Occasional comments about business and politics in Portland, Oregon, mixed in with stories from our city's colorful if not always compliant past.
"The more pity, that fools may not speak wisely what wise men do foolishly." -- Touchstone
As long as the House of Representatives doesn't want the government to work because a majority of the House members believe the government is too large, I'd like to revive my suggestion of two years ago that Congress reduce the size of the House by a meaningful percentage, let's say by a quarter, so that the House would have 325 members instead of the present 435. Each of the remaining members would represent about 1 million constituents and could boast about becoming 33% more productive. The savings in cost would be modest -- Congress isn't a big part of the federal budget -- but it would be a good symbolic move. The savings would allow the government to reopen the Panda Cam and several of our national parks, good places for the newly retired Congresspeople to go and chill out.
It's instructive to compare the reaction of the other county commissioners to Jeff Cogen's affair with the impeachment of President Clinton. Both involved a leader having a consensual affair with an indirect subordinate who worked in the White House, though Mr. Clinton was impeached not for his involvement with Monica Lewinsky but for lying about it under oath. A mostly party-line vote in the Senate acquitted Mr. Clinton, with the Democrats arguing that Mr. Clinton's private involvement with a subordinate did not reflect on his fitness to hold office, and the Republicans maintaining that it did. One oddity of the current situation in Multnomah County is that the four other commissioners, all Democrats, want Mr. Cogen to resign for conduct eerily similar to President Clinton's. This implies that if they had been Senators in 1999 they would, under the same principles, have all voted to convict President Clinton and remove him from office. That's going to make for some interesting conversation if Hillary Clinton should ask for the commissioners' support in the 2016 presidential primary.
The Oregonian reports this afternoon that Portland City Commissioner Amanda Fritz has asked the same question I posed this morning: who at Multnomah County gave the order for Sonia Manhas to be fired? As written by Brad Schmidt: "Fritz declined to comment on Cogen's decision to reject calls from the Board of County Commissioners for his resignation. But Fritz did say the county should explain why Manhas was forced to resign Wednesday and who in the county pushed for it."
Who indeed pushed for Ms. Manhas to leave the county, making some say that the county has a double standard, one for women and one, much more lax, for men? I believe that with one exception, everyone above Ms. Manhas in the county hierarchy -- every one of the suspects -- is female: her supervisor, the county attorney, the deputy county attorney, and the four commissioners. Mr. Cogen himself is the lone exception, leading to the Homeric conclusion that unless Mr. Cogen himself ordered her to lose her job, Ms. Manhas became the victim of a double standard applied not by the male establishment, but by other women.
I followed this morning's hearing at Multnomah County with great interest. The commissioners listened to public testimony on a resolution, introduced by Judy Shiprack, that calls on county chair Jeff Cogen to resign because of his affair with Sonia Manhas, a manager in the county's public health department. Ms. Manhas has resigned her position, saying that unnamed county officials forced her to quit. The commissioners voted 4 to 1 for the resolution, with Mr. Cogen understandably voting against it.
One argument that Mr. Cogen's detractors are making is that since the other person in the affair was forced to resign over this issue, in fairness Mr. Cogen should resign also. Let's assume that unnamed county officials in fact forced Ms. Manhas to resign. Consider the possibilities.
First, Ms. Manhas may have violated county policies so egregiously that she deserved to be fired. In that case the question should be whether Mr. Cogen also violated county policies so egregiously that he should resign. The public evidence so far indicates that he didn't.
Second, Ms. Manhas may not have violated county policies sufficiently to merit being fired. In that case the question the commissioners should be asking is not whether Mr. Cogen should resign, but who at the county unjustly pushed Ms. Manhas out. The number of suspects is limited: the five commissioners, Ms. Manhas's supervisor, and the county attorney. It strikes me as very odd that the county has not disclosed who decided to fire Ms. Manhas.
Third, it's possible that Ms. Manhas did not tell the truth when she said that county officials forced her to resign, but in that case the county would have promptly denied her statement and said that she resigned of her own free will and not under pressure from her employer. The county hasn't said so, so I rule this out.
Thus, it's wrong to say "Ms. Manhas had to leave, so Mr. Cogen should also," unless both of them violated county policy to the same egregious degree. If the other commissioners believe that Ms. Manhas was unjustly terminated, then they should find out who ordered her to leave. There's time enough to look into what Mr. Cogen did.
I think people were saving up their scandals waiting for Professor Bogdanski to start his blog sabbatical, including perhaps the one involving Multnomah County chair Jeff Cogen and county health department manager Sonia Manhas, who had a workplace affair that recently ended. It's a story with all the elements of the genre: rising political star, attractive employee, out-of-town trips, flirtatious e-mails, and so on. The crescendo of disclosures led the Oregonian to call on Monday for Mr. Cogen to resign.
Much as I'd instinctively like to join the chorus to "throw the rascal out," I've been searching through all of the smoke looking for the fire, and I haven't found it. The suspicion that their relationship brought Ms. Manhas preferential treatment doesn't so far have any facts behind it. Her push to work two days a week in his office was an idea that Mr. Cogen said he liked, but so far as has been reported, did nothing to bring about. The only county money he expended on their affair, at least as reported so far, is $50 on a hotel room upgrade in Atlanta. (At that modest rate, one Rudy Crew is worth dozens of Jeff Cogens.) Notably absent from the smokestorm is any allegation that Mr. Cogen and Ms. Manhas broke a law or a county policy.
Mr. Cogen and Ms. Manhas have brought shame on themselves and embarrassment to his wife, her husband, and their children. But merely being the object of derision is not, even in politically correct Portland, a firing offense. I'd like to see Mr. Cogen stay in his job and let the voters judge him in the next election based on his performance in the boardroom. I do predict that he won't be going to many out-of-state conferences between now and then.
Last week I wrote about the Supreme Court's decision in United States v. Windsor, in which the Supreme Court held unconstitutional the provision of the Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman. Justice Kennedy, writing for the court majority, decided the case on federalism grounds: the definition of marriage has traditionally been left to the states, some states have defined marriage to be between one man and one woman, others have defined marriage to be between two adults without regard to gender, and it isn't really the federal government's business to impose its own definition of marriage that disqualifies certain state-recognized marriages from being recognized by the federal government. In the particular case, two female New York residents were legally married in Canada. After DOMA was adopted, New York passed al law that recognized same-sex marriages that were legal where made as being legal in New York. One spouse died and left her estate to Windsor, the surviving spouse. Windsor claimed the marital estate tax deduction, the IRS denied the deduction based on DOMA, and the Supreme Court eventually held that the one-man-one-woman portion of DOMA was unconstitutional. Rights that New York chose to recognize, Justice Kennedy wrote, could not be taken away by the federal government.
The same day, the Supreme Court issued its opinion in Hollingsworth v. Perry, the Proposition 8 case from California. The voters of California passed the Proposition 8 initiative, basically a mini-DOMA that forbade same-sex marriage in California. A same-sex couple challenged the initiative. The state declined to defend Proposition 8, and a federal trial court held that Proposition 8 unconstitutionally discriminated against same-sex couples. The chief petitioners of Proposition 8 asked to intervene in the case, on the ground that the state wasn't defending their initiative. The California supreme court said that under California law, the chief petitioners of an initiative have standing to defend their ballot measure if the government won't, and allowed them into the case. The petitioners appealed the trial decision to the court of appeals, which affirmed the trial court and held that Proposition 8 was unconstitutional. The petitioners then appealed to the Supreme Court. The Supreme Court vacated (cancelled) the decision of the court of appeals, holding that because the chief petitioners, who didn't want to marry persons of the same sex, would be in the same position whether Proposition 8 is upheld or struck down, they had no standing to defend the measure. Even though California law (the court said) gives the petitioners special standing to defend their measure, the federal government doesn't have to recognize the special rights that the state court grants. This, of course, is contrary to the Court's decision of a few minutes earlier, in which it insisted that the federal government must recognize rights granted by the state on matters of state concern, such as marriage; apparently in the Supreme Court's view state legislation is not as important to the states as marriage is.
The kicker comes in the clever way that Chief Justice Roberts, writing for the Hollingsworth majority, disposed of the case. If he and the Court had affirmed the ruling of the court of appeals, then it would be the law of the land that Proposition 8, and by extension similar measures in other states, are unconstitutional: that is, states could not constitutionally prohibit same-sex marriage. He didn't do that; instead, he and the Court vacated the Ninth Circuit ruling on the ground that the petitioners didn't have standing to defend Proposition 8, and therefore the Ninth Circuit should not have heard their appeal. That means that the Ninth Circuit's ruling that Proposition 8 is unconstitutional is not the law any more. The decision of the trial court is still in place, I think, but that decision applies only to California and doesn't bind any other state or federal court. That's pretty clever.
But wait -- there's more. The really clever, or possibly diabolical, thing is what will happen if the case gets back to the California federal trial court. Unlike when it heard Hollingsworth v. Perry several years ago, that court is now bound by the Supreme Court's decision in Windsor, which holds that as a matter of constitutional law, the states can regulate marraige and decide who can get married. (The Windsor court majority very carefully did not say that states were required to recognize same-sex marriages.) The upshot? The Windsor court in effect said that Proposition 8 is constitutional, and the Hollingsworth court kept the California decision from preventing the other 49 states from banning same-sex marriage.
Chief Justice Roberts pulled off an amazing bit of legal legerdemain: the result of the two victories for proponents of same-sex marriage is that 49 states can now constitutionally ban it.
Yesterday the Supreme Court issued its decisions in two cases connected with same-sex marriage, one involving a challenge to the Defense of Marriage Act (the Clinton administration's law that defined marriage, for all federal purposes, as between one man and one woman), and the other involving California's Proposition 8, a voter-approved initiative that defined marriage in California as between one man and one woman. The results of both cases will go down as landmarks, but the opinions themselves suggest that the Justices would benefit from some graduate courses in constitutional law and legal writing.
The first case, United States v. Windsor (opinion here, in PDF), is a tax case. Edith Windsor and Thea Spyer, both women and residents of New York, were married in Ontario, Canada in 2007, where same-sex marriage was legal. Ms. Spyer died in 2009 and left her entire estate to Ms. Windsor. Legacies to spouses are exempt from federal estate tax. Ms. Windsor paid $363,053 of estate tax and then sued for a refund, asserting that as Ms. Spyer's surviving spouse, the gift to her was exempt from the federal estate tax. The IRS asserted that under Section 3 of the Defense of Marriage Act, Ms. Windsor had not been married to Ms. Spyer within the meaning of the estate tax laws, even if New York considered them to have been married. A trial court held Section 3 unconstitutional and ordered a refund. The United States appealed, sort of, and the Second Circuit Court of Appeals upheld the District Court. The United States appealed that decision to the Supreme Court, sort of (I say "sort of" because in its appeal the United States asked the Supreme Court not to reverse the Second Circuit, but to affirm the decision and hold that Section 3 of DOMA was unconstitutional.)
In his opinion for the Windsor majority, Justice Kennedy gives a good analysis of whether the Court can hear the case at all: is there a real case or controversy if the United States and Ms. Windsor are advocating the same position? When he gets to the merits of the case, he wanders afield from the legal principles, and loses track of time. For instance, he describes New York's marriage law as follows:
By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples whowished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.
Justice Kennedy then continues:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. * * * The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
Justice Kennedy recognized earlier in his opinion, but forgot it here, that Congress passed DOMA before New York or any other state permitted same-sex marriage. That is, using his reasoning, DOMA sought to injure a class that didn't yet exist.
I predict that legal scholars will mostly celebrate the result of the Windsor case even as they tactfully gloss over the argument the Court used to get to that result. What saves Justice Kennedy's opinion from being considered bad (as a piece of legal writing) is that Justice Scalia's dissent is even worse. I'll have more to say about that in another post.
Forty-six United States senators voted today against a bill that would have required background checks on people who want to buy guns in the United States, including Lamar Alexander and Bob Corker, both Republicans from Tennessee.
In 2007, Senators Alexander and Corker sponsored legislation to denounce states that issue driver's licenses to aliens in this country unlawfully, saying that allowing illegal aliens to carry dirver's licenses presents a risk to our national security.
This leads to the delightful conclusion that Senators Alexander and Corker, and many others, trust illegal aliens with guns but not cars. They're apparently fine with undocumented immigrants going to the gun shows to buy guns as long as they take public transit to get there.
Here's an interesting question about contracts. TriMet is suing Clackamas County because the county commission is asking the voters to decide whether the county should give TriMet two pieces of property that TriMet says the county promised to give it. TriMet's position is that a contract is a contract, and Clackamas County needs to honor its promises to TriMet. At the same time, TriMet is asking Portland to chip in $2.1 million for the eastside streetcar (here's the city's proposed resolution), even though the 2010 contract between the city and TriMet called for the city to pay TriMet only $600,000, increased to $1.25 million in 2011.
Is a contract with TriMet binding? It depends on who's paying.