with some modifications. DeMint’s amendment, which Democratic leaders tried but failed to kill on Thursday, would expand the definition of member earmarks that would be subject to new disclosure rules.
[…] Reid admitted Friday that he was caught off guard when nine Democrats and independent Joseph I. Lieberman voted against his motion to table, or kill, the DeMint amendment. His effort failed, 46-51.
[…] Friday morning, a chastened Reid said, “Yesterday was a rather difficult day, as some days are. We tend to get in a hurry around here sometimes when we shouldn’t be. Personally, for the majority, we probably could have done a little better job.”
DeMint, who was flabbergasted Thursday by Reid’s maneuvering to change the outcome of the vote, was happy to accept the compromise Friday.
“DeMint has been happy to work to come to a bipartisan compromise that solidifies the reforms done by [Speaker Nancy] Pelosi [D-Calif.] and House Democrats,” said DeMint spokesman Wesley Denton.

Congrats to those on the left, right and center who held Reid’s feet to the fire. Maybe next time, when such hypocrisy becomes readily apparent, even more folks from across the political spectrum will chime in!

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