Paper Money and Discrimination Against the Blind

I always get a bit of resistance from my students when I broach civil rights questions in terms of alcoholism or which hand one writes with. The chronically sober and the right handed find it difficult to understand grievances that might exist against the greater society regarding policies established by majorities with little reason to see things from the perspective of the minority. What might seem trivial to the majority is not to the minority.

So it seems with a longstanding grievance the blind have had with U.S. paper money--though not with coins. Bills of different denominations are impossible to distinguish and therefore make the blind subject to deception. If you saw the movie "Ray" you might recall the scene where Ray Charles is paid in $1 dollar bills, at his request, because he is best able to ensure proper payment that way.

In a 2-1 decision by the U.S. Court of Appeals for D.C. (generally considered the most important of the appeals courts) in a case involving the American Council for the Blind and Henry Paulson the secretary of the Treasury the court ruled that the current design of bills did in fact discriminate against the blind and rejected the government's contention that changing bills would create an undue burden not only on government but on the private sector--for example vending machine operators.

From the NYT article:

What happens next is not certain. The government could appeal to the full 13-member appeals court (one of whose judges, David S. Tatel, is blind), or it could seek quick review by the Supreme Court, a step it has 90 days to take.

“We’re reviewing the court’s ruling at this juncture, and no determination has been made as to the government’s next step,” said Charles Miller, a spokesman for the Department of Justice, which argued the case on behalf of the Treasury Department.

The Treasury Department said it, too, was reviewing the ruling. In the meantime, the department has been working “to improve the nation’s paper currency to best serve the needs of all Americans, including those who are blind or visually impaired,” said Brookly McLaughlin, deputy assistant secretary for public affairs.

Ms. McLaughlin said the Bureau of Engraving and Printing, the Treasury agency that makes paper money, had already contracted with a research firm to study ways to help those who are blind or have poor vision. The results of the study will be available early next year and will be considered when new currency-production equipment is introduced, she said.

Further, in a limited step to help those with some vision, the most recent $5 bill, introduced this year, features an extra-large “5” on one side.

A lawyer for the American Council of the Blind, which brought the lawsuit in 2002, said he hoped that the government, “instead of litigating the issue, would solve the problem.” The Treasury Department has the means and technology to change the design of American currency to help the blind, said the lawyer, Jeffrey A. Lovitky of Washington.

“It’s just a question of willingness,” he said.

Given my previous post, let's apply the same question: Is this an example of judicial imperialism or are the courts using their power to force a sensible change in policy?

Poll Results: Lapel Pins and Patriotism

Twelve people have voted on whether it was unpatriotic for a politician to not to wear a flag lapel pin.

4 - agree
6 - disagree
2 - not sure

A relatively even split breaking slightly in favor of disagreement.

So how does one best reveal one's patriotism?

Poll Results: Peaceful Tyranny v. Violent Freedom

Of the ten people who voted in this poll,

6 - would prefer living peacefully in a despotic regime while
4 - would prefer living freely, but subject to the occasional war.

This was the choice laid out in Federalist and Anti-Federalist #6. Hamilton argued that life without the Constitution would be subject to "frequent and violent contests" between the resulting confederacies, while Centinel prefers anarchy--and presumably its consequences--to the absolute power contained in the new Constitution. So assuming each argument contains a grain of truth, which option would a rational person choose, assuming that this is a rational choice at all.

It's a fair dilemma, and perhaps one we are not able to understand fully not being subject to a tyrannical government (unless we are so conditioned to a tyrannical order that we do not even recognize it as being one), but it is probably indicative of the American spirit that collectively we narrowly opt for violent unstable freedom when given a choice.

Now it might be useful to apply this abstract consideration to contemporary concrete examples of the dilemma. The seemingly arbitrary surveillance of cell phone conversations, or willingness to suspend civil liberties in general in order to root out terrorist plots--or suspected plots--is a good contemporary example. Think about this next time you have to take your shoes off before you board a plane.

It is worth considering what and how many liberties people would be willing to give up in order to ensure complete security from terrorist attack.

Benjamin Franklin allegedly stated "they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." But it is useful to remind everyone that the very act of living in an orderly society under a system of law and order necessitates a reduction of individual liberty. The only question is which liberties and how much they should be curtailed and how.

Hence the dilemma.

An Imperial Court?

Stuart Taylor Jr. and Rich Lowry argue that California Supreme Court's decision favoring gay marriage is indicative of the court's usurpation of legislative power.

Taylor tells us that though he "wholeheartedly support[s] gay marriage" the decision was "an unfortunate exercise in judicial imperialism":

First, the California court's 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task ... is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership ... but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."

This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.

...

The California court's majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state's elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.

Also disingenuous was the majority's vague dismissal of the powerful argument by opponents of judicially imposed gay marriage that the made-up constitutional principle underlying the decision would also--if seriously applied--require the state to recognize polygamous and incestuous marriages among adults.

Chief Justice Ronald George's majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system. California's voters and elected branches had already made great progress toward full legal equality for gay couples. They enjoyed all of the state-law rights and privileges of marriage except the name, which 61.4 percent of the voters had reserved for heterosexual couples in a 2000 ballot initiative. California's domestic-partnership laws were more generous to gays than the laws of almost all other states and almost all nations.

He then goes on to point out that since Obama seems supportive of this decision, if he wins the presidency we might expect to see more of this type of imperial behavior. Lowry makes many of the same points about judicial power:

If the California decision stands, it will again legitimize judges governing by fiat. That will bail out evasive liberal politicians who fear being forthright about their views and hope merely to step out of the way while judges impose them.

For the cause of self-government, it's a disaster.

I offer a dissent. Though concerns about the increased power of any governmental institution bears scrutiny, both authors--any most commentators period--seem to forget a basic point about the nature of a republican for of government.

A "government of the people" can defined in two ways, each in tension with the other. The first is that the decisions of government must rest with the people, and majority rule ought to be the guiding principle determining which side wins. The other is that the people, that is each individual person, has a right to life, liberty, and the pursuit of happiness free from the oppresive hand of government. In a democracy, that oppresive hand can be the will of the majority. Democracy and liberty--that is the liberty of each person, especially the weaker party or the obnoxious individual--are in conflict.

The legislative power, indeed any power associated with a majority rule, facilitiates majority oppression of an unpopular minority. Only an institution that is immune from majority will can protect the unpopular. That these decisions create an uproar among the majority is an expected part of the process and very likely the most powerful justification for the favorable decision. It's the heart of the checks and balances. All power is subject to check, and no one is happy to be checked.

Regardless of the relative merit of marriage policy, or any policy for that matter, the fact that a court is securing the rights of an unpopular minority against the majority indicates that the courts are working as intended. Both authors employ the slippery slope argument unconvincingly to warn that future errant policies will be inevitable and actively imposed on a reluctant majority.

It is ironic that Taylor cites the racial discrimination cases of decades back:

[California Supreme Court Chief Justice] George analogized domestic partnerships to the "separate but equal" laws of the segregated South, including laws making interracial marriage a crime in some states until they were struck down by the U.S. Supreme Court in 1967. (The California court, admirably, had voided that state's ban on interracial marriage in 1948.) The chief justice thus insulted the voters--not to mention all three presidential candidates--and treated California's denial of official benediction as the legal equivalent of the Jim Crow South's system of grinding oppression.

If I recall, racial segregation was supported by comfortable majorities and changes in attitudes only began after the Brown v. Board of Education decision. Had judges not made the decision to be activist and overturn racial segregation by fiat when, it is not unreasonable to think that we would still be living in a society that condoned racial segregation--or at least made accomodation to it. We haven;t chaged that much as a species in the past 50 years. Ironically, the same arguments the two men use now on the subject of sexual orientation was used then on the subject of race. Let the legislatures decide. Activist judges are cramming their morality down the throats of the people (or at least the majority).

This isn't activism, its the checks and balances in action.

Cost or Benefit?

The Chron reports on a study stating that the economy would lose close to $2 trillion dollars in annual spending if illegal workers would suddenly vanish:

If the 8.1 million undocumented immigrants who cut lawns, bus tables and perform other jobs disappeared overnight, the nation's economy would lose nearly $1.8 trillion in annual spending.

Texas, the second-hardest-hit state after California, would lose 1.2 million undocumented workers and $220.7 billion in expenditures.

These are just some of the findings from a study done by the Perryman Group, a Waco-based economic analysis firm, whose work was commissioned by Americans for Immigration Reform, a group spearheaded by the Greater Houston Partnership.

Houston's business community is trying to revive the politically charged immigration reform debate that has stalled in Congress. It plans to raise $12 million by December to fund a campaign for reform and thus far it says it has raised about 10 percent of that goal in pledges.

The government has recently increased enforcement, with raids at work sites and plans to build a wall along the U.S.-Mexico border. But getting rid of all undocumented immigrants would hurt, not help the economy, Charles Foster, an immigration attorney and chairman of Americans for Immigration Reform, said Monday.

"If you do that, you would have serious economic upset," Foster said.

He said immigration reform needs to give employers a method of hiring immigrants legally.

"We need comprehensive reform that looks at our needs and addresses those needs," said Ray Perryman, president of the Perryman Group, which examined data for 500 sectors of the economy, Census Bureau surveys and other data to arrive at its conclusions.

I can't locate the study so I can't vouch for it. It is worth noting that the study was commissioned by a group founded by the Greater Houston Partnership which is pro immigrant for economic reasons.

School Accountability

Like a story with no end, the Texas legislature has taken on the issue of school accountability once again. In January the Lt. Governor appointed five people to the Select Committee on Public School Accountability and charged them with investigating whether accountability standards are in fact working as intended and recommending changes to the Texas Legislature in time for the 81st session next year.

Ex Lt. Governor Bill Ratliff justifies the process:

We have learned over the last decade that the current system is too complex. If someone wants to see a district's performance, the information is overwhelming. Using five demographic subpopulations in multiple grades and subjects creates 36 categories.

We must continue to evaluate the performance of the various subgroups of students, but a new accountability system must provide a clearer understanding of a school's performance. There must be a simpler way to show how our schools are doing, with additional detailed data available for those who want it.

We need to make sure the new system is a tool for improving student performance and ensuring achievement at the highest levels. The system must clearly reflect the overall performance of a school, while identifying those students who are not succeeding and need additional help.

Currently, the performance of just a few students can cause an entire school to be rated low-performing even when the majority are achieving high results.

No business would identify its overall success based on the performance of its weakest division. Such a system is punitive and unfairly punishes schools, particularly larger schools and districts with diverse populations.

A new system should recognize schools for making progress. Many are making significant gains, including those with substantial challenges. If schools show gains from year to year, those students and teachers should be recognized.

Limited-English-proficiency students must come into the system after an initial exemption and be evaluated as they learn English; their progress must be recognized by the system. If we continue to ask our educators to work in challenging environments but don't recognize their work, we will lose teachers.

A truly effective accountability system will show how schools are doing and if they are making progress, without demoralizing our students, teachers and communities.

With the advent of No Child Left Behind, we have two systems of accountability that are not aligned. NCLB brings a different set of performance standards and measurements, which is confusing to the public.

Some schools improve their rating in the state accountability system yet are downgraded in the NCLB system. The Texas system should seek to reduce conflicts between NCLB and a high-quality state system.

The Legislature has mandated that the current system be replaced by 2011. Let's come up with one that reflects more fairness and simplicity, one that aligns with federal laws, recognizes the progress schools are making and improves student performance.

The Force Behind the 1968 Realignment

The New Yorker has an amazing article outlining the trajectory of contemporary conservatism and it contains two stories outlining how Richard Nixon, with the help of Pat Buchanan, helped engineer the unravelling of the New Deal Coalition and the realignment of some of its members to the GOP. Here are two bits, expect more to come.

“From Day One, Nixon and I talked about creating a new majority,” Buchanan told me recently, sitting in the library of his Greek-revival house in McLean, Virginia, on a secluded lane bordering the fenced grounds of the Central Intelligence Agency. “What we talked about, basically, was shearing off huge segments of F.D.R.’s New Deal coalition, which L.B.J. had held together: Northern Catholic ethnics and Southern Protestant conservatives—what we called the Daley-Rizzo Democrats in the North and, frankly, the Wallace Democrats in the South.” Buchanan grew up in Washington, D.C., among the first group—men like his father, an accountant and a father of nine, who had supported Roosevelt but also revered Joseph McCarthy. The Southerners were the kind of men whom Nixon whipped into a frenzy one night in the fall of 1966, at the Wade Hampton Hotel, in Columbia, South Carolina. Nixon, who was then a partner in a New York law firm, had travelled there with Buchanan on behalf of Republican congressional candidates. Buchanan recalls that the room was full of sweat, cigar smoke, and rage; the rhetoric, which was about patriotism and law and order, “burned the paint off the walls.” As they left the hotel, Nixon said, “This is the future of this Party, right here in the South.”

and:

Nixon was coldly mixing and pouring volatile passions. Although he was careful to renounce the extreme fringe of Birchites and racists, his means to power eventually became the end. Buchanan gave me a copy of a seven-page confidential memorandum—“A little raw for today,” he warned—that he had written for Nixon in 1971, under the heading “Dividing the Democrats.” Drawn up with an acute understanding of the fragilities and fault lines in “the Old Roosevelt Coalition,” it recommended that the White House “exacerbate the ideological division” between the Old and New Left by praising Democrats who supported any of Nixon’s policies; highlight “the elitism and quasi-anti-Americanism of the National Democratic Party”; nominate for the Supreme Court a Southern strict constructionist who would divide Democrats regionally; use abortion and parochial-school aid to deepen the split between Catholics and social liberals; elicit white working-class support with tax relief and denunciations of welfare. Finally, the memo recommended exploiting racial tensions among Democrats. “Bumper stickers calling for black Presidential and especially Vice-Presidential candidates should be spread out in the ghettoes of the country,” Buchanan wrote. “We should do what is within our power to have a black nominated for Number Two, at least at the Democratic National Convention.” Such gambits, he added, could “cut the Democratic Party and country in half; my view is that we would have far the larger half.”

Google Maps and Presidential Donations

The Chron put a map together showing donations to candidates by zip code. Cool and a bit scary.

The Entrepreneurial Age

That's what Michael Barone calls the next American frontier in today's Wall Street Journal. The upcoming generation--many of you--are primed to want to work for yourselves than work for an existing business. This is the latest stage of the never ending process by which America re-invents itself, which is the key to American success according to Mr. Barone:

The great new American frontiers proved to be those of business, science and technology. In the course of the 20th century, Americans invented more milestone technologies and inventions, created more wealth and leisure time, and reorganized their institutions more times than any country had ever done before – despite a massive economic depression and two world wars. It all reached a crescendo in the magical year of 1969, with the creation of the Internet, the invention of the microprocessor and, most of all, a man walking on the moon.

Along with genetic engineering, we are still busily spinning out the implications of these marvels. Yet it is becoming increasingly apparent that the cultural underpinnings of these activities have changed in some fundamental way.

We still have schools, but a growing number of our children are studying at home or attending private schools – and those in public schools are doing ever more amounts of their class work on the Internet.

We still have companies and corporations, but now they are virtualized, with online work teams handing off assignments to each other 24/7 around the world. Men and women go to work, but the office is increasingly likely to be in the den. In 2005, an Intel survey of its employees found that nearly 20% of its professionals had never met their boss face-to-face. Half of them never expected to. Last summer, when the Media X institute at Stanford extended that survey to IBM, Sun, HP, Microsoft and Cisco, the percentages turned out to be even greater.

Newspapers are dying, networks are dying, and if teenage boys playing GTA 4 and World of Warcraft have any say about it, so is television. More than 200 million people now belong to just two social networks: MySpace and Facebook. And there are more than 80 million videos on YouTube, all put there by the same individual initiative.

The most compelling statistic of all? Half of all new college graduates now believe that self-employment is more secure than a full-time job. Today, 80% of the colleges and universities in the U.S. now offer courses on entrepreneurship; 60% of Gen Y business owners consider themselves to be serial entrepreneurs, according to Inc. magazine. Tellingly, 18 to 24-year-olds are starting companies at a faster rate than 35 to 44-year-olds. And 70% of today's high schoolers intend to start their own companies, according to a Gallup poll.

It is telling that today's youth condition their goals and objectives on a landscape created by the previous generation. Perhaps that is the obligation each generation has to the next. So the question is whether a bustling internet economy beats a sinking dollar, exploding entitlements, and strained military.

Poll Question: The Pelosi Premium

Republicans have launched an effort to tie Democrats to increases in the price of gas. Democrats argue that the time period is off and gas price increases should be measured versus what it cost when President Bush was first elected in 2000. Others argue that gas prices are a market phenomenon and government has little direct impact on prices, with the exception of taxes imposed at the pump. The price is an honest reflection of the intersection of supply and demand. Others say that free market has nothing to do with it and the oil companies have used their oligarchic powers to control prices to line their pockets.

So which is it: Pelosi and the Democrats, Bush and the Republicans, the market, or the oil companies? Which is it?

The Trouble With Openess

As we discussed last week, the decision by Burmese military leaders to delay foreign aid and deny entry to foreign aid workers makes perfect sense from the perspective of a totalitarian regime that wishes to stay in charge. Foreign workers bring with them foreign ideas which can loosen your control. Efforts--successful-- to eradicate interior social institutions with their own values have the same effect.

Chinese decisions to allow aid, limited workers, and especially the foreign press put it in a different position that may cause the country to open up in ways and at a rate its leaders were not counting on. In a sense this is its own fault since the foreign press had been invited into the country in an apparent effort to ensure that coverage of the country prior to and during the Olympics was favorable.

The comes the earthquake. There's some bad timing for you. Thirty years ago, there would have been measures of tremors, official denials of severe damage and spotty reports of widespread damage. The reasons is obvious, no government wants to seem weak because that makes you vulnerable. This only works if a regime wishes to be isolated. Now that China wants to act on the world stage, the dynamic changes and can create problems for the continuance of the regime.

This is the subject of a worthwhile read in today's NYT:

A dash of openness can be a dangerous thing in an autocratic state.

Mikhail Gorbachev discovered this two decades ago when his campaign to inject some daylight into Soviet society doubled back on him like a heat-seeking missile.

Now China’s leaders are playing with the same volatile political chemistry as they give their own citizens and the world an unexpectedly vivid look at the earthquake devastation in the nation’s southwest regions. The rulers of cyclone-battered Myanmar, by contrast, are sticking with the authoritarian playbook, limiting access and even aid to the stricken delta region where tens of thousands of people were killed by the storm.

While China’s response to its natural catastrophe is certainly more humane, and is only a small step toward openness, it could set in motion political forces that might, over time, be unsettling. That’s especially true in an age of instant communications, even in a nation like China, which tries to control Internet access.

“When you start opening up and loosen controls, it becomes a slippery slope,” Jack F. Matlock Jr., the American ambassador to Moscow during much of the Gorbachev period, said last week as he watched the events in China. “You quickly become a target for everyone with a grievance and before long people go after the whole system.”

The author compares China's current situation with Russia's 23 years ago:

Still, it is worth recalling a time when a little openness flew out of control.

As a correspondent and bureau chief for The New York Times in Moscow in the late 1980s, I had a ringside seat to observe the slow disintegration of the Soviet Union under Mr. Gorbachev. The collapse of the Soviet empire and dissolution of the Communist Party were not exactly what he had in mind when he took power in 1985 and launched his twin policies of glasnost (greater openness) and perestroika (political reform).

As events unfolded, it was like watching a scientist start a nuclear chain reaction that races out of control, eventually consuming him and all those around him.

Mr. Gorbachev realized his country was rotting from within, paralyzed by repression and ideological rigidity, a backward economy and a deep cynicism among Russians about their government. “We can’t go on living like this,” he told his wife, Raisa, hours before he was named Soviet leader, he recalled in his 1995 memoirs.

But he clearly had no inkling of where his initiatives were headed when, shortly after taking office, he broke new ground for a Kremlin leader by mingling with citizens in Leningrad and giving unscripted interviews.

In those early days of glasnost, it was hard to tell whether the changes were purely superficial or the start of something more profound.

He suggests that a tipping point was the nuclear reactor accident at Chernobyl when the regime first downplayed the event, then was forced to reveal what had happened over time. The forces that allowed a small degree of openness were then forced by outside pressures to allow more, which they could not control. This was exacerbated, ironically, with a second tipping point precipitated by an earthquake:

A striking moment of glasnost [openess] came with the killer earthquake in Armenia in December 1988. Faced with the deaths of tens of thousands of Soviet citizens, and desperate for outside aid, the Kremlin lifted restrictions on travel to Armenia. Western reporters in Moscow were stunned to discover that they could just go to the airport and catch a flight to Yerevan, the Armenian capital, no advance government approval required. Foreign relief flights, including American military planes carrying food, water and medical supplies, were welcomed in Yerevan.

Sounds a lot like China today.

As the old regime frayed, Mr. Gorbachev wasn’t prepared for the assault of long-repressed political forces let loose by his reforms. The most potent was nationalism, the fierce pride in nationhood that Stalin and his successors had tried to suffocate in places like Lithuania, Latvia and Estonia; Armenia and Georgia; and throughout Eastern Europe.

Once uncorked, nationalism essentially overwhelmed Mr. Gorbachev, who, to his credit, choose not to try to hold together the Soviet empire by force.

He was rewarded for his efforts with the clumsy but wrenching coup attempt in August 1991 that gravely weakened him and empowered Boris Yelstin, who had broken with Mr. Gorbachev in 1987. Within months, the Soviet Union dissolved and Mr. Gorbachev was out of work.

Russia today, despite the restoration of authoritarian rule by Vladimir Putin, enjoys a degree of freedom that was inconceivable at the height of Communist rule. Glasnost helped make it that way.

China’s leaders may not take comfort in that thought.

As Mr. Matlock said last week, “If you remove the power of repressive state organs while stirring up a nation with many problems, you will get a process you can’t control.”

We will see, and it may be sooner than later. China has a history of brutal repression, but it has placed itself in a position where such repression will no longer by tolerated internally or externally.

Free market economists, notably Milton Friedman, have long held that economic freedom precedes political freedom. Some of this is due to the political strength given to those made rich by economic freedom and their increased ability to lobby for change. Some also has to do with the McDonald's rule we've discussed in class. A certain level of economic prosperity leads one to oppose military solutions to social problems that can compromise quality of life.

Justice for Sale in West Virginia?

The Charlotte Gazette reports that former U.S. Solicitor General Theodore Olson will represent Harman Mining Co. in an appeal involving one of the more egregious examples of "purchased" justice in recent memory:

Theodore B. Olson will represent Harman and Caperton in asking the U.S. Supreme Court to hear their appeal of the West Virginia Supreme Court's decision to dismiss a verdict against Massey Energy. The verdict, originally $50 million, is now worth $76 million with interest.

Olson will focus on the refusal of state Supreme Court Justice Brent Benjamin to step down from hearing Massey's appeal of the verdict. Massey Energy chief executive Don Blankenship spent about $3.5 million to help Benjamin get elected to the court in 2004. Benjamin twice voted to throw out the verdict against Massey.

"The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today," Olson said Thursday.

"A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line."

Twice in recent months, the state Supreme Court has overturned the Boone Circuit Court verdict and absolved Massey of any liability for fraud and improper business interference for allegedly hijacking a long-term coal contract Harman had to supply metallurgical coal to a Pittsburgh steelmaker. Harman filed for bankruptcy less than a year after the events.

This story also illustrates a point made below (the story of Ted Cruz) about the value of ex-solicitors general as counselors when preparing briefs and arguing before the Supreme Court.

Malaise-2008

The National Center for Policy Analysis sums up a Wall Street Journal Opinion piece wondering why we are so glum:

A cultural rut of pessimism is draining our collective energy, blinding
us to possibilities and eroding our position in the world, says Zachary
Karabell, president of River Twice Research.

There is no denying that the current financial morass is deep and
painful. But, looking back over the past century, it would be a
stretch to rank the current problems as especially notable or dramatic:

o Right now we have an unemployment rate of 5 percent and
headline inflation topping 4 percent.

o We have economic growth of 0.6 percent, extremely low
consumer confidence and weakening consumer spending, small
business optimism at a 28-year low, and a housing market that
is showing declines in excess of 20 percent.

These are hardly statistics to celebrate, but they are a far cry from
the crises of the 20th century, says Karabell:

o The unemployment rate in 1933 was 24.9 percent; seven years
later, after the intensive efforts of the New Deal, it stood
at 14.6 percent.

o The unemployment rate went from 4.9 percent in 1973 to 8.5
percent in 1977, and then nearly broke 10 percent in 1982.

o While the recent collapse of Bear Stearns shocked Wall
Street, in 1933 alone 4,000 banks failed, and millions not
only lost their homes but were rendered homeless.

The path to a more balanced view of ourselves is impossible to chart,
but the first step is surely to have better perspective on where we are
and where we have been. The alternative to grime-encrusted lenses
isn't rose-tinted glasses, but more equanimity about our weaknesses and
our strengths would surely help us navigate.

Unfortunately, the problem with downward spirals is, well, that they
spiral downward. There is little evidence just now that we are
about to break this cycle, and until we do, we will watch in awe, envy
and fear as peoples throughout the world do what we used to do so well,
says Karabell.

One possible answer is that American do not base assessments on their well being and expectations on objective measures of well being, but on relative measures. How well of are we today versus where we thought we would be 5 and 10 years ago? Even objective measure suggest that the middle has lost ground over the past 10 years--median family income has declined slightly, so perhaps Karabell should broaden his analysis. But is is still worth pondering whether we really have cause to be negative about our current state of affairs.

Strict Scrutiny for Sexual Orientation

Not only did the California Supreme Court overturn a ban on same sex unions, it did so by invoking "strict scrutiny" whic means that the law in question is suspected of infringing upon a fundamental right. Slate argues that this is what sets the California ruling apart form the Massachusetts ruling several years ago:

The legal difference between the two opinions lies in the so-called "rational basis" review used by the Massachusetts court and the "strict scrutiny" deployed by the California Court. In constitutional parlance, these terms describe how closely a court will examine state legislation: will it give the legislature the benefit of the doubt, or not? Rational basis review is so lenient that it almost always results in the validation of state policies (in this sense, the 2003 Massachusetts ruling was an aberration), while strict scrutiny is so stringent that it almost always results in the invalidation of such policies. In other words, the standards supposedly only express how closely the court will look at laws, but looks can kill.

Writing for the California high court, Chief Justice Ronald M. George first found that the exclusion of gays from marriage violated their fundamental right to marry, thereby drawing strict scrutiny from the court. This meant that the state would have to produce a compelling reason to bar gays from what the court deemed "the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime." In a crucial move, Chief Justice George rejected the state's argument that tradition was such a reason. Allowing tradition to thus entrench itself, he said, would have allowed for laws barring interracial couples. And, as he noted, the California Supreme Court struck down a ban on interracial marriage in 1948, almost two decades before the U.S. Supreme Court did in Loving v. Virginia.

Although he could have decided the case on this basis alone, the Chief Justice kept going. He explicitly found that discrimination against gays, on the basis of their sexual orientation, was equivalent under the California state constitution to discrimination against racial minorities. To my knowledge, California's is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in). For gays, this pronouncement is critical because it is portable—that is, gays can now challenge any California state policy that discriminates on the basis of sexual orientation. As Marty Lederman points out elsewhere in Slate, this in its own right is a signal advance for gay people.

Opponents will now attempt to overturn the decision with an initive which will change the California Constitution to recognize only heterosexual unions, then there is always the Supreme Court itself. The Washington Post reports that Governor Schwarzenegger is opposign the initiative.

Whats on Your Lapel?

Does it matter if a candidate wears an American flag lapel pin? Does it signify respect for America or does it just pander to superficial voters? The controversy surrounds Obama's decision to not wear one and recent suggestions that he should.

We've been hitting this in class, and ought to pursue it more. What does the refusal to wear a lapel pin mean about the character of a presidential candidate? Is it a significant issue or not?

From the NYT story:

...it was Mr. Obama’s decision not to regularly wear the pin that drew attention when, on Oct. 3 — eight months into his campaign — a television reporter in Cedar Rapids, Iowa, asked why he had no flag pin on his lapel.

Mr. Obama said that he had occasionally worn one after the attacks of Sept. 11, but added that he thought the pins had become a substitute for true patriotism.

“My attitude is that I’m less concerned about what you’re wearing on you lapel than what’s in your heart,” he told audiences in Iowa. “You show your patriotism by how you treat your fellow Americans, especially those who served. You show your patriotism by being true to our values and our ideals.”

The controversy went away, until he started winning nominating contests. Then it dogged him, in Ohio, Texas, Pennsylvania and Indiana. On his plane Wednesday, Mr. Obama called it a “phony issue” as he was not opposed to flag pins. “It was a commentary on our politicians and folks in Washington who sometimes are very good about saluting our soldiers when they come home,” he said, “but then don’t follow up with budgets that make sure they’re getting treatment for post-traumatic stress disorder.”

Do you agree with his point or not? As a political consultant would you tell him just to wear it and get it out of the way? But does that encourage insincerity?

Transparency at the FCC

Here's another story about increased transparency in government, this time at the Federal Communications Commission. The story is in the National Journal, which requires a subscription, but you may be able to sneak in.

It's a simple enough proposal, the FCC will now issue press releases stating the agenda of their meetings, three weeks prior to the meeting rather than one week. Not a big deal on the surface but the smaller the amount of time before the meeting, the greater control the FCC had in its meetings. The change was not entirely voluntary, but is in fact an example of checks and balances:

The announcement, and the press conference itself, were the direct result of pressure on Martin from the House Energy and Commerce Committee, which is conducting a months-long review of the FCC and its regulatory practices. Four days later, on April 28, an internal Energy and Commerce staff memo tightened the squeeze when it recommended holding oversight hearings in June, asserting, "The FCC process appears broken and most of the blame appears to rest with Chairman [Kevin] Martin."

In an effort to tamp down such criticism, the chairman has instituted a series of unilateral moves designed to make the FCC more transparent. "I've tried to be responsive to individual concerns that people have raised about the public not being aware enough about some of the issues that were in front of us,"

Congress has been critical of FCC actions as have members of the FCC itself. Much of the criticism is based on process:

Jonathan Adelstein, one of two Democrats on the five-member commission, delivered unusually candid remarks at a forum on Maryland's Eastern Shore last weekend, saying that the Federal Trade Commission is the model for how the FCC should be run. "They have a wonderful collegial atmosphere; they work together on things; they have an open, transparent process," he said. Noting that FCC regulators sometimes have to "beg and plead" to obtain data within the agency, he said, "There should be no fear about sharing information or having an open dialogue."

"The processes that the commission follows are exactly the same as when I actually worked in, physically in, the same office that Commissioner Adelstein is in now," Martin told NJ, referring to his days as an adviser to another regulator.

Critics offered a laundry list of additional steps the chairman could take to make the commission more transparent: requiring more-detailed disclosures of meetings involving FCC officials and outside parties; enforcing deadlines for merger reviews and responses to congressional inquiries; and allowing the public to comment on reports before they are final. Martin's efforts dovetail with the timing of the investigation.

Here's an example of what the beef was about:

Until recently, Martin conducted 11th-hour horse-trading on the eve of public meetings that led to delays of almost 12 hours. Some meetings scheduled for morning commenced at night, and reporters would hold betting pools on when each session would begin.

Uncertainty provides opportunities for politics and manipulation. The commission is continually under scrutiny for having cozy relationships with the interests they regulate. The move may, or may not, eradicate that.

The Iron Law of Oligarchy Lives

Almost 100 years ago, French author Robert Michels noted that despite their best intentions, socialist party organizations were developing into the same hierarchical structures as the conservative parties they opposed. He developed a theory called the iron law of oligarchy to describe this tendency. His thesis is seemingly robust, considering how well it describes political phenomena, but is also commonly ignored.

The Sunday Chron's Outlook section features yet another story--We all Bow to the Superclass-- that looks with surprise at a phenomena he calls inevitable:

We didn't elect them. We can't throw them out. And they're getting more powerful every day.

Call them the superclass.

At the moment, Americans are fixated on the political campaign. In the meantime, many are missing a reality of the global era that may matter much more than their presidential choice: On an ever-growing list of issues, the big decisions are being made or profoundly influenced by a little-understood international network of business, financial, government, cultural and military leaders who are beyond the reach of American voters.

In addition to top officials, these people include corporate executives, leading investors, top bankers, media moguls, heads of state, generals, religious leaders, heads of terrorist and criminal organizations and a handful of important cultural and scientific figures. Each of these roughly 6,000 individuals is set apart by their power and ability to regularly influence millions of lives across international borders. The group is not monolithic, but none is more globalized or has more influence over the direction in which the global era is heading.

Doubt it? Just look at the current financial crisis. As government regulators have sought to head off further market losses, they've found that perhaps the most effective tool at their disposal is what the president of the New York Federal Reserve Bank described to me as their "convening power" — their ability to get the big boys of Wall Street and world financial capitals into a room or on a conference call to collaborate on solving a problem. This has, in fact, become a central part of crisis management, both because national governments have limited regulatory authority over global markets and because financial flows have become so large that the real power lies with the biggest players — such as the top 50 financial institutions that control almost $50 trillion in assets, by one measure nearly a third of all assets worldwide.

6,000 people, the author tells us, dominate events in the world and ensure that government officials establish policies that focus on their self interest. He provides no historical context, so we have no way of knowing if 6,000--a figure I do not dispute--is more or less than the number of people who shaped world events in centuries and millennia past. He concludes by stating that the counterbalancing of this power should be a central focus of the current presidential campaign, though he is suspicious of whether a president can make much of a difference:

The next U.S. president will still be the most powerful person in the world because of his or her control of the nation's unparalleled military might and influence over our economic and political resources. But that influence is on the wane, for a number of reasons: the relative decline in the power of national governments; the relative rise in the power of others in the world's fastest-growing places; U.S. trade and fiscal deficits; and a third, geopolitical deficit arising from both damaged national prestige and what might be characterized either as Iraq fatigue or as having learned from the mistakes of the past several years.

None of this makes the decision that U.S. voters will make in November less important. Government still offers the average citizen the best means of counterbalancing the superclass or redressing growing inequality. And governments will have to play a key role in shaping the new regulatory frameworks and governance mechanisms that will be essential to a more balanced distribution of power in the global era.

But what it does mean is that "change" isn't just a slogan in this year's campaign. It's a reality that will redefine the landscape of power worldwide for U.S. presidents of the future.

Michels would call this arrangement inevitable and only circumstantially different than what has exited in previous moments in history. James Madison would agree that these interests are inevitable, but would add that the central task of a constitutional system is to ensure that this power is divided and made to counteract other forces.

One Vote Matters in Sweeney, Texas

It doesn't happen alot, but the Sweeny mayors race was decided by one vote, 130-129. So if you supported the loser, but forgot to vote, how are you feeling today?

Is An Evangelical Dealignment in the Works?

The Huffington Post has a piece describing a trend among younger evangelical voters to distance themselves from the Republican Party and to not take cues from the leadership which has dominated the movement for the past three decades. They are not flocking to the Democrats, so this is not a realignment, but a dealignment that might add to the number of independents whose vote might sway based on the politics of the moment.

"I think it's a new movement starting," said Amy Archibald, 19, a sophomore at the evangelical school [Seattle Pacific University]. "Most of us would never blindly follow the old Christian Right anymore. James Dobson has nothing to do with us. A lot of us are taking apart the issues, and thinking, 'OK, well, [none of the candidates] fits what I'm looking for exactly.' But if you're going to vote, you've got to take your pros with your cons."

Eugene Cho, a founder and lead pastor at Seattle's Quest Church, which caters to a predominantly under-35 crowd, urges young Christians to look beyond the two or three issues that have allowed Christians to be "manipulated by those that know the game or use it as their sole agenda."

"While the issue of abortion — the sanctity of life — must always be a hugely important issue, we must juxtapose that with other issues that are also very important," Cho wrote in his blog on faith and politics.

Polls have shown that young Christians aren't any less concerned about the "family values" issues that have traditionally driven Christians to the Republican camp. (In fact, a study by the Barna Group, an evangelical polling organization, shows young Christians are actually more conservative on abortion than their elders.) It's just that they're also concerned about issues such as social justice and immigration, issues traditionally associated with Democrats.

It may be that this is simply because a candidate that shares the views of the old line evangelicals, but us appealing to this age group, has not yet emerged. If such a person emerges, this shift might be short term. That's a big if.

Transparency and the Harris County DA

The Chron editorialized today against the DA's office creating a public information office to handle relations with the media.

They argue that the last two DA's warts and all, allowed an unprecedented level of direct access by the media to assistant DA's in the office. A public information office might change that dynamic and in fact limit media access:

The taxpayers should be concerned that they are being asked to pay the cost of erecting a sound wall that is bound to obstruct their ability to find out what their government officials are doing.

Magidson argued to commissioners that the office's policy of allowing investigators and assistant district attorneys to talk directly to the press has become difficult to supervise. He plans to install a public information attorney and a public information officer to serve as the "face and voice" of the office in his absence. A secretary would also be employed. Magidson described the positions as liaisons between news reporters and prosecutors.

In theory, such an arrangement could be helpful. It makes it easy for journalists to know whom to call for information. And these officers are good at putting together department newsletters and archives, which Magidson said would be part of their charge.

But what often happens is that reporters are routed to the press officer, who cannot answer their questions because they have no direct knowledge of the matter at hand. A communications professional usually is adept at finding out the information, but if the answers generate additional questions, the "flaks," as they are known, have to go back for further information. It's inefficient, time-consuming and frustrating for reporters trying to learn important and sensitive government information.

Magidson insists that this procedural change will not restrict the flow of information, but how could it not? The flow of information will be restricted to a single channel. His general counsel, Scott Durfee, who is acting as the office's spokesman until the press division is created, said access to assistant district attorneys will be limited. Durfee himself has been among the most accessible employees of the district attorney's office. It will be a loss to the public's right to know if Durfee, a bank of institutional memory, is muzzled by the new media policy.

The past system of course was ad-hoc and subject to the whims of the DA. No reason to believe that similar levels off access would be granted by future DA's. Still, despite repeated calls to change this and that, it's worth pondering whether the status quo ain't that bad, or at least no worse than any proposed change.

Suprem Court Clerk Cashes In

On its corporate website, Morgan-Lewis--an established Philadelphia law firm with offices world wide, announces that its Houston office has just hired Ted Cruz, an ex Supreme Court clerk who recently served as Texas' Solicitor General.

The announcement specifically states that the company wishes to increase its "Supreme Court and national appellate practice." Hiring Cruz is a great was to do it. After graduating Harvard Law he clerked for both Michael Luttig in the Fourth Circuit and William Rehnquist on the Supreme Court. After working on the Bush-Cheney transition team in 2000 as a legal adviser, and as a deputy attorney in the Justice Department he became Texas' Solicitor General and ran up a solid record as a litigant before the Supreme Court:

He has authored more than 70 U.S. Supreme Court briefs and presented 31 oral arguments, including eight in the U.S. Supreme Court. For four consecutive years, Mr. Cruz won the Best Brief Award from the National Association of Attorneys General (NAAG), for U.S. Supreme Court briefs authored in 2003, 2004, 2005, and 2006. As a litigator, he has amassed a lifetime record in decided cases that he has argued of 23 wins and 4 losses.

Not bad, and not a bad hiring decision for a firm wanting to expand its practice.

What Drives Economic Policy?

I'm completely ripping off this post from Greg Mankiw's blog, who pulled the bulk of his text from the Washington Times, but it can't be beat. It tells us much of what need to be known about what, and who, sets the policy agenda and why. I'd like to see further analysis of economic policy over the years and see how much has been established due to electoral need versus economic need. Of course this argues against democracy so we must tread lightly.

From the Washington Times:

John McCain, the presumptive Republican presidential nominee who should know better, was the first presidential candidate to endorse the gas-tax holiday for the summer driving season. Reportedly, the idea originated with a political pollster, not among Mr. McCain's economic advisers.

Future Indicator?

The Washington Post reports on the Democratic victory in a special election for a seat in the U.S. House. Two things are worth noting: the seat had been held by a Republican--the district is dominated by Republicans--and the Republicans had used a strategy against the Democrat that they hoped to use in November if necessary. They tied him closely with Obama, whom he supports, and hoped to use recent controversies involving Obama against the House candidate.

It didn't work:

Democrats said the result in the Baton Rouge-based district showed that an anti-Obama campaign has its limits and that they are poised for very large gains this fall.

"These Republicans can run, but they cannot hide. Our candidates have proven that they are competitive, that they are viable. This is clearly adding up to a very bad year for Republicans," said Rep. Chris Van Hollen (D-Md.), chairman of the Democratic Congressional Campaign Committee.

Cazayoux's victory followed that in March of Bill Foster, a Democrat who won the seat of former House speaker J. Dennis Hastert (R-Ill.) in a special election. Hastert had easily won reelection since 1986 before his retirement in November.

Coincidentally, the House seat Cazayoux won yesterday was also previously held by a Republican first elected to office in 1986. Richard H. Baker resigned in February to become a hedge-fund lobbyist.

With a poorly funded candidate in Jenkins, the National Republican Congressional Committee and conservative groups poured about $1 million into an advertising campaign that in the final weeks focused on linking Cazayoux to Obama and Pelosi. The ads accused Cazayoux of supporting Obama's "big government scheme" on health care and his "radical agenda" on other issues.

GOP strategists considered the Cazayoux-Jenkins race a test run of the emerging strategy to pin Obama to many House Democratic candidates, thinking that his liberal voting record and recent controversies involving statements by his former pastor make him a drag on down-ballot Democrats.

Republicans privately bemoaned Jenkins leading up to yesterday's race because he has been a divisive figure in local politics for decades. Officially, House Republicans vowed to continue attacking Democrats and attempting to paint them into a corner with Obama and Pelosi.

"When Barack Obama and Nancy Pelosi were introduced into this campaign, Don Cazayoux was leading by a large margin in the polls and Republicans substantially closed that gap. This election speaks to the potential toxicity of an Obama candidacy and the possible drag he could have down-ballot this fall," NRCC spokesman Ken Spain said.

The Market Speaks

Fans of the free market argue that the information it provides to producers and consumers--like how much it costs to fill up a tank of gas--allows for individuals to make choices about how to deal with it. Here's a story from today's Chron about bus ridership and how it is influenced by the price of gas:

Area residents, who otherwise would never part with their cars, now feel compelled by record fuel costs to look at alternatives, such as carpooling or telecommuting. Many also are turning to mass transit.

Several who were riding Metropolitan Transit Authority Park & Ride buses last week said they were saving wear and tear on their nerves at the same time. The rides are a time to escape with a book, listen to music or catch up on some Zs.

Traffic jams are other peoples' worries.

Last fall, the Chronicle examined two years' worth of monthly boarding data from Metro and monthly gasoline prices in Houston, but found no clear link between them. Both numbers went up and down, seemingly at random. That has changed.

Ridership counts for October through March are up nearly 3 percent compared to the same period 12 months earlier. Metro officials put the actual increase at more than 6 percent when adjusted to reflect more accurate counts made by sensors in the bus and train doors, starting in October.

The price of regular gasoline rose 35 percent during the same period. Boardings for the six months on Park & Ride buses, which travel the long routes that eat deep into commuters' wallets, increased 13 percent over the previous year.

Metro's April data are not out yet, but in March, when gas prices here averaged $3.15 a gallon (32 percent higher than in March 2007), Park & Ride boardings were up 16 percent compared with a year ago.

Metro attributes about 40 percent of that gain to the opening of two new Park & Ride lots in Katy and Baytown, but says the rest is because of higher gas prices.

Metro also saw its boardings shoot up after Hurricane Katrina in 2005. Much of that reflected the influx of evacuees to Houston. But there also was a nationwide increase in transit use sparked by the higher fuel prices after the storm, American Public Transportation Association spokeswoman Virginia Miller said.

Fuel prices approached $3 in 2006, then dipped during the summer. But transit use did not go down.

"People had changed their travel habits and were staying with it," Miller said.

She said there may be a "tipping point" at which large numbers of motorists will shift to mass transit, at least for their daily commutes to work, but it is not clear where that point is.

"For a lot of people across the country, $3 and just over $3 was a tipping point, since both 2006 and 2007 were record ridership years," she said.

"It may be that $3.50 is a tipping point for a whole other level of people," Miller continued. If so, she said, it would be a hardship for the 54 percent of Americans who, according to the Census Bureau, do not have access to public transit.

Public transportation is not an immediate solution for people who do not have that option available to them, but expect to see other behaviors--carpooling, telecommuting, or changes in jobs or residence--increase as the cost of gas continues to increase.

A question for policy makers to consider is whether the adjustments that individuals make on their own is sufficient to deal with the problem of high gas prices and precludes additional governmental intervention. Some have argued for years that Americans paid too little for gas and made careless decisions about work, travel and commuting as a result. Perhaps this is an opportunity to change those decisions.

Freed by Twitter

Here's another sign that new technologies have made things different, and why you might want to get a Twitter account. From an email update from Twitter:

Bucking The System

Last weekend CNN lead with a big story about James Buck, a graduate student in journalism from the University of California-Berkeley who was arrested last month in Mahalla, Egypt while covering an anti-government protest. Thinking quickly, James was able to send a one-word Twitter update: "Arrested." His followers in Egypt and back in the US reacted by contacting the university and the consulate on his behalf. Before long, James was updating Twitter with another one-word message, "Free."

CNN Story: http://tinyurl.com/4b4hsg