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Tuesday, May 31, 2011

Dance, Protest, and Thomas Jefferson

Our chapters on civil rights (pp 215-216) and interest groups (p. 289) discuss protest as a political technique. Our chapter on civil liberties discusses "expressive conduct" (p. 177). Recent events at the Jefferson Memorial illustrate these points, as The Washington Post reports:
So, you and four protesters get arrested and roughed up for dancing at the Jefferson Memorial over the weekend. How do you get revenge?

Try an encore performance with 1,600 of your closest friends.

If you’re just coming to this budding controversy, Code Pink co-founder Medea Benjamin and Iraq War veteran Adam Kokesh and others staged the booty shaking to draw attention to a recent U.S. Court of Appeals ruling that dancing is forbidden at memorials because it distracts from the “solemn commemoration” at such sites.

The Court of Appeals ruling came after 18 flash mobbers were arrested for holding a silent dance at the memorial in 2008. One of the dancers sued the Park Police on First Amendment grounds but lost and the case was appealed.

During the arrests Saturday, a Park Police officer slammed one of the protesters to the ground and another officer put his hands around a protester’s neck.

Deliberative Poll in California

A press release from The Center for Deliberative Democracy:

SAN FRANCISCO, CA­ A coalition of non-partisan reform organizations, academics and journalists today announced that they will partner with Stanford University’s Center for Deliberative Democracy to conduct California’s first-ever deliberative poll. This weekend event, called “What’s Next California?” will bring a randomly selected sample of the state’s registered voters together in Torrance for representative and thoughtful deliberation on a wide range of governance, finance and constitutional issues.

Unlike standard public opinion polls conducted via telephone, this “poll with a human face” allows participants to educate themselves on key issues, talk in small groups, question experts with competing perspectives and give reasoned answers to complex policy questions. The participant’s views will be recorded in identical before-and-after surveys.

“This event will give hundreds of everyday Californians who do not usually have the chance to weigh in on policy to make their voices heard on issues that affect each of us every day,” said Lenny Mendonca, an event organizer with California Forward and the New America Foundation. “We sincerely hope that the valuable data we glean will be taken seriously by lawmakers and reform organizations as they move forward.”

What’s Next California is being convened by a non-partisan, non-profit coalition of reform, academic and policy organizations including California Forward, the New America Foundation, the Center for Deliberative Democracy at Stanford University, the Davenport Institute for Public Engagement and Civic Leadership at Pepperdine University, the Public Policy Institute of California, the Nicholas Berggruen Institute, the Bill Lane Center for the American West at Stanford University, and California Common Cause.

“A deliberative poll will provide a route to responsible advocacy­what the people of California would think about the issues if they really focused on them with good information.” said James Fishkin of the Center for Deliberative Democracy at Stanford University.” . It will represent everyone under conditions where they can think about the difficult trade-offs in possible reforms “

The “What’s Next California?” Deliberative Poll will be held in Torrance, Calif., from June 24th through 26th. Judy Woodruff of the PBS NewsHour will moderate the questioning of the expert panels by the citizen participants and anchor a documentary report on the event produced by MacNeil/Lehrer Productions and broadcast on California’s PBS stations. .

To learn more please click here to read an op-ed by David Davenport and Lenny Mendonca from this weekend’s San Francisco Chronicle.


Monday, May 30, 2011

Public Opinion and the Military

At the Los Angeles Times, Karlyn Bowman and Andrew Rugg report on attitudes toward the military:

In poll after poll, the military and its leaders get high marks. That isn't true in many places around the world, where the military is often associated with corruption and brutality and has lost the trust of its citizenry. Americans consistently rank the U.S. military higher than almost any other institution. In a recent Gallup poll that examined confidence in 16 different American institutions, 76% said they had a great deal or quite a lot of confidence in the military. By comparison, 20% expressed high confidence in organized labor, and 19% in big business. Congress was the most poorly ranked institution, with only 11% of respondents expressing high confidence in the body. In another poll, this one by the National Opinion Research Center at the University of Chicago, 75% of respondents said they were "very proud" of America's armed forces, the highest mark in the poll.

One reason for this prestige relates to a central theme of our book: there is more to American life than self-interest.

Big business, big labor and politicians are also seen as self-interested, while the military is not. Nearly two-thirds of the participants in a Kaiser/Harvard/Washington Post poll last year agreed with the statement that "government is pretty much run by a few big interests looking out for themselves." Barely 3 in 10 said it was run for the benefit of all the people. In recent years, 6 in 10 have told Harris Interactive pollsters that Wall Street is dominated by greed and selfishness. Hardly anyone would express these sentiments about the men and women in uniform.
Gallup reports that people who have worn the uniform have distinct opinions: "Thirty-seven percent of all active-duty military personnel and veterans surveyed approved of the job Obama is doing during the January 2010 to April 2011 time frame. That compares with 48% of nonveterans interviewed during the same period."

Gallup also finds that active-duty personnel are more likely than other groups to report that they have no opinion of the president's performance.

There are several possible explanations for this finding. Those on active duty may in general be less involved in politics and current affairs and thus less likely to hold an opinion on Obama or other political matters. Or, it could be that members of the active-duty military are adhering to a general nonpartisan norm within the military culture, and are therefore less willing to express an opinion to a survey interviewer, regardless of what they may actually believe.

And it finds different patterns of service:

The basic pattern of military service among Americans is remarkably -- albeit not surprisingly -- differentiated by age and gender. Across all age groups, most active-duty military personnel and veterans are men. For American men under age 60, the percentage who have served or currently serve in the military ranges from 8% in the youngest age group to 21% of those aged 50 to 59. The percentage of military veterans is much greater among those 60 and older, reaching a peak of 75% among men aged 80 to 99.

Memorial Day

On Memorial Day, issues of religion and civic culture come to the fore. The Department of Veterans Affairs offers various symbols of belief for government headstones and markers. They include one for atheists:

The Department of Veterans Affairs offers a brief history of Memorial Day:

Three years after the Civil War ended, on May 5, 1868, the head of an organization of Union veterans — the Grand Army of the Republic (GAR) — established Decoration Day as a time for the nation to decorate the graves of the war dead with flowers. Maj. Gen. John A. Logan declared that Decoration Day should be observed on May 30. It is believed that date was chosen because flowers would be in bloom all over the country.

The first large observance was held that year at Arlington National Cemetery, across the Potomac River from Washington, D.C.

The ceremonies centered around the mourning-draped veranda of the Arlington mansion, once the home of Gen. Robert E. Lee. Various Washington officials, including Gen. and Mrs. Ulysses S. Grant, presided over the ceremonies. After speeches, children from the Soldiers’ and Sailors’ Orphan Home and members of the GAR made their way through the cemetery, strewing flowers on both Union and Confederate graves, reciting prayers and singing hymns.

Local Observances Claim To Be First Local springtime tributes to the Civil War dead already had been held in various places. One of the first occurred in Columbus, Miss., April 25, 1866, when a group of women visited a cemetery to decorate the graves of Confederate soldiers who had fallen in battle at Shiloh. Nearby were the graves of Union soldiers, neglected because they were the enemy. Disturbed at the sight of the bare graves, the women placed some of their flowers on those graves, as well.

Today, cities in the North and the South claim to be the birthplace of Memorial Day in 1866. Both Macon and Columbus, Ga., claim the title, as well as Richmond, Va. The village of Boalsburg, Pa., claims it began there two years earlier. A stone in a Carbondale, Ill., cemetery carries the statement that the first Decoration Day ceremony took place there on April 29, 1866. Carbondale was the wartime home of Gen. Logan. Approximately 25 places have been named in connection with the origin of Memorial Day, many of them in the South where most of the war dead were buried.

Official Birthplace Declared In 1966, Congress and President Lyndon Johnson declared Waterloo, N.Y., the “birthplace” of Memorial Day. There, a ceremony on May 5, 1866, honored local veterans who had fought in the Civil War. Businesses closed and residents flew flags at half-staff. Supporters of Waterloo’s claim say earlier observances in other places were either informal, not community-wide or one-time events.

By the end of the 19th century, Memorial Day ceremonies were being held on May 30 throughout the nation. State legislatures passed proclamations designating the day, and the Army and Navy adopted regulations for proper observance at their facilities.

It was not until after World War I, however, that the day was expanded to honor those who have died in all American wars. In 1971, Memorial Day was declared a national holiday by an act of Congress, though it is still often called Decoration Day. It was then also placed on the last Monday in May, as were some other federal holidays.

Sunday, May 29, 2011

Perry for President?

As the Texas edition of our book notes, Rick Perry is now the state's longest-serving governor. Associated Press reports that Perry is thinking about running about the Republican nomination for president:

The Lubbock Avalanche-Journal reports:

Craig Goodman, an assistant professor of political science at Texas Tech, said he too was skeptical Perry would even run, noting the governor repeatedly has said he was not interested in campaigning for the presidency.

“If politicians say they’re not going to do something, I like to believe them,” Goodman said. “He talks a lot that he’s got the best job in America being Governor of Texas.”

But if Perry does enter the race, he would likely do so as a top contender for the presidency, Goodman said.

Perry’s strengths would be in attracting grass-roots, Tea Party support in early caucus and primary states such as Iowa and South Carolina, Goodman said.

“He already has a very effective stump speech,” he said. “He’s a strong conservative voice and a tremendous fundraiser.”

Perry’s likely weakness would come in debating other candidates, Goodman said.

“There are going to be a lot of debates before the primary and he doesn’t seem to be someone who relishes the debate,” he said, referencing Perry’s past gubernatorial debates. “His performance is OK, but he never really shines.”

Saturday, May 28, 2011

Superman and Citizenship -- An Update

An earlier post involved Superman's renunciation of US citizenship. Now, Comic Book Resources reports:
The Internet may have exploded when Superman announced his intention to renounce his U.S. citizenship last month in Action Comics #900, but there was no similar hullabaloo two weeks ago when he kissed and made up in Superman #711.

What should we make of this apparent reversal in attitude? Is Superman #711 even meant as a commentary on Action #900? Doubtful. The issue of citizenship isn’t even brought up. Most likely it’s a case of left and right hands not talking to each other.

One of the most frustrating things about keeping up with corporate characters across multiple series is these inconsistencies. Usually it’s just something like, “Hey, why is Batman teaming up with Wonder Woman in this story? They just had a huge, unresolved fight over in Detective Comics.” But when it involves a story that received national attention from the general news media, it’s especially jarring.

Deliberation, Citizenship, and the Military

This blog has discussed the gap between civilian society and the military. A week ago, Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, discussed the problem when he spoke at the graduation ceremony of the US Military Academy at West Point. He emphasized the role of soldiers as citizens, explaining that they had a duty to assist in public deliberation on military affairs:

What I am suggesting is that we in uniform do not have the luxury anymore of assuming that our fellow citizens understand it the same way. Our work is appreciated. Of that, I am certain. There isn’t a town or a city I visit where people do not convey to me their great pride in what we do. Even those who do not support the wars support the troops.

But I fear they do not know us. I fear they do not comprehend the full weight of the burden we carry or the price we pay when we return from battle. This is important, because a people uninformed about what they are asking the military to endure is a people inevitably unable to fully grasp the scope of the responsibilities our Constitution levies upon them. Were we more representative of the population, were more American families touched by military service, like that of the Hidalgos or the Huntoon families, perhaps a more advantageous familiarity would ensue. But we are a small force, rightly volunteers, and less than 1 percent of the population, scattered about the country due to base closings, and frequent and lengthy deployments.

We’re also fairly insular, speaking our own language of sorts, living within our own unique culture, isolating ourselves either out of fear or from, perhaps, even our own pride. The American people can therefore be forgiven for not possessing an intimate knowledge of our needs or of our deeds. We haven’t exactly made it easy for them. And we have been a little busy. But that doesn’t excuse us from making the effort. That doesn’t excuse us from our own constitutional responsibilities as citizens and soldiers to promote the general welfare, in addition to providing for the common defense. We must help them understand our fellow citizens who so desperately want to help us.

As the first chairman of the Joint Chiefs of Staff, General Omar Bradley once said: “Battles are won by the infantry, the armor, the artillery and air teams, by soldiers living in the rains and huddling in the snow. But wars are won by the great strength of a nation, the soldier and the civilian working together.”

It’s not enough that you graduate from here and learn your skill and lead your troops. You must also help lead your nation, even as second lieutenants. You must win these wars, yes, by working alongside civilians and with other departments of our government, with international forces, contractors and nongovernmental agencies. But you also must win them at home by staying in touch with those of your troops who leave the service; by making sure the families of the fallen are cared for and thought of and supported; by communicating often and much with the American people to the degree you can.

Data from the Department of Veterans Affairs suggest that the challenge will only grow in the years ahead:

Friday, May 27, 2011

News about Whites and Hispanics

Ron Brownstein writes at National Journal:

From Revolutionary days through 2004, a majority of Americans fit two criteria. They were white. And they concluded their education before obtaining a four-year college degree. In the American mosaic, that vast white working class was the largest piece, from the yeoman farmer to the welder on the assembly line. Even as late as the 1990 census, whites without a college degree represented more than three-fifths of adults.

But as the country grew more diverse and better educated, the white working-class share of the adult population slipped to just under 50 percent in the Census Bureau’s 2005 American Community Survey. That number has since fallen below 48 percent.


Still, amid all of this change, whites without a four-year college degree remain the largest demographic bloc in the workforce. College-educated whites make up about one-fifth of the adult population, while minorities account for a little under one-third. The picture is changing, but whites who have not completed college remain the backbone of many, if not most, communities and workplaces across the country.

They are also, polls consistently tell us, the most pessimistic and alienated group in American society.

The latest measure of this discontent came in a thoughtful national survey on economic opportunity released last week by the Pew Charitable Trusts’ Economic Mobility Project. If numbers could scream, they would probably sound like the poll’s results among working-class whites.

From the report of the Economic Mobility Project:

African Americans and Hispanics, along with parents, are also more optimistic about the next generation. Nearly half of African American (47%) and 45% of Hispanic parents believe it will be “easier” for their children to “move up the income ladder.” Only 28% of whites feel the same way. We ask Americans with no children a similar question about “young people” in general. Here too, minorities are more likely to be optimistic, with 20% of African Americans and 19% of Hispanics foreseeing a positive future, contrasted with only 13% of whites.

Growing Hispanic numbers have political implications. From the Census:

The U.S. Census Bureau today released a 2010 Census brief on the nation's Hispanic population, which shows the Hispanic population increased by 15.2 million between 2000 and 2010 and accounted for more than half of the total U.S. population increase of 27.3 million. Between 2000 and 2010, the Hispanic population grew by 43 percent, or four times the nation's 9.7 percent growth rate. The Hispanic Population: 2010 brief looks at an important part of our nation's changing ethnic diversity with a particular focus on Hispanic origin groups, such as Mexican, Dominican and Cuban.

Mark Hugo Lopez writes at the Pew Research Center:

Hispanics of Mexican, Puerto Rican, and Cuban origin or descent remain the nation's three largest Hispanic country-of-origin groups, according to the 2010 U.S. Census. However, while the relative position of these three groups has remained unchanged since 2000, the next four Hispanic sub-groups grew faster during the decade.

Hispanics of Salvadoran origin, the fourth largest Hispanic country-of-origin group, grew by 152% since 2000. The Dominican population grew by 85%, the Guatemalan population by 180% and the Colombian population by 93%. Meanwhile, the Cuban and Puerto Rican populations grow more slowly -- 44% and 36% respectively.

Thursday, May 26, 2011

Buying American

In our chapter on economic policy, we discuss the politics of international trade. Our chapter on mass media explains the role of opposition research. The two topics can merge, as The Hill reports
The chairwoman of the Democratic National Committee (DNC) appears to drive a foreign car, despite criticizing Republican presidential candidates for supposedly favoring foreign auto manufacturers.

Rep. Debbie Wasserman Schultz (D-Fla.), the chairwoman of the DNC, ripped into Republican presidential contenders who opposed President Obama's 2009 bailouts for General Motors and Chrysler.

"If it were up to the candidates for president on the Republican side, we would be driving foreign cars; they would have let the auto industry in America go down the tubes," she said at a breakfast for reporters organized by The Christian Science Monitor.
But according to Florida motor vehicle records, the Wasserman Schultz household owns a 2010 Infiniti FX35, a Japanese car whose parent company is Nissan, another Japanese company. The car appears to be hers, since its license plate includes her initials.
On November 5, 1984, The Washington Post reported:
In Michigan, the campaign of Democratic Sen. Carl Levin is broadcasting a 1983 film segment that shows Republican Senate candidate Jack Lousma, a former astronaut, telling a Japanese audience that "back home in the United States" he owned a Toyota. Lousma, badly needing the votes of people whose livelihoods depend on the U.S. auto industry, last week said the car belongs to his son.
In 1980, the running mate of independent presidential candidate John Anderson made an admission in Michigan. On September 4 of that year, the Post reported:

Anderson raised the debate issue during the last day of a five-day Midwest swing plagued by bad weather and minor snafus. Today, for example, Anderson's vice presidential running mate, Patrick Lucey, made an embarrassing admission here in the automobile capital of the nation. He said he drives a French-made Peugeot, not an American-made car. The car, he added, "is not a very valuable asset to our family, and I think it's less valuable to the campaign."

In 2004, the late Deborah Orin summed it up in The Columbia Journalism Review:
The AP story also reported Kerry’s statement about the need for his family to buy American cars. That inspired me to ask The Post library to help check what cars were registered to the Kerry family — we discovered, as I’d half-expected, that they owned foreign cars like a German Audi that he’d conveniently omitted from the list of family cars that he ticked off for reporters. Initially the Kerry campaign tried to claim they had no idea whether or not Teresa Heinz Kerry owned an Audi. But that didn’t work because I’d already confirmed with two separate people at the Massachusetts motor vehicle department that she did indeed own this particular German-made car with this license plate and vehicle identification number with a current registration at her Beacon Hill address.

Incidentally, the person who first taught me the importance of checking whether a candidate owns a foreign car was none other than Kerry’s political guru — Bob Shrum.In the 1988 presidential campaign when Shrum was working for Dick Gephardt, his team ran a tough anti-foreign car TV ad in Iowa that arguably won the caucuses for Gephardt — it attacked the Japanese-made* Hyundai as a threat to American jobs. No reporters (me included) caught onto the little secret that made Shrum’s ad especially potent but also safe for Gephardt — at the time, Iowa had no Hyundai dealers so it was easy to attack Hyundais without offending many Iowans.

In the fallout from the Hyundai ad, I learned that most political strategists warn their candidates to drive only American cars in case reporters or rivals ask (Pat Buchanan once got clobbered in Michigan for owning a Mercedes). In fact, many political consultants also drive only American themselves for the same reason.

Supreme Court Upholds Arizona Law on Hiring Aliens

Immigration and federalism remain a politically charged mix. Jennifer Epstein reports at Politico:

The Supreme Court ruled Thursday to uphold Arizona’s law that penalizes companies that knowingly hire illegal immigrants.

In a 5-3 vote, the court concluded that federal immigration law doesn’t prevent the state from revoking the business licenses of companies that violate state law.

Chief Justice John Roberts wrote in the majority opinion that the court had come to its decision because “the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law.”

More from the majority opinion:
IRCA [The Immigration Reform and Control Act] expressly reserves to the States the authority toimpose sanctions on employers hiring unauthorized workers, through licensing and similar laws. In exercising thatauthority, Arizona has taken the route least likely to cause tension with federal law. It uses the Federal Gov-ernment’s own definition of “unauthorized alien,” it relies solely on the Federal Government’s own determination ofwho is an unauthorized alien, and it requires Arizona employers to use the Federal Government’s own system for checking employee status. If even this gives rise toimpermissible conflicts with federal law, then there reallyis no way for the State to implement licensing sanctions,contrary to the express terms of the savings clause.

Because Arizona’s unauthorized alien employment law fits within the confines of IRCA’s savings clause and doesnot conflict with federal immigration law, the judgment of the United States Court of Appeals for the Ninth Circuit is affirmed.

The dissenting opinion by Justice Breyer notes the many ways in which business relies on the permission of state government:
Arizona calls its state statute a “licensing law,” and thestatute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, forit defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. §23–211(9)(a); cf. §23–211(9)(c) (excepting professional licenses, and water and environ-mental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing sowould permit States to eviscerate the federal Act’s pre-emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful work-ers from national-origin-based discrimination and (2) toprotect lawful employers against erroneous prosecution orpunishment.

Dictionary definitions of the word “licensing” are, as the majority points out, broad enough to include virtually any permission that the State chooses to call a “license.”

Wednesday, May 25, 2011

President Obama and American Exceptionalism

Some critics have said that President Obama is insufficiently enthusiastic about American exceptionalism. Two articles suggest that, whatever his rhetoric may be, he actually embodies the idea.

Carl Cannon writes at RealClearPolitics:

"His worldview is dramatically different from any president, Republican or Democrat, we've had," chimed in Mike Huckabee. "To deny American Exceptionalism is in essence to deny the heart and soul of this nation."

But there is something discordant about this critique, just as there is about a black scholar using the lingo of the 1960s to attack the first black president of theUnited States. It's actually a classic form of cognitive dissonance, a point underscored this week by the thousands of adoring Irish citizens who came to see the U.S. president. In other words, whatever Obama says or does not say about American Exceptionalism, he is its living embodiment.

"Standing there in Moneygall, I couldn't help but think how heartbreaking it must have been for that great-great-great grandfather of mine, and so many others, to part -- to watch [the] Donegal coasts and Dingle cliffs recede, to leave behind all they knew in hopes that something better lay over the horizon," he said Monday.

"When people like Falmouth boarded those ships, they often did so with no family, no friends, no money, nothing to sustain their journey but faith -- faith in the Almighty; faith in the idea of America; faith that it was a place where you could be prosperous, you could be free, you could think and talk and worship as you pleased, a place where you could make it if you tried," Obama added.

"And as they worked and struggled and sacrificed and sometimes experienced great discrimination, to build that better life for the next generation, they passed on that faith to their children and to their children's children -- an inheritance that their great-great-great grandchildren like me still carry with them. We call it the America dream."

Shelby Steele writes in The Wall Street Journal:

What gives Mr. Obama a cultural charisma that most Republicans cannot have? First, he represents a truly inspiring American exceptionalism: He is the first black in the entire history of Western civilization to lead a Western nation—and the most powerful nation in the world at that. And so not only is he the most powerful black man in recorded history, but he reached this apex only through the good offices of the great American democracy.

Thus his presidency flatters America to a degree that no white Republican can hope to compete with. He literally validates the American democratic experiment, if not the broader Enlightenment that gave birth to it.

He is also an extraordinary personification of the American Dream: Even someone from a race associated with slavery can rise to the presidency. Whatever disenchantment may surround the man, there is a distinct national pride in having elected him.

How can the GOP combat the president's cultural charisma? It will have to make vivid the yawning gulf between Obama the flattering icon and Obama the confused and often overwhelmed president. Applaud the exceptionalism he represents, but deny him the right to ride on it as a kind of affirmative action.

A president who is both Democratic and black effectively gives the infamous race card to the entire left: Attack our president and you are a racist. To thwart this, Republicans will have to break through the barrier of political correctness.

In this light, expect Republicans to talk about Senator Marco Rubio as a potential vice presidential nominee. Like Obama, he embodies the American Dream, and he has spoken eloquently about American exceptionalism.

Tuesday, May 24, 2011

Gingrich and Tiffany

According to Glenn Kessler at The Washington Post, Newt Gingrich has paid off the Tiffany's charge account that embarrassed him last week. For some reason, as his writings suggest, Tiffany's has long been on his mind:
  • From A Contract with the Earth (with Terry Maple), p. 94: "Proactive collaboration is further illustrated in the case of Tiffany & Company, which joined forces with Earthworks to investigate environmentally sound methods for mining gold and silver."
  • From The Gettysburg Trilogy (with William R. Forstchen): "Lincoln went over to his desk and, striking a match, lit the lamp, adjusted the wick, and replaced the glass chimney. It was an ugly, elaborate thing, with three insipid brass angels holding up the base, that Mary had picked out at Tiffany's on one of her `decorating sprees' that cost so much it was still causing him headaches with Congress."
  • From 1945 (with William R. Forstchen): "He stretched in turn, reached over for his cigarettes and gold-plated Ronson on the art deco nightstand with its Tiffany lamp. Since he wasn't sure what to say he made a production out of lighting up and enjoying that first luxurious after-bout inhalation."
And on the list of things that he probably wishes he hadn't said, this explanation to Maureen Dowd must rank high: "When I ask Gingrich if it was hard to write such racy prose, he grimaces. `Actually,' he answers, speaking of his publisher, who has been been polishing the opening, `I'm getting him to tone it down just enough so that it gets to be PG-13 and not R. This book is mostly for the Arnold Schwarzenegger group.'"

SCOTUS Springs California Inmates

Federalism continues to shape key aspects of everyday life. In Brown v. Plata, the US Supreme Court has ordered California to release thousands of prisoners.

In the majority opinion, Justice Kennedy wrote:
As a consequence of their own actions, prisoners may bedeprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignityanimates the Eighth Amendment prohibition against cruel and unusual punishment. “‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’” Atkins v. Virginia, 536 U. S. 304, 311 (2002) (quot-ing Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion)).To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependenton the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’” Estelle v. Gamble, 429 U. S. 97, 103 (1976) (quoting In re Kemmler, 136 U. S. 436, 447 (1890)); see generally A.Elsner, Gates of Injustice: The Crisis in America’s Prisons(2004). Just as a prisoner may starve if not fed, he or shemay suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, includ-ing adequate medical care, is incompatible with the con-cept of human dignity and has no place in civilized society.
Justice Scalia disagrees:
Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: anorder requiring California to release the staggering num-ber of 46,000 convicted criminals.

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageousresult. Today, quite to the contrary, the Court disregardsstringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the gov-erning statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

States and Immigration

As mentioned previously, states have an impact on immigration policy. See a new report from the National Conference of State Legislatures:

State legislatures continue to grapple with immigration issues at an unprecedented rate. In the first quarter of 2011, state legislators in the 50 states and Puerto Rico introduced 1,538 bills and resolutions relating to immigrants and refugees. This number surpasses the first quarter of 2010, when 1,180 bills were introduced.

As in past years, employment, identification/driver’s licenses and law enforcement remain top areas of interest for immigrant-related bill introductions. With passage of federal health care reform, however, health also emerged as a top contender. This quarter, the number of health-related bills was more than double those introduced during the same quarter last year. Following last year’s example of Arizona’s SB 1070, omnibus bill introductions also increased in 2011. More information about these omnibus bills can be found here.

As of March 31, 2011, 26 states enacted 63 laws and adopted 78 resolutions, totaling 141 measures. As of March 31, one additional bill was vetoed in New Jersey. Among enacted laws, the top areas of interest were health, identification/driver’s licenses, law enforcement and resolutions. During the first quarter of 2010, 34 states had enacted 71 laws and adopted 87 resolutions, for a total of 156. An additional 37 bills were awaiting governors’ signatures.

Corporations and Outside Spending

Especially since the Citizens United decision, there has been a great deal of focus on outside spending in campaigns. A new paper reminds us that outside spending was well under way before the decision, and that certain types of firms were especially likely to engage in it. Susan Clark Muntean writes in Business and Politics:
This paper proposes a theory of political action based upon ownership structure and tests this theory utilizing data on independent expenditures during the campaign finance regulatory regime consisting of the period after the Bipartisan Campaign Reform Act of 2002 and before the U.S. Supreme Court’s Citizens United decision in 2010. The results suggest a strong relationship between the presence of an entrepreneur or founding family and firm participation in electoral politics via contributions to independent political organizations. Both privately held and publicly traded firms with a principal owner present are more likely to contribute to independent political organizations in the first place, and once they do contribute, give a far greater amount relative to firms without a principal owner. The implications for the post-Citizens United era and possible motivations behind independent expenditures and their impact on other stakeholders including
investors, employees, competitors, and the public are discussed. This paper contributes to our understanding of which corporate interests are most likely to spend money on electoral politics independent of the political party or candidate and seeks to broaden discourse about why these actors might participate in elections in the first place as well as the impact of their participation.

Monday, May 23, 2011

Serving on a Jury

Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is [the jury system’s] greatest advantage. It should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.
In The Jury and Democracy (Oxford University Press, 2010), John Gastil, E. Pierre Deess, Philip J. Weiser and Cindy Simmons confirm Tocqueville's observations. Drawing on in-depth interviews, systematic surveys of jurors, and public records, they show that jury service can affect how citizens view themselves and their government, and can sometimes increase voter turnout. It also sparks changes in media use, political action, and community involvement.

Last week, I served on a jury at the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles. It was indeed an educational experience. During the orientation, a judge told prospective jurors about her visit to post-apartheid South Africa, where she taught local officials about the American jury system. The South Africans, she said, were surprised that the United States does not have different classes of jurors, that a random group of citizens might deal with a simple theft or a complex case of securities fraud. In the latter kind of case, she added, attorneys bear the burden of making the facts and law accessible to the non-experts serving on the jury.

After a relatively short wait in the assembly room, I was part of a group that went upstairs for what turned out to be a drug case. During voir dire, both sides prefaced their questions by making important points. The prosecutor warned us that shows such as CSI are not realistic, and that we should not expect a vast array of high-tech evidence. The public defender reminded us of the presumption of innocence (though she incorrectly attributed the idea to the Constitution). The attorneys struck potential jurors, and in most cases the reasons seemed obvious (e.g., an expressed preference for one side or the other).

The opening statements were short lectures about the facts and the law. The prosecutor said that "reasonable doubt" does not mean "all possible doubt." The public defender stressed that the prosecution would have to prove several elements of the case, and that failure to prove any element would require acquittal. Then the court took testimony, mostly from police officers. An undercover cop testified that he had bought a small amount of crack cocaine from the defendant, and another said that he had watched the deal from across the street. Others testified about the physical evidence.

At day's end, the judge reminded us not to do our own research into any aspect of the case. When it comes to deliberation about public issues, more information is usually better, but during trials, there are good reasons to abstain from independent fact-gathering. For one thing, research can turn up false or misleading information. For another, it can create prejudice. Our job was to render a verdict: the judge was to choose the sentence. Knowledge of the penalty might have colored our decision.

The next morning brought closing arguments and the judge's instructions. As if to emphasize the educational aspect of the trial, the judge began, "I will now instruct you..."

Gastil et al emphasize the crucial role of deliberation, showing how citizens derive great benefit from reasoning together on the merits of a case. They usually walk away knowing that their fellow jurors have taken the job very seriously. We certainly did. Although our case was relatively simple, we strove to be very careful and thorough. We looked at each element of each count, floating ideas, raising possible problems with the evidence, pondering the meaning of the judge's instructions. Everybody was on an equal footing, even though we came from extremely diverse backgrounds. (It really was a jury from central casting: one of the members had been a regular on a long-running situation comedy.)

In the end, we decided that that defendant was guilty on both counts. There was no sense of triumph, no feeling of "we got him!" He was apparently homeless, and had no friends or family in court. When he stood up to hear the verdict, we could see the tag on the suit that the county had bought for him. He cried when he heard the verdict of guilty. We all felt very sorry for him, since his rough life would now get even worse. But we had no reasonable doubt about his guilt.

At the end, the judge thanked us for our service, and spoke about the importance of the jury in the United States. He noted that it was a form of direct democracy. That comment related to the closing chapter of The Jury and Democracy, which compares the jury system with initiative elections and explains why juries provide for much better deliberation.

The authors discuss various reforms of the process, including the idea of letting jurors pose questions during the trial. We could not, even though our deliberations suggested that my fellow jurors would have asked very relevant and perceptive questions.

Federal Budgets, Foreign Policy and Politics in the Obama Age

Budget Basics

Reaction to Cutting Government Spending in Various Areas, January 2011

Foreign policy and national security rank low in the polls.

Libya and War Powers

Last week, the president wrote congressional leaders about Libya. Though his letter did not directly mention the War Powers Act, it suggested that this law did not apply:

The initial phase of U.S. military involvement in Libya was conducted under the command of the United States Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to the North Atlantic Treaty Organization (NATO) and the U.S. involvement has assumed a supporting role in the coalition's efforts. Since April 4, U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts.

(Oddly, although the White House has posted many other letters to congressional leaders on its website (examples here, here, and here), this letter is not yet available there.)

The issue came up at Friday's White House press briefing with press secretary Jay Carney:

Q Libya, War Powers Act. Is there movement on that, from your perspective? Will there be consultation with Congress? I know we’re at a deadline on that.

MR. CARNEY: As you know, Mike, the President has been in consultation with Congress on Libya from the beginning. And the President’s actions have been and are consistent with the War Powers Resolution. We have said from the beginning that we would welcome an expression of support from Congress, in this case similar to the one that has been put forward -- bipartisan one put forward by Senators McCain and Kerry and others. And, again, we have consulted with Congress. We’ll continue to consult with Congress, and would welcome support.

Q Is there a feeling, though, that he needs to ask authorization for continued operation --

MR. CARNEY: I would just say that we have -- the President has acted in a way that's been consistent with the War Powers Resolution, and would welcome an expression of support by Congress.

In The Washington Post last week, Yale law professors Bruce Ackerman and Oona Hathaway strenuously disagreed with the president's position:
But American planes and drones continued their bombing long after the April turnover — and the drones are still flying over Libya. Since the cost of the mission is at three-quarters of a billion dollars and climbing, it is sheer fiction to suggest that we are no longer a vital player in NATO’s “Operation Unified Protector.”

This is especially so when an active-duty American officer remains at the top of NATO’s chain of command. As supreme allied commander, Adm. James Stavridis “leads all NATO military operations.” While a Canadian air force general, Charles Bouchard, is in charge of the Libyan campaign, the buck doesn’t stop with him but with Stavridis, who also reports to the Pentagon as head of the U.S. European command. Even if American drones discontinue their operations before the deadline, an American admiral will still be in a position to call the shots.

This is no accident. NATO has been a key vehicle for American military interests since the 1950s. It would create a terrible precedent to pretend otherwise. Once Obama crosses the Rubicon, future presidents will simply cite Libya when they unilaterally commit America to far more ambitious NATO campaigns.

Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors. George W. Bush gained congressional approval for his wars in Afghanistan and Iraq. Bill Clinton acted unilaterally when he committed American forces to NATO’s bombing campaign in Kosovo, but he persuaded Congress to approve special funding for his initiative within 60 days. And the entire operation ended on its 78th day.

Most Democrats are holding fire. So are most Republicans, as David Paul Kuhn writes at RealClearPolitics:

GOP leaders are no more eager to take up this constitutional fight than the lawmakers of Obama's own political party. A supporting resolution means Republicans sign off on the war. Their silence allows them the liberty to criticize the president's actions, should the conflict come back to haunt him. Americans remain ambivalent about the use of U.S. forces in Libya.

Yet this is a time when conservative activists carry copies of the Constitution in their pockets. Tea party protesters invoke the revolutionary "don't tread on me" motto. House Speaker John Boehner, like so many GOP leaders, publicly expressed his reverence for the Constitution during the health care debate. Yet as another president usurps the legislative branch's most solemn of power -- to declare war -- Republican leaders are not crying, "Hell, no!"

Eric Cantor's office told The Hill last week that the House majority leader was more concerned with "the lack of a defined mission and purpose" than the president's authority under the act.

This is the same Cantor who, last year, wrote an article headlined "Restoring Madison's Vision." "Congress -- and each of its members -- must take seriously its responsibility to legislate only within the few and defined powers of the Constitution," Cantor wrote. "Madison argued that electoral accountability was one of the bulwarks against tyranny."

Here is James Madison, writing to Thomas Jefferson, in 1798: "The Constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.

Sunday, May 22, 2011

Special Elections

Whenever there is a vacancy in the House, it takes a special election to fill it. This week, there will be a special election to fill the seat of Chris Lee, an upstate New York Republican who quit because about embarrassing revelations about his personal life. At, Tom Curry explains that political observers will be watching closely:

Special elections resulting in party switches do have predictive value, according to newly published research by Tom Brunell, professor of political science at the University of Texas at Dallas and graduate student David Smith.

Brunell and Smith studied every House special election between 1900 and 2008.

They found that “when a party picks up more seats in a set of special elections than the other party gains, the more successful party can usually count on picking up seats in the next general election.” Their research was published in the latest issue of Legislative Studies Quarterly. [See MPSA paper here.]

They found that when the Republicans have a net gain in special elections, they win seats in the following general election two-thirds of the time. “For the Democrats, the relationship is even stronger: when they take seats away from the Republicans in the special elections, Democrats follow up with a seat gain in the general election 82.35 percent of the time.”

For every net seat gain by a party in a special election, the party can expect to pick up on average more than six seats in the following general election.

But as they note, most special elections don’t indicate any trend at all because in most cases Democrats keep what had been safe Democratic districts and Republicans win what had been safe GOP districts.

University of Oklahoma political scientist Keith Gaddie, who had studied special elections, said, “When they occur, they behave just like regular open seat elections,” that is, House races on the regular November ballot where an incumbent has decided to not run again and new candidates are vying for the seat.

“In highly competitive districts, a change in control that happens in a special election would probably have happened under the same set of circumstances in November,” Gaddie said. “Open seats should be more vulnerable to national tides because of the absence of incumbents — and they are.”

Saturday, May 21, 2011

Oppo, Governors, and Executive Clemency

As we note in our chapter on federalism, every race for the White House between 1976 and 2008 included at least one presidential or vice presidential candidate who had served as governor. Maggie Haberman writes in Politico that one aspect of gubernatorial service is a potential target:

It’s still early in the presidential race, so the opposition research dumps haven’t really begun. But when the skeletons in the closets of 2012 GOP hopefuls begin to be revealed, the unique shape of the field — which will almost certainly feature a handful of current or former governors — makes it a good bet that someone is going to have a Willie Horton problem.

That’s code for a violent or deranged felon run amok on their watch — a reference to the notorious convict who went AWOL during a furlough from a Massachusetts prison, committed more crimes and ultimately became the subject of a devastating ad that helped seal the fortunes of 1988 Democratic presidential nominee Michael Dukakis.

With former Govs. Mitt Romney, Tim Pawlenty, Jon Huntsman and Mitch Daniels in the 2012 mix — and a few other current and former chief executives perhaps in the wings — the issue of pardons and furloughs is one that could play an unexpected and damaging role for some campaigns.

Haberman concludes:

“Everything you did can, and will, be used against you,” warned said James Pinkerton, an analyst and commentator who has deep ties in GOP politics, and who was involved in the research that led to the Horton ad in 1988. “Even if statistically the problem seems manageable, anecdotally it will be fatal. And therefore you have to have your ducks in a row.

Writing and the Law

Our chapter on the judiciary discusses legal briefs and opinions. The New York Times reports:

Justice Ruth Bader Ginsburg, whose writing is clear but dry, said her style owed something to Vladimir Nabokov, the author of “Lolita.”

Justice Antonin Scalia said he used the occasional pun.

Justice Anthony M. Kennedy, whose opinions can meander, said he aspired to Ernest Hemingway’s stripped-down language, sharing his distaste for adverbs.

Justice Stephen G. Breyer, who has been known to cite foreign law in his opinions, said he looked abroad for literary inspiration, mentioning Montesquieu, Wittgenstein, Stendhal and Proust.

Justice Clarence Thomas said a good brief reminded him of the television show “24.”

In a trove of interviews that are to Supreme Court obsessives what the State Department cables released by WikiLeaks were to students of American foreign policy, eight Supreme Court justices described how they write their opinions, what they look for in briefs and the art of legal writing generally.

The interviews, which had been available only as videos on the Web site of a company that tries to teach lawyers how to write, have just now been published in The Scribes Journal of Legal Writing.

In the transcripts, Chief Justice Roberts explains the importance of the topic:

Language is the central tool of our trade. You know, when we’re looking at a statute, trying to figure out what it means, we’re relying on the language. When we’re construing the Constitution, we’re looking at words. Those are the building blocks of the law. And so if we’re not fastidious, as you put it, with language, it dilutes the effectiveness and clarity of the law. And so I think it’s vitally important — whether it’s a lawyer arguing a case and trying to explain his position, whether it’s a legislator writing a law, whether it’s a judge trying to construe it. At every stage, the more careful they are with their language, I think, the better job they’re going to do in capturing in those words exactly what they want the law to do; in persuading a judge how to interpret it; and as a judge, in giving a good, clear explanation of what the law is.

Roberts also stressed the importance of brevity: "I have yet to put down a brief and say, `I wish that had been longer.' So while I enjoy it, there isn't a judge alive who won’t say the same thing. Almost every brief I've read could be shorter" (p. 35).

Justice Scalia said: "When I edit drafts of my law clerks, most of my work consists not of additions, but of deletions" (p. 52).

Justice Thomas said that he tells his clerks: "Look, the genius is having a ten-dollar idea in a five-cent sentence, not having a five-cent idea in a ten-dollar sentence" (p. 100).

National Popular Vote: Action in California

Previous posts have looked at the National Popular Vote proposal. The Orange County Register reports:

With many California legislators endorsing a national movement to elect the president by popular vote rather than through the electoral college, the state Assembly on Thursday approved a bill that would award the state’s electoral votes to the nation’s popular-vote winner.

Seven states and the District of Columbia, with a combined 77 electoral votes, have approved similar measures so far. The law will not be activated until states totaling 270 electoral votes – the majority needed to elect a president – have such a provision on the books.

California’s bill was passed primarily by Democrats in a 51-21 vote. If approved by the Senate and signed by the governor, it would add 55 electoral votes to the pact.

The state-by-state effort is designed to circumvent the constitutional mandate for that the electoral college choose the president, since it appears unlikely Congress will amend that provision.

A week earlier, the proposal got some high-profile endorsements. From a news release:

In a press conference at the National Press Club in Washington, D.C., Former Tennessee U.S. Senator and 2008 presidential candidate Fred Thompson (R), former Illinois Governor Jim Edgar (R), and former Iowa Governor Chet Culver (D) endorsed the National Popular Vote plan. They join a bi-partisan coalition working to ensure the presidency goes to the winner of the most overall popular votes in all 50 states.

“As a former high school government teacher, Secretary of State in charge of elections in Iowa, and governor, I have always worked hard to increase voter participation and ensure fairness in our electoral process,” said Culver. “The time has come for states to join together and support the simple premise that the individual who receives the most votes for President should become the next President of the United States. I first ran for office as a teacher and coach who wanted more young people to vote, and after I was elected Secretary of State we were able to take great strides to make elections more accessible to all. Voting systems across the country have been modernized, and we now have an opportunity to continue making progress by passing the national popular vote initiative to guarantee that the person who receives the most votes is elected to our nation’s most important elected office.”“We live in a time when the American people are increasingly cynical about their government’s ability to deal with our most pressing problems,” said Thompson. “This means that there is a need for bold, effective presidential leadership as never before. Therefore, we simply can no longer afford to run the risk of having a president who is handicapped by not having won the most popular votes. The National Popular Vote approach offers the states a way to deal with this issue in a way that is totally consistent with our constitutional principles.”

”I’m proud that the state of Illinois was among the first to enact this plan,” added Edgar. “This isn’t a red state issue or a blue state issue; it’s about making sure every state has a voice in our presidential elections.

At Save our States, Tara Ross takes exception:

The Constitution requires approval from three-quarters (38) of the states before radical change can be made to constitutional processes. NPV is on track to change the method of electing a President with the approval of fewer than 20 states.

The Constitution implements a system that combines the best elements of federalism, republicanism, and democracy. The Founders understood from their study of history that a pure democracy “is one of the greatest of evils” that “soon wastes, exhausts, and murders itself.” It is “very subject to caprice and the madness of popular rage.” NPV shuns the lessons of history—so important to the Founders—and replaces America’s federalist, republican, democratic presidential election process with a purely democratic one.

There is more: NPV will likely cause Equal Protection, legal and logistical problems that I have discussed at length elsewhere. But even these few examples should show that Thompson and others need to more thoroughly study the history of our Constitution and the Electoral College before casually claiming that NPV is consistent with America’s founding principles.