Topic: Government and Politics

Here Comes Democracy!

(Before you finish reading this, you’ll want to sign up for this policy forum.)

Ben Goddard’s most recent column in The Hill is called “Obama Marketing Lesson,” and he reviews how the Internet and savvy use of media energized President-Elect Obama’s campaign effort. “[S]ocial networks have returned as one of the most powerful forces in politics,” he says.

President-elect Obama has a database of some 10 million names and e-mail addresses, and those who built it have made clear they’ll activate that army to support the new president. MoveOn.org is already preparing its supporters to advocate for progressive policies. Groups like Divided We Fail, Healthcare for America Now! and the American Medical Association are already running television and online campaigns to advocate for healthcare reform.

(Goddard will be lending some of his insights about communications strategies to secure the country against fear and overreaction at our January conference on counterterrorism strategy, by the way.)

The substance of the campaigns he talks about might be far from encouraging for libertarians. None of these are limited government advocates. Politicized online social networks could be the agar in which a new mobocracy grows - something our republican form of government was designed to prevent.

But what’s the solution? To oppose democracy and an active citizenry? Other than restoring constitutional limits on government, I don’t think so. As with speech, the cure for bad democracy is more of it, but good.

It’s not a given that online politics will amount to crowds of avatars with digital pitchforks and torches. The Internet is a fertile medium for careful debate about our public policies. Social networks can be smart and informed - if they get the data.

That process is starting. USASpending.gov delivers data about where federal contracting dollars and grant awards go. This was a project of President-Elect Barack Obama who, with Senator Tom Coburn (R-OK), made transparency a signature issue in the Senate. The non-profit effort that broke ground for this is OMBWatch’s FedSpending.org, which logged its 10 millionth search in June.

My humble effort, WashingtonWatch.com, attaches cost estimates to the bills in Congress and recently welcomed its millionth visitor for the year. The Sunlight Foundation has a list of insanely useful Web sites, each exposing some dimension of government action to greater public scrutiny. The organization is dedicated to developing a stable of private, non-profit, and volunteer efforts that promise revolutionary change once they can access standardized, structured, and open government data.

And that’s the bottleneck: access to good data. Government information now comes to us mediated by government Web sites and government-defined database queries. Getting the raw data would allow all kinds of actors to generate all kinds of new information about government. All citizens would have better information to work with, not only about taxes and spending, but about the results of government programs.

Libertarians bet that this would reduce demand for government. Liberals and progressives believe that this would deliver on the promise of government. If either side wins, we’re better off than we are here in the dark disappointment of government today.

On December 10th, the Cato Institute is having a policy forum on this topic. The title is “Just Give us the Data!

Fairness Doctrine Post-Mortem

You may have noticed a recent decline in chatter about reinstating the Fairness Doctrine, and some Democrats backing away from earlier pronouncements of support.  Marin Cogan claims that this was all a straw man anyway, the result of right-wing fear-mongering and a “manufactured controversy.”  Blake Dvorak responds by pointing to the words of Congressional leaders that really did call for a reinstatement of the Fairness Doctrine. 

Why backtrack now?  It could be that the economy, wars abroad, and serial bailout votes are crowding the Fairness Doctrine out of the agenda.  It may also be that proponents of the Fairness Doctrine took a closer look and decided that they would lose a constitutional challenge. 

A legal challenge to the new Fairness Doctrine would succeed for three reasons.  First, the legal rationale that justified it in the first place has been overcome by technology.  Second, the effect of a new Fairness Doctrine would be to restrict speech, not increase the volume and quality of discourse.  Third, the Supreme Court, as currently constituted, will overturn a new Fairness Doctrine.  

Technology

The Fairness Doctrine existed from 1949 to 1987 in FCC policies and regulations, requiring coverage and balanced discussion of social issues.  The end of the Fairness Doctrine came as a change in FCC policy, not from a defeat in court.  In fact, it survived Supreme Court review in the 1969 case Red Lion Broadcasting Co. v. FCC.  The lack of bandwidth in the early days of radio and the scarcity of broadcast licenses meant that commercial broadcast license-holders had to provide opposing views when covering controversial issues. 

Print editors fared better.  In 1974, the Court invalidated a state statute that mandated free space in newspapers for political candidates to reply to criticism and attacks in Miami Herald Publishing Co. v. Tornillo.  Minus the scarcity rationale, a free press cannot be forced to share its pages with opponents.  As technology advanced, the policy was not applied to all media.  The FCC later exempted “subscription television” (cable TV) from political access requirements in its 1978 Policy Statement. 

In 1984 the Court noted that technology had advanced in FCC v. League of Women Voters of California.  In a footnote, the Court acknowledged that the policy had come under criticism with the advent of cable and satellite TV, but declined to overturn the Fairness Doctrine without a signal from Congress or the FCC that scarcity was no longer a valid rationale for its imposition. 

Reconstitution of the Fairness Doctrine under a scarcity rationale is laughable today.  The advent of HD Radio, satellite radio, Wi-Fi radio in cars, streaming radio on cell phones, cable television (now in a majority of American households), satellite television, the internet, and streaming internet radio stations undermine any case for scarcity. 

Reducing Speech, Not Enhancing It

The Supreme Court said from the outset in Red Lion that if the Fairness Doctrine ends up improperly blocking speech from public discussion, then it would be unconstitutional.  Proponents of the Fairness Doctrine are pretty clearly gunning for conservative talk radio, which appears to be the only format of media that doesn’t lean left. 

The enforcement of the new Fairness Doctrine would likely be the same as standards for indecency or profanity.  Aggrieved listeners would file a complaint with the FCC, and the inevitable result is a deterrent against any opinion without a counterpoint commentator.  Prof. Jack Balkin provides a detailed description of how broadcasters complied without increasing the quality of their broadcasts.  Broad discretion as to which issues are covered and the advantage of picking your opposition make compliance easy but do not guarantee meaningful debate.  In short, a radio version Hannity & Colmes would pass muster, but did Colmes ever win one of those exchanges? 

The Fairness Doctrine ends up inhibiting a lively discussion of social issues.  Prof. Balkin believes that the Fairness Doctrine does pass constitutional muster but remains poor public policy, and recently commented that the Fairness Doctrine is not coming back, and certainly not to the internet.  Professors Eugene Volokh and Cass Sunstein agree that the Fairness Doctrine makes for bad policy in this video.  Prof. Volokh has also asked Fairness Doctrine supporters how media outlets would accommodate multiple viewpoints beyond the traditional left-right divide.  

Simply put, this is a measure that will restrict speech, and no amount of civic education window-dressing can hide that. 

Supreme Court Composition

Under the current composition of the Court, the Fairness Doctrine is unlikely to survive. 

This can only be fleshed out in an article of its own, but the bottom line is that the Court has recently held unconstitutional campaign finance reform measures that were far narrower than the Fairness Doctrine.  In FEC v. Wisconsin Right to Life, the Court invalidated part of the McCain-Feingold Bipartisan Campaign Reform Act of 2002 with respect to issue advocacy.  In Davis v. FEC, the Court invalidated the “millionaire’s amendment” of the same act, a provision giving fundraising advantages to political candidates facing wealthy opponents. 

Some may contend that I’m erring in making a connection between campaign finance and broadcast restrictions that inevitably come with a federal license.  But it’s hard to argue that these restrictions on political expression, which impact some advocacy groups and some political candidates, would be invalidated while a 24/7 restriction on a whole medium of communication on all controversial social issues would be upheld as constitutional.  Even harder when you take away any argument under a scarcity rationale and face the fact that implementation of the policy will inevitably reduce political discussion instead of enhancing it. 

The facts above lead me to believe that Barack Obama, a former constitutional law professor, omitted the Fairness Doctrine from his platform for a reason.  As Jesse Walker points out, there are many other levers the president and FCC can pull that influence public debate without inviting a constitutional challenge.

For the Good of Barack Obama, Mr. Rangel Should Step Aside

Or am I reading too much into the Washington Post editorial, “Step Aside, Mr. Rangel,” when it says:

At a time when President-elect Barack Obama is holding frequent news conferences to reassure the markets and the American people that he is ready to lead the nation to economic recovery, the last thing he will need is a chairman of Ways and Means caught up in a swirl of serious allegations.

The cult of the presidency, indeed.

Pointless, Political, and Pork-filled

Greg Mankiw speculates on the best alliterative description of the stimulus package:

Instead of fiscal stimulus that is temporary, targeted, and timely, John Taylor suggests that it be permanent, pervasive, and predictable.

What the Obama administration is aiming for, it seems, is helpful, hopeful, and humongous.

Critics fear it might end up pointless, political, and pork-filled.

—–

Update: A reader emails me that Larry Summers now calls for stimulus that is speedy, substantial, and sustained.

Other readers think it will be:

big, bloated, and borrowed.
immodest, immoral, and imbecilic.
clumsy, corrupt, and counterproductive.
expansive, extensive, and expensive.
weighty, worrisome, and wayward.
politicized, pandered, and pathetic.
socialized, silly, and sorry.
random, record-setting, and ridiculed.
ultimate utilitarian utopianism.
absolutely abjectly apocalyptic.

Is Hillary Clinton Unconstitutional?

So Hillary Clinton is “on track” to be the nation’s top diplomat, huh?  Well, setting aside the wisdom of that decision – forget ideology; does she have both foreign policy expertise and a good working relationship with the President-elect? – it appears that there may be genuine constitutional problems with her expected nomination.  To wit, Article I, section 6, clause 2 reads:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased [sic] during such time…

That is, under this “Emoluments Clause,” members of Congress are expressly forbidden to take any appointed position within the government which was created or whose pay has been increased during their current term in office.  Now, a January 2008 executive order, promulgated in accordance with a statute from the 1990s that addressed cost of living adjustments for certain federal officials, raised the Secretary of State’s salary, thus constitutionally prohibiting any then-serving senator who remains in office from taking charge of Foggy Bottom. (Sen. Clinton’s current term began in January 2007 and expires in January 2013.) 

Not surprisingly, this is not the first time such a conflict has arisen in executive appointments and nominations and, equally not surprisingly, Congress has on several occasions legislated around it:  To enable one of its own to assume executive office, Congress simply decreases the pay of that office to the pre-raise level for the full tenure of that specific appointee.

Although this legerdemain has been around since at least the Taft Administration – and was most recently used when President Clinton picked Sen. Lloyd Bentsen to be his Treasury Secretary – the move is called the “Saxbe Fix” after Sen. William Saxbe, whom President Nixon nominated for Attorney General.

The Saxbe Fix is not uncontroversial.  UCLA law professor Eugene Volokh, for example, cites Steptoe and Johnson partner John O’Connor’s objection that the Saxbe Fix is inadequate for circumventing the Emoluments Clause.  To O’Connor’s thinking, while simply lowering the salary – resulting in no “net” increase – does prevent the nominee from directly benefiting from a vote he or she cast, it would not substantively address the Framers’ intent to limit the size and scope of the federal government. That is, if, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.

One could also argue that in this specific case, Congress did not act to increase anybody’s salary; it was that long-ago Congress that even gave that option to the president – and only in the form of an aross-the-board COLA, not some shady or opportunistic self-dealing.  But, of course, if we are to follow the text of the Constitution, there is no exception for offices “the Emoluments whereof shall have been encreased” by a non-shady COLA granted via statutorily-enabled executive order.

Whether anyone could challenge Hillary Clinton’s appointment in the courts is another matter.  Perhaps someone denied a passport, or who has had some other adverse action done to them by a Clinton-led State Department, would have standing to sue.  In any event, in this time of constitutionally questionable bailouts, it cannot hurt to be vigilant even about the most obscure text from our nation’s governing document.

Much more on this issue can be found in Eugene’s fascinating post here.

The Broad-Mindedness of Richard Holbrooke

Lots of scuttlebutt today involving the name “Richard Holbrooke.”  An emblem of the Democratic Party foreign policy establishment, Holbrooke is revered by some for his ruthlessness and ability to crack heads.  A dedicated global interventionist, Holbrooke is high on the list of “people antiwar Democrats don’t want involved in an Obama administration.”  In addition to ruthlessness, let’s take a walk down memory lane and attempt to determine how well Holbrooke would fit in an Obama administration that is supposed by many to be broad minded and determined to evaluate all arguments on a policy before leaping in.  Here’s Holbrooke in 1994 chairing a meeting with mid-level officials to discuss NATO expansion:

Without having spoken to [Anthony] Lake or to the president, Holbrooke told the interagency group that there was a presidential policy to enlarge NATO that needed implementation.  Holbrooke also made clear that [Warren] Christopher had asked him to set up and run the mechanism to expand NATO.

The new assistant secretary of state had a reputation for abrasiveness, and at this meeting, he demonstrated why.  General [Wesley] Clark has recalled:

[Joseph] Kruzel spoke first, since he was the policy guy, and said, “Why is this the policy?  It’s supposed to be an interagency process.”  Holbrooke crushed him like a bug.  He said, “It is policy.”  Ash Carter walked out of the room.  Then, as the meeting was about to conclude, I said, “I don’t know that a decision has been made.”  Holbrooke said, “Anyone questioning this is disloyal to the country and to the president.”  My ears turned bright red…and I demanded that he take it back.  The room stopped.  I got ready to leave.  Holbrooke took it back.

That’s from James Goldgeier, Not Whether But When, pp. 73-74.  So here you have it.  Pursuing disastrous policies while impugning the motives of career military officials and labeling them anti-American if they have the temerity to object?  Check.  As compared to the tactics of the Bush administration, that’s not exactly “change,” but I sure can believe it.

The Left Embraces the Shock Doctrine

Last week Rahm Emanuel said to a prestigious audience, “You never want a serious crisis to go to waste. It’s an opportunity to do things you could not do before.”

And that’s just the strategy that bestselling author Naomi Klein accuses right-wingers of employing. Weaving a convoluted yet superficially simple tale of world events, she claims in her book The Shock Doctrine that right-wing ideologues and governments both use and create moments of crisis to implement their nefarious agenda.

“Some people stockpile canned goods and water in preparation for major disasters,” Klein writes. “Friedmanites stockpile free-market ideas.” Which is exactly what American left-liberals have been doing in anticipation of a Democratic administration coming to power at a time when the public might be frightened into accepting more government than it normally would. The Center for American Progress, for instance, run by John Podesta, who was President Bill Clinton’s chief of staff and is now President-elect Obama’s transition director, has just released Change for America: A Progressive Blueprint for the 44th President.

The ideas in that report mesh well with the opportunities that Emanuel identified. After re-emphasizing the opportunities that crisis provides, he told his audience that the Obama administration wanted to use the opportunity to implement central planning of health care and energy, higher taxes, a federal program directed at “training the workforce,” and tighter control of financial institutions and capital flows.

But Emanuel isn’t the only one. As I mentioned previously, Paul Krugman has also endorsed the “don’t let a good crisis go to waste” power grab.

And now Arianna Huffington, the founder of the left-wing bulletin board HuffingtonPost, makes the same point in a public radio appearance. On KCRW’s “Left, Right, and Center,” November 21 (at about 27:20 in the podcast), she declared: “A crisis is a terrible thing to waste. And it might be this particular crisis that will make it possible for the Obama administration to do some really innovative, bold things on health care, on energy independence, on all the areas that have been neglected.” (Hat tip: Thaddeus Russell.) Last year Huffington wrote a rave review of The Shock Doctrine, calling it “prophetic.” So it seems.

So … Emanuel. Krugman. Huffington. They’re all rallying around the theme that, well, that a left-liberal government should use this crisis to implement a more sweeping agenda than it could achieve in the absence of crisis. That’s the Shock Doctrine. Where are Naomi Klein and her legion of fans to expose and denounce it?

Of course, Klein might well decry their corporatist, big government/big business plans as just another example of Friedmanite/neoconservative/Pinochetist right-wing ideology. Anything other than local worker’s collectives smells like capitalism to her. So she can add the Obama administration to Milton Friedman, laissez-faire, the Bush administration, the Iraqi government, the Pinochet government, the Chinese Communist Party, and the ANC government of South Africa on the list of things that seem so many peas in a pod to her.

The San Francisco Chronicle says that Klein “may well have revealed the master narrative of our time.” The reviewer may have been more right than he knew.