Archives: 07/2008

Reaping the Fruits of Judicial Obstruction

Yesterday the U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) issued a complicated (216-page) and fractured (5-4, with a plethora of concurrences and dissents) decision that turned on one judge joining four colleagues on one issue and four other colleagues on another. Essentially, the Al-Marri case says that the president has the power to order the indefinite military detentions of civilians captured in the U.S., but that these “enemy combatants” must be given more of an opportunity to challenge their detention in federal court than has been given.

This is a big mess of a decision – right or wrong, no clear guidelines emerge – the substance of which I won’t get into and, in any event, it’s on the fast track to the Supreme Court. What I do want to comment on, however, is the larger significance of the 5-4 splits in this en banc (meaning all the court’s judges review the earlier decision of a three-judge panel) case.

Regardless of the merits of this case – with dueling 5-4 votes on the two main issues it’s obviously a close (and unprecedented) call – this case highlights yet again the disastrous consequences of our broken judicial confirmation process. The court that decided this important case has 15 authorized judgeships, yet only nine judges participated. One judge recused himself for an unspecified reason, one was confirmed too recently, and four crucial slots are vacant. While both parties have done their fair share to poison the confirmation well, Democrats are clearly the ones to blame for the current impasse over judges. President Bush – who in one of his first acts appointed a previously lapsed Clinton nominee, Roger Gregory, to this same court – has named nominees for all four vacancies, but the Senate has refused to act on them. The longest-suffering, District Judge Robert Conrad of North Carolina, will tomorrow have been awaiting an entire year and has not even gotten a Judiciary Committee hearing.

The Court of Appeals for the District of Columbia Circuit has been similarly hamstrung, its ten judges increasingly splitting 5-5 on the important issues of the day while Peter Keisler, the person nominated to the seat John Roberts vacated when he became Chief Justice has been awaiting an up-or-down vote for over two years. (Keisler is the most qualified lower-court nominee since Miguel Estrada, who withdrew his name from consideration after being filibustered ostensibly because Democrats were wary of confirming a conservative Hispanic who would have instantly become a contender for the next Supreme Court vacancy. Keisler is also on record as having opposed the controversial ideological vetting of new Justice Department hires.)

By their (in)action, first as minority filibusterers and now as majority obstructers, Senate Democrats hamper the judicial process and invite messy and inconclusive decisions like Al-Marri.

Larry Lessig’s Crusade against “Money in Politics”

A few months ago, during a visit to DC, I had the pleasure of meeting Chris Hayes, a sharp writer for the Nation. At the time, he was working on this profile of Larry Lessig, which I missed when it first ran back in May. Lessig made a name for himself with his writings on copyright policy, which have greatly influenced my own work on the subject. He made headlines last year when he announced that he would be leaving copyright policy behind to focus instead on a new project that became the Change Congress movement. The goal is to use cutting-edge tools to pressure members of Congress to take four pledges: to stop taking money from lobbyists and PACs, to support earmark reform, to support increased government transparency, and to support public financing in campaigns. As Hayes describes it, Lessig’s fundamental goal is to, in the oft-repeated phrase, “get money out of politics”:

In today’s terms, you might call it the Medicare Part D problem: even when Congress starts out with a laudable policy goal, like providing prescription drugs for seniors, by the time the legislation gets through both houses it amounts to little more than a grab bag of giveaways to politically connected business interests. Case in point: the recent Senate-passed Foreclosure Prevention Act, which contains $25 billion in tax breaks for home-builders and other businesses while doing very little to justify its name. The reason for this is straightforward: the amount of money spent on lobbying in the last Congressional session was $2.8 billion, nearly two times more than was spent in 2000. Overall, industry has contributed $14 million to Congressional candidates in this session.

This money, Lessig says, insidiously distorts Congressional outcomes and priorities because Congress members don’t experience it as corruption. “Let’s say you go to Congress,” says Lessig, “and you believe there are two problems to deal with: piracy of copyrighted materials and welfare mothers who are really getting screwed by the system. You open up shop, and a million [lobbyists] come in and say we’ve got a thousand things to tell you about piracy, and nobody comes into your office and says we’re going to help you with the welfare moms. So you shift your focus, but you never feel it. You think: maybe I could’ve spent more time on welfare moms, but I’m having a real effect on stopping piracy! That’s the dynamic that is so critical here.”

What’s striking about this example is that it actually has very little to do with campaign contributions. The hypothetical here isn’t that the member of Congress starts out with a “good” position on copyright issues and then is persuaded to change his mind when the lobbyist hands him a sackful of campaign cash. Rather, the hypothetical is that the member of Congress already has a variety of legislative goals, and he’s swayed by lobbyist pressure to focus on the ones that serve well-connected interests and ignore the ones that serve the broader public.

Now, I assume Lessig’s point would be that the campaign contributions are what give the lobbyist his persuasive power, but I think this misses the point of his own example. Campaign contributions certainly give lobbyists increased leverage at the margin, but I think they’re clearly a relatively modest source of influence, all things considered. First and foremost, the lobbyist’s leverage likely comes from the sheer force of persistence. As Lessig himself describes it, the lobbyist has “thousand things to tell” the member about the copyright issue, and with hardly anyone willing to make the trip to Washington to give the other side of the story, the member gets a distorted picture of the debate. Moreover, lobbying firms tend to hire people who already have personal connections to members of Congress and their staffs. The lobbyist might be a a former Hill staffer, a Congressman’s cousin, the college roommate of a Senator’s legislative assistant, or whatever. Moreover, lobbying firms and corporations are able to promise key staffers lucrative jobs in the private sector on their next trip through the revolving door.

But the fundamental problem is simply that there’s nobody coming in to advocate for the welfare mother (or, it should be noted, the taxpayer who’s footing the bill for the whole enterprise). Even if tightening campaign finance rules were to diminish the influence of the “bad” lobbyists, that’s not going to help very much if there’s no one on the Hill advocating for the “good” side of any given debate.

This is, in other words, not a problem with “money in politics”; it’s a problem with politics. Wealthier, more sophisticated, and better organized interest groups always find ways to turn the political process to their advantage. Those with the ability to influence the process will sell their services to the highest bidder. One advantage of campaign contributions is that they’re at least relatively transparent, something that can’t be said for lobbying contracts.

I think Lessig is actually right about the potential of the ‘net to change politics. It’s easier than ever before for activists of all kinds to find one another, form ad hoc groups, and exert grassroots pressure on key decision-makers. And for a variety of reasons, that will make special interests with their lobbyists and $2300 campaign contributions less influential on the Hill. But Lessig’s focus on money strikes me as confusing the symptom for the disease. Politics just is a process whereby the politically well-connected steal from the rest of us. Lessig seems to think there once was, or someday can be, a pristine political process untainted by “money in politics.” But that represents a fundamental misunderstanding of what the political process is and how it works.

It’s simply never going to be possible to pass enough regulations to eliminate the influence of “bad” lobbyists on the political process. Certainly, “getting money out of politics” won’t do it. It’s far more effective to build institutions to ensure that the “good” side of any given issue gets a real hearing. The Internet is making that easier than ever before, by lowering the barriers to entry for political participation. It is therefore unfortunate that Lessig is, in a sense, recruiting cutting-edge digital activists to help him fight the last war. The goal should not be to smash the old system, but to build new institutions that give more influence to ordinary voters and taxpayers. The Change Congress movement doesn’t seem likely to do that.

Talking at You is Different from Talking with You

Department of Homeland Security Under Secretary for Intelligence and Analysis Charlie Allen has a longish post on the DHS “Leadership Journal” blog today entitled “Why the Country Needs the National Applications Office.” The NAO has come under a lot of fire for the threats to privacy and civil liberties that come from its national satellite remote sensing capability.

I haven’t spent a lot of time studying the NAO, so I’m not well positioned to discuss all of its issues, but this post probably doesn’t clear the air much. It helps illustrate why the credibility of communications like this is relatively low.

The need for the NAO, as Allen puts it, is established by the agreement by a couple of government agencies that they should do it.

In 2005, the Office of the Director of National Intelligence and the U.S. Geological Survey, which chairs the CAC [Civil Applications Committee], chartered a blue-ribbon commission to review how the CAC facilitated, managed and oversaw capabilities and resources of the Intelligence Community for appropriate domestic applications. The commission concluded that there is “an urgent need for action because opportunities to better protect the nation are being missed.”

People in government got together and agreed that people in government should be doing more. Surprise, surprise.

Does the NAO have support?

I am not sure what some commentators meant when they said the NAO lacks for champions. All they needed to do was ask a homeowner whose home was saved by the kind of overhead imagery NAO will be able to provide firefighters. Or they could have spoken to me, who has served this country as an intelligence officer for 50 years, or to my bosses, Department of Homeland Security Secretary Michael Chertoff and Director of National Intelligence Michael McConnell. The homeowner or any one of us in government service would have been happy to explain how the NAO will benefit the American people.

This is classic, and ham-handed, appeal to authority. “We all agree that we should do this, so we should do this. And homeowners would agree with us because we plan to save their homes from fires.” Fires are in the headlines this week, y’know.

Where the post really falls down is its defense against charges that the NAO threatens privacy and civil liberties.

The Department of Homeland Security, with the assistance of a number of partner agencies, has designed the NAO with an extraordinary amount of scrutiny and oversight to ensure that the civil liberties, civil rights and privacy of Americans are protected. A National Applications Executive Council will oversee the NAO. It will be chaired by the Deputy Secretary of DHS, the Deputy Secretary of Interior, and the Principal Deputy Director of National Intelligence, and aided by their policy, legal, privacy, and civil liberties and civil rights advisers.

Both the Privacy and Civil Rights and Civil Liberties offices of DHS thoroughly reviewed the NAO Charter and other plans, and completed privacy and civil liberties impact assessments. In addition, DHS’ Inspector General reviewed the NAO’s privacy stewardship and issued a very favorable report.

To rephrase: “The government has agreed that it will safeguard your privacy. We’ve got a lot of panels and boards to do it. So you’ll have your privacy.” The DHS Privacy Committee, on which I serve, is one such panel, and nobody asked us … All the government stamps of approval can go on a government program and that doesn’t show that it will protect privacy.

There is a big difference between telling someone something and showing someone something. Officials like Allen can announce from every rooftop that the NAO will protect privacy, but people won’t believe it unless they can get a look at its operations, understand all that it does, and see what will prevent its work from slipping into privacy-violating domestic surveillance. This is when the secrecy trump card gets played, of course.

This post is Charlie Allen talking at the public, not talking with the public.

I’ve experienced this before. When he spoke before the DHS Privacy Committee, it was pretty much a fillibuster. He spoke for nearly the entire time his schedule allowed and took only two questions before whisking himself away to go be important somewhere else. We were talked at, not with. I gained no assurance that Allen has privacy in hand, much less in mind, as he goes about his work.

Al-Marri Ruling

Yesterday, a federal appellate court finally issued its ruling in the Al-Marri case. This ruling highlights the most important constitutional issues that have arisen since 9-11, namely, the power of the executive vis-a-vis Americans here at home. True, Al-Marri is a citizen of Qatar, but Bush’s lawyers have been clear that what they’ve done to Al-Marri (incommunicado imprisonment in a military brig) can be done to any American suspected of terrorism. As a practical matter, it means Americans can be arrested without warrants and jailed without trials. The Padilla case was never really resolved by the courts, the momentous legal issues involved were left hanging out there once he was transferred into a civilian court to face criminal charges. To clear up the uncertainty, let’s hope the Supreme Court will hear this matter next term.

I’m still studying the 200+ pages in the ruling, but that’s my quick take. For additional info, go here and here (pdf).

Cavalcade of Risk #56

At the Cato Institute’s Health Policy Studies department we’re not sure which is riskier – being the leading advocate for free market healthcare or this Cavalcade. Nonetheless, we’re glad to present CoR #56. Enjoy at your own risk.

Health Risks

Corporate Risks

Personal Financial Risks

Ethical Risks

The Risk of Progress

This might be bad news for the world. But it’s good news for the Cavalcade. There is nowhere to go but up as we progress toward CoR #57 at the Sentinel Effect in two weeks. Until then, happy risk-taking.

After Heller

Well, what now?

Following a victory that some thought impossible, the advocates of the right to bear arms are asking themselves where to go next. None are more qualified to answer that question than Robert A. Levy, co-counsel in District of Columbia v. Heller, the landmark case that has permanently changed the shape of gun rights jurisprudence. In his lead essay at Cato Unbound, Levy discusses several important questions that the Supreme Court did not decide: Does the Second Amendment apply to the states as well, under the doctrine of incorporation? Which regulations are and are not permissible? What’s next in the political realm?

He also has a particularly cogent discussion of judicial activism, a concept conservatives and liberals alike tend to misunderstand:

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Neither “judicial activism” nor “judicial restraint” is an end in itself. Liberty is.

Mad as Hell, And Not Taking Public-School Myths Anymore!

Over at Campaign K-12 they’re wondering, based on conflicting messages from McCain advisors, whether the Senator will “fully fund” the No Child Left Behind Act if elected president. It’s a question I’d like to see answered, but these sorts of mixed messages are a dime a dozen in political campaigns. What really captured my attention in the Meet the Press conversation containing the curious “fully-fund” nugget was this comment from Obama supporter Sen. Claire McCaskill, (D-MO), explaining why the presumptive Democratic nominee opposes school choice:

It’s, it’s about making sure we don’t undermine public education. We are who we are as a nation because we figured out how to educate our kids with public money, public education. The rest of the world has admired us from the days that we became a country, and we cannot turn our back on public education. And sometimes the word choice is code for making sure that we can skim the cream off the top into private schools and leave public schools flailing and, and in desperate need of help. And so we’ve got to make sure that our commitment is to our public education system.

Nothing aggravates me more than the constant repetition of the myth that the United States was built on public schooling, and if parents could choose private schools without having to give up their tax dollars the country would disintegrate.

We aren’t “who we are as a nation” because we figured out how to educate kids using “public money.” (Though if public-schooling advocates want to say that public dollars are what is key they should have no problem with vouchers). American kids were being educated long before either public schools or funding was the norm, and while in the colonial and early national eras there was some public funding for education, there was nothing even approaching the centralized, bureaucratically moribund system we have today. Almost all education was voluntary and people chose from options including homeschooling, tutoring, “old field schools,” for-profit writing schools, church-run schools, and more. And it worked: Adult white literacy stood at roughly 90 percent in 1840, a very high level by world standards.

Fast-forward to the present, with sainted public schooling having functioned in its top-down, fully compulsory form for about a century, and the contrast is startling. According to the latest National Assessment of Adult Literacy, only 13 percent of American adults are “proficient” in three types of literacy. 13 percent! Of course, the absolute measures of literacy are very different today than in 1840, but the nation and the world are very different places. On a relative basis, it can reasonably be said that the “public education system”—for which we are supposed to show unflagging “commitment” even if it means keeping kids out of the best schools available—is a huge step down from the nation’s true educational foundation.

Ultimately, what has distinguished the United States from the rest of the world is not its current, essentially socialist, school system—or education at all—but its commitment to individual freedom. The Declaration of Independence doesn’t “hold these Truths to be self-evident: that all Children have a right to attend a government school.” It proclaims our rights to “Life, Liberty, and the Pursuit of Happiness.” The Constitution wasn’t enacted to secure “one-size-fits-all schooling,” but “the Blessings of Liberty.” Emma Lazarus’s inscription on the Statue of Liberty doesn’t invite the rest of the world to send over its “huddled masses yearning for spots at P.S. 109.” It calls for those who are “yearning to breathe free.”

It’s time for our policymakers, academics, wonks, and everyone else who works in education to stop dealing in myths and start honestly tackling some very basic questions: Was public schooling truly critical in establishing the United States? Is education driven by parental choice and autonomous schools antithetical to basic American values? Is educational freedom actually much more in keeping with our foundational ideals than public schooling? Has public schooling really been the key to social unity and upholding democracy, or has it curbed individual liberty and forced diverse peoples into conflict?

These are questions, if we want the best education for our nation and children, that we must answer not with treacly mythology but intellectual honesty. Unfortunately, precious few of our leaders or thinkers appear willing to deal with the truth.