Senators Dick Durbin (D-IL) and Arlen Specter (R-PA) have introduced truly groundbreaking legislation that deals precisely with this issue.  The Fair Elections Now Act would replace a special-interest funded campaign system with one that is funded by both public funding and small-dollar donations.  By stripping candidates of the incentive to fall into the pockets of powerful special interests through the pursuit of large campaign donations, members of Congress would be free to pursue the interests of their constituents and focus on making sound policy judgments without the taint of a corruption-friendly system.  This is precisely what representative democracy is all about.

Lawrence Lessig has launched a Change Congress campaign that backs this legislation.  It seems to be gaining some ground and this bill, or some version of it, just might make it through Congress if enough people join the cause by pressuring their representatives to vote for it.

I usually have trouble taking a side on a particular issue since there are very few that are simply black or white.  But this is one of those things that is just so basic in its necessity that I can’t help but strongly support it.

The 2005 network neutrality principles outlined by the FCC are the heart of the hook attached to the stimulus bill.  These principles include four declarations that, on the their own, seem rather toothless.  According to the FCC, consumers are entitled to: (1) access the lawful content of their choice; (2) run applications and services of their choice, subject to the needs of law enforcement; (3) connect to their choice of legal devices that do not harm the network; and (4) competition among network providers, application and service providers, and content providers.  However, last year’s FCC decision in the Comcast dispute may end up demonstrating that these principles, and the FCC as a whole, do have some teeth.  Whether the FCC exceeded its authority in ruling against Comcast is still an issue on appeal and may eventually become the next landmark cyber/telecommunications law decision handed down by the Supreme Court.

What’s interesting about the fourth FCC principle outlined above is that it seems to cut in favor of those against network neutrality.  For instance, Christopher Yoo argues that leaving the issue to the market will lead to the emergence of providers that specialize in particularly high or low bandwidth traffic.  Thus, VoIP, online gaming, and video streaming might be provided by separate BSPs than those that simply provide access to traditional email and websites.  The higher bandwidth services may simply cease to exist under an aggressive form of net neutrality because providers would be unable to allocate the bandwidth necessary to effectively run the programs.

Perhaps what this demonstrates is that the FCC recognizes that articulating proper network neutrality rules is, much like anything, an exercise in balance.  As Timothy Wu points out, there is good and bad discrimination.  Good discrimination is allocating higher bandwidth applications the muscle they need to effectively exist.  Bad discrimination is blocking users’ ability to connect to lawful applications of their choice on the basis that such applications are competitors of another facet of a BSPs enterprise.  The former protects the market for these applications and incentivizes innovation in future technologies.  The latter does the exact opposite by giving BSPs such as Comcast monopolistic powers that serve only their own interests.

Another issue this raises is the FCC’s unclear ancillary jurisdiction.  After the Supreme Court decided National Cable & Telecommunications Association v. Brand X, the FCC was free to label cable internet as an “information service” rather than a “telecommunications service.”  This meant that cable internet providers were not subject to the more invasive regulatory schemes of the 1934 Telecommunications Act and gave the FCC a little more wiggle room under its ancillary jurisdiciton.  But do the strings attached to the broadband stimulus funds make those funds a little less appealing if you’re a BSP?  Would you take the bait if you were a BSP and subject yourself to uncertain future regulation?  The answer will surface in the weeks and months ahead.

Network neutrality proponents are likely feeling confident these days.  The FCC, both houses of Congress, and the President are currently all on their side and we seem to be heading toward a significant policy of net neutrality in the coming months and years.  If we do have neutrality rules, it seems best for them to stem from the FCC and not from Congress.  Technical decisions such as these are better suited for policy makers on the ground.  Yet the Internet’s fate may depend upon the future net neutrality rules that the FCC adopts.  The challenge is to balance the delicate interests and incentives that exist in the marketplace in order to ensure that BSPs, content providers, and end-users all obtain enough of what they want to keep the system running.

In a previous post, I argued that originalism as a method of constitutional interpretation can coexist with contemporary progressive values that are often held by those who oppose originalism.  To somewhat rearticulate my point, if we have a Constitution, we ought to treat it as such regardless of how inconvenient it may be in our pursuits of social change.  However, that does not mean we can’t address whether its provisions, while supreme and unyielding law, make normative sense in the 21st century.

Perhaps the biggest theme in the original Constitution is the principle of federalism.  While the Constitution lays out a framework for the operation of a federal government, it is in large part an exception (albeit a huge one) to the general proposition that power lies with the states.  States were originally free to govern as they saw fit so long as they did not offend “the supreme Law of the Land.”  Considering (1) the Bill of Rights were not at first binding upon the states, (2) the nature of early interstate commerce (the legal basis of contemporary federal legislation), and (3) the absence of the XIV Amendment, this gave states a whole lot of room to pass a wide range of laws.

But more than any other constitutional principle, American federalism has been almost radically transformed.  The Civil War and its aftermath led to the XIV Amendment, giving the federal government the power to enforce equal protection of the laws and apply the majority of the Bill of Rights to the states.  The New Deal redefined our understanding of “interstate commerce” and hugely expanded one of the few constitutional bases upon which Congress may act.  So while the original Constitution reserved the majority of power for the states, both the XIV Amendment and the Supreme Court’s expansion of “interstate commerce” carved a huge amount of that original power from the states and essentially handed it to the federal government.

Notwithstanding its transformation over the centuries, federalism remains a huge component in our constitutional scheme.  But if we were to start a Constitution from scratch today, how would principles of federalism fit in? Is federalism the best structure for governing a 21st century America?

My initial reaction is that I have no earthly clue.  My gut tells me that regionalism and state sovereignty were more sensitive issues back then given how much more we are interconnected these days.  The fear of a strong centralized government was also fresh in the minds of the founders.  The issue of slavery exacerbated conflicts of interests among the states and they refused to succumb to the idea of a federal government capable of imposing its will uniformly upon them.  The dynamic in those days was thus radically different.

But perhaps the way in which federalism has constitutionally expanded along side modernization is an accurate reflection of the balance needed in contemporary society.  Even if states were abolished, the federal government would need to govern locally and there are still unique attributes that accompany America’s localities that warrant different laws.  So is the question then whether we want the federal government making local law or separate state governments making local law?  How do either of these situations affect the way in which localities are governed?

These questions obviously raise an enormous amount of other issues, most of which I can’t think of.  One of them is whether Congress’s power to pass laws should be largely pinned to regulating interestate commerce.  It is so easy to cite interstate commerce as a justification for passing laws because virtually everything affects interstate commerce in the abstract.  The contemporary Congress seems to pass laws that go well beyond simply regulating interstate commerce.

Let me then shut up and leave you with this question: If you were to write a constitutional provision reflecting Congress’s actual authority under the commerce clause, how would you phrase it?  In other words, what does Congress’s power to regulate interstate commerce actually empower Congress to do?

Many of us may take the freedom of speech as such a necessity in any civilized society that we may forget to fully appreciate why.  In so doing, we may be turning a blind eye to some inherent downsides to free speech as we understand it.  Democracy, it is said, depends upon the free flow of information and opinion in the “marketplace of ideas.”  As John Stewart Mill explained, the search for truth requires the equal acceptance of all opinions, whether true, partially true, or false.  But what about when government has already made and implemented a policy decision of far reaching national consequence and now must ensure that it gets properly managed and handled?  Does the suppression of opposing opinion then become more justifiable and less problematic?

War provides an appropriate frame of reference.  Once the decision to go to war is made, the government, and perhaps the country in general, might have some interest in the suppression of anti-war publications.  At such point, further public discourse will not lead to a different result since the decision has already been made.  The fighting of the war itself may be hindered by incessant debate on the merits of fighting it.  Making fragmented public opinion prominent in the national headlines projects an image of internal weakness and illegitimacy.  Such speech might even embolden and encourage the country’s enemies.  In short, there seems to be a national security interest in suppressing ex post facto criticisms of an initial decision to go to war.

Of course, the people have an interest in such debate in order to ensure the propriety of future, similar choices.  But does this alone outweigh the national security interests described above?  I don’t think it necessarily does.  What does tip the scale against such suppression laws is that the government itself is the suppressor.  It is this fear of big and powerful government that is embedded in the First Amendment’s guarantee of free speech.  No matter how legitimate the government’s interests may be, it cannot suppress ex post facto criticisms of its own policies because that is precisely what the First Amendment is designed to guard against.  The framers didn’t think that government was incapable of properly restricting speech in appropriate contexts. But the fear of abuse resulting from empowering government to regulate speech was enough to give free speech in America the ultimate safeguard.

I bet President Bush would have loved a little Alien and Sedition Act of his own.  The merits of the initial invasion of Iraq are criticized to this very day, perhaps with good reason.  President Obama and future presidents will also have to deal with that thorn that is free speech.  In the face of the First Amendment then, the only antedote to the potential downsides of free speech is a population that excercises that right responsibly.

His many opponents argue that his originalism is simply a cloak for his backward, homophobic beliefs.  This argument is neither convincing nor relevant.  There is a common misconception among law students that originalism necessarily connotes socially conservative values.  Yet even the most fervent champion of gay and abortion rights can be an originalist.  For the sake of this post, I’m going to say that I’m one of these people.

The words privacy, abortion, and homosexuality are nowhere in the United States Constitution.  However, the Supreme Court in 1965 interpreted a “right to privacy” into its text.  The Court concluded in Griswold v. Connecticut that “the First Amendment has a penumbra where privacy is protected from governmental intrusion.”  Eight years later, the Supreme Court held in Roe v. Wade that state laws that completely outlawed abortion violated this newly created “right to privacy.”  This effectively guaranteed all women a limited “right to choose” and made the polarizing issue of abortion a matter of constitutional law.  Before this case, states were free to choose for themselves whether and to what degree abortion should be permitted.

In 2003, the Supreme Court held in Lawrence v. Texas that laws banning homosexual sodomy were unconstitutional.  While the Court stopped short of articulating a fundamental right to engage in homosexual sodomy, it nonetheless concluded that such laws violated principles of substantive due process under the Fourteenth Amendment.

Originalists, such as Justice Scalia, believe these two cases were wrongly decided.  In his dissenting opinion in Lawrence, Justice Scalia had no trouble concluding that laws banning homosexual sodomy were constitutionally permissible because the 13 original states all had such laws in place at the time the Constitution was ratified.  Essentially, laws such as these had always been on the books.  This, along with the fact that the constitution’s text was silent on the issue, led Justice Scalia to conclude not that gays and lesbians must live under such laws, but rather that change must be sought through the democratic process and not the Supreme Court.  The thrust of his argument is best captured by the following paragraph:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” . . . and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Justice Scalia’s main point is that when the Constitution is silent on an issue – that is, when the original interpretation of the Constitution is silent on an issue – the democratic process is the vehicle through which change regarding that issue should occur.  Now, is this in conflict with my pro-choice, pro-gay marriage beliefs?  Not one bit.  Let’s assume for the moment that Roe and Lawrence were never decided.  I wouldn’t support any state assemblymen who stood for either homosexual sodomy laws or outright abortion bans.  I would side with any campaign to have such laws wiped away in my state.  I would even support bonafide constitutional amendments that protected a woman’s basic right to choose and guaranteed gay marriage.  But I would not support challenging any such laws on manipulative interpretations of our highest law.

Originalism can coexist with progressive values.  The point of originalism is not to cling to old outdated views, but to cling to the original meaning of the constitution and allow the democratic process to steer the wheel of change.

I’m sure everyone can still hear Barack Obama assuring the country that “95% of working families will receive a tax cut.”  This played a huge role in the election as it stripped John McCain and the Republicans of one of their central ideological advantages.  Absent this promise, the election just might have turned out differently.   Greg Mankiw has pointed out that history might be repeating itself.  But there is no way that the president can say, a la Bill Clinton, that his middle class tax cut wasn’t a major theme in his race for the presidency.

Many people say that Obama was elected because of the economy.  But I feel that he was elected because voters saw him as an extraordinary person; someone above the partisanship, pettiness, and corruption that in many ways defines Washington.  If the president reneges on this campaign promise, he will lose a large chunk of that quality that got him elected.  He will also give the Republicans something huge to work with in 2012.

I took a pretty big sip of the Obama kool-aid during the election.  I still think that he is a unique politician that has the potential to positively change the way Washginton operates.  I just really hope I’m right – my idealism is at stake.

You may claim a kidnapped child as your dependent if the following requirements are met:

1. The child must be presumed by law enforcement to have been kidnapped by someone who is not a member of your family or a member of the child’s family, and
2. The child had, for the taxable year in which the kidnapping occurred, the same principal place of abode as the taxpayer for more than one-half of the portion of such year before the date of kidnapping.

• The dependency exemption
• The child tax credit, and
• Head of household or qualifying widow(er) with dependent child filing status.

This tax treatment will cease to apply as of your first tax year beginning after the calendar year in which either there is a determination that the child is dead or the child would have reached age 18, whichever occurs first.

]]> http://maxshifrin.wordpress.com/2009/03/27/look-on-the-bright-side/feed/ 0 maxshifrin http://maxshifrin.wordpress.com/2009/03/26/the-politics-of-fear/ http://maxshifrin.wordpress.com/2009/03/26/the-politics-of-fear/#comments Thu, 26 Mar 2009 19:05:30 +0000 maxshifrin http://maxshifrin.wordpress.com/?p=63 ]]> Remember analogies?  I’d rather not, personally.  But here’s one anyway:

Terrorism : George W. Bush :: Economic Crisis : Barack Obama

It is plain that fear is a powerful tool in the politician’s arsenal.  Quite simply, it’s necessary to get support for the policies you seek to implement.  You can’t sell an invasion of Iraq without repeated references to “terrorists” and “weapons of mass destruction” just as you can’t sell an enormous expansion of government without references to the “greatest economic crisis since the Great Depression.”  In asking myself which President used his respective soundbite more frequently, I really can’t decide.  Obviously, President Bush’s WMD claim proved to be false.  We may never be sure whether the economic crisis is as grave as we are told, but it’s generally a lot more difficult to predict the economy than it is a country’s possession of weapon stockpiles.

There are a couple of general points I want to make about this.  First, the claim that President Obama will put an “end to the politics of fear” is simply false.  I don’t think any politician can avoid utilizing this crucial tactic.  So long as votes are at stake, politicians will not only distinguish the consequences of eachothers’ policies, but will scare the crap out of you in the process.  What’s more effective in scooping votes or influencing public opinion than painting the most grim picture imaginable of an opposing policy?  This occurs at every level of government and is thus a natural outgrowth of a democratic political system.

Second, while fear is crucial in garnering political support, is it actually in the peoples’ interest to hear these things?  I’m not so sure it is.  Being reminded of our dying economy 24/7 doesn’t exactly put me in the shopping mood.  I’m not saying that President Obama should tell us everything is just fine and dandy, but the economy, as I understand it, is essentially a reflection of America’s collective psychological state.  Thus, it would seem logical to instill confidence in the people rather than remind them of how horrible their economy is.  I’d imagine that this alone would go a long way.

Similarly, being reminded incessantly that there are people who want to kill us seems to have accomplished little more than getting President Bush the support he needed to implement his agenda.  Aside from what you might think of his policies, did his repeated soundbites on the threat of terrorism positively affect your life?

Let me be perfectly clear: fear tactics are very often responses to real threats.  After all, 9/11 really happened and the subprime mortgage mess really caused the collapse of major financial institutions.  But, at some point, real threats and dangers become tools for something else.  I think both Bush and Obama had/has our best interests in mind in a general sense, but a more specific agenda is always at the root.  With Bush, talking up Saddam Hussein and his “stockpiles” as a threat to our national security was a much easier pitch to make than what, in my opinion, was a much larger geopolitical agenda of spreading democracy and restructuring the greater Middle East.  The American people would not have reacted well to such an aggressive agenda if they were squarely presented with it considering they could hardly stomach the WMD justification.  Similiarly, President Obama stressing “the consequences of inaction” is an easier pitch than having to philosphically justify the much larger federal government resulting from the stimulus bill.

Fear is a very powerful political tool and no party has a monopoly on its use.  Whenever we are pitched fear it is crucial to understand why.

The first 100 days of a new President’s term is often referred to as his/her honeymoon with Congress.  It’s a time when the new president has a political mandate, being fresh off an electoral victory, and is generally in good position to push through the platform he/she campaigned upon.  That said, this doesn’t seem like the most pleasant of presidential honeymoons.  The Republican Party is one that feels very comfortable in the minority – enough to give a popular newly elected president a hard time these first couple of months. The economic crisis highlights the ideological divide between the Democrats and the Republicans, and the latter group has wielded the cries of a sizable amount of the American population that is against the President’s massive spending.

It’s natural for a president to become defensive when faced with the type of heat that Obama’s been receiving.  But, strategically speaking, repeating the fact that you’ve “inherited” this mess, while true, is counterproductive.  It’s just not what people want to hear from their President right now.  They’re looking to be sold on solutions, not sold on who to blame.  Resorting to these soundbites threatens Obama’s usual comfort upon the moral high ground.  And when others are essentially doing it for you, it’s simply not worth it.

Another change I’d like to see within the Obama administration is a new speechwriter.  I have beef neither with Jon Favreu nor the picture of him grabbing Hillary Clinton’s breast.  But I think he’s somewhat lost his utility.  He’s good on the campaign trail where grandiose, sweeping rhetoric has some real political muscle.  After all, Favreau is the one who coined the phrase, “Yes We Can!” and single handedly wrote both the Iowa victory speech that catapulted Obama to the White House and the inaugural address that christened his presidency.  However, the climate today is just not conducive to that kind of talk.  The obsession these days, rightfully so, is over the details of the President’s economic policy.  I don’t think a 27 year old heartthrob has what it takes to write effective speeches that sell the details of what might potentially become the most consequential economic policy since the New Deal.  I never thought this would happen, but I actually found myself rolling my eyes at President Obama recently when he tossed some of that lingo out there.  It’s definitely not as bad as the awkwardness I felt listening to President Bush, but I expect a heck of a lot from Obama on the PR front.

Wouldn’t it behoove President Obama to get a seasoned, grey-haired economist in there to do some real damage?