Archive for June, 2010
Revise the Maryland Wiretap Law?
As I said in this piece in the Baltimore Sun, Maryland police officers are misusing that state’s wiretap law to deter anyone who would film them performing their duties. Maryland officers have asserted that any audio recording of a conversation, even in a public place, is a violation of the state’s wiretapping law and a felony punishable by five years in prison and a $10,000 fine. Officers made this claim to deter filming of an arrest at the Preakness, and when motorcyclist Anthony Graber videotaped his traffic stop.
As Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and Maryland rulings interpreting the scope of the law. Is it time for a revision of this law, or is it just the officers’ interpretation that is the problem? I discussed this on the Kojo Nnamdi Show with the prosecutor pressing charges against Anthony Graber, State’s Attorney Joseph Cassilly, and Graber’s lawyer, David Rocah of the Maryland ACLU.
Don’t Try This at Home, Kids
Q. What role did formal education play in the success of Chris Haney, the co-creator of the board game Trivial Pursuit, which he and Scott Abbott sold to Hasbro for $80 million?
A. Born Aug. 9, 1950, in Welland, Ontario, Mr. Haney often described himself as a beer-swilling high school dropout whose biggest mistake was quitting school at 17. “I should have done it when I was 12,” he said in interviews.
Unfounded Government Plans to Take Control of the Internet
Wired News reports on another bill proposing to create government authority to take over the Internet—this time, because of “cyberattacks.”
Most revealing is the part of the report exposing how Senate staff must fish around for reasons why the authority would be exercised, never mind to what effect:
In order for the President to declare such an emergency, there would have to be knowledge both of a massive network flaw — and information that someone was about to leverage that hole to do massive harm. For example, the recent “Aurora” hack to steal source code from Google, Adobe and other companies wouldn’t have qualified, one Senate staffer noted: “It’d have to be Aurora 2, plus the intel that country X is going to take us down using that vulnerability.”
A second staffer suggested that evidence of hackers looking to leverage something like the massive Conficker worm — which infected millions of machines and was seemingly poised in April 2009 to unleash something nefarious — might trigger the bill’s emergency provisions. “You could argue there’s some threat information built in there,” the staffer said.
These scenarios will never happen. And we wouldn’t want the government grabbing control of the Internet if they did.
The idea of government “taking over” the Internet for security purposes is equal parts misconceived and self-defeating. It’s a packet-switched network, meaning that it routes around the equivalent of damage that would be caused by anyone’s attempt to “control” it. The government could certainly degrade the Internet with a well-coordinated attack, of course.
And that’s the way to think about government controlling the Internet in some kind of emergency: It would be an attack on the country’s natural resilience.
In February, CNN broadcast a bogus reality TV show produced by the Bipartisan Policy Center called “cyber.shockwave.” A variety of technically incompetent government officials talked about pulling the plug on the Internet and cell phone networks in response to some emergency. Commentator D33PT00T captured the idiocy of this idea, Tweeting, “ok my phn doesn’t work & Internet doesn’t work – ths guys R planning 2 run arnd w/ bullhorns ‘all is well remain calm!’”
The Internet may have points of weakness, but it is a source of strength overall. A government take-over of the Internet in the event of emergency would be equivalent to an auto-immune reaction in which the government would attack the society. Proposals for the federal government to take control of the Internet under any circumstance are unfounded and dangerous.
R.I.P. Brian Bromberger
One of the treats of my cross-country travels debating various legal and policy issues is meeting people from many walks of life and learning their particular perspectives on issues about which we both care deeply. One such fascinating person was Brian Bromberger, dean of Loyola University (New Orleans) Law School until his untimely death last week.
Dean Bromberger was 72 when he suffered a fatal heart attack, but I still say his passing was untimely because he was so full of life and vigor. Born in Australia, Dean Bromberger had taught in many countries around the world and several U.S. law schools. He is perhaps best known for leading Loyola through Hurricane Katrina and its aftermath — organizing a temporary law school in Houston when New Orleans proved unworkable.
I only met him a couple of times but he impressed me both with his charm and his keen intellect. I still clearly recall my first meeting with him, fresh off my second-ever Federalist Society lecture when I was still new to Cato: he ushered me into his office with a welcoming grin, pointing to the “Shalom Y’all” tile on his desk. (The fraternity of foreign-born Jews with Southern affinities isn’t too big, so it’s always nice to find a kindred spirit.) I don’t recall exactly what we discussed, but I’m sure it was a combination of comparative law and how New Orleans was recovering from “the storm.”
Loyola is hosting a memorial service at 5:30, and then the funeral will be in Australia next week. R.I.P.
Heckuva Job on the Auto Bailout, Rattie
Puffing out his chest in Tuesday’s Washington Post, Steven Rattner, former-head of President Obama’s auto task force and architect of GM’s and Chrysler’s restructurings, asks, rhetorically: “Isn’t it time to agree that the auto rescue has been a success?”
Rattner’s declaration of “Mission Accomplished”—based on one calendar quarter of mediocre financial results—is a galling display of arrogance and deception, and betrays a disturbing cluelessness about the broader costs and consequences of the government’s heavy-handed intervention.
Rattner’s verdict rests on the singular consideration that “a year after the government-sponsored bankruptcies of GM and Chrysler, both patients are alive and progressing well toward recovery.” But that’s like hailing the stable medical condition of a drunk driver after an accident, while ignoring the injuries to the family in the vehicle he struck.
The impact of the auto intervention on its victims doesn’t factor into Rattner’s analysis.
Rattner’s claim of auto “rescue” success is the product of a straw-man set-up. The most compelling objections to the bailout were not rooted in the belief that the government couldn’t use its assumed power to help GM and Chrysler. On the contrary, the most compelling objections were over concerns that the government would do just that. It is the consequences of that intervention—the undermining of the rule of law, the confiscations, the politically-driven decisions, and the distortion of market signals—that animated the most serious objections.
Thus, any verdict on the outcome of the auto industry intervention must take into account, among other things, the billions of dollars in property confiscated from the auto companies’ debt-holders; the higher risk premium built into U.S. corporate debt, as a result; the costs of denying Ford and the other more successful auto producers the spoils of competition (including additional market share and access to the resources misallocated at GM and Chrysler); the costs of rewarding irresponsible actors, like the United Autoworkers union, by insulating them from the outcomes of what should have been an apolitical bankruptcy proceeding; the effects of GM’s nationalization on production, investment, and public policy decisions; the diminution of U.S. moral authority to counsel foreign governments against market interventions that can adversely affect U.S. businesses competing abroad, and; the corrosive impact on America’s institutions of the illegal diversion of TARP funds under two presidential administrations.
In the Washington Post analysis that leads to his pronouncement of success, Rattner considers none of those costs.
Instead, citing GM’s positive first quarter 2010 financial results, higher prices, smaller inventories, and a reduction in the use of rebates and other sales incentives, Rattner attributes the company’s success to the efforts of his task force, which oversaw the establishment of a new board of directors and reduced GM’s North American operating costs by $8 billion.
Indeed it may tempting for Rattner to take credit for GM’s first quarterly profit in nearly three years, but the truth is that cost reductions and the appointment of a new board of directors would have happened under a normal Chapter 11 reorganization (without the task force) anyway. Likewise, economic recovery would have increased demand for and prices of GM vehicles—even without the guiding wisdom of Rattner’s task force.
Despite claiming success, Rattner recognizes that making taxpayers whole for their $81 billion investment in the auto indutry would help sell his version of history. He even hints that it may soon be in the cards. But even under the extremely unlikely condition that taxpayers get all of their money back, there are still the more difficult to quantify short- and long-term economic and institutional costs of the intervention that should counsel against ever doing something like this again.
Robin Hood and the Tea Party Haters
What is it with modern American liberals and taxes? Apparently they don’t just see taxes as a necessary evil, they actually like ‘em; they think, as Gail Collins puts it in the New York Times, that in a better world “little kids would dream of growing up to be really big taxpayers.” But you really see liberals’ taxophilia coming out when you read the reviews of the new movie Robin Hood, starring Russell Crowe. If liberals don’t love taxes, they sure do hate tax protesters.
Carlo Rotella, director of American Studies at Boston College, writes in the Boston Globe that this Robin Hood is “A big angry baby [who] fights back against taxes” and that the movie is “hamstrung by a shrill political agenda — endless fake-populist harping on the evils of taxation.” You wonder what Professor Rotella teaches his students about America, a country whose fundamental ideology has been described as “antistatism, laissez-faire, individualism, populism, and egalitarianism.”
At the Village Voice, Karina Longworth dismisses the movie as “a rousing love letter to the Tea Party movement” in which “Instead of robbing from the rich to give to the poor, this Robin Hood preaches about ‘liberty’ and the rights of the individual as he wanders a countryside populated chiefly by Englishpersons bled dry by government greed.” Gotta love those scare quotes around “liberty.” Uptown at the New York Times, A. O. Scott is sadly disappointed that “this Robin is no socialist bandit practicing freelance wealth redistribution, but rather a manly libertarian rebel striking out against high taxes and a big government scheme to trample the ancient liberties of property owners and provincial nobles. Don’t tread on him!” The movie, she laments, is “one big medieval tea party.”
Moving on down the East Coast establishment, again with the Tea Party hatin’ in Michael O’Sullivan’s Washington Post review:
Ridley Scott’s “Robin Hood” is less about a band of merry men than a whole country of really angry ones. At times, it feels like a political attack ad paid for by the tea party movement, circa 1199. Set in an England that has been bankrupted by years of war in the Middle East — in this case, the Crusades — it’s the story of a people who are being taxed to death by a corrupt government, under an upstart ruler who’s running the country into the ground.
Man, these liberals really don’t like Tea Parties, complaints about lost liberty, and Hollywood movies that don’t toe the ideological line. As Cathy Young notes at Reason:
Whatever one may think of Scott’s newest incarnation of the Robin Hood legend, it is more than a little troubling to see alleged liberals speak of liberty and individual rights in a tone of sarcastic dismissal. This is especially ironic since the Robin Hood of myth and folklore probably has much more in common with the “libertarian rebel” played by Russell Crowe than with the medieval socialist of the “rob from the rich, give to the poor” cliché. At heart, the noble-outlaw legend that has captured the human imagination for centuries is about freedom, not wealth redistribution….The Sheriff of Nottingham is Robin’s chief opponent; at the time, it was the sheriffs’ role as tax collectors in particular that made them objects of loathing by peasants and commoners. [In other books and movies] Robin Hood is also frequently shown helping men who face barbaric punishments for hunting in the royal forests, a pursuit permitted to nobles and strictly forbidden to the lower classes in medieval England; in other words, he is opposing privilege bestowed by political power, not earned wealth.
The reviewers are indeed tapping into a real theme of this Robin Hood, which is a prequel to the usual Robin Hood story; it imagines Robin’s life before he went into the forest. Marian tells the sheriff, ”You have stripped our wealth to pay for foreign adventures.” (A version of the script can be found on Google Books and at Amazon, where Marian is called Marion.) Robin tells the king the people want a charter to guarantee that every man be “safe from eviction without cause or prison without charge” and free “to work, eat, and live merry as he may on the sweat of his own brow.” The evil King John’s man Godfrey promises to “have merchants and landowners fill your coffers or their coffins….Loyalty means paying your share in the defense of the realm.” And Robin Hood tells the king, in the spirit of Braveheart‘s William Wallace, “What we ask for is liberty, by law.”
Dangerous sentiments indeed. You can see what horrifies the liberal reviewers. If this sort of talk catches on, we might become a country based on antistatism, laissez-faire, individualism, populism, and egalitarianism and governed by a Constitution.
Feds Propose Forfeiture as Immigration Employer Sanction
As recent posts in this space indicate, advocates of individual liberty have a variety of views on the proper policy response to illegal immigration. Whatever the disagreements, I suspect there’s some degree of consensus that certain proposed remedies are entirely too Draconian. From the California Labor and Employment Law Blog:
The U.S. Attorneys Office in San Diego has recently criminally prosecuted a French bakery for allegedly engaging in an intentional pattern and practice of hiring unauthorized workers. As part of the indictment, the Government is seeking hefty monetary fines, prison time for the owner and management, and asset forfeiture of the entire business to the Government. While the Government does not have experience running a French bakery, they are getting very serious about enforcing I-9 regulations.
More details on the French Gourmet prosecution can be found at the San Diego Union-Tribune and Restaurant Hospitality.
When government began pushing for asset forfeiture powers, some imagined that the formidable power would remain mostly confined to use in, say, illegal drug or money laundering prosecutions. But that’s not how it has worked. And immigration is hardly the only area in which employers should be worried about the expanding bounds of criminalization. Bills pending in Congress would criminalize “misclassification” of employees — which commonly consists of disagreeing with the government or with labor unions as to whether particular employees should count as independent contractors not covered by overtime and similar federal labor laws. Are we far from the day when prosecutors will start proposing forfeitures against employers over such infractions?
Watch Me Debate the Constitutionality of Obamacare!
Two weeks ago I provided an update on the state of the lawsuits challenging Obamacare and mentioned that I’d be debating the law’s constitutionality at the University of Washington in Seattle. This event brought my debate tour full circle, because it was UW Law School two months ago that couldn’t find anyone to speak to the serious constitutional defects in the so-called reform.
My debate, against constitutional law professor Stewart Jay, went very well: It was, I hope, both entertaining and enlightening. Curiously, Prof. Jay insisted on repeating that my arguments boiled down to policy disagreements and “rhetorical flourishes.” He also accused me of asking courts to make policy rather than defer to Congress’s constitutional powers. This was all a bit rich coming from someone whose legal arguments focused on standing and ripeness — important in the cases at hand, but 150 people didn’t turn out to hear about technical doctrines — and whose main presentation centered on the need to reform a broken health care system.
Indeed, Prof. Jay repeatedly criticized my unwillingness to tackle the issue of “spiraling premiums” — which I eventually addressed, though I had been under the impression that the debate concerned constitutional law, not how to reform the system or why reform is needed. He also mischaracterized the state lawsuits as focusing on exaggerated claims about the cost of expanding Medicaid. (When the law isn’t with you, argue the facts and when the facts aren’t with you, argue the law — and if both are against you, I guess just be argumentative… )
But don’t take my word for it, watch the whole thing here. Many thanks to the UW chapters of Young Americans for Liberty (part of the Students for Liberty network), Young Democrats, College Republicans, and the Federalist Society – as well the law school itself — for organizing and sponsoring the event.
Political Science and Washington D.C.
The Columbia Journalism Review has an article on political science and journalism. It cites the Monkey Cage blog as an example and explains:
[P]erhaps The Monkey Cage’s greatest influence has been in fostering a nascent poli-sci blogosphere, and in making the field’s insights accessible to a small but influential set of journalists and other commentators who have the inclination—and the opportunity—to approach politics from a different perspective.
That perspective differs from the standard journalistic point of view in emphasizing structural, rather than personality-based, explanations for political outcomes… [C]onsider the president. In press accounts, he comes across as alternately a tragic or a heroic figure, his stock fluctuating almost daily depending on his ability to “connect” with voters. But political-science research, while not questioning that a president’s effectiveness matters, suggests that the occupant of the Oval Office is, in many ways, a prisoner of circumstance. His approval ratings—and re-election prospects—rise and fall with the economy. His agenda lives or dies on Capitol Hill. And his ability to move Congress, or the public, with a good speech or a savvy messaging strategy is, while not nonexistent, sharply constrained.
These powerful, simple explanations are often married to an almost monastic skepticism of narratives that can’t be substantiated, or that are based in data—like voter’s accounts of their own thinking about politics—that are unreliable. Think about that for a moment, and the challenge to journalists becomes obvious: If much of what’s important about politics is either stable and predictable or unknowable, what’s the value of the sort of news—a hyperactive chronicle of the day’s events, coupled with instant speculation about their meaning—that has become a staple of modern political reporting? (emphasis mine)
Political science can, at its worst, be hopelessly abstruse, cliquish, and regressive. But at its best it can illuminate our thinking about issues, up to and including raising the possibility that certain things may be unknowable (at least by a journalist’s or policymaker’s deadline), or that things may be structurally determined. As the snip above suggests, journalists, for understandable reasons, tend to privilege what you could call “agent-based” explanations for phenomena. They tell Americans that the president’s poll numbers are rising or falling on the basis of some speech he gave (or didn’t give), or that some particular point of a political campaign determined the outcome. Turn on a cable news program and you see this sort of uninformed and unfalsifiable popping off all the time. In most cases, those claims, and even those sorts of claims, are completely wrong, as political scientists know. On the other hand, journalists’ incentives do not lead them to highlight the latest political science research or write articles that could be headlined “Economic Conditions Set to Determine Another Election.” People like stories, so that’s what journalists give them.
Question: What political science articles should journalists and policymakers be forced to read–and comprehend–before writing about/making policy on their particular issue area?
You Feel Me?
The MoDo column I criticize below exemplifies the warped notion that we should view the president as a benevolent national Father-Protector. But it’s also a good example of a related phenomenon, the apparently unquenchable yearning for Presidential Empathy.
“Once more,” she writes, “President Spock” has “willfully and inexplicably resisted fulfilling a signal part of his job: being a prism in moments of fear and pride, reflecting what Americans feel so they know he gets it.” There’s a little tension between Dowd’s desire for a presidential father figure and her demand for a “Feeler in Chief.” She seems to want a daddy who cries a lot.
But this understanding of the president’s role is hardly unique to her:
Introducing his 1996 presidential ranking survey, Arthur Schlesinger Jr. declared that a great president needed to “have a deep connection with the needs, anxieties, dreams of the people.” Of course, the ability to channel the collective soul of the American volk isn’t a skill that the chief magistrate needs in order to faithfully execute the laws or defend the country from foreign attacks.
Maybe so, but most public intellectuals have a much broader view of the president’s job. Which may explain why disdain for Obama’s “No Drama” affect is so common among the chattering classes.
This president is too cool, too reserved, too professorial, they charge. He has “a stony, cool temperament,” (Peggy Noonan); His “above-the-fray mien… does not communicate empathy” (Richard Cohen), and he shrinks from “lead[ing] the nation emotionally” (Jon Meacham). “I wasn’t feeling it,” MoDo’s Times colleague Charles Blow grumbled after Obama insisted he was “angry” about the spill. (Really, press secretary Joe Gibbs insisted yesterday, “I’ve seen rage from him.” He “clenched” his jaw.)
I have more than my share of complaints about this president. But this is one that leaves me, er, cold. It seems to me that it’s to Obama’s credit that he’s not a blubbery empath like Bill Clinton. It’s good that he’s reluctant to play the role of podium-pounding blustery populist. Thank God for small favors.
Over the last century, the Framers’ limited, businesslike presidency has been transformed into an extraconstitutional monstrosity that promises everything and guarantees nothing, save public frustration and the steady growth of state power. When American “opinion leaders” join together to lament the fact that the president’s not an effective enough demagogue, it’s not hard to understand how we got here.
Needed: A New U.S. Defense Policy for Japan
Japanese Prime Minister Yukio Hatoyama has resigned, just eight months after leading his party to a landslide victory. The Democratic Party of Japan meets Friday to replace him. The finance minister, Naoto Kan, is the favorite, though nothing is certain. The party is an amalgam of factions and the party secretary general, Ichiro Ozawa, who did the most to bring the DPJ to power, also is stepping down.
Prime Minister Hatoyama was hit by a campaign scandal—a regular of Japanese politics. But the most important cause of his resignation was his botched handling of American bases on the island of Okinawa.
In early 1945 Okinawa became the first part of the Japanese homeland to fall as the U.S. closed in on imperial Japan. Washington held onto the island after the war and loaded it with military installations. Only in 1972 was Okinawa returned to Japanese sovereignty. Despite some reduction in U.S. forces, American military facilities still account for roughly one-fifth of the island’s territory.
Okinawans long ago tired, understandably, of the burden and have been pressing for the removal of at least some bases. The DPJ campaigned to create a more equal alliance with America and promised to revisit plans by the previous government to relocate America’s Futenma facility elsewhere on the island.
However, under strong U.S. pressure Hatoyama reversed course. He said the rising tensions on the Korean peninsula reminded him about the value of America’s military presence.
Japan’s military dependency is precisely the problem. American taxpayers have paid to defend Japan for 65 years. Doing so made sense in the aftermath of World War II, when Japan was recovering from war and Tokyo’s neighbors feared a revived Japanese military. But long ago it became ridiculous for Americans to defend the world’s second-ranking power and its region.
Daddy Issues
My Washington Examiner column this week looks at the bipartisan conniption over President Obama’s “responsibility” for the Gulf oil spill:
It’s “taking so doggone long,” Sarah Palin wailed, for Obama “to dive in there” (literally?). “Man, you got to get down here and take control!” James Carville screeched. “Tell BP, ‘I’m your daddy!’ ”
When Hurricane Katrina hit, liberals who had spent years calling President Bush a tyrant suddenly decided he wasn’t authoritarian enough when he hesitated to declare himself generalissimo of New Orleans and muster the troops for a federal War on Hurricanes.
Now the party of “drill, baby, drill” — the folks who warn that Obama’s a socialist — is screaming bloody murder because he’s letting the private sector take the lead in the well-capping operation. It’s almost enough to make a guy cynical about politics.
“Did you plug the hole yet, daddy?” is an understandable reaction from an 11-year-old like Malia Obama. Grown-up pols and pundits have no such excuse, however, and when they confuse the chief executive with an all-powerful father-protector, the results are likely to be bad policy and an increasingly imperial presidency.
Right on cue, as I was finishing the column, came Sunday’s New York Times with a pair of cringe-inducing opeds illustrating the perils of presidential “daddyism.” According to their bios, Thomas Friedman and Maureen Dowd are 57 and 58 years old, respectively. You’d never guess it from their columns.
Friedman urges Obama to “react to this spill as a child would.” (Aren’t plenty of people doing that already?)
Like a chirpy, earnest kindergarten teacher, Friedman insists us that
Kids get it. They ask: ….Why aren’t we doing more to create clean power and energy efficiency when so many others, even China, are doing so? And, Daddy, why can’t you even mention the words “carbon tax,” when the carbon we spill into the atmosphere every day is just as dangerous to our future as the crude oil that has been spilling into the gulf?
That is what a child would want to know if he or she could vote.
And if you think a surfeit of political maturity is our major problem these days, maybe we should expand the suffrage to grade-schoolers.
On the opposite page, Maureen Dowd echoes a theme she struck back in January, when she complained that with his calm, sober reaction to the failed Christmas bombing, Obama missed his “moment to be president…. to be the strong father who protects the home from invaders.” As I wrote at the time, “Could there be a more infantile conception of the chief executive’s role?”
In Sunday’s column, MoDo whines that Obama’s acting like “President Spock,” instead of our “Feeler in Chief.” How, she asks, can we possibly survive with a chief executive who ”scorns the paternal aspect of the presidency”?
I don’t know, maybe we could… grow up?
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