Where Will Independents Line Up?

From the National Journal:

Can the conservative base of the Republican Party peacefully coexist with independents and enable the GOP to return to power? That is a question that Democratic pollsters Stan Greenberg and Karl Agne posed in a recent Democracy Corps study of conservative Republicans in the South and independent voters in the North.

Greenberg and Agne organized two focus groups in the Atlanta area with middle-aged white voters who identified themselves as strong Republicans and who cast ballots for both GOP presidential nominee John McCain and a Republican congressional candidate in 2008. Based on those discussions, the pollsters concluded that conservative GOP base voters do not oppose Obama because of race but because they are deeply suspicious and fearful that he intends to impose a socialist government on the country. This view is compounded by "an almost siege-like mentality," Greenberg and Agne said, against the mainstream media and popular culture. By contrast, when Agne interviewed white, middle-aged, non-college-educated swing voters in Cleveland, he found that although they were still skeptical of Obama, they nonetheless hoped he might be able to achieve some of his goals.

. . .

Republican pollster Whit Ayres said he read the Democracy Corps study and thought it "very interesting," but he discounted it, including its suggestion that the anxious Right on display in the Atlanta focus groups is the dominant faction in the GOP. "They tend to be the loudest and most intense Republicans," he said, "but they're not the largest group of Republicans, just like Democratic activists in the blogosphere are not the largest group of Democrats."

Ayres said that his polling with Resurgent Republic, a GOP research group that seeks to shape the public debate just as Democracy Corps does, has found that on a range of issues from the economy to terrorist investigations to health care, independents hold views that are more Republican than Democratic.

Party ID: 10/27/09

The latest compilation from pollster.com:

All U.S. Adults

Independents: 37.9%
Democrats: 33.7%
Republicans: 21.4%

The Treasury Department and Goldman-Sachs Continued

The latest in an ongoing story, from Bloomberg:

Some of Treasury Secretary Timothy Geithner’s closest aides, none of whom faced Senate confirmation, earned millions of dollars a year working for Goldman Sachs Group Inc., Citigroup Inc. and other Wall Street firms, according to financial disclosure forms.

....

As part of Geithner’s kitchen cabinet, Sperling and Sachs wield influence behind the scenes at the Treasury Department, where they help oversee the $700 billion banking rescue and craft executive pay rules and the revamp of financial regulations. Yet they haven’t faced the public scrutiny given to Senate-confirmed appointees, nor are they compelled to testify in Congress to defend or explain the Treasury’s policies.

“These people are incredibly smart, they’re incredibly talented and they bring knowledge,” said Bill Brown, a visiting professor at Duke University School of Law and former managing director at Morgan Stanley. “The risk is they will further exacerbate the problem of our regulators identifying with Wall Street.”

Health Care Reform Update: 10/27/09

From The National Journal:

Senate Majority Leader Harry Reid, D-Nev., announced today that the full Senate health care bill will include a public option with an opt-out provision for individual states. Reid said he was only one or two votes shy of the 60 needed to block a filibuster.

"The public option with an opt-out is the one that's fair," Reid said at an afternoon press conference.

The announcement comes after two weeks of deliberation to combine the bills passed by the Finance and Health, Education, Labor and Pensions committees.

Reid said that while he still did not have 60 votes, he was optimistic that support would come. Some moderate Democrats, among them Ben Nelson of Nebraska, have not warmed to the idea.

"I believe that as soon as we get the bill back from the [Congressional Budget Office] and people have a chance to look at it, I believe we will clearly have the support of my caucus to move forward with it," Reid said.

Reid also rejected the "trigger" option floated by Republican Olympia Snowe of Maine, who is the only Republican to vote for a health care bill so far. However, Reid did say the final bill would include a co-op from the Finance bill.

The Senate Bills:

- S1679: Affordable Health Choices Act
- S1796: America's Healthy Future Act

Free Speech and Suicide

Testing the limits of free speech:

A Faribault nurse who authorities say visited Internet suicide chat rooms and encouraging depressed people to kill themselves is under investigation in at least two deaths and could face criminal charges that could test the limits of the First Amendment.

Investigators said William Melchert-Dinkel, 47, feigned compassion for those he chatted with, while offering step-by-step instructions on how to take their lives.

“Most important is the placement of the noose on the neck ... Knot behind the left ear and rope across the carotid is very important for instant unconciousness and death,” he allegedly wrote in one Web chat.

He is under investigation in the suicides of Mark Drybrough, 32, who hanged himself at his home in Coventry, England, in 2005, and Nadia Kajouji, an 18-year-old from Brampton, Ontario, who drowned in 2008 in a river in Ottawa, where she was studying at Carleton University.

- Analysis from the First Amendment Center.

The Harris County-Houston Sports Authority Needs Funds

For 2301.

File this under single purpose local government financing:

Harris County taxpayers may have to inject up to $7 million a year into the Harris County-Houston Sports Authority for the next two years due to a financial crisis sparked by the souring of bonds used to build Minute Maid Park, Reliant Stadium and the Toyota Center.

Facing balloon payments on $117 million in variable-rate bonds, the authority now is obliged to pay off the debt in five years instead of 23 years. That would require $24 million a year — a figure that, together with more than $30 million in additional obligations, would push the authority to the brink of insolvency.

This appears to be a further consequence of the recent financial crisis.

For further info about the HCHSA, and related news and history:

- Official website.
- Sports authority ties could get sticky for Houston mayoral candidate Gene Locke
- Make Way for McLane
- Sports Afield
- "I Didn't Create This Mess ..."

The First Amendment v. Campaign Regulations

The Supreme Court has been veering towards eliminating most restrictions on campaign finance. This illustrates a variety of subjects we've covered in both 2301 and 2302.

From the National Journal:

For years, First Amendment champions have argued that all campaign finance rules tread on free speech and that American elections should be completely deregulated.

It's a sweeping premise that Congress has long rejected in favor of ever-tighter political money limits. But thanks to a sharp right turn in the judiciary, from the Supreme Court on down, those who favor a world without rules may be about to get their wish.

The Supreme Court appears poised to reverse a century-old ban on direct campaign expenditures by corporations large and small. A federal appeals court has rejected Federal Election Commission rules that restrict spending by non-party political groups, such as so-called 527 organizations -- a move that the FEC is prepared to let stand. And two other cases challenging the existing limits on soft (unregulated) money and on independent campaign expenditures are wending their way up to the Supreme Court . . .

Relevant topics include:

- Checks and Balances - the Supreme Court seems set to over turn legislation dating back 100 years (The Tillman Act of 1970)
- Civil Liberties - how do we define free speech? do corporations have free speech rights?
- Interest group influence on the democratic process - can democracy survive a public sector dominated by corporate interests
- Judicial Activism - is the Supreme Court acting within its proper boundaries or is it aggressively imposing its view of proper public policy on the other institutions.

The Health Insurance Industry Has Antitrust Protection

I had no idea.

The exemption was established in 1945 in the McCarran-Ferguson Act, which "gives states the authority to regulate the 'business of insurance' without interference from federal regulation, unless federal law specifically provides otherwise." The act, interestingly enough, was a response to a Supreme Court ruling that held that insurance is not "commerce."

A bill has been introduced to remove this exception: H.R.3596: Health Insurance Industry Antitrust Enforcement Act of 2009.

More Info:
- Pelosi pushing forward with robust public option -- House Dems may ...
- House Panel Approves Bill Curbing Insurers' Antitrust Exemption
- BIG “I” SAYS INSURANCE ANTITRUST EXEMPTION IMPORTANT TO POLICYHOLDERS

White House Counsel in Trouble?

A member of the White House Staff, White House Counsel Gregory Craig, may have to prove his loyalty to the president and fall on his sword.

From the NYT:

As President Obama’s top lawyer, Mr. Craig has been at the center of thorny decisions on closing the prison at Guantánamo Bay, Cuba, and revising interrogation and detention policies, problems that have bedeviled the new administration and generated fierce battles inside and outside the White House. And for months now, he has endured a spate of speculation in print and around the White House about whether he is on the way out.

. . .

It is a classic and not particularly savory Washington story. When an administration stumbles, whispers begin and fingers point in search of someone to blame. At a certain point, assumptions can become self-fulfilling, and an official in the cross hairs finds it harder to do the job. In Mr. Craig’s case, friends said he was unfairly being made a scapegoat for decisions supported across the administration.

- Wikipedia: White House Counsel.

Responsibilities: The Office of Counsel to the President was created in 1943, and is responsible for advising on all legal aspects of policy questions, legal issues arising in connection with the President's decision to sign or veto legislation, ethical questions, financial disclosures, and conflicts of interest during employment and post employment. The Counsel's Office also helps define the line between official and political activities, oversees executive appointments and judicial selection, handles Presidential pardons, reviews legislation and Presidential statements, and handles lawsuits against the President in his role as President, as well as serving as the White House contact for the Department of Justice.

Feds to Lay Off Medical Marijuana

This fits with our discussion of federalism, Gonzalez v. Raich and separated powers.

The Press' Tradition of Independence

Obama's Office of Communication made a tactical decision to take on Fox News. Whether this is a good idea or not I don't know, but in a brief piece supporting the decision Jacob Weisberg makes an interesting point about the uniqueness of the American press:

What's most distinctive about the American press is not its freedom but its tradition of independence—that it serves the public interest rather than those of parties, persuasions, or pressure groups. Media independence is a 20th-century innovation that has never fully taken root in Europe or many other countries that do have free press. The Australian-British-continental model of politicized media that Murdoch has implemented at Fox is un-American, so much so that he has little choice but go on denying what he's doing as he does it. For Murdoch, Ailes, and company, "fair and balanced" is a necessary lie. To admit that their coverage is slanted by design would violate the American understanding of the media's role in democracy and our idea of what constitutes journalistic fair play. But it's a demonstrable deceit that no longer deserves equal time.

We'll discuss this more in 2301 when we cover the media.

The Holy Trinity: Goldman Sachs, Citigroup and JPMorgan

Frank Rich argues that little has been done to reform the financial system which continues to enjoy the fruits of the bailout:

The first stab at corrective legislation emerging from Barney Frank’s Financial Services Committee in the House is porous. While unregulated derivatives remain the biggest potential systemic threat to the world’s economy, Frank said that “the great majority” of businesses that use derivatives would not be covered under his committee’s much-amended bill. It’s also an open question whether the administration’s proposed consumer agency to protect Americans from mortgage and credit-card outrages will survive the banking lobby’s attempts to eviscerate it. As that bill stands now, more than 98 percent of America’s banks — mainly community banks, representing 20 percent of deposits — would be shielded from the new agency’s supervision.

If it’s too early to pronounce these embryonic efforts at financial reform a failure, it’s hard to muster great hope. As the economics commentator Jeff Madrick points out in The New York Review of Books, the American public is still owed “a clear account of the financial events of the last two years and of who, if anyone, is seriously to blame.” Without that, there will be neither the comprehensive policy framework nor the political will to change anything.

The only investigation in town is a bipartisan Financial Crisis Inquiry Commission created by Congress in May. It is still hiring staff. Its 10 members are dispersed throughout the country, and, according to a spokeswoman, have contemplated only a half-dozen public sessions over the next year. Such a panel, led by the former California state treasurer Phil Angelides, seems highly unlikely to match Congress’s Depression-era Pecora commission. That investigation was driven by a prosecutor whose relentless fact-finding riveted the country and gave birth to the Securities and Exchange Commission, among other New Deal reforms. Last week, we learned that the current S.E.C. has hired a former Goldman hand as the chief operating officer of its enforcement unit.

As with similar reform efforts, the collective strength of the affected interests make the efforts difficult. Goldman Sachs, Citigroup and JPMorgan may be the tail that wags the dog. This fits comfortably with our discussion of agency capture and iron triangles.

Interest Groups Split Over Energy Bill

From the NYT:

As the Senate prepares to tackle global warming, the nation’s energy producers, once united, are battling one another over policy decisions worth hundreds of billions of dollars in coming decades.

Producers of natural gas are battling their erstwhile allies, the oil companies. Electrical utilities are fighting among themselves over the use of coal versus wind power or other renewable energy. Coal companies are battling natural gas firms over which should be used to produce electricity. And the renewable power industry is elbowing for advantage against all of them.

...

Brazoria County Elections - 2009

Sample ballot from the Brazoria County Clerk.

Info on the AISD Bond proposal.

The DARPA Arm

While putting notes together for this week's 2302 review of contemporary executive branch issues (I want to look at health care) I stumbled across a feature on the VA Health Administration's website about the "Darpa Arm," an advanced prosthetic arm funded and developed by the agency.

Prosthetic research has been spurred by an unexpected result of improved battlefield medical care. Previously, soldiers with severe injuries which did not cause immediate death would often die of blood loss or infections. This is less the case, but it means that more soldiers survive with lost limbs. This can obviously create problems with their ability to fit back into society. Advanced research in prosthetics could make this transition easier.

I thought it might be appropriate to mention this agency since many of the current technological items we enjoy today (including the internet) originally developed as DARPA projects. Current research, which in addition to prosthetics includes robotics, advanced batteries and alternative energy, will certainly provide the basis for future mass market products.

- Website: DARPA.
- Wikipedia: DARPA.
- Wikipedia: DARPA Grand Challenge.
- VA Research Currents.
- WAPO Story.

Party Fault Lines

Fault lines seem to be opening up in both political parties.

For Democrats its the empathy wing vs. the tightfisted discipline wing.

For Republicans its the tea party wing vs the current leadership.

Proposed Texas Constitutional Amendments - 2009

In a few weeks Texans will vote on a series of constitutional amendments. I want to review these in class soon.

Here are a few links with info on the bills:

- Legislative Reference Library.
- Texas Legislative Council.

Here is the list of proposed amendments with links to Scott Hochberg's website for analysis.

Proposition 1: Allowing cities and counties to issue bonds for improvements around military bases.

Proposition 2: Prohibiting property tax appraisals of homes from being based on the property's potential use as a business.

Proposition 3: Providing for uniform statewide enforcement of property tax appraisal standards.

Proposition 4: Establishing a permanent fund for the advancement of Texas public research universities.

Proposition 5: Allowing neighboring counties to share appraisal review boards.

Proposition 6: Allowing the Veterans' Land Board to reissue bonds that had been previously paid off.

Proposition 7: Removing the provision that prevents officeholders from serving in the Texas State Guard.

Proposition 8: Allowing state funds to be used for federal veterans hospitals.

Proposition 9: Placing provisions of the Texas Open Beaches Act in the Constitution.

Proposition 10: Extending the terms of Emergency Services District boards to four years.

Proposition 11: Placing restrictions on the use of eminent domain in the Constitution.

Interest Groups Limit Extent of Health Care Reform

This story shouldn't be a surprise to my 2301 students after the time we spent discussing Federalist #10, demosclerosis, and the consequence of entrenched special interests.

From the NYT:

As the health care debate moves to the floor of Congress, most of the serious proposals to fulfill President Obama’s original vow to curb costs have fallen victim to organized interests and parochial politics.

. . .

Most economists’ favorite idea for slowing the growth of health care spending was ending the income tax exemption for employer-paid health insurance to make lower-cost plans more attractive. But that would hurt workers with big benefit plans, and a labor-union lobbying blitz helped kill that idea by the Fourth of July.

Lobbying by doctors, hospitals and other health care providers, meanwhile, dimmed the prospects of various proposals to cut into their incomes, including allowing government negotiation of Medicare drug prices and creating a government insurer with the muscle to lower fee payments.

“The lobbyists are winning,” said Representative Jim Cooper, a conservative Tennessee Democrat who teaches health policy.

State Sovereign Immunity

We'll conclude this week's 2301 lecture with a discussion of state sovereign immunity, a controversial topic which holds that states are sovereign entities and are immune from being sued unless they agree to it. This includes the national government allowing citizens from a state suing that state in a national court -- which is the way laws such as the Civil Rights Act of 1964 are enforced.

Here are useful links:

- Wikipedia: Sovereign Immunity in the United States.
- US Supreme Court Center: State Sovereign Immunity.
- Wikipedia: The Eleventh Amendment.
- State Sovereign Immunity and Protection of Intellectual Property.
- Oyez: Alden v. Maine.

Federalism and the Commerce Clause

Here's a long post on some material to cover before we take the 2301 quiz on federalism this week. I pulled all of this from oyez.org. These are the basic facts about five cases involving congressional claims that the commerce clause authorizes legislation in the following areas:

- collective bargaining
- agriculture production
- gun possession in school zomes
- civil suits for gender based violence
- punishment for drug possession

Some were permitted, some were not.

NLRB v Jones

Facts of the Case: With the National Labor Relations Act of 1935, Congress determined that labor-management disputes were directly related to the flow of interstate commerce and, thus, could be regulated by the national government. In this case, the National Labor Relations Board charged the Jones & Laughlin Steel Co. with discriminating against employees who were union members.

Question: Was the Act consistent with the Commerce Clause?

Conclusion: Yes. The Court held that the Act was narrowly constructed so as to regulate industrial activities which had the potential to restrict interstate commerce. The justices abandoned their claim that labor relations had only an indirect effect on commerce. Since the ability of employees to engage in collective bargaining (one activity protected by the Act) is "an essential condition of industrial peace," the national government was justified in penalizing corporations engaging in interstate commerce which "refuse to confer and negotiate" with their workers.

Wickard v Filburn

Facts of the Case: Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above his allotment. He claimed that he wanted the wheat for use on his farm, including feed for his poultry and livestock. Filburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use.

Question: Is the amendment subjecting Filburn to acreage restrictions in violation of the Constitution because Congress has no power to regulate activities local in nature?

Conclusion: According to Filburn, the act regulated production and consumption, which are local in character. The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"

Lopez v US

Facts of the Case: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release.

Question: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?

Conclusion: Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.

Morrison v. US

Facts of the Case: In 1994, while enrolled at Virginia Polytechnic Institute (Virginia Tech), Christy Brzonkala alleged that Antonio Morrison and James Crawford, both students and varsity football players at Virginia Tech, raped her. In 1995, Brzonkala filed a complaint against Morrison and Crawford under Virginia Tech's Sexual Assault Policy. After a hearing, Morrison was found guilty of sexual assault and sentenced to immediate suspension for two semesters. Crawford was not punished. A second hearing again found Morrison guilty. After an appeal through the university's administrative system, Morrison's punishment was set aside, as it was found to be "excessive." Ultimately, Brzonkala dropped out of the university. Brzonkala then sued Morrison, Crawford, and Virginia Tech in Federal District Court, alleging that Morrison's and Crawford's attack violated 42 USC section 13981, part of the Violence Against Women Act of 1994 (VAWA), which provides a federal civil remedy for the victims of gender-motivated violence. Morrison and Crawford moved to dismiss Brzonkala's suit on the ground that section 13981's civil remedy was unconstitutional. In dismissing the complaint, the District Court found that that Congress lacked authority to enact section 13981 under either the Commerce Clause or the Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for it. Ultimately, the Court of Appeals affirmed.

Question: Does Congress have the authority to enact the Violence Against Women Act of 1994 under either the Commerce Clause or Fourteenth Amendment?

Conclusion: No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that Congress lacked the authority to enact a statute under the Commerce Clause or the Fourteenth Amendment since the statute did not regulate an activity that substantially affected interstate commerce nor did it redress harm caused by the state. Chief Justice Rehnquist wrote for the Court that [i]f the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of...Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States." Dissenting, Justice Stephen G. Breyer argued that the majority opinion "illustrates the difficulty of finding a workable judicial Commerce Clause touchstone." Additionally, Justice David H. Souter, dissenting, noted that VAWA contained a "mountain of data assembled by Congress...showing the effects of violence against women on interstate commerce."

Gonzalez v Raich

Facts of the Case: In 1996 California voters passed the Compassionate Use Act, legalizing marijuana for medical use. California's law conflicted with the federal Controlled Substances Act (CSA), which banned possession of marijuana. After the Drug Enforcement Administration (DEA) seized doctor-prescribed marijuana from a patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney General John Ashcroft in federal district court.
The medical marijuana users argued the Controlled Substances Act - which Congress passed using its constitutional power to regulate interstate commerce - exceeded Congress' commerce clause power. The district court ruled against the group. The Ninth Circuit Court of Appeals reversed and ruled the CSA unconstitutional as it applied to intrastate (within a state) medical marijuana use. Relying on two U.S. Supreme Court decisions that narrowed Congress' commerce clause power - U.S. v. Lopez (1995) and U.S. v. Morrison (2000) - the Ninth Circuit ruled using medical marijuana did not "substantially affect" interstate commerce and therefore could not be regulated by Congress.

Question: Does the Controlled Substances Act (21 U.S.C. 801) exceed Congress' power under the commerce clause as applied to the intrastate cultivation and possession of marijuana for medical use?

Conclusion: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the commerce clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite state law to the contrary. Stevens argued that the Court's precedent "firmly established" Congress' commerce clause power to regulate purely local activities that are part of a "class of activities" with a substantial effect on interstate commerce. The majority argued that Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market. The majority distinguished the case from Lopez and Morrison. In those cases, statutes regulated non-economic activity and fell entirely outside Congress' commerce power; in this case, the Court was asked to strike down a particular application of a valid statutory scheme.

Julius Genackowski and the FCC

Slate Magazine has a positive profile of FCC chair Julius Genackowski, the first FCC chair with a background in Silicon Valley.

As with most executive agencies, the FCC is accused from time to time of being captured by the interests it is meant to regulate. Genackowski's background may lead us to wonder whether internet providers have enough clout to dominate the agency to the degree that television networks once did.

- Wikipedia: Julius Genackowski.
- Website: FCC.
- Deconstructing Julius: A conversation with FCC Chairman Genachowski
- Open Secrets: Contributions by computer and internet providers.

McChrystal's Memo and Civilian Control of the Military

Here's commentary about a recently leaked memo by General McChrystal that includes a discussion of the responsibilities of military leaders in a civilian controlled military:

The principle of civilian control means that once the competent civilian authorities have made a binding decision, military leaders are obligated to support it and carry it out. If they cannot in good conscience do so, they should resign. The principle does not mean that military leaders are barred from publicly expressing their best judgment as to the strategy and tactics best suited to the problem at hand before the civilian authorities have made their decision.

....

Age Discrimination: Gross v. FBL Financial Services

Members of Congress are attempting to reverse the results of a Supreme Court ruling on age discrimination. The case is Gross v. FBL Financial Services.

The proposed legislation is a response to the Supreme Court’s June 2009 ruling in Gross v. FBL Financial Services that plaintiffs claiming disparate treatment under the Age Discrimination in Employment Act must show that age was the determining factor in the alleged discrimination, rather than just one of several factors.

“The Gross decision established a far higher standard of proof for age than for other forms of discrimination, without any rationale or justification,” Harkin said. Leahy said the 5-4 decision written by Justice Clarence Thomas was evidence of an “activist Supreme Court.”

Under the proposed legislation, the burden would be on the employer to show it complied with the law once a plaintiff shows age discrimination was a “motivating factor” behind an employment decision.

We will cover this in 2301 when we hit civil rights. and the 14th Amendment's Equal Protection Clause.

The EPA and GreenHouse Gas Regulations

Not all policy is set by Congress. Once an executive agency is established, it has discretion -- within limits ultimately defined by the Supreme Court -- to set policy as well. Sometimes it does so when Congress refuses to act on a particular issue. Such seems to be the case with proposals to regulate greenhouse gases.

- NYT story.
- EPA proposes curbs on industrial greenhouse gases -- latimes.com
- Website: U.S. Environmental Protection Agency
- Wikipedia: EPA.
- Wikipedia: Rulemaking.


Agencies are granted rulemaking authority which gives them a degree of discretion in how they implement the law passed by Congress and given to them to implement. Their doing so is actually advantageous to members of Congress because it allows them to avoid making unpopular, but potentially necessary, decisions.

Federalism and Financial Services

I stumbled across the following article from the Heritage Foundation a moment ago:

Federalism and Financial Services

It's worth a quick read because it analyses how the Constitutional framework impacts the regulation of the financial services industry. It provides terrific background, but it's an ironic read since it argues in favor of repealing the Glass-Steagall Act, the depression era bill which separated the banking, securities and insurance businesses.

The act was indeed repealed, but that has been argued by many to have led to the careless financial moves that led to the current economic collapse. It's a bit like watching a train before the wreck.

Are Dog Fighting Videos Protected Speech?

The Supreme Court heard arguments today in United States v Stevens. The issue presented before the court:

Whether 18 U.S.C. § 48’s ban on knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain violates the First Amendment.
- The Docket.
- The Oral Argument.
- US Code.
- LAT coverage.
- First Amendment Center.
- NYT coverage.

Faith Healing, Child Protection and the First Amendment

Here are a couple of stories to add to our discussion of the limits of the free exercise clause:

- Prayer Trumps Medicine in Decision over Child Death
- Parents in prayer death get probation, some jail - Yahoo! News

In one, parents are not punished for the death of a child when they prayed rather than call doctors to save her. In the other, the parents were punished. These cases came from different states, which may help explain the different outcomes. They are the verdicts in trial courts. The case that ended in a conviction is going to be appealed. Here is an old case involving an appelate decision from California:

- Court Decides Christian Scientist Can Be Tried in Her Child's ...

There appears to be no national ruling that establishes a common rule that covers all such cases. As far as I know the Supreme Court has yet to rule on such a case.

The National Security Council

Some recent news involving the National Security Council:

- A Call To Duty, Changes To Obama's National Security Staff
- Take the Obama War Council Quiz
- President Petraeus?

The Council of Economic Advisers

For 2302, some info about presidential advising as we wade into the executive branch:

- Measures may have staved off collapse
- 'Mr. President, This Is Your Holy S*** Moment'
- How to spin the stimulus

Texas Forensic Science Commission

A state bureaucratic agency in the news recently:

- Website: Texas Forensic Science Commission
- Relevant Legal Code: Texas Code of Criminal Procedure - Article 38.01. Texas Forensic ...
- Current controversy: Two Texans sent to death row by bad science
- Current controversy: Texas: Governor Fires Chairman of Forensic Science Committee

The Supreme Court Term Begins

Relevant stories:

- NYT.
- Time: Five Supreme Court Cases to Watch This Term
- ScotusBlog: Thoughts on this Term and the Next

Gay Divorce in Texas

Can gay couples married elsewhere, be divorced in Texas? A Dallas judge says yes, but seems to want to mostly pick a constitutional fight with Section 32 of the Texas Bill of Rights.

- NYT.

Health Care and Federalism

Legislators in some states are prepared to challenge the constitutionality of the requirement that individuals carry health insurance on federalism grounds.

Sick Days

If you're in my M/W classes (and showed up today) you know class was cancelled because somehow I caught a bug. That's my fault for giving so many quizzes, I know.

I'm not feeling any better so I will have to cancel my Thursday classes also. Here's the plan for next week:

For 2301, we will postpone the week 5 quiz (on Federalist #51) and take it with the week 6 the following Monday, October 5th.

For 2302, I'm going to cancel the quiz altogether. We will start on the executive branch this coming Monday or Tuesday.

Luck for you online students, none of this affects you. Remember that the first paper is due this Sunday.

The Nones

A current survey predicts that in 20 years, 25% of the population will claim to be disinterested in any religion. Here are predictions about the consequences for party competition:

1. Secular voters will become an increasingly important component of the Democratic base.

2. American politics will become more polarized.

3. Republicans will have to choose between becoming a more overtly religious party and reaching out more seriously to the growing secular middle.

4. If secular voters become more aggressively antireligious, the Democrats' newfound faithiness faces big challenges.

David Souter on the Constitution

If you have hour to kill, here's a great interview with the ex-Supreme Court Justice.

The GOP and the Grassroots

Still no clear leader for the party. From the Hill:

Two recent controversies that became high-profile Republican victories sprouted from the grass roots far from Washington, and only later were adopted by congressional Republicans.

Republicans forced and then won a House vote on de-funding the Association of Community Organizations for Reform Now (ACORN) on Friday. That followed the high-profile resignation of White House green-jobs czar Van Jones, who left amid Republican attacks.

The twin successes highlight the biggest difference between today’s GOP and that of a few years ago, when former President George W. Bush was giving marching orders. There is no longer one voice speaking for the whole party.

Who Reads Whom?

From an Insider's Poll in the National Journal: A list if the columnists most likely to be read by Democrats and Republicans ("the one's most likely to shape your opinion or world view")

Democrats:
- Thomas Friedman
- Paul Krugman
- E.J. Dionne
- David Brooks
- David Broder

Republicans
- Charles Krauthammer
- George Will
- David Brooks
- Karl Rove
- Thomas Friedman
- Peggy Noonan
- William Kristol

The two parties seem to live in different worlds.

The Party of the South?

Here's evidence that the Republican Party is primarily popular in the South.

The Right to Zip It

Here's a great piece about an unappreciated and neglected right. It adds to our discussion of Federalist #10 in 2301.

Madison would understand.

Census Report: Incomes Rise only for the Old

This could lead to a seismic political shift:

The incomes of the young and middle-aged — especially men — have fallen off a cliff since 2000, leaving many age groups poorer than they were even in the 1970s, a USA TODAY analysis of new Census data found.

People 54 or younger are losing ground financially at an unprecedented rate in this recession, widening a gap between young and old that had been expanding for years.
While the young have lost ground, older people have grown more prosperous over the years and the decades. Older women have done best of all.

The dividing line between those getting richer or poorer: the year 1955. If you were born before that, you're part of a generation enjoying a four-decade run of historic income growth. Every generation after that is now sinking economically.

Household income for people in their peak earning years — between ages 45 and 54 — plunged $7,700 to $64,349 from 2000 through 2008, after adjusting for inflation. People in their 20s and 30s suffered similar drops. Older people enjoyed all the gains.

This coupled with the extra attention older Americans are paying to health care reform, sue to concerns it will harm them specifically, makes me wonder if age differences in political opinions are becoming more acute.

Bad Stuff About Goldman-Sachs

Here's a great, and damning, piece about the influence of Goldman-Sachs. The author sees them fueling and profiting from every bubble of the past seven decades.

Do U.S. Regulations Inhibit the Development of a Domestic Solar Energy Industry?

Thomas Friedman argues that solar power shows signs of booming in countries where regulations allow it to grow. He suggests that existing regulations in the United States do not, and continue to favor the oil, gas and coal industries that have dominated the energy sector for years.

The reason that . . . other countries are building solar-panel industries today is because most of their governments have put in place the three prerequisites for growing a renewable energy industry: 1) any business or homeowner can generate solar energy; 2) if they decide to do so, the power utility has to connect them to the grid; and 3) the utility has to buy the power for a predictable period at a price that is a no-brainer good deal for the family or business putting the solar panels on their rooftop.

Regulatory, price and connectivity certainty, that is what Germany put in place, and that explains why Germany now generates almost half the solar power in the world today and, as a byproduct, is making itself the world-center for solar research, engineering, manufacturing and installation. With more than 50,000 new jobs, the renewable energy industry in Germany is now second only to its auto industry.

. . .

If you read some of the anti-green commentary today, you’ll often see sneering references to “green jobs.” The phrase is usually in quotation marks as if it is some kind of liberal fantasy or closet welfare program (and as if coal, oil and nuclear don’t get all kinds of subsidies). Nonsense.

This is another example of demosclerosis, covered below and in our lectures on Federalist #10. It also illustrates the concept of agency capture, the process by which an interest group can effectively capture a regulatory agency and ensure that any regulations it issues will favor the industry, not the general welfare.

Socialized Police Forces

While people are talking mostly about the pros and cons of socialized health care, the same question is being applied elsewhere. We have socialized police protection. Should it be privatized?

Where Does Wealth Come From

This is a very provocative piece. It comments on an important dispute underlying politics in the United States, though it is never stated in this cleanly:

Who Are the Wealth Creators?

Is it labor? Is it the investment class? Is it management? Entrepreneurs? This is a vital question because one's answer will determine which groups one is likely to favor, and which public policy choices they are likely to make.

On Demosclerosis

In 2301 we are covering Federalist #10 and its consequences. In it Madison argues that the way to break up majority factions -- and thus prevent the violence of factions that undermines popular governments -- is to design the governing system so that a great number of issues will be brought into the political sphere which makes it impossible for permanent majorities to form. Every interest is a minority interest.

But this causes problems too because these interests can "clog the administration" meaning that they can make it difficult for government to respond to public needs. The current term for this is "demosclerosis." In a conversation about a recent rash of rude behavior (or at least a recent tendency of the media to pay attention to rude behavior), David Brooks touches on the terms and puts it in context. It should be useful for my 2301 students:

. . . there is a broad consensus on what we need to do to solve many of our major problems, but no political way to get there. Most experts of left and right believe we need a gas tax in order to address our energy problems. No political way to get there. Most believe that we need a flatter, fairer tax code, probably based on a consumption tax. No political way to get there. Most agree that the fee-for-service system drives up health care costs and the employer based insurance system is unsustainable. There is apparently no political way to change these things. Most experts agree that teacher quality is crucial to the schools and that bad teachers need to be fired. Again, no political way to do this.

I could go on. It all reminds me of a thesis that Mancur Olson came up with many years ago, which was nicely explained in Jonathan Rauch’s book, “Demosclerosis.” The thesis was that as nations age they develop entrenched relationships that close off certain avenues of change. This leads to the decline of nations. Germany and Japan, on the other hand, were able to grow so quickly after World War II because those entrenched arrangements had been swept away amid the national cataclysms.

The Baucus Bill

Story in

- the Washington Post.
- the New York Times.
- Baucus Press Release.

Against Corporate Campaigning

An NYT Editorial:

The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.

. . .

Most disturbing, though, is the substance of what the court seems poised to do. If corporations are allowed to spend from their own treasuries on elections — rather than through political action committees, which take contributions from company employees — it would usher in an unprecedented age of special-interest politics.

Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers. It would take an extraordinarily brave member of Congress to stand up to agents of big business who then could say, quite credibly, that they would spend whatever it takes in the next election to defeat him or her.

Health Care's Revolving Door

From Politico comes a report that some of the Senate Finance Committee aides that are helping piece together health care legislation have connections to the health care industry. This leads to the reasonable suspicion that the health care industry may well be writing the bill itself:

Some of the most influential aides in the closed-door Senate Finance Committee negotiations over health care reform have ties to interests that would be directly affected by the legislation.

Before she was hired last year as senior counsel to Finance Committee Chairman Max Baucus (D-Mont.), Liz Fowler worked as a highly paid public policy adviser for WellPoint Inc., the nation’s largest publicly traded health benefits company.

Mark Hayes, health policy director and chief health counsel for Finance Committee ranking member Chuck Grassley (R-Iowa), is married to a registered lobbyist for a firm that represents drug companies and hospital groups, although the couple says she doesn’t lobby Grassley’s office.

Frederick Isasi, a health policy adviser to Sen. Jeff Bingaman (D-N.M.), was a registered lobbyist at Powell Goldstein, where his clients included public hospitals and the American Stroke Association.

Kate Spaziani, senior health policy aide to Sen. Kent Conrad (D-N.D.), was also a registered lobbyist at Powell Goldstein, although Conrad’s office says she worked as a lawyer — not as a lobbyist — for public hospitals on Medicare issues.

There’s no evidence that the aides’ ties have shaped the bill that Baucus hopes to release Tuesday, and the ultimate decisions over its provisions rest with the senators themselves. But critics say the involvement of such well-connected insiders could lead to dangerous conflicts.

Interest Group Contributions to Committees

From the Center for Responsive Politics:

- Insurers On Alert Have Given $4 Million to Committees Grilling Them.

This puts an interesting spin on committee hearings. What if you are a member of Congress, and you are attuned to the need for campaign funding in order to hold onto your job, and you are going to hear testimony from interest groups representatives who also contribute to your campaign. Are you going to grill them hard, at the risk of losing support, or will you play softball instead?

It's back to school and 52 insurance companies or their subsidiaries have an assignment due today: they must disclose their financial records, including details on executive pay and entertainment expenditures, to House Energy and Commerce Chairman Henry Waxman (D-Calif.).

While this puts mega-insurers such as AFLAC and Blue Cross/Blue Shield on alert, they might find some comfort in that collectively they enjoy a financial bond with the current committee members. The members have collected $2.9 million from the employees and political action committees of the insurers that received letters from Waxman in August. Fifty-three percent of those donations has gone to Republicans.

Waxman himself has brought more money from the companies he's questioning than all but four other members of the committee. His total haul since 1989 is $106,500. Ranking member Rep. Joe Barton (R-Texas) has collected $84,350 in that time.

Wall Street Reforms Resisted

As we explore the influence of interest groups on government, we should look at the glacial pace the reforms aimed at Wall Street have taken in the past year since the financial melt-down happened.

From NPR:

In the immediate wake of the stock market crash and soaring unemployment, there were loud cries for tighter new financial regulations to prevent a repeat of such a painful episode.

Today, the energy behind such a push seems to have dissipated. The economy has not recovered yet, but it's no longer in free fall. The stock market has risen from the depths of earlier this year.
"While this recession is comparable to the 1930s in some respects, the deprivation and poverty is less visible than it was in the '30s," says Geoffrey Hodgson, a research professor in business studies at the University of Hertfordshire in the United Kingdom.

"There's a complacency amongst the public at large and among politicians."

One reason may be the difficulty in organizing the grassroots forces that may wish to rally for change versus the relative ease that anti-reform forces have in organizing on their side.

Heather Booth hopes that is not the case. She run Americans for Financial Reform, an advocacy group with nearly 200 members, including AARP and the AFL-CIO. As her group works to organize a push for widespread financial reforms, she expects a growing grass-roots call for change.

"We think people have been operating out of not just frustration, but fear," Booth says. "If that fear turns to hope for a real solution, and also, as fear changes to anger towards those who created this, we think there will be mobilization for change."

But mobilizing a mass movement is difficult under any circumstances, and the causes of this economic crisis are particularly complex and ill-understood by the American public.

The financial sector remains one of the most powerful interests in Washington. Here is a link to a page from the Center for Responsible Politics that shows the increase in the amount of money securities firms have donated to campaigns in the past electoral cycles. They do expect a return on their investment.

Party Polarization Increases

Though we may have thought it impossible that it could, and the development may not bode well for our ability to govern ourselves effectively.

From Ronald Brownstein:

America is steadily moving away from the ramshackle coalitions that historically defined our parties and toward a quasi-parliamentary system that demands lockstep partisan loyalty. It is revealing that Obama is facing nearly unanimous Republican opposition on health care just four years after President Bush couldn't persuade a single congressional Democrat to back his comparably ambitious Social Security restructuring.

In this emerging parliamentary system, legislators face enveloping pressure to stand with their side against the other on every major issue. Tellingly, Sens. Max Baucus, D-Mont., and Charles Grassley, R-Iowa, the leaders of the Senate Finance Committee's protracted negotiations, both confronted whispers that they might lose their leadership positions if they conceded too much to the other side. . .

Compounding the pressure has been the development of partisan communications networks -- led by liberal blogs and conservative talk radio -- that relentlessly incite each party's base against the other. Those constant fusillades help explain why presidents now face lopsided disapproval from the opposition party's voters more quickly than ever -- a trend that discourages that party's legislators from working with the White House.

. . . .

Party-line governing is intrinsically flawed. Any bill that must pass solely with votes from the majority party can't realistically incorporate ideas that divide the party. And that fact of life rules out half the tools in our policy toolbox. Though medical-malpractice reform would advance Obama's cost-control goals, for instance, it's impractical to include it in legislation that must pass solely with Democratic votes. Legislation is more balanced when both parties shape it.

How Rational are Markets Really?

After we discussed the central role rationality played in the development of the concept of natural rights comes questions about just how rational, at least in terms of economics, we really are. From Paul Krugman:

As I see it, the economics profession went astray because economists, as a group, mistook beauty, clad in impressive-looking mathematics, for truth. Until the Great Depression, most economists clung to a vision of capitalism as a perfect or nearly perfect system. That vision wasn’t sustainable in the face of mass unemployment, but as memories of the Depression faded, economists fell back in love with the old, idealized vision of an economy in which rational individuals interact in perfect markets, this time gussied up with fancy equations.

. . . this romanticized and sanitized vision of the economy led most economists to ignore all the things that can go wrong. They turned a blind eye to the limitations of human rationality that often lead to bubbles and busts; to the problems of institutions that run amok; to the imperfections of markets — especially financial markets — that can cause the economy’s operating system to undergo sudden, unpredictable crashes; and to the dangers created when regulators don’t believe in regulation.

A Few Laws to Review this Week

This week in 2302 we will dig into the internal workings of Congress. A good way to begin is to compare how different laws bills have been passed into law this session made their way through Congress. We'll look at the following:

- The Lily Ledbetter Fair Pay Act of 2009.
- Children's Health Insurance Program Reauthorization Act of 2009.
- Helping Families Save Their Homes Act of 2009.

What Kind of Chief Justice Will Roberts Choose to be?

John Marshall or Earl Warren? Will he be conciliatory and seek consensus or will he be willing to overturn precedence for the sake of his ideological vision? The answer may lie in how he approaches a decision in Citizens United v. the FEC.

From a commentary by Jeffrey Rosen:

. . . if the Roberts court issues a sweeping 5-to-4 decision in the current case, Citizens United v. the Federal Election Commission, striking down longstanding bans on corporate campaign expenditures, it would define John Roberts as indelibly as Miranda defined Earl Warren. And there is no reason for the court to do so: it would be easy for the justices to rule narrowly in the Citizens United case, holding that the corporate-financed political material in question — a documentary called “Hillary: the Movie” — isn’t the kind of campaign ad that federal law was intended to regulate.

But many conservatives, and even some liberal devotees of the First Amendment, are urging the Roberts court to uproot federal and state regulations on corporate campaign spending that date back to 1907, as well as decades of Supreme Court precedents. If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow.

Generation Gap on Health Care Reform

Here's something worth discussing in 2301 as we investigate political conflict. The dispute over health care reform has revealed a growing generational gap between older voters who are opposed to it -- and the Obama Presidency in general -- and younger voters who are not:

. . . Older Americans are more likely to oppose Mr. Obama’s initiative than any other age group. The White House views this dynamic as one of the biggest obstacles to tamping down public concerns about its approach and assembling a legislative coalition to get a bill passed in Congress.

Older voters were one of the few groups Mr. Obama did not win in the presidential election last year, leaving him and his party particularly reliant on younger voters, who do not show up at the polls as reliably as older people do. They have a dimmer view of his presidency than the rest of the nation.

And there is no reason to think that whatever tensions have been unearthed with this fight are going to end once it is resolved. Mr. Obama has signaled his intention to tackle the long-term financial problems of Social Security, another issue the elderly play an outsize role in, and they tend to be resistant to change there, too.

Poll Results: Trust in Government Institutions

As I'm putting together notes for a discussion of the legislative branch, I'm faced with a quandary. While commentators dating back to Madison and before talk about the legislative branch as having a special connection to the general population, the contemporary Congress has lower approval ratings than either of the other two branches.

This is according to a recently released Gallup Poll:

At a time when President Obama is asking Congress to develop and pass far-reaching healthcare reform legislation, a record-low 45% of Americans say they have a great deal or fair amount of trust in the legislative branch of government, far fewer than trust the judicial (76%) or executive (61%) branches. Second only to the judicial branch are Americans themselves -- 73% trust "the American people as a whole" to make judgments about the issues facing the country.

It is especially ironic that the judicary is trusted more than the other branches since it is the one appointed for lifetime terms, and the most fully removed from the preferences of the general population. This goes against everything we say in class about the degree to which each institution is tied into the preferences of the general population.

I'm open for explanations.

I do have a cynical take on this however. We don't like Congress because it's closely tied to our immediate preferences. The general population is flighty, superficial and unstable and this is reflected in the behavior our representatives. When we see it in action, we don't like what we see. We prefer the institutions that are removed from our worst tendencies.

But maybe I'm just having a bad day.

Citizens United v. FEC

This may become the most important case argued before the Supreme Court this year. The case is Citizens United v the Federal Election Commission.

The case is essentially about whether corporations have first amendment speech rights and whether these were violated when a documentary critical of Hillary Clinton was not allowed to be shown before primary elections last year. The court seems poised to reverse years of precedence stating that such advertising can be limited.

Here's a bit from the NYT:

There seemed little question after the argument in an important campaign finance case at the Supreme Court on Wednesday that the makers of a slashing political documentary about Hillary Rodham Clinton were poised to win. The open issue was just how broad that victory would be.

For more background:

- Citizens United v. Federal Election Commission - ScotusWiki
- Citizens United v. Federal Election Commission - Wikipedia

Obama and the Bully Pulpit

One of the advantages that presidents are said to have over Congress is the ability to effectively take a message to the public and frame the debate around issues so that his proposals are advantaged over those of his opponents. That is effectively what last night's speech was about. The question will be whether his efforts are effective.

Here are links to additional info about the speech and some of the commentary surrounding it:

- video of the speech.
- video of the Republican response.
- NYT: An Attempt to Reignite Obama's Presidency.
- Gallup Poll page on health care.

Two Corporate Parties

Here's a depressing read.

The authors argues that the increased amount of money on politics has made both political parties responsive to the same political forces:

Money has flowed in such a flood into both parties that the Democratic Party gets a lot of its support from the very interests that -- when the Republicans are in power -- financially support the Republicans. You really have essentially -- except for the progressives on the left of the Democratic Party – you really have two corporate parties who in their own way and their own time are serving the interests of basically a narrow set of economic interests in the country.

The Constitution and Incremental Change

As we preview the weeks ahead in both 2301 and 2302, one of the themes I try to hit is how the Constitution resists efforts to suddenly and radically change public policy. David Brooks analyzes Senator Kennedy's goals in office and how those goals were thwarted by constitutional design:

Kennedy’s life yields several important lessons. One is about the nature of political leadership. We have been taught since, well, since the days of Camelot to admire a particular sort of politician: the epic, charismatic Mount Rushmore candidate who sits atop his charger leading transformational change.

But the founders of this country designed the Constitution to frustrate that kind of leader. The Constitution diffuses power, requires compromise and encourages incrementalism.

He points to an odd tension. As citizens we might want strong, effective leadership, but the interplay between the institutions established in the Constitution prevents this from really happening. Is this good or bad?

The Fall 2009 Semester

I've been taking a break from the blog recently to concentrate on other class related issues but will kick things back up soon. If you're a current student expect to see news items posted here that we will cover in class. I'm up for suggestions also, so please send them along.

An American Oligarchy?

Here's some back and forth about the best and brightest in American politics. Does a natural aristocracy rule America?

Texas Open Meetings Act

From the Dallas Morning News, a story about the unique situation small local legislative bodies have when it come to meeting to conduct business. Since it is so easy for them to form quorums, there's always the possibility that they may be able to conduct official meetings outside public inspection, which puts them at odds with the Texas Open Meetings Act:

In Texas, as in other states, meetings of city councils, school boards and other public bodies are open to the public, unless specifically protected under the law. The Texas Open Meetings Act usually applies when the majority of the members of a governmental body discuss public business. It doesn't apply, for example, when such groups are together for social events or workshops.

...the definition of a meeting can be tricky. In 2002, members of the Texas State Board of Education got in a pickle for meeting at an Austin deli. They were indicted for discussing public business in private.

Technology has made the definition of a meeting even trickier. Board members who text-message one another during a meeting could be violating the open meetings law.
A recent case has added a new twist to meetings via electronic communication.

The case involves Alpine City Council members who, in 2004, discussed city business via private e-mail. A U.S. District Court judge found that the members violated the Texas Open Meetings Act. But a federal appeals court ruled in May that not allowing the council members to discuss city business via e-mail violated their free speech rights.

There's a chance now that the Texas Open Meetings Act may be found unconstitutional.

Relevant legislation:

- Texas Open Meetings Act.
- Government in the Sunshine Act.
- Federal Advisory Committee Act.

Man Arrested for Saying He Hates the Police

This might have legs. I wouldn't be surprised to see a test case to come out of this. The Gates arrest might have the unintended consequence of persuading more people to think of disorderly conduct arrests as merely tools for police to stifle protest.

"People talk about the Gates thing in terms of race, but it's an ongoing problem of police using disorderly conduct to shut people up."

Two Bits on Compelled Testimony

Two stories from Grits for Breakfast raise questions about 4th and 5th Amendment issues.

The first concerns neuroscience's increased ability to map brain activity and the role it might play in criminal proceedings. Is a scan compelled testimony? Can a search warrant be issued for a brain scan?

The second concerns false confessions and whether they are coerced or persuaded.

What if There is No Recovery?

Here's a depressing read. The author argues that the nature of unemployment in this recession differs from those of previous depressions, which is one of the reasons why the increase in unemployment was underestimated. Past models were applied to current circumstance and gave a faulty prediction.

Explanations for the collapse of the great American job machine begin with the marked absence of what is called labor hoarding. Usually during recessions, firms keep most of their employees on the payroll even as business slows, in effect stockpiling them for better days. In the current downturn, hoarding seems to have gone into reverse. Not only are firms laying off redundant workers, but they seem to be cutting into the bone. . . . the absence of hoarding means that firms do not expect business to pick up soon. This is supported by other evidence, like a doubling in the number of involuntary part-time workers (there are nine million of them) and the shrinking workweek, now 33 hours — the shortest ever recorded. Presumably, before companies start to rehire laid-off workers, they will ask their current employees to work more.

In short, even if the recession ends, unemployment may hold steady as firms on the rebound simply increase the hours of current employees before they start rehiring.

It's a good time to be in school I suppose.

Are the 80s Over?

This video builds off a point I made below regarding generational shifts in attitudes. Have recent events -- the Great Recession especially -- led to a shift in attitudes about politics, government and society in general?

Fees v. Mortage Relief

Recent legislation designed to make it easier for homeowners at risk of defaulting on mortgages to stay in their homes has failed to make an impact because the existing fee structure makes it lucrative for mortgage companies to have loans go delinquent.

From the NYT:

This week, the Obama administration summoned mortgage company executives to Washington to demand they move faster to lower payments for homeowners sliding toward foreclosure. Treasury officials called on the companies to hire and train more people quickly to field applications for relief.

But industry insiders and legal experts say the limited capacity of mortgage companies is not the primary factor impeding the government’s $75 billion program to prevent foreclosures. Instead, it is that many mortgage companies are reluctant to give strapped homeowners a break because the companies collect lucrative fees on delinquent loans.

Even when borrowers stop paying, mortgage companies that service the loans collect fees out of the proceeds when homes are ultimately sold in foreclosure. So the longer borrowers remain delinquent, the greater the opportunities for these mortgage companies to extract revenue — fees for insurance, appraisals, title searches and legal services.