Archive for the ‘Politics’ Category

What would LBJ do?

posted by Spencer Waller

I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.

Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.

These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.

Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.

Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.

But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?

***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.

  October 31, 2009 at 6:58 pm  Tags: Civil Rights, filibuster, Harry Reid, health care, LBJ, Lyndon Johnson, Majority Leader, Master of the Senate, Robert Caro, Senate  Posted in: Civil Rights, Current Events, Health Law, History of Law, Politics, Race   Print This Post   No Comments

The Yale Law Journal Online: Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech

posted by Yale Law Journal

 

The Yale Law Journal Online is pleased to announce the publication of Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech by Elizabeth Pollman, a Stanford Law Fellow and former practitioner at Latham & Watkins LLP.  Pollman’s piece covers the potential for sweeping changes to corporate political speech law in light of the Supreme Court proceedings in Citizens United v. Federal Election Commission.

  October 26, 2009 at 1:30 pm   Posted in: Corporate Law, Law Rev (Yale), Law Rev Forum, Media Law, Politics, Supreme Court   Print This Post   No Comments

Shame on the Brits!

posted by Nate Oman

By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you! Read the rest of this post »

  October 22, 2009 at 7:50 am   Posted in: History of Law, International & Comparative Law, Jurisprudence, Just for Fun, Law Practice, Politics, Weird   Print This Post   2 Comments

Medical Marijuana: A Wild Ride on Federal and State Law

posted by Deven Desai

The Justice Department has announced a policy memo about how it will handle medical marijuana. The full memo is on The Justice Blog and in pdf here. As AP summarizes the DOJ will go after medical marijuana operations that exceed state laws or are fronts for criminal acts. At the same time, the New York Times reports that Los Angeles is thinking of cracking down on its more than its estimated 800-1,000 (yes 800-1,000) dispensaries. It seems that many are not adhering to the law that allowed them to exist. For example, many are turning a profit which apparently is not allowed; they must be non-profit. One dispensary in Oakland that adheres to the law has revenues of around $20 million. As the Times reports in other states such as New Mexico, licensed sites still encounter vague and contradictory rules as couriers can be stopped by border patrol and the medical marijuana confiscated even though the delivery is authorized. My colleague Alex Kreit does some great work on drug policy and certainly knows more about it than I. Luckily he will be guest blogging here in the near future. For now I will point folks to his op-ed Yes: It’s Time To Rethink Marijuana Prohibition. It is a thoughtful approach to what to do about marijuana (and has some fascinating figures about how many Americans use marijuana). For me, the recent moves by the federal and state governments seem to indicate that some better system is required to allow the medical use of the drug. The inconsistent standards and enforcement within each state is not great. The more difficult question is how much will medical marijuana be seen as using the federal system to let states test public policy choices? If one adds in same-sex marriage to the question, it seems that federal and state laws are entering a new phase regarding how they interact. I say that because it seems to me that the open divergence between federal and state systems with the possibility that the federal government will ignore or defer to states on national issues is new. In other words, these two issues seem analogous to prohibition and civil rights; yet they are managed differently. I could easily be wrong on this idea. I welcome thoughts and leave sorting out the implications of this possible change to the constitutional law folks.

UPDATE: Lori Ringhand’s comment helped me refocus my thoughts. As she notes (and I was trying to capture but apparently did not), there are of course ebbs and flows in this dynamic. Maybe the better way to ask my question is whether we are seeing a shift towards more deference to states. Again it may not be possible to verify this notion. In addition, it may be that the large social issues are catching attention more than the day-to-day issues. If so, the question may be further refined as are large scale social issues being left to the states a little more than they were from around the 1930s to the 1970s?

Image WikiCommons, Public Domain

  October 20, 2009 at 6:47 am  Tags: medical marijuana  Posted in: Constitutional Law, Health Law, Politics   Print This Post   3 Comments

Danger Will Robinson: Google Book Deal Is at DEFCON 2

posted by Deven Desai

The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.

With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.

Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”

More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?

And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.

  October 8, 2009 at 2:59 pm  Tags: Google, Google Book Settlement, Registry  Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Media Law, Politics, Technology   Print This Post   No Comments

Senator Kirk

posted by Jon Siegel

Governor Deval Patrick of Massachusetts has appointed former Ted Kennedy aide Paul Kirk to fill Kennedy’s Senate seat.  This action follows a change in Massachusetts law to permit such appointments — previously, Massachusetts Senate vacancies could be filled only by special election.

The New York Times previously opined that it was wrong for the Massachusetts legislature to make this change in law because Senate seats should always be filled by election, not by appointment.  But Massachusetts made the right move.  The problem with appointed Senators is not that we currently have so many of them (which we do, because so many elected Senators left to take cabinet posts in the Obama administration), but that so many of the appointed Senators were, in accordance with their states’ laws, appointed to fill out the entire remaining term, or at least too much of the remaining term, of their predecessors.

The Massachusetts law represents an appropriate compromise.  It avoids leaving a Senate seat unfilled for months (which is unfair to the state involved and its citizens) and it also avoids allowing an appointed Senator to serve for a long time (which gives too much power to the state’s Governor at the expense of its people).  It allows the Governor to appoint a Senator to serve on an interim basis until an election can be had in just a few month’s time. 

It’s undoubtedly true that the Massachusetts legislature had political motives in denying the previous (Republican) Governor the power it just granted to the current (Democratic) Governor.  But in politics, sometimes you do the right thing for the wrong reasons.  The Massachusetts legislature acted appropriately in allowing Governor Patrick to fill Senator Kennedy’s seat.

  September 24, 2009 at 12:02 pm   Posted in: Politics   Print This Post   4 Comments

Voting as Veto

posted by Michael Kang

It’s been great to guest blog at Concurring Opinions, but unfortunately for me, my stint here has come to a close. I’ve enjoyed it. Thanks to Dan Solove, Danielle Citron, and their colleagues for hosting me during the last couple months.

I thought that I would use my last post to introduce a work-in-progress, titled Voting as Veto (forthcoming early next year in the Mich. L. Rev.). The article began long ago with a simple observation: When my wife and I (pre-baby) had to decide where to go out for dinner, I realized that I rarely had an affirmative preference for a particular restaurant or type of food on a given night. Instead, I found myself acting almost exclusively on what I call “negative preferences,” or preferences against certain outcomes. I mainly preferred not to visit a particular restaurant or have a particular type of food on a given night. Besides the desire to reserve a veto against certain outcomes, I was reasonably indifferent most of the time about where to go otherwise. It struck me that this type of negative preference was probably common in more formal, less mundane contexts for voting that I study in my research. Although there are many forms of voting that implicitly account for negative preferences in various ways, I found very little in the legal and political science literature developing the notion of negative preferences, or systematically assessing a conception of voting as veto. Voting as Veto is my attempt at both.

In addition, I am currently working on a related essay that applies the insights of Voting as Veto to corporate shareholder voting, the subject of public attention in recent months. Unfortunately, I haven’t posted a draft of either piece on SSRN quite yet. Voting as Veto is further along and currently in the middle of the citechecking process, but as a result, it is in many pieces at the moment. However, I plan to post drafts as soon as I can, so please feel free to email me if you have any questions or comments. Thanks again.

  September 22, 2009 at 5:43 am   Posted in: Corporate Law, Legal Theory, Politics   Print This Post   2 Comments

More on Campaign Finance Reform

posted by Michael Kang

As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens United here.

I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.

Read the rest of this post »

  September 9, 2009 at 6:30 am   Posted in: Constitutional Law, Current Events, First Amendment, Politics   Print This Post   2 Comments

Football and Judicial Politics

posted by Michael Kang

My colleague Joanna Shepherd and I are working on a project analyzing judicial voting on election law cases in state court. Although there is a sophisticated literature about judicial politics and political influences on judges, there actually is little quantitative work looking at political influences on judges in explicitly political cases, such as election contests, redistricting, and ballot access questions. Thinking generally about judicial politics for this project gives me a different perspective on the state court review of the NFL suspensions of two players from the Minnesota Vikings.

Last September, the NFL suspended Kevin Williams and Pat Williams of the Minnesota Vikings for four games each after they failed drug tests. The two star defensive tackles, who together comprise Minnesota’s “Williams Wall,” tested positive for bumetanide, a prescription diuretic banned under the NFL collective bargaining agreement as a masking agent for steroids. After exhausting the appeals process with the NFL, the two Williams’ and the NFL Players Association challenged the suspensions in Minnesota state court.

Here’s the judicial politics angle: The Minnesota district court that heard the Williams’ claims issued a temporary restraining order last December immediately after the Williams’ final internal appeals with the NFL were rejected. The TRO postponed any suspension until the end of the 2008 season, which kept both Williams’ on the field and helped ensure Minnesota a playoff spot last year. The NFL removed the case to federal court, which then dismissed all but two state law claims and remanded those two claims back to state court. This summer, on remand, the Minnesota district court issued another TRO, blocking the NFL from enforcing its suspensions of the Williams’ until after the upcoming 2009 season. I don’t know enough about Minnesota labor law, the NFL collective bargaining agreement, or the relevant preemption issues to assess the state court TROs that helped both Williams’ postpone their suspensions for almost two full seasons, but one commentator who considered these issues noted that even the issuing judge expressed doubts about the likelihood that the Williams’ claims would prevail on the merits, and at least one Vikings blogger suspected a home-court advantage for the Williams’ on their legal claims.

Of course, I have no real idea whether the Minnesota judge in this case was consciously or subconsciously affected by the possible political consequences of denying the TROs. I have little reason to doubt the integrity of this judge in particular, who I assume has nothing but the best intentions. But it might be reasonable to wonder whether a state judge in his position, who must run for re-election to keep his job, could be influenced by the prospect of hometown football fans unhappy that a judge has effectively sidelined their star players for a quarter of a season. My colleague Joanna Shepherd concludes from her research that state judges are routinely re-elected unless they risk doing something controversial and attract negative publicity. Whether or not this particular judge was consciously affected by the possibility, there’s no doubt that denying the latest TRO and putting Kevin and Pat Williams on the sideline for the beginning of the season, right after the Vikings stirred up fan excitement by signing Brett Favre as their new quarterback, would’ve attracted lots of negative attention. If nothing else, this case offers fed courts professors a very salient example for discussing the risk of a home-court advantage in state court and a foreign defendant’s interest in removal to federal court.

Thinking along the same lines, Gregg Easterbrook, an astute NFL commentator (and brother of Frank), suggested that former NFL wide receiver Plaxico Burress might have fared better in his recent gun possession case, if he had rallied local football support to his side by re-signing with the New York Giants immediately before trial. As Easterbrook put it, “Had Burress remained a Giant, he would have had the most popular organization between Washington and Boston in his corner, and it’s simply human nature that prosecutors and judges might have looked sympathetically upon his case.” Instead, Burress received two years in prison for violating New York’s gun permit law. Football matters intensely to many people, which surely has political consequences. One study finds that public universities with Division I-A football programs receive about six percent more in state appropriations than public universities without football programs, and for those football universities, a victory over an in-state rival is correlated with an additional increase in appropriations the following year. Maybe football shouldn’t matter so much to courts and legislatures, but it seems that sometimes it really does.

  September 4, 2009 at 8:13 am   Posted in: Culture, Current Events, Politics, Psychology and Behavior   Print This Post   One Comment

Health Care Reform, Public Opinion, and Personal Experience as Information

posted by Michael Kang

James Surowiecki describes an interesting recent shift in public opinion about the health care system in the United States. Last year, polling found that only 29 percent of Americans rated the health care system as “good” or “excellent,” but when asked the same question today, the percentage of the public giving the same answer now has jumped up to 48 percent. Why the sudden increase given that, as Surowiecki notes, “[t]he American health-care system didn’t suddenly improve over the past eleven months”? Surowiecki attributes the rapid increase to the endowment effect. Now that health care reform is actively under consideration, people are focused on “what we might lose rather than on what we might get.” When people encounter uncertainty about trading what they already have for something else, psychologists have shown that people tend to overvalue what they already have and gravitate toward a natural instinct to keep things as they are.

The endowment effect is a plausible explanation for the suddenness of the shift in public opinion, but I have a different intuition than Surowiecki. Although I have not studied public opinion these days with respect to the current debate on health care reform, I have done empirical research about public opinion during the health care reform debates of the early 1990s that could be relevant. Political scientists find generally that people do not normally infer about national conditions directly from their own personal situations. For instance, people who are struggling financially do not assume that their personal situation indicates that the national economy is doing poorly overall as a more general matter. Just so, during the late 1980s and early 1990s, people who had undergone unpleasant experiences with their personal health care did not necessarily assume that the health care system was in bad shape. Their evaluations of the health care system as a whole did not vary from everyone else’s nearly as much as you might expect. However, when Democrats began championing health care reform during the early 1990s and arguing that there was an unaddressed crisis in American health care, people who had undergone negative experiences in their personal health care suddenly began to credit those negative experiences as a source of information for evaluating the system overall. Accordingly, compared to their fellow citizens, their overall views of the system changed very abruptly in a negative direction once political leaders substantiated the perceived reasonableness of that inference.

Although I cannot say definitively, it’s worth considering whether the abrupt shift in public opinion today that Surowiecki identifies is actually a mirror image of what happened during the early 1990s. Remember that, as I mentioned in an earlier post, the American public by and large report positive feelings about their personal health care today. Surowiecki, in fact, observes in the article that a clear majority of the public reports satisfaction with their insurance coverage, and public satisfaction with health care costs in particular has increased from the early 1990s into this decade. A year ago, Democratic supporters of reform probably had the edge in leading public perceptions about the system as a whole in a negative direction. But now with Republican opponents of health care reform touting the virtues of the American health care system, people who are happy with their health care situation now may be crediting their personal situation as a source of information about the system overall in a positive direction. The abrupt shift in public opinion may be less about the endowment effect than a portion of the public suddenly drawing stronger connections between their good personal experiences with health care and their sociotropic evaluations of the system as a whole. Such inferences from personal experience could explain not only the direction of the shift in public opinion about the health care system, but also the speed with which it occurred.

  August 27, 2009 at 6:17 am   Posted in: Current Events, Politics, Psychology and Behavior   Print This Post   2 Comments

Framing Health Care Reform

posted by Michael Kang

Washington is giving national health care reform its most serious attention since 1994, when the Clintons’ Health Security Act went down in flames. Gordon Smith highlights a salient political consideration in the political debate over the years—high levels of personal satisfaction with one’s own doctors and other providers. There’s no question that Gordon is right that a major obstacle to reform has been that “[p]eople in the middle class tend to be more or less satisfied with their own health care.” From my research on public opinion about health care reform, I can vouch that the public has reported satisfaction with surprising consistency over the years about their personal health care. Surveys over the last thirty years through today find that roughly four out of five Americans are satisfied with the quality of their medical care. Given that the middle class has been reasonably happy with many aspects of their health care, it has a lot to lose, and as Gordon summarizes from his personal perspective, “reformers have not made a case that health care reform will do anything other than make my life worse.”

A problem for Obama and Democrats in favor of health care reform is that Gordon’s view is not only winning out right now, but it assumes away one of the strongest arguments for reform of some form—that health care costs are increasing at unsustainable rates. In other words, part of the pro-reform response ought to be that doing nothing is also likely to make Gordon’s life worse. The main reason that increased government involvement in health care has gained new support from business groups is that their health care costs are rising rapidly, with little reason to expect any improvement in the absence of reform. Insurance premiums for family coverage have already more than doubled on average over the last decade, and the Congressional Budget Office projects that total spending on health care will account for almost 40 percent of the national GDP by 2050. In other words, if Gordon thinks his health care is manageably expensive today, any successful argument for reform may depend on convincing him that it will be unmanageably so before too long.

It is worth noting that Gordon’s view won the public’s collective mind in 1994. The Clinton initiative was doomed when the middle class, though unhappy with certain aspects of the health care system, decided that reform would give them rationing of care and less freedom of choice over providers. What happened in the absence of reform? Using managed care to slow down cost increases, private insurers instead of government restricted choice to the point that a political backlash ensued and inspired HMO legislation to curb unpopular, at times unethical insurance practices. Once insurers squeezed the cost savings they could find through managed care, costs resumed steep annual increases. Today, fifteen years later, the public finds itself worried again about spiraling costs and the uninsured, with the middle class again worried about government restrictions on choice. The pro-reform argument might be that if reform fails again, we’ll end up in an even worse place in another fifteen years. My point is not a partisan one that any particular plan will or will not limit per capita costs over the next fifteen years, but a short-term framing of the issue might doom even a plan that would.

Of course, even if doing nothing is bad, there’s no guarantee that current proposals for reform actually offer an improvement over doing nothing. As its critics allege, reform could be even worse. A criticism of these proposals is that they would exacerbate, not limit the annual increases in health care spending. Arguments matter about how much health care reform might increase total spending on health care, how well it would limit per capita costs, the value of universal coverage, and so on. These are the fine points of a debate that is getting increasingly heated. But if Obama and Democrats in favor of reform hope to fare better than their counterparts from 1994, then they’ll need to persuade the middle class that the status quo will be really bad in another fifteen years and that health care reform therefore offers something “in it for them” over the longer term.

  August 11, 2009 at 5:04 am   Posted in: Current Events, Politics   Print This Post   5 Comments

BRIGHT IDEAS: Susan Brewer on Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

posted by Deven Desai

Today’s Bright Ideas post comes from Professor Susan Brewer. Professor Brewer teaches history at the University of Wisconsin-Stevens Point. She is the author of To Win the Peace: British Propaganda in the United States during World War II. Today she shares how she the ideas behind and how she came to write her latest book, Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq. As someone who loves history and studies of the way media is used to shape agendas, this books looks like a winner. But I’ll let Professor Brewer explain more on that.

PROFESSOR SUSAN BREWER

on

Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq

Why America Fights explores the packaging and sale of war aims by the U.S. government to the American people over the past century. It analyzes propaganda in six wars—the Philippine War, World War I, World War II, the Korean War, the Vietnam War, and the Iraq War—intended to rally public support by showing Americans that they fight for democracy, freedom, security, and economic opportunity. Such messages from “to make the world safe for democracy” to “protect the American way of life,” assure the public that their ideals and interests are one and the same.

I had the idea for this project while I was working on my first book, To Win the Peace: British Propaganda in the United States during World War II (1997). It examines the British government’s careful efforts to construct a lasting “special relationship” with the United States when it recognized that only its wealthy ally had the power to help the depleted British Empire through postwar recovery. Propagandists analyzed U.S. political culture to determine the best way to win American hearts and minds. For example, to overcome what they called the “ancient grudge” held by Americans against the British Empire, British officials sought to link the empire with America’s epic frontier past so popular in films and novels. They called their theme “white men in tough places.” Although officials acknowledged the racist nature of such a message, they thought it would encourage white Americans to identify with the colonizer rather than the colonized. Besides they knew that most African Americans were not allowed to vote. Intrigued by the way in which British policymakers defined their interests and constructed appealing messages to promote them to the American public, I wondered about U.S. government efforts to do the same.

My research also was influenced by the George H. W. Bush administration’s presentation of the Persian Gulf War of 1991. I observed how the administration used explicit and implicit references to past wars to justify the current one: the comparison of Iraqi leader Saddam Hussein to Adolf Hitler; the story of the invading Iraqi troops pulling the plugs on incubators holding Kuwaiti babies, later discredited, which recalled World War I propaganda showing the invading Germans bayoneting the babies of Belgium, also later discredited; and the steady assurance that the Persian Gulf War would not be another Vietnam. These themes, I thought, had a lot to do with popular history and culture and not so much to do with U.S. foreign policy in the Middle East. I wanted to investigate just what government officials have chosen to tell and not to tell when convincing the American people to support war.

To see how various administrations defined their war aims and then how they decided to present them to the public, I conducted research at the National Archives, the Library of Congress, and the presidential libraries. I analyzed the resulting messages as delivered through speeches, posters, movies, radio shows, television appearances, magazine ads, and news stories. What I found was that to promote war aims dedicated to defeating the enemy and expanding U.S. power, propaganda portrayed Americans as liberators, protecting civilization and advancing progress. “To make the world a decent place to live in,” declared a World War I poster. In this case, as in others, the world failed to live up to its projected image, leaving Americans feeling disillusioned about their intervention in the Great War. One of the goals of official propaganda in World War II would be to restore public confidence in America’s global mission and build a consensus in favor of ongoing U.S. commitments overseas.

From war to war, propaganda revived the portrayal of the United States as a just and benevolent nation using its power to create a better world. In doing so, it typically focused attention on American cultural beliefs rather than global realities, presenting idealized versions of the United States and its allies while dehumanizing the enemy. It sought to win over the American people by appealing to what they wanted to believe about themselves. I hope that readers of Why America Fights will consider why these official constructions of wartime national identity remain so compelling.

  August 10, 2009 at 2:31 pm  Tags: history, propaganda, Susan Brewer, war  Posted in: Bright Ideas, Constitutional Law, International & Comparative Law, Politics   Print This Post   No Comments

The New South and the Voting Rights Act, Post-NAMUDNO

posted by Michael Kang

The current New Yorker features an essay by Malcolm Gladwell on To Kill a Mockingbird and the racial politics of the Jim Crow South. Gladwell criticizes Atticus Finch, an iconic figure among many liberals, for accommodating ingrained racism and passing off to himself what was often “homicidal hatred of black people” as excusable human frailty. Gladwell’s depiction of the Jim Crow South is familiar to anyone with a passing familiarity with the civil rights movement, and it contrasts sharply with sunnier contemporary accounts within election law circles of the New South (where I now live), now reformed by the Voting Rights Act. A common response to the Supreme Court’s recent Voting Rights Act decision in NAMUDNO v. Holder, for instance, was to note the triumph of racial progress and the outdatedness of the Voting Rights Act, once born as a forceful response to the Jim Crow South.

Of course, the presidential election of Barack Obama is the inspiration for much of the racial triumphalism. As Akhil Amar put it, “Obama’s very candidacy is a powerful embodiment of a Reconstruction vision in which blacks, under the Fifteenth Amendment, would be full political equals with a right to vote and to be voted for on the same terms as white.” For many, Obama’s election represented the historic moment signaling the irrelevance of race and race-specific remedies in voting rights. As Paul Krugman argued, “Racial polarization used to be a dominating force in our politics, but we’re now a different, and better, country.”

However, Obama’s election demonstrated not only American racial progress over the last fifty years, but also its surprising stagnation in some parts of the South. Particularly in the deeper South, racial polarization seemed not to have diminished nearly as much. The available data, summarized in an amicus brief written by Nate Persily, Charles Stewart, and Steve Ansolabehere for NAMUDNO, confirms that Obama actually received a lower percentage of the white vote in a number of southern states than John Kerry, who was clearly a weaker candidate in a much more difficult election year for Democrats in 2004. Such patterns of racial polarization need not always suggest race-based reasons for the divergence in voting patterns, but it is difficult not to draw race-based conclusions from Obama’s lack of success among white voters in these areas, particularly given Obama’s advantages in 2008 compared to Kerry in 2004.

In other words, when it comes to race in American politics, things have both changed a lot and stayed the same a bit. Things certainly have changed more than they have stayed the same in most of the country, and for the better, but it doesn’t mean that Section 5 of the Voting Rights Act isn’t still useful in the deep South, where it always has had its most meaningful bite. I have emphasized the continuing relevance of Section 5 even while acknowledging the racial progress we’ve seen since the Jim Crow era that Gladwell depicts in his New Yorker essay. Others, however, argue that Congress should refrain from trying to “save Section 5” of the Voting Rights Act and instead embrace a non-race based “right to vote” model for voting rights.

I actually agree about the desirability of national efforts at universal laws to protect the right to vote for all voters against the new vote denial, but I see an implicit choice between maintenance of the Voting Rights Act and new efforts to bolster a universal right to vote as a false one. There are pitfalls when historic legislation like the Voting Rights Act cast such a big shadow that it threatens to bind up newer, overlapping efforts in the same policy domain, but these pitfalls are not inevitable. We can have both, please. The Voting Rights Act may continue to do valuable work even as the voting rights community expands its attention to non-race based concerns about voter identification, restrictive registration requirements, and voting technology, among other things. The success of the past need not define the present, but it is not inconsistent with it either.

Wikimedia Commons Image

  August 7, 2009 at 6:48 am   Posted in: Civil Rights, Constitutional Law, Current Events, Politics   Print This Post   4 Comments

Why so… socialist?

posted by Alice Ristroph

Sometime in the past few days, just in time for the President’s birthday, posters of Obama in Joker-style makeup appeared on a Los Angeles overpass. The images quickly spread across the internet and have sparked predictable praise from the right or criticism from the left. Whether or not the posters are unduly offensive to President Obama, they are a serious insult to Heath Ledger’s Joker and his gleeful nihilism. What strikes and fascinates me is the poster’s angry incoherence: under the image of Obama is the word “socialism.” Did this artist even see The Dark Knight? Or perhaps I should ask, what does this artist think socialism is, anyway?

Consider that socialism is associated with the concepts of “central planning” or a “planned economy,” in which a centralized authority manages everything (or at least the economy) according to plan. Now, thanks to a conversation with Brooklyn Law prof Nelson Tebbe, who offered a profound analysis of The Dark Knight, I watched that film with the close attention of a serious academic, ready to learn what it could teach me about violence. I even read the script. And the Joker’s worldview seems pretty antithetical to socialism. Here’s what the Joker has to say about planning:

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  August 4, 2009 at 3:27 pm   Posted in: Constitutional Law, Culture, First Amendment, Movies & Television, Politics   Print This Post   26 Comments

The Institutional Turn in Budget Politics and Election Law

posted by Michael Kang

Thanks so much to Danielle, Dan, and their co-bloggers for inviting me to visit for the month of August. I start my guest stint at Concurring Opinions by writing a bit about an interesting proposal by Chris Elmendorf and Ethan Lieb for breaking state budget stalemates that appeared in the New York Times op-ed page last week. Elmendorf and Lieb point out that California’s embarrassing budget stalemate, during which the state of California was forced to issue IOUs, threatens to become a yearly ritual during the economic downturn. They propose “[i]f the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens – one from each legislative district – would be convened to resolve the stalemate.” This citizen’s assembly would be presented with proposed budgets from the governor and each party’s legislative caucus, hear arguments from interested experts and groups for two weeks about each proposal, and choose one of the proposed budgets, which then would become law.

The idea is not only creative and promising, but representative of a larger movement toward institutional solutions in election law that I discuss in a recent book review of Heather Gerken’s The Democracy Index. Increasingly, election law reform is turning to the creation of new political institutions that seek not to deny politics or remove politics from lawmaking, but to channel lawmaking in healthier directions by restructuring leadership incentives more closely with the public interest. The Democracy Index, the subject of Heather’s book, is one such institutional solution. It would aggregate data about election administration into an ordinal ranking of state performance that might make an otherwise arcane subject more accessible to voters. Another institutional solution is my own proposal for gerrymandering reform, which would place competing districting maps prepared by the parties on the ballot for public selection. The hope is that inducing electoral competition between the major political parties pushes both sides toward fairer proposals that appeal to the median voter in what would be a public and avowedly political process. Elmendorf and Lieb’s idea is in this same family of institutional solutions.

Heather and I are working on a new project that identifies, assesses, and ultimately advocates this “institutional turn” in election law with much greater elaboration than I could offer in my short book review (or this post). We think this institutional turn is characterized by at least three important qualities. First, institutional solutions by their nature do not look to courts as neutral regulators of politics who can impose fairness from outside the political process. Second, institutional solutions attempt to harness politics to fix politics. They try to restructure political processes to channel competition among leaders in the direction of the public good. Third, institutional solutions generally enlist popular participation in creative ways and engage the public with central questions of election law, to the extent feasible. Each of these qualities is clear in Elmendorf and Lieb’s proposal, which embodies, at least in my view, exactly the right normative instincts emerging in election law.

  August 3, 2009 at 9:37 am   Posted in: Book Reviews, Constitutional Law, Current Events, Politics   Print This Post   3 Comments

A Half-Baked Idea on the Evolution of Legal Scholarship

posted by Nate Oman

Having fallen into a black hole of writing for the last couple of months, I am now trying to emerge to do a bit of blogging. Over the summer I’ve had the good fortune to be part of an interdisciplinary reading group at William & Mary on the financial crisis. Yesterday one of the economists in the group, Till Schreiber, gave a fascinating presentation on the current state of macroeconomics and fiscal policy. One of the striking things to me was to see how little research has been done for the last generation or so on fiscal policy. An enormous intellectual effort has gone into thinking about monetary policy. I was frankly a bit shocked, however, not just at the amount of disagreement there was about such basic questions as the size of the fiscal multiplier, but even more at how thin the research on the topic was. One theory we batted around as to why this was so is a simple matter of the incentives that economists face. Those writing papers on monetary policy had a ready and sophisticated audience among central bankers. Indeed, those doing good work in monetary policy could hope to actually do monetary policy someday. On the other hand, the chances that the average congressman making fiscal policy could read, understand, or even be interested in sophisticated work on fiscal policy was minimal to zilch. Likewise for the chances that an academic expert on fiscal policy would be come a congressman or Senator.

I wonder if there is a similar bias at work in the legal academy. One story that you might tell is that relative to legislators judges are going to be more intellectually sophisticated when it comes to the law. Accordingly, one would expect to see more pieces explicitly addressed to judges than to legislatures. Hence, doctrinal scholarship would dominate over more straight forward law reform proposals. I think that there may have been a point in time at which this was true, but it seems to me that the trend in legal scholarship has been to move away from work that is explicitly addressed to either judges or legislatures. One way of understanding this might be simply in terms of the rising sophistication of interdisciplinary legal scholarship. Sticking with the analogy to economists, however, I wonder if the turn away from work more explicitly aimed at judges might be a result of the ideological divergence of the judiciary and the legal academy since the early 1980s. The academy, of course, has always steered left and given that since 1968 only three of the ten presidential terms have been served by Democrats the federal judiciary at least has been moving to the right. Hence, one might tell a story of the rise of “law and ….” scholarship as the academy’s response to their increasing awareness of their ideological irrelevance to what was going on in the courts.

Just a thought.

  July 31, 2009 at 8:59 am   Posted in: Law School (Scholarship), Politics   Print This Post   No Comments

Politicized Prognostication at the Congressional Budget Office

posted by Frank Pasquale

Back in 2007, wise wonks were already warning that the Congressional Budget Office could torpedo health reform. The CBO dealt Clintoncare a heavy blow by saddling it with huge cost projections — and failing to take into account the savings the program would realize for individual citizens and the private sector. Current CBO director Doug Elmendorf has been riding a wave of notoriety as an objective “referee” in an increasingly bitter reform battle. But as his office’s one-sided estimates enervate reform, it’s beginning to risk its reputation for impartiality. Consider the following observations about CBO’s work:

Bruce Vladeck: “The CBO’s track record in predicting the effects of health legislation is abysmal. Over the last two decades, the CBO has routinely overestimated the costs of expanded government health care benefits and underestimated the savings from program changes designed to reduce expenditures. Most recently, it overestimated the five-year cost of Medicare Part D — the prescription drug benefit — by more than 35%. Even more dramatically, the CBO’s estimates of the Medicare savings from the Balanced Budget Act of 1997 underestimated the impact, on average, by a full 100%. That’s right: In the BBA’s first three years, Medicare spending fell fully twice as fast as the CBO had projected.”

Timothy Stoltzfus Jost: “[A] moment’s reflection would lead one to realize that the CBO’s guess that [a reform proposal] would save [only] $2 billion is about as worthless as an estimate that a loaf of bread will cost $5.65 in 2019, or a gallon of gasoline $4.73. Indeed, the CBO admits as much, stating that it actually believed the proposal would save nothing, but “there is also a chance that substantial savings might be realized.” . . .[T]he media needs to stop reporting CBO reports as though they reflect the real costs of reform.”

Maggie Mahar: “When I read Elmendorf’s testimony suggesting that the [House] bill wouldn’t bend the trajectory of federal health spending, I couldn’t help but wonder: Did he understand how the proposals in the 1,018 page bill dove-tailed with the excellent recommendations that the Medicare Payment Advisory Commission (MedPac) has made in recent years? Has Elmendorf read the lengthy MedPac reports?”

When respected experts like Maggie Mahar are wondering if Elmendorf has understood key literature in the area, something’s gone wrong at CBO. The media’s uncritical acceptance of his figures can only last as long as it fails to report the true complexity and uncertainty involved in both substantive reform and the do-nothing option that CBO’s handiwork is unintentionally advancing.

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  July 28, 2009 at 7:19 pm   Posted in: Health Law, Philosophy of Social Science, Politics   Print This Post   7 Comments

Unilateral Disarmament

posted by Frank Pasquale

David Fontana and Micah Schwartzman complain in TNR that President Obama has failed to appoint young judges to federal appeals courts:

The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.

I think Fontana and Schwartzman are right that older appointees are a mistake for the Democratic party, even though they are probably better for the nation as a whole. (I favor more seasoned judges, particularly as life spans lengthen.)

This is one of many examples where Democrats are trapped in a difficult dilemma by Bush administration practices. If they appoint older judges, they let the circuit courts’ current rightward skew persist longer. But if they retaliate with relative youngsters, we lose the experience and insight that only age can bring to the courts. Same goes for executive appointments: many transparently political appointees of the Bush era have “burrowed in” to permanent positions at agencies, and balance probably requires similar strategies close to the end of the Obama administration — even if long-serving bureaucrats could do a better job in such positions.

Similar dynamics affect government transparency policies. For example, the Brennan Center recently “gave the Obama administration an F for its use of State Secrets” and has criticized it for continuing several Bush era policies of opacity. Here, again, a change would probably be for the better — but we all know that if a terrorist attack occurred, Dick Cheney’s acolytes would be on TV the next day declaring that Obama’s openness helped cause the carnage.

The health reform debate provides a final example. Bush’s plan for Medicare Part D was essentially an unfunded benefit. Rather than take on the tough task of real cost containment, he and the Republican Congress delegated it to fragmented private insurers with little power to make it happen. Conservatives now complain about a dodgy cost curve in Obama’s plans, but denounce virtually every proposed effort for cost containment as “socialized medicine.” Obama’s political fortunes probably rise if he follows the Bush path, but the country will be better off if he and Congress embrace fiscal responsibility.

In light of these examples, I think Fontana and Schwartzman have shed light on a larger phenomenon of the dangers of unilateral disarmament in an increasingly partisan age. If rules of cooperation like the filibuster exist at any less a status than constitutional norm, perhaps the Dems should think deeply about the proper deployment of the “constitutional option” pioneered by those on the other side of the aisle.

  July 20, 2009 at 8:37 pm   Posted in: Politics, Privacy, Supreme Court   Print This Post   2 Comments

A Win For Lessig on Health Reform?

posted by Frank Pasquale

I admit to having been skeptical of Larry Lessig’s move from cyberlaw to anti-corruption work. It’s a veritable Augean stables of influence on Capitol Hill, and key Supreme Court decisions seem to foreclose real reform. However, Lessig has recently shown the potential of distributed Web 2.0 technology to get key leaders to rethink their position on donors’ pet issues:

[S]ome . . . think they’ve figured out a way to use the Web to pressure [Senator Ben] Nelson, whose big contributions from the health-insurance industry and banks has made him a target. . . [Larry Lessig's] organization, Change-Congress.org, is claiming its first “major victory.” In early June, Nelson backed off from his comment that a public option for health insurance was “a deal breaker” and let it be known that he would not join any filibuster against the president’s health-care bill. Lessig says this came after ChangeCongress announced it would spend $10,000 in online ads and send 3,000 direct-mail pieces to Democratic donors in Nebraska pointing out that Nelson received more than $2 million from special interests in health care who oppose the public option.

Several innovative groups are following similar strategies on the state level. At the national level, Little Sis, Sourcewatch, and Political Friendster have all tried to tell the corruption story in interesting ways. But people in Nelson’s office still say these issues bring in nothing like the attention raised by guns and abortion, and Jonathan Alter concludes that Lessig “needs at least 5,000 to 10,000 more [letter-writers] per congressional district before he can begin to make good on his boast of making a powerful senator quiver and quake.” The ultimate effect of Web 2.0 on real politics remains to be seen.

  June 18, 2009 at 11:53 am   Posted in: Administrative Law, Health Law, Politics   Print This Post   No Comments

Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution

posted by Andrew Taslitz

     In an earlier post, I noted that two recent books had important things to say relevant to the ethics of government lawyers. That first post reviewed one of those books. This post reviews the second, H. Jefferson Powell’s beautifully written and spiritually uplifting new book, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008). Despite what the book’s title might suggest,  Powell’s lessons concern the ethics that should guide all constitutional decisionmakers, not only government lawyers. Indeed, his lessons explicitly apply to such lawyers as well, including a chapter-length illustration. Here I simply summarize his ethical theory, leaving it to the reader to imagine applications.

     I note one preliminary point: while much constitutional law scholarship is depressing, either foolishly pretending law to be a mechanical enterprise divorced from politics or a cynical one masking politics,  Jeff Powell offers a third, happier way ignored by fools and cynics alike: that of virtue. Those embracing the first two approaches may see Powell’s way as hopelessly idealistic, but Powell himself sees it as highly realistic, and his extended examples, which I do not have space to recount here, strongly support the pragmatic viability of his suggestions. Read the rest of this post »

  May 19, 2009 at 9:16 am   Posted in: Articles and Books, Book Reviews, Constitutional Law, Legal Ethics, Legal Theory, Politics, Supreme Court, Uncategorized   Print This Post   2 Comments

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