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it is pictures rather than propositions, metaphors rather than statements, which determine most of our philosophical convictions
–Richard Rorty, Philosophy and the Mirror of Nature

Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.
Benjamin Cardozo

We exist in a free marketplace of ideas, or so we might say. The Supreme Court’s recent opinion on Citizens United v. the Federal Election Commission sought to protect that marketplace by curbing regulations on corporate spending on political speech. As the Court opined, these regulations constituted censorship, and “the censorship that we confront is vast in its reach.”

The majority opinion of Citizens United v. FEC has been framed in many ways. President Obama observed in his State of the Union, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.” Lawrence Lessig characterizes it as indicative of the progressive and now explicit capture of our elected institutions by corporate interests. And perhaps more sinister, Ronald Dworkin, writing for the New York Review of Books, speculates that the majority repositioned the case, accelerated its consideration, and designed the decision to aid the Republican party in the 2010 election season.

The Supreme Court’s majority countered that these concerns are moot to hysterical. Instead, they asserted that the proper function of the free marketplace of ideas relies on liquidity, and what better way to increase liquidity than to throw out the McCain-Feingold bill, undermine longstanding bans on direct campaign contributions that date back to 1907, and otherwise tear down the restrictions that had kept corporate spending in check. The free marketplace for ideas, after all, would yield the fittest through rude competition. The question before the court was only whether that marketplace was free. From there, the Roberts Court could presumably “call balls and strikes.” Read the rest of this entry »

Tomorrow, starting tomorrow, we are going to pick Trenton up and we are going to turn it upside down

Chris Christie

The same focus I put on the issues they were concerned about four years ago, I will put on property taxes and auto insurance because those things are too high and we need to get them under control.

Christine Todd Whitman, the last republican governor that focused on property taxes [NYT: JENNIFER PRESTON; Friday, October 24, 1997]

This link has led to the fear that the Whitman tax cut would simply result in a dollar-for-dollar rise in local property taxes, thus negating any savings that taxpayers might realize.

Tim Goodspeed, November 1997, Manhattan Institute Report, considering the link between state income tax, property tax, and school funding. Goodspeed remarks on the potential for Whitman’s income tax cuts to lead to a corresponding increase in property taxes. Because 80% of income tax revenue would go to school districts,  and 20% would go to municipal aid and the homestead rebate, a decline in income taxes could yield a corresponding increase in property taxes to maintain funding across each of these budget items: schools; municipalities; and homestead rebates.

Goodspeed goes on to suggest that the flypaper effect would mitigate increases in property taxes, and the early reports were great. Jim Saxton said, in a report to congress,

A recent study by two economists from the Manhattan Institute, Timothy Goodspeed and Peter Salins, shows that most New Jersey localities did not raise property taxes after the Whitman tax cuts. A few localities raised taxes. On average, for every dollar cut in state income taxes, local taxes rose by only twenty-two cents. A typical household saved over $200 per year in state taxes. Households still witnessed a net tax cut of $156 dollars. The well-being of the New Jersey family is that much better by controlling more of their own resources.

Nonetheless, Goodspeed’s report does assent that “higher income districts…tended to raise their property taxes by more than other districts after the Whitman tax cuts,” which would account for the few localities that raised taxes. As we now know, these were soon followed by increases across the board, belying the flypaper effect.

GOV. CHRISTINE TODD WHITMAN: Yes, property taxes are going up, but that’s a function of local spending. It is not inexorably linked to the income tax, which is what everybody wants to make it seem. When my predecessor raised taxes $2.8 billion and put $1.5 billion directly into the school districts, through the Quality Education Act, property taxes still went up.

MAN ON STREET: The fact is that income tax cut only lowered our income tax by a miniscule amount, and in order to make up for the difference for the school budgets and whatever the townships need, everybody had to get a raise in their property taxes. My property taxes in the township I live in went up 14 percent, which equated to about, uh, $475 this year, because of the fact that she cut our income tax or gave us a reduction.

PBS News Hour: Interview with Whitman and others, November 1996

Real reform is going to require really tough choices at the local level. Our citizens should be asking why New Jersey, the most densely populated state in the country, spends more than any other state to bus a child to school. Citizens should ask, ‘Does New Jersey really need 1,600 separate units of local government?’

Whitman, in a speech to lawmakers on January 26, 1999, intimates that the structural issue behind property taxes resides at the municipal level. Nonetheless, she outlined an aggressive spending plan that did little to lower property taxes aside from introducing rebates. Assembly Speaker Jack Collins, a republican from Salem County, called it “a Christmas budget…Everyone should be happy with it. I think that it touched on every segment of our society: education, crime, the elderly and tax relief. I think it should be getting bipartisan support.” Democrats, on the other hand, remained concerned, and the democratic assembly leader, Joseph Doria of Hudson County observed, “New Jersey residents will still be the most highly burdened taxpayers in the country.” Whitman, however, continued to push the property tax issue from the state to the local level, which meant asking 566 cities and towns, 21 counties, 188 fire districts, and 611 school districts to sit down and sort it out — good luck with that.

Taxes in New Jersey represent 1.74% of a home’s value, compared with the national median of 1 percent. Essex county carries the fifth highest tax burden per a person, nationally. Westchester comes in first, with Putnam County, NY [oddly] coming in at number 10.

Tax Foundation, 2009 report

George Will rightly takes Yosi Sergant, the NEA, and an August 10th conference call to task for politicizing the NEA. It perhaps signals an exhaustion with the Bush Administration’s attempts to do the same throughout the judicial system and provides an example to be avoided. Will, however, hitches to his complaint one unlikely carriage – a plea for no state funding of art.

Will’s argument goes something like this. Because “art is whatever an artist says it is, and an artist is whoever produces art,” Will imagines the Obama Administration certifying individuals artists on the basis of their politics and, more important, their ability to convey a political message. The NEA would be the ultimate propaganda vehicle. Its directors could recruit an army of “taste-makers” and “artists” to advance Obama’s politics on American culture under the banner of art. Will’s solution: no more art.

Would it were so easy.

There are several problems with Will’s argument, starting with his definition of art. Will is right to point out the controversy around defining art, but does it therefore follow that “almost everything” is art, just as a matter of one saying so? No. I might say something is art, and it may be hard to change my mind, but that doesn’t mean I have changed the mind of anyone else. And so, an artist might say something is art, but they might suffer a similar inability to convince anyone. Likewise, does that mean the NEA can come forward and decree what art is and art is not? It certainly could, but would it matter? Not at all, and it doesn’t mean art is “a classification so capacious it does not classify.” It just means that art is sometimes hard to pin down.

The Justice Potter test provides a simple and more meaningful alternative to defining art. Potter was asked for the definition of pornography – not exactly art, but a concept faced with a similarly perplexing resistance to definition. Potter avoided a specific answer and responded, “I know it when I see it.” Applied to art, Potter’s test claims that in many cases there is a clear distinction between what is art and what is not, but one should expect to be surprised. Somethings that look like art are not, and somethings that look like they couldn’t be art are. In most cases, it’s clear, but on the margin, it can get pretty controversial. And by the way, this isn’t unique to art. We find this phenomenon throughout any subject of judgement, such as the application of law. Will mistakes these controversies on the margin for the whole enterprise.

Administering NEA grants, therefore, is necessarily controversial, but it’s not a vehicle for propaganda manned by lobbyists directed by a political class. The NEA awards grants for art. In many cases, it’s clear what qualifies as art, but in some, on the margin, it’s just plain surprising. And there’s nothing wrong, let alone political, with that. Sometimes they’ll get it wrong, and sometimes they’ll find they’ve gotten right. We have to accept that it will be, at times, controversial, but that doesn’t mean there’s a conspiracy.

Which leaves Will’s final point: why are we even subsidizing art? Our only rationale, according to Will, is “art is a Good Thing, therefore public spending on it is a Good Deed.” He goes on to suggest that one realize the absurdity by replacing the word art with “surfing” or “religion” and recognize that subsidizing art is not much different than subsidizing corn, but “at least we know what that is.”

But is this ad-libs approach to reasoning appropriate? We’re not talking about surfing or religion or corn. We’re talking about culture, civilization, and our enlightened ambition to advance humanity. We’re talking about art, though perhaps, on the margin, surfing and corn.

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