Balkinization  

Monday, December 28, 2009

Updates on the National Surveillance State

Frank Pasquale

I just wanted to draw attention to two articles describing the advance of the national surveillance state.

Stephen Graham's pathbreaking essay "Surveillance, Urbanization, and the US 'Revolution in Military Affairs'" (in the collection Theorizing Surveillance edited by David Lyons) predicted that innovations designed to subdue hostile territories could have many troubling applications elsewhere. In "Welcome Home, War," Alfred W. McCoy argues that "the crusade for democracy abroad . . . has proven remarkably effective in building a technological template that could be just a few tweaks away from creating a domestic surveillance state—-with omnipresent cameras, deep data-mining . . . biometric identification, and drone aircraft patrolling 'the homeland:'"

[M]ilitary intelligence units are coming home to apply their combat-tempered surveillance skills to our expanding homeland security state, while preparing to counter any future domestic civil disturbances here. . . . [I]n September 2008, the Army's Northern Command announced that one of the Third Division's brigades in Iraq would be reassigned as a Consequence Management Response Force (CMRF) inside the US Its new mission: planning for moments when civilian authorities may need help with "civil unrest and crowd control." According to Colonel Roger Cloutier, his unit's civil-control equipment featured "a new modular package of non-lethal capabilities" designed to subdue unruly or dangerous individuals—including Taser guns, roadblocks, shields, batons, and beanbag bullets.


In a future America, enhanced retinal recognition could be married to omnipresent security cameras as a part of the increasingly routine monitoring of public space. Military surveillance equipment, tempered to a technological cutting edge in counterinsurgency wars, might also one day be married to the swelling domestic databases of the NSA and FBI, sweeping the fiber-optic cables beneath our cities for any sign of subversion. And in the skies above, loitering aircraft and cruising drones could be checking our borders and peering down on American life.


I would count on Fox News celebrating all these innovations as vital to protection of the homeland (as soon as they are implemented by a President who is not a Democrat).

More innovations in surveillance and control appear to be coming out of the office of Immigration and Customs Enforcement (ICE). Here is part of Jacqueline Stevens' essay on the topic in The Nation:

ICE agents regularly impersonate civilians--OSHA inspectors, insurance agents, religious workers--in order to arrest longtime US residents who have no criminal history. . . . "If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear." Those chilling words were spoken by [the] then executive director of Immigration and Customs Enforcement's (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. Also present was Amnesty International's Sarnata Reynolds, who wrote about the incident in the 2009 report "Jailed Without Justice" and said in an interview, "It was almost surreal being there, particularly being someone from an organization that has worked on disappearances for decades in other countries. I couldn't believe he would say it so boldly, as though it weren't anything wrong."


Conditions for those in immigration detention centers can be very trying:

The absence of a real-time database tracking people in ICE custody means ICE has created a network of secret jails. . . . Alla Suvorova, 26, a Mission Hills, California, resident for almost six years, ended up in B-18 after she was snared in an ICE raid targeting others at a Sherman Oaks apartment building. For her, the worst part was not the dirt, the bugs flying everywhere or the clogged, stinking toilet in their common cell but the panic when ICE agents laughed at her requests to understand how long she would be held. "No one could visit; they couldn't find me."


As Glenn Greenwald has suggested, the key to the national surveillance state is intrusive attention directed at its own citizens, coupled with very little access to the state's use of the information it gathers. That's one reason why the Markle Foundation's proposal for rapid implementation of "immutable audit logs" is critical. Abuses can only be deterred if they are recorded.

Dilemmas of Domination: Google Faces the Search Neutrality Movement

Frank Pasquale

Adam Raff's editorial on "search neutrality" in the NYT today has already provoked critical commentary and schadenfreude. But I found the editorial both informative and compelling. Principles of search neutrality are bound to be more complex than the network nondiscrimination rules we're all familiar with. But we must realize (as forward-thinking cyberlaw activists like Sherwin Siy do) that "bottlenecks" at any layer of the internet--physical, social, applications, or content--can be problematic.

Some commentators have suggested that it would be impossible to make search engines as "fair" to the sites they index as cable and telephone companies should be to the customers whose traffic they carry. However, some basic principles of transparency should guide both fields. Raff articulates serious worries about Google's influence over spheres of internet activity adjacent to search:

With 71 percent of the United States search market (and 90 percent in Britain), Google’s dominance of both search and search advertising gives it overwhelming control. . . One way that Google exploits this control is by imposing covert “penalties” that can strike legitimate and useful Web sites, removing them entirely from its search results or placing them so far down the rankings that they will in all likelihood never be found. For three years, my company’s vertical search and price-comparison site, Foundem, was effectively “disappeared” from the Internet in this way.


Admittedly, Raff likely can't prove conclusively that Google's prioritization practices purposefully hurt any particular company, because they are so secretive. I would not be surprised if Google PR responded to this editorial by saying that entirely neutral, albeit private, ranking practices led to the obscurity of Foundem. (For an interesting discussion of that style of justification, see James Grimmelmann's discussion of Google's SearchKing litigation.) But that opacity is itself concerning.

Public interest groups have made some inroads in holding carriers accountable, but even they appear reluctant to take the next step to recognize the parallel power of a dominant search engine like Google. They will soon have no choice but to confront this dominance, given that the obstacles to holding Google accountable—trade secret protection for its ordering algorithms—will also interfere with network neutrality regulation. Like search engines, carriers face an information overload problem, as spam, viruses, and high-demand applications threaten to overwhelm their networks. They are likely to make key network management practices as confidential as search engine rankings, and trade secret protection has already been deployed in other technological settings to block critical review of questionable corporate behavior.

Dominant search engines and carriers are the critical infrastructure for contemporary culture and politics. As these dominant intermediaries have gained more information about their users, they have shrouded their own business practices in secrecy. Internet policy needs to address the resulting asymmetry of knowledge and power. I'm glad to see people like Raff bringing these concerns to a public forum. Consider, for instance, the problems he identifies here:

Another way that Google exploits its control is through preferential placement. With the introduction in 2007 of what it calls “universal search,” Google began promoting its own services at or near the top of its search results, bypassing the algorithms it uses to rank the services of others. Google now favors its own price-comparison results for product queries, its own map results for geographic queries, its own news results for topical queries, and its own YouTube results for video queries. . . . Without search neutrality rules to constrain Google’s competitive advantage, we may be heading toward a bleakly uniform world of Google Everything — Google Travel, Google Finance, Google Insurance, Google Real Estate, Google Telecoms and, of course, Google Books.


In my 2007 article Copyright in an Era of Information Overload, I presented Google as a company that could break the dominance of concentrated cultural industries, joining a chorus of cheerleaders for "disintermediation." However, as Google becomes more of an online conglomerate, it may create problems in new areas similar to the ones it once helped solve. Consider the complexities caused by Google‘s ownership of YouTube. Does the fact that a company does business with Google lead Google to make it more salient in search results than a company that (ceteris paribus) does not? How well are YouTube‘s rivals doing in searches on Google for videos?

Again, Google may have perfectly legitimate reasons for ranking YouTube items on top. (For example, if it faces more lawsuits like this, it may want to prioritize its subsidiary's results because it suspects that YouTube's "objectionable content police" are more active than upstarts' bowdlerizers.) But just as Google wants the carriers to be open about how they manage traffic, it should be transparent about exactly how its commercial relationships affect the ranking of its business partners and customers. Without such transparency, regulators will not be able to assess whether the company is engaged in stealth marketing, which can be a deceptive trade practice.

Some commentators may say that principles of search neutrality are impossible to specify. I agree with Greg Lastowka's concerns about Raff's own ideas about search neutrality. But if you want to see a more precise specification of what search neutrality might look like, just look at page 27 of my article comparing dominant search engines and carriers. Or the series of comparisons in the chart on this page. Or take a look at Dawn Nunziato's discussion of Google News in her book, Virtual Freedom. Siva Vaidhyanathan also has interesting insights. Thankfully, I'm no longer a voice crying in the wilderness on this issue. As Viva Moffat shows, there is a wide range of opinion on regulating search.

PS: More discussion at TPM, Marketing Pilgrim, and Business Edge.


Sunday, December 27, 2009

The Creation of the American Republic, Forty Years On

Stephen Griffin

This year was the fortieth anniversary of the publication of Gordon Wood’s The Creation of the American Republic. I didn’t want the year to give out without saying something about the importance for legal scholars of this extraordinary work. Wood’s book was of course seminal for historians of the early republic, but it had particular significance for legal scholars. It provided a panoramic perspective on the evolution of political ideas in America from the 1776 Revolution to the Philadelphia Convention. Wood showed the sheer density of American political thought and was able to transmit an uncommon sense of intellectual and ideological compression as he demonstrated how fundamental ideas were worked and re-worked within a short span of time.

To read the book was to be plunged into a world and, for most legal scholars at least, not a very familiar one. The role of liberalism in the formation of the American political order was eclipsed by republicanism. By now, the outlines of republicanism are familiar. But despite earlier works by Bernard Bailyn and others that showed the importance of republican ideas to the Revolution, legal scholars did not have what they really needed – an account that bridged the distance between the Revolution and early efforts at state constitutions and the troubled politics of the Confederation period. Pre-Wood, legal scholars thought about revolutionary America in terms of Lockean liberalism, the Declaration of Independence and the social contract. Post-Wood they realized that these ideas, however powerful, could not account for the range of political and institutional problems and choices the founding generation was confronted with in the making and remaking of their political order in the 1780s.

At the same time, it helped that Wood focused much of his attention on ideas about law and the making of constitutions. Many of the works available to legal scholars forty years ago discussed political ideas in terms of Enlightenment abstractions. Wood showed how abstract ideas were concretely applied and remade. He demonstrated how ideas like popular sovereignty were implemented through the practical remaking of the idea of a “convention” of the people. He noticed the relevance of the “people out of doors” (a point picked up by Larry Kramer in his book on judicial review).

There were several specific aspects of Wood’s discussion that were enormously important for later legal scholarship. Indeed, their importance had not fully played out in the law reviews even twenty years after the book was published. First, Wood provided an account, stunning in its implications, of how Americans had become frustrated and distrustful of state legislatures, the bodies of government which should have represented them most effectively. This created the further problem, which Wood traced in detail, of how legislatures should be supplemented in a government that embodied a meaningful separation of powers. The founding generation had to find its way to reconceiving executive and judicial power. To legal scholars, continually searching for a sound justification for judicial review, the latter project was of special importance. Further, the book provided new insights into the nature of federalism and the rationale behind the 1787 Convention. Wood highlighted how some of the founders were frustrated not only with the powers of the central government under the Articles of Confederation, but with the chaotic legislative process in the states. This was a revelation for legal scholars and suggested a powerful rationale for a more effective national government. Finally, in the area of rights, Wood provided critical evidence of the persistence of ideas of natural law and natural right, even as constitutions gave rights an existence in positive law. Arguably, Wood’s nuanced discussion of the ambiguities of creating fundamental rights was somewhat ignored in later legal scholarship, which tended to choose either the side of natural rights or positive law in tracing how the Bill of Rights should be implemented by the judiciary.

Here is one of my favorite passages from the book. Wood is speaking of Antifederalist criticism of the new Constitution: “The Constitution presented no simple choice between accepting or rejecting the principles of 1776. During the intervening years, in newspapers, pamphlets, town meetings, and legislative debates, the political assumptions of 1776 had been extended, molded, and perverted in ways that no one had clearly anticipated. Under the severest kinds of political and polemical pressures old words had assumed new meanings, and old institutions had taken on new significance.” It is to Wood’s enormous credit that this was no mere conclusion, but rather what his entire book demonstrated in concrete terms. I look forward to reading Wood’s latest contribution to scholarship in the Oxford History of the United States series.








Saturday, December 26, 2009

Prediction Markets vs. Super Crunching: Which Can Better Predict How Justice Kennedy Will Vote?

Ian Ayres

Crosspost from Freakonomics:

One of the great unresolved questions of predictive analytics is trying to figure out when prediction markets will produce better predictions than good old-fashion mining of historic data. I think that there is fairly good evidence that either approach tends to beat the statistically unaided predictions of traditional experts.

But what is still unknown is whether prediction markets dominate statistical prediction. (Freakonomics co-blogger Justin Wolfers, in a sense, is on both sides of this debate. Justin is one of the best crunchers of historic data, and even more, he is at the cutting edge of exploiting the results of prediction markets).

Thanks to Josh Blackman, we are about to have a test of these two competing approaches. Blackman has organized a cool Supreme Court fantasy league, where anybody can make predictions about how Supreme Court justices will vote on particular cases. The aggregate prediction of the league members is powerful “wisdom of the crowds” information.

And it is natural to ask whether the predictions of the league are more accurate than the predictions of a statistical algorithm developed by Andrew D. Martin, Kevin M. Quinn, Theodore W. Ruger, and Pauline T. Kim. I wrote about their study in my book Super Crunchers (you can read the excerpt about the study from the Financial Times here).

On a “Prediction Tools” website, I even created a JAVA applet based on the study where you can generate your own predictions of how Justice Kennedy will vote:

DESCRIPTION

That’s right. For a particular case before the court, just plug in answers for the six questions (such as “the ideological direction of lower court decision”) and the applet will predict whether Kennedy will affirm or reverse the lower court opinion.

Looking at four cases before the current court, Josh has compared the statistical predictions of the applet to the initial aggregate predictions from his fantasy league:

The first case we consider is Maryland v. Shatzer, which considers whether or not police are barred from questioning a criminal suspect who has invoked their right to counsel when the interrogation takes place nearly three years later. … The second case we consider is U.S. v. Stevens, which considers whether a statute banning depictions of animal cruelty is facially invalid under the Free Speech Clause of the First Amendment. … The third case we consider is Bloate v. U.S., which considers whether additional time granted at the request of a defendant to prepare pretrial is excludable from the time within which trial must commence under the Speedy Trial Act. … The fourth case we consider is Salazar v. Buono, which considers whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation.

How do the FantasySCOTUS.net members think Justice Kennedy will vote? Predictions of the 10th Justice after the jump:

In Maryland v. Shatzer, 43 percent (123 out of 267 voting members) agreed with the program, and predicted that Justice Kennedy would vote to affirm the Lower Court.

In U.S. v. Stevens, 83 percent (168 out of 201 voting members) agreed with the program, and predicted that Justice Kennedy would affirm the Third Circuit. While predictions for Maryland v. Shatzer produced weaker results, a stronger agreement in this situation may indicate that certain criteria are clearer predictors of behavior and observers of the court pick up on them much more easily.

In Bloate v. U.S., 76 percent (61 out of 80 voting members) agreed with the program, and predicted that Justice Kennedy would affirm the Eight Circuit.

In Salazar v. Buono, only 45 percent (48 out of 106 voting members) agreed with the program, and predicted that Justice Kennedy would affirm the Ninth Circuit. While the difference between the two predictors is murky, FantasySCOTUS predictions are much more flexible since they are not subject to the “category” constraints the program uses and would probably be the more accurate indicator in this situation.

Thanks to Josh’s creation, we’ll be able to sit back — paying particular attention to instances of disagreement — and see over time which approach makes the better predictions. This single experiment will not, by itself, resolve the larger “which is better” debate — in part, because I could imagine putting forward stronger market-based and statistical-based predictions. The fantasy league predictions would probably be more accurate if market participants had to actually put their money behind their predictions (as with intrade.com). And the statistical predictions could probably be improved if they relied on more recent data and controlled for more variables.

But we are bound to see more meta-methodological comparisons like these in the years to come — which will also shed light on whether market participants will learn to efficiently incorporate the results of statistical prediction into their own assessments. At the moment, individual decision-makers tend to improve their prediction when given statistical aids; but they still tend to wave off the statistical prediction too often.


Thursday, December 24, 2009

What If the "Nebraska Compromise" Is Unconstitutional?

Mark Tushnet

One issue that's been overlooked in what I've read about the Republican Attorneys-General's discussion of a legal challenge to the Nebraska Compromise is this: What if they're right that it's unconstitutional? (I'll get to my views on the merits toward the end of this post.) Unless there's a provision in the statute (if/when it's enacted) saying that the Nebraska Compromise is not severable from the remainder of the statute, winning the constitutional challenge simply leads to the next question: Does the statute as a whole survive if the Nebraska Compromise is unconstitutional?

That's a standard question about severability, and there are (roughly) two approaches to answering it. (I'm assuming -- I might be wrong -- that there's no provision specifically saying that the Nebraska Compromise is inseverable.) One focuses on what is sometimes called the "integrity" of the statute: Would the statute accomplish its primary goals if the unconstitutional provision were excised? If you take that approach, it seems to me that the answer is easy: Of course it would. (The answer would be different were, for example, the individual mandate held unconstitutional.) The other approach is intentionalist: Would Congress have enacted the statute if "it" knew that the provision was unconstitutional? In the present context that question takes a quite peculiar form, and I confess I don't know even how to begin thinking about it. The problem is that if we focus on the very last stage, when the statute is enacted (if it is), the answer will certainly be Yes, Congress would have enacted the statute without the Nebraska Compromise. Sure, Senator Nelson would have voted against the statute, but there are (at the moment) 59 other votes in favor. Yet, focusing on the very last stage seems odd, because we're pretty confident that the bill would never have reached that stage without the Compromise in it, because Senator Nelson wouldn't have voted for cloture. All I can say is that I wouldn't be confident that "winning" the constitutional challenge to the Nebraska Compromise will mean that the entire statute falls.

On the merits of the challenge, I'm skeptical, but I want to raise a point related to earlier postings about constitutional moments. My skepticism is a predictive one, which seems to me quite widely shared. One would be reasonably confident that under constitutional law as articulated by the Supreme Court up to late 2009 the Nebraska Compromise "is" constitutionally permissible. But, of course, there are -- there always are -- arguments from within existing constitutional law supporting the opposite conclusion. And it's always within the power of five members of the Supreme Court to adopt what they believe to be the correct interpretation of the Constitution even if that interpretation is different from, or in tension with, the tenor of the rest of constitutional doctrine. I think the way to think about the predictive question is this: We should be thinking about the question, Do five members of the present Supreme Court want to place themselves in the position of the Supreme Court majority as it was in 1935-37? If they do, the ticking of the clock of constitutional moments might get a bit louder.

The History of the Senate Filibuster

Rick Pildes

Before 1917, there was no way to end a Senate filibuster. In that year, the Senate adopted its first “cloture rule,” which enabled a two-thirds majority to end debate. In 1975, that rule was modified to reduced the necessary majority to three-fifths (60%), which is the current practice. But this raises a fascinating question that sheds a great deal of perspective on the modern filibuster: for all the years before 1917, how did the Senate manage to end debate and vote on the merits of legislation? Was the Senate paralyzed? Did intense minorities manage to block a great deal of legislation? How did the Senate’s tradition of “unlimited debate” – unique, as far as I know, among parliamentary bodies in the world – function for most of American history?

The answer lies at the intersection of norms and formal rules that characterize the operation of all representative institutions, such as the Senate. As it turns out, the Senate actually functioned internally as a majoritarian institution throughout its history (the design of the Senate itself, of course, is not majoritarian, given its state-based representational structure). Rules to end filibusters were not needed before 1917 because the majority was able to control effectively the Senate legislative process. Thus, even narrow majorities were able to enact legislation, including controversial legislation. Intense minorities could, of course, filibuster; the effect of these filibusters was to delay legislation. But if the majority was committed to passing the legislation at issue, the bills generally passed. “[L]awmaking in the pre-cloture Senate was generally majoritarian when it came to significant legislation.” So argues the most significant modern book on the subject, Gregory Wawro’s and Eric Schickler’s book, Filibuster: Obstruction and Lawmaking in the U.S. Senate at 19 (2006), from which the information in this post is drawn.

Many mechanisms contributed to enabling the Senate to function as a majoritarian institution, but among the most important was the shadow of the threat, and the understanding, that the majority would re-write the rules to eliminate minority rights if the minority actually obstructed enactment of major legislation. Senators appreciated value in filibustering; that practice revealed important information about how strongly minorities felt about particular legislation or particular provisions. But if the majority had intense preferences for the legislation even in the face of these opposing signals, the majority was understood to have the right to enact its policies – and it was recognized that the majority, if necessary, would enforce that right by changing the Senate’s rules and practices. Faced with this reality, minorities would accede once they had made their point, and important legislation would often be enacted with little more than majority support. In other words, filibusters were means by which minorities tested the strength and intensity of the majority’s commitment; but if the majority was committed, legislation passed. Indeed the coalitions behind major legislation were typically smaller than what became required after 1917 – and that are required today – to approve Senate bills.

Three factors contributed to this underlying dynamic. First, the Senate had a much smaller workload; as a result, a bill’s supporters could afford to keep obstructed bills on the floor for longer periods. There was less opportunity cost to doing so and waiting out a filibuster. Second, it was easier in the past than today for Senate majorities to change the rules of the Senate than it is today; since the practices of the Senate were based less on written rules and more on informal understandings, a simple majority vote could more easily change those practices. For example, to change a formal rule of the Senate – which includes the rules about how to end filibusters, now that those are codified as formal rules of the Senate -- requires, under the Senate’s rules, a two-third vote to end debate on the rule change (p.282). Of course, a majority could find ways to overthrow this whole structure by majority vote – but in terms of public perception, it might be far more costly for a majority to be seen as engaging in the “revolutionary” act of ignoring or overriding the formal rules than for the majority simply to change something that had merely been part of the informal practices of the Senate. Third, the relatively small size of the Senate throughout the 19th century sustained shared understanding of the essential dynamic that kept the Senate majoritarian: minorities gave way to determined majorities to avoid having minority rights wiped out more sweepingly. Wawro and Schickler offer much empirical analysis to support their conclusion that the Senate in fact functioned as a majoritarian body before the 20th century.

So if the Senate operated as a majoritarian body for most of American history, why did the Senate decide in 1917 to adopt a rule to end debate, the cloture rule? Wawro and Schickler argue that with the expansion of national government activities by this time, the legislative workload had expanded greatly – thus, filibusters became much more effective because the majority could not longer afford as easily to pay the costs of waiting out filibusters. In addition, they point to the dramatic expansion of the size of the Senate: in the 20 years starting in 1889, the Senate expanded by 30%. In their view, this much larger Senate could no longer sustain informal understandings about the appropriate limits on obstructionism. Hence, the 1917 cloture rule. Paradoxically, the creation of the first formal limit on filibustering signaled how much more common and effective filibustering had started to become – and would continue to become.

I will leave it to others to pursue implications of this history for today’s emerging debates about the filibuster. But this history is, I believe largely unknown and counterintuitive, and as debates over the filibuster heat up, as they inevitably will in our era of highly polarized political parties with virtually no cross-party line voting in the Congress, more people should have access to the deeper historical perspective provided by Wawro’s and Schickler’s important book.

Wednesday, December 23, 2009

Challenging the Constitutional Framework for Media Regulation

Marvin Ammori

Over the past few weeks, academics and lobbyists have been debating a First Amendment issue--namely, how the First Amendment applies to an Internet access rule called network neutrality (about the the rule, see here and here; about the First Amendment's application, see here and Jack Balkin's testimony).

Today, the trade publications report a potentially new development in the jurisprudence of First Amendment and media/Internet regulation: Cablevision willl apparently ask the Supreme Court to revisit (or narrow) a key Supreme Court case that casts a shadow over communications law--the second Turner Broadcasting v. FCC case, decided in 1997, and known to some as "Turner II."

Cablevision likely has a decent gamble based on court composition. Turner II was a 5-4 decision. Two Justices have since been replaced, O'Connor and Rehnquist. O'Connor wrote the principal dissent for Justices Thomas, Scalia, and Ginsburg; but Rehnquist was in the majority. If the new Justices, Roberts and Alito, vote with Justices Thomas and Scalia (as Cablevision hopes) , the decision flips 5 to 4 the other way.

Here, I will make only a few points about the potential import of this challenge. (I hope to add a few more words later about Turner II itself, which I believe problematic for various reasons.)

My main points are (1) this challenge reminds us that media & Internet cases are among the most important, though often overlooked, First Amendment cases for their impact on our democracy and American's lives, and (2) changes to Turner II's holdings have a potentially wide scope, covering hugely important media regulations

1. The First Amendment's application to 21st Century speech technologies is a question of central importance for our democracy. There are other important areas of First Amendment speech doctrine--indecency, hate speech, flag burning, incitement, campaign finance. But electronic media are often overlooked. Americans engage in/receive probably most of their speech through phone, TV, and Internet--getting most of their news and doing much of their political organizing through these technologies, rather than through paper newspapers, leaflets, or offensive street corner speech and burning flags. Yet free speech casebooks usually devote very few pages to key First Amendment cases involving media ownership rules (like FCC v NCCB regarding ownership of newspapers and broadcasters) and access rules (like Turner II itself, giving access to cable lines for broadcasters, or CBS v FCC, giving access to broadcast stations for politicians). These ownership and access laws, however, are centrally important to promoting the "basic tenet" of the First Amendment--fostering the widest dissemination of information from diverse and antagonistic sources.

Far worse, traditional First Amendment teaching treats such cases as "exceptional," "narrow," somehow "special"--rather than as integral to understanding the underlying structure of First Amendment doctrine. (Some scholars have demonstrated how media ownership and media access cases inform First Amendment theory, like Jack, Ed Baker, Yochai Benkler, Monroe Price, and Mark Tushnet.)

A decision like Turner II, which affects numerous ownership rules and access rules for major communications industries, is important for how Americans can speak to one another in our society--for what they hear and how they communicate about the health care bill, the financial bailout, global warming, reforming the Senate rules, and what's for dinner. It might not be as sexy as "bong hits for Jesus," but it matter greatly.

2. Turner II, which Cablevision hopes to challenge, has a wide (though uncertain) scope. So upending Turner II could raise questions about a lot of regulation.

That Turner II case sets of the test for whether the government has abridged the speech rights of giant cable corporations when it subjects those companies to ownership or access rules. Turner II upheld an access rule, namely a must-carry law requiring cable operators (like Comcast) to carry over-the-air broadcasters (like CBS, NBC, ABC, and Fox).

Turner II did so not by applying strict scrutiny for "content-based" rules (a wise choice), nor by applying a lower scrutiny (such as the scrutiny in FCC v. NCCB and Red Lion), but by adopting the content-neutral intermediate scrutiny test from US v. O'Brien, with an additional requirement of "substantial evidence." This intermediate test is known as the Turner test. (Cablevision's appeal would re-challenge the same must-carry rules, though a particular application of them.)

The long and short of it: a heightened scrutiny applies to access and ownership rules. Applying this heightened scrutiny to media regulations, rather than some lower level, makes courts more likely (if inclined) to strike down an ownership cap or an access rule. But ... those these rules foster wide dissemination of information from diverse and antagonistic sources, and should be encouraged by courts rather than undermined. These rules are at the heart of the Obama tech agenda. They're common throughout all of media and telecom regulation--pervading the Communications Act. So the Turner test could, if widely applicable, require heightened scrutiny for basic communications regulation.

The scope of Turner II is debatable. It applies to TV transmitted over cable lines, and maybe over phone lines too. It doesn't apply to TV delivered through terrestrial broadcasting or (in the DC Circuit, at least) to satellite broadcasting. Nor does it apply to phone service over mobile, phone, or cable lines--for example, common carriage regulation is not subject to heightened scrutiny for limiting phone companies' ability to block calls. No appellate court has applied the Turner test to Internet access services. net neutrality is an access rule because it provides "access" to all Americans who could otherwise be blocked by phone or cable companies in their speech. I assume regulating Internet access is subject to the same low scrutiny as common carrier regulation for phone calls.

Further, even though the Turner test applies for cable TV, the strictness of its application and the types of rules affected (price regulation? cable franchising?) are both subject to debate.

The debate wouldn't stop the most powerful media and telecom companies--and their many lawyers--from arguing that the Turner test applies to everything, that the test is actually very very strict (which the cable industry argues, though losing Turner II), and trying to expand that test to all business rules and to all Internet based technologies. You hear that the Turner test would invalidate network neutrality and even rules enabling you to use whatever cell phone or computer you want on a wireless network. The Turner test protects Comcast's right to buy NBC, Time Warner Cable's right to interfere with peer to peer technologies, etc.

If the Supreme Court takes the case, I'll have more to say. I'd also look forward to the broadcasters, who often disagree with me on the scope of their First Amendment rights, being in complete agreement with me in this case on the First Amendment rights of their competitors.

For now, that's what's at stake here if Cablevision convinces the Supreme Court to revisit or narrow the Turner II case. A reversal by the new Court could cast a different, darker, shadow on regulations regarding media conglomerates and those conglomerates' ability to control of speech.

Cross-posted at The Faster Times and ammori.org.

Monday, December 21, 2009

Why not hang for a sheep?

Sandy Levinson

Jack endorses Paul Krugman's altogether correct call for a national movement to change the operating rules of the Senate to limit, if not outright eliminate, the filibuster. I, of course, concur, though, ironically, perhaps the most defensible occasion for a filibuster is with regard to lifetime judicial appointments and the potential packing of the judiciary with people committed to the President's political/constitutional agenda. Perhaps I shouldn't admit that in a situation where mad-dog Republicans are likely to froth at Obama's next nomination, whoever it might be, especially in the unlikely event that the next vacancy will be created by the necessity to replace one of the current conservative Republican majority. But, I agree, better no filibuster at all than the system we have now.

That being said, I think the odds of modifying the Senate rules are close to 0%, unless the Democrats are really willing to confront the oldest continuing myth of the Senate, which is that it is a continuing body whose rules can be amended only in accordance with pre-existing rules, which, as my previous post indicated, requires a 2/3 vote. It is literally inconceivable that Republicans would acquiesce in such a move while the Democrats hold power or, frankly, that Democrats would acquiesce if the situation were reversed. Now perhaps Joe Biden will rule that rules can be changed by a straight majority vote. I still would be extremely doubtful if 50 Democrats would vote for that, simply because they can envision being back in the minority when they will want to torpedo Republican legislation. (After all, the Senate can't even cure the absolutely pernicious custom of "holds," which allow single senatorial tyrants to tie up nominations, presumably because each senator envisions the possibility that he/she will want to exercise that bit of petty tyranny him/herself.)

So, if one is going to embark on fundamental change, then why not try to steal the sheep instead of settling for the lamb? You'll hang in either case if caught. So why should Jack be so insistent on confining his critique to the filibuster, and calling only for its elimination? To be sure, even more fundamental change is unlikely to occur, but confronting the deeper structural problems inflicted on us in 1787 because of the felt necessity to submit to the extortionate demands of Delaware and other small states would generate a more cogent conversation than one focusing only on the filibuster, as important as that might be.

Consider, for example, today's story spelling out the location-specific benefits buried in the Senate bill. “'This process is not legislation,' said Senator Tom Coburn, Republican of Oklahoma, referring to a variety of special-interest provisions. 'This process is corruption. It’s a shame the only way we can come to a consensus in this country is to buy votes.'” Is he really wrong? Isn't this exemplification of the kind of "factionalism" that Madison was so worried about in Federalist 10 (and which he absolutely wrongly believed would be cured by elite representative government)?

And look at the particular skews of the particular provisions, which seem overwhelmingly to benefit small states, including Nebraska and the whole panoply of upper-Midwest states whose entire population doesn't come close to equalling any of half-dozen largest American states. Obama adviser David Axelrod "said the provisions benefiting specific states, like Nebraska, and favored constituencies were a natural part of the legislative process.
'Every senator uses whatever leverage they have to help their states,” Mr. Axelrod said on the CNN program “State of the Union.” “That’s the way it has been. That’s the way it will always be.'” He is right, of course, but not all senators are created equal. The beneficiaries tend to be small-state senators not because they are necessarily better bargainers, but as much, frankly, because they can be bought off so much more cheaply than a large-state senator, who has millions rather than simply a few hundred thousand constituents to worry about. According to the Times, "[a]nother item in the package would increase Medicare payments to hospitals and doctors in any state where at least 50 percent of the counties are “frontier counties,” defined as those having a population density less than six people per square mile. And which are the lucky states? The bill gives no clue. But the Congressional Budget Office has determined that Montana, North Dakota, South Dakota, Utah and Wyoming meet the criteria." How nice!

To be sure, Pennsylvania also seems to have received one of the "earmarks," no doubt to assuage Sen. Casey in his willingness to vote for a bill that leaves a little bit of daylight (though not much) for insurance that will cover abortions, and fighting Joe Lieberman was able to get something for a Connecticut hospital. But what's really interesting is that, at least according to the story, there are no particular payoffs to California, New York, Florida, Texas, or Illinois.

Perhaps getting rid of the filibuster would lessen such corruption, but it would merely transfer the bargaining power to the 50th instead of the 60th senator. And you could bet the ranch, if you had one, that small states would be left with lots of both lambs and sheep because of the "affirmative action" that is built into the system for the residents of such states (many of whom, no doubt, view themselves as ruggedly independent sorts who oppose "affirmative action" for other groups). The Brits ultimately were able to defang both their rotten-borough House of Commons and then the House of Lords, though it took many decades to do so. Getting rid of the filibuster in its present form is an essential first step in a similar American defanging. But it is only a first step. Sooner or later, the Constitution itself will have to be confronted.


Obama's Constitutional Moment, Part Two

JB

Paul Krugman calls for a change in the Senate rules:
Democrats won big last year, running on a platform that put health reform front and center. In any other advanced democracy this would have given them the mandate and the ability to make major changes. But the need for 60 votes to cut off Senate debate and end a filibuster — a requirement that appears nowhere in the Constitution, but is simply a self-imposed rule — turned what should have been a straightforward piece of legislating into a nail-biter. And it gave a handful of wavering senators extraordinary power to shape the bill.

Now consider what lies ahead. We need fundamental financial reform. We need to deal with climate change. We need to deal with our long-run budget deficit. What are the chances that we can do all that — or, I’m tempted to say, any of it — if doing anything requires 60 votes in a deeply polarized Senate?

Even assuming there are no last minute defections in the health care bill (due to the results of the House-Senate conference, for example), Obama still has a great deal ahead of him: financial regulation, climate change, energy reform-- not to mention controversial social issues like ENDA and Don't Ask Don't Tell. He has to restock the federal judiciary and finally get some of his nominees (like the head of the OLC) appointed.

It is very unlikely he can do all this if he needs 60 votes for every significant piece of legislation and every significant appointment. And make no mistake, the members of the opposition party-- the Republicans-- have made clear that they will oppose him on everything, because they believe that either he fails miserably or they do.

The American legislative system is broken. It worked passably well when the two parties were not ideologically polarized, when there were many cross party friendships and ways to deal across the aisle, and when filibusters were reserved for comparatively few situations and not threatened routinely. But those days are gone. They are not coming back anytime soon. The Republican Party understands this. The Democratic Party needs to.

What ails the system does not require a constitutional amendment (pace my dear friend Sandy Levinson). It needs a change in the Senate rules. But the Senate is jealous of its prerogatives. Senators in the middle like being able to hamstring the legislative process; Senators on the ideological fringes like to be able to issue secret holds; Senators with big egos (isn't that all of them?) like to feel important by holding up either legislation or appointments.

If the president and his party want to succeed, they will have to force the issue and find a way to get the Senate to reform its rules. Perhaps a series of crises like the one we have just been through with health care will convince the president that he needs reform of the Senate before he can take on any other reform, indeed, before he can actually finish appointing the members of his government.

This is a time of crisis in American politics: not a crisis created by danger or emergency but by the gradual decay of government institutions. Americans need a Senate that works. The President and the Democrats have an obligation to resolve this crisis, not only for themselves, but for the benefit of the later administrations of both parties.

A government that can do nothing, and is perpetually held hostage to selfish men and women, will lose legitimacy and the confidence of the public; it will weaken and decay, and, sooner or later, find itself unable to respond to crises when they occur. Then the public will demand emergency measures from the executive, acting alone without the consent of Congress, further weakening republican government. A desperate or unscrupulous president will be only too happy to comply. Either we make Congress capable and responsive, or we will eventually lose the republic.




Saturday, December 19, 2009

More on filibustering (this time with accurate information)

Sandy Levinson

First, some of you may note that I have deleted my previous post on the filibuster. Not only did I use highly inappropriate language about Senator Nelson and even. perhaps, Lieberman, but, even more to the point, a reader noted that I was wrong about what the rules are with regard to contemporary filibusters. I mistakenly thought that a cloture vote could be taken at any time, with 60% of those who are present at the time needed to cut off further debate. I was wrong. The rest of this posting is taken from the helpful information sent me by the reader:

Rule 22 (2) of the Senate reads as follows:
2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.


In other words, if unanimous consent is not given to proceed to a vote, it
is a filibuster. To break a filibuster requires 60 votes. Period. No matter who
is present. Please also consider Rule 6:

3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. 4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous
consent, shall be in order. A senator does not need to speak to delay the vote. All s/he needs to do is make endless quorum calls. This motion is in order even when 100 senators are seated in the chamber. There literally can be no business brought to a vote without the aye vote of 60 senators.


SL: I appreciate this information. It does nothing to make me feel better about the US Senate, of course.


The Tragic Sense of Health Insurance Reform

Frank Pasquale

It looks like there are now 60 votes behind the "The Patient Protection and Affordable Care Act", and the set of amendments to it released today. For the sake of this post, I will assume that this Senate bill will basically be the template for health insurance reform.


Given all the twists and turns of this debate, I'm sure there still will be some important changes (even though holdout Sen. Ben Nelson has been promised a "limited conference" in exchange for supporting it). But today's announcement does strike me as a turning point in the debate. It's time to reflect on a growing divide between "realists" in the Democratic party and more idealistic progressives.

Democratic Divisions

Ed Kilgore of The New Republic describes the divide over the Senate bill as follows:

[O]n a variety of fronts (most notably financial restructuring and health care reform, but arguably on climate change as well), the Obama administration has chosen the strategy of deploying regulated and subsidized private sector entities to achieve progressive policy results. . . . [T]his is not the same as the conservative "privatization" strategy, which simply devolves public responsibilities to private entities without much in the way of regulation.


[I]n the health care reform debate, the Obama administration pursued legislation that utilized regulated and subsidized private for-profit health insurers to achieve universal health coverage. This approach was inherently flawed to "single-payer" advocates on the left, who strongly believe that private for-profit health insurers are the main problem in the U.S. health care system. The difference was for a long time papered over by the cleverly devised "public option," which was acceptable to many New Democrat types as a way of ensuring robust competition among private insurers, and which became crucial to single-payer advocates who viewed it as a way to gradually introduce a superior, publicly-operated form of health insurance to those not covered by existing public programs like Medicare and Medicaid.


Now that the public option compromise is apparently no longer on the table, and there's no Medicare buy-in to offer single-payer advocates an alternative path to the kind of system they favor, it's hardly surprising that some progressives have gone into open opposition . . . . To put it more bluntly, on a widening range of issues, Obama's critics to the right say he's engineering a government takeover of the private sector, while his critics to the left accuse him of promoting a corporate takeover of the public sector.


Glenn Greenwald is one of the most forceful progressive voices on the issue, offering a multifaceted indictment of dominant Democrats' coziness with a series of corporate interests:

The health care bill is one of the most flagrant advancements of . . . corporatism yet, as it bizarrely forces millions of people to buy extremely inadequate products from the private health insurance industry -- regardless of whether they want it or, worse, whether they can afford it (even with some subsidies). In other words, it uses the power of government, the force of law, to give the greatest gift imaginable to this industry -- tens of millions of coerced customers, many of whom will be truly burdened by having to turn their money over to these corporations -- and is thus a truly extreme advancement of this corporatist model.


One finds this in far more than just economic policy, and it's about more than just letting corporations do what they want. It's about affirmatively harnessing government power in order to benefit and strengthen those corporate interests and even merging government and the private sector. In the intelligence and surveillance realms, for instance, the line between government agencies and private corporations barely exists. Military policy is carried out almost as much by private contractors as by our state's armed forces. Corporate executives and lobbyists can shuffle between the public and private sectors so seamlessly because the divisions have been so eroded. [links omitted]


If one judges the bill purely from the narrow perspective of coverage, a rational and reasonable (though by no means conclusive) case can be made in its favor. But if one finds this creeping corporatism to be a truly disturbing and nefarious trend, then the bill will seem far less benign.


Chris Hedges concurs (in his book Empire of Illusion), dismissing "proposals to require insurance companies to use more income from premiums for patient care or link payment with reported quality" as "unworkable." He favorably cites physicians John Geyman and Steffie Woolhandler, who think health reform as it now stands is a doomed effort to keep a failing system on life support. Yet many on the left are standing behind the Senate bill, embracing it as what Sen. Harkin called a "starter home" with a good foundation for future additions.

Realism and Idealism in an Increasingly Ungovernable Nation

There has been a lot of talk about a Niebuhrian "Christian realism" in Obama's foreign policy--a willingness to deploy force and otherwise questionable means to accomplish worthwhile ends. The health reform bill strikes me as another iteration of these endlessly complex, ethically ambiguous moments. The political opposition to the public option has been so intense that those pursuing universal coverage have been forced to bargain with (and even become identified and intertwined with) the very entities they are trying to force to act responsibly. In this topsy-turvy world, where an anti-system opposition refuses to responsibly deal with problems that most developed nations addressed decades ago, Democrats and the Obama administration must cut deals with moneyed interests (whose influence over politics grows apace as a "conservative" judiciary continues to gut campaign finance regulation).

But abstractions can only go so far in describing this bill. I just want to give a counterintuitive spin to two bits of journalism on health reform, to prefigure what I'm sure will be months and years of unintended consequences (some good, some bad) flowing from this bill.

1. Pilot programs: Atul Gawande has pointed to a hodgepodge of pilot programs in the Senate bill as one of the best reasons to support reform efforts. Like many physicians, Gawande is attracted to the organic development of "best practices" in cost control, instead of top-down imposition of a general theory:

Where we crave sweeping transformation . . . all the current bill offers is those pilot programs, a battery of small-scale experiments. . . . The bill tests, for instance, a number of ways that federal insurers could pay for care. Medicare and Medicaid currently pay clinicians the same amount regardless of results. But there is a pilot program to increase payments for doctors who deliver high-quality care at lower cost, while reducing payments for those who deliver low-quality care at higher cost. There’s a program that would pay bonuses to hospitals that improve patient results after heart failure, pneumonia, and surgery. There’s a program that would impose financial penalties on institutions with high rates of infections transmitted by health-care workers. Still another would test a system of penalties and rewards scaled to the quality of home health and rehabilitation care.


Other experiments try moving medicine away from fee-for-service payment altogether. A bundled-payment provision would pay medical teams just one thirty-day fee for all the outpatient and inpatient services related to, say, an operation. This would give clinicians an incentive to work together to smooth care and reduce complications. One pilot would go even further, encouraging clinicians to band together into “Accountable Care Organizations” that take responsibility for all their patients’ needs, including prevention—so that fewer patients need operations in the first place. These groups would be permitted to keep part of the savings they generate, as long as they meet quality and service thresholds.


The bill has ideas for changes in other parts of the system, too. Some provisions attempt to improve efficiency through administrative reforms, by, for example, requiring insurance companies to create a single standardized form for insurance reimbursement, to alleviate the clerical burden on clinicians. There are tests of various kinds of community wellness programs. The legislation also continues a stimulus-package program that funds comparative-effectiveness research—testing existing treatments for a condition against one another—because fewer treatment failures should mean lower costs.


There are hundreds of pages of these programs, almost all of which appear in the House bill as well. But the Senate reform package goes a few . . . steps further. It creates a center to generate innovations in paying for and organizing care. It creates an independent Medicare advisory commission, which would sort through all the pilot results and make recommendations that would automatically take effect unless Congress blocks them.


None of this is as satisfying as a master plan. But there can’t be a master plan. That’s a crucial lesson of our agricultural experience. And there’s another: with problems that don’t have technical solutions, the struggle never ends.


I agree with all of this, but I want to add one more dimension to the "neverending struggle"--the very interest groups that are supposed to be reined in by pilot programs are likely to do their best to alter, influence, or limit those programs over the coming years. One need only look at the sad and convoluted history of gainsharing pilot programs (merely adumbrated here) in order to get a sense of how, as the "rubber hits the road," various lobbies will be storming veto points in order to undermine experimentalists' efforts. This is not to say that pilot programs are a sham--I am about to publish a book chapter with the subtitle "A Plea for Pilot Programs as Information-Forcing Regulatory Design." I just want to temper the technocratic optimism at the heart of Gawande's worldview with a touch of the skepticism driving progressives like Greenwald and Markos Moulitsas.

2. Cuts in Medicare Home Health Care: Now here is an aspect of the bill that I at first felt offended by. Doctors, insurers, hospitals, and pharmaceutical companies all appeared to be making at most modest concessions in the final bill. But home health care, staffed by some of the most vulnerable workers, was to be slashed. If anything appeared to fit the Greenwald storyline of rapacious private interests shifting public burdens onto the unfortunate, it seemed to me, these cuts would fit the bill.

Yet once one digs in a bit to this story, more complexity emerges. According to one of the speakers on this podcast of the Diane Rehm show, over half of the "extraordinary patient" payments in the program are made in Miami-Dade County alone. It's hard to get upset with a long overdue crackdown in the Ponzi State. Many other apparent abuses were mentioned in the podcast, as well as in this discussion on the NYT website. After sorting through all the commenters' underlying empirical data, I may still come back to my original diagnosis of brutal, bareknuckle pluralism as the driving force behind home health care cuts. But I can't justify that level of cynicism currently.

Tragic Aspects of Reform

The personal is always political, and rarely is this more the case than in health policy. As with abortion and the draft, the law of health care financing directly impinges on the body of the citizen, determining fundamental opportunities for individuals. Despite all of my reservations and disappointments, in the end I am for this bill for a very personal reason: I cannot imagine how my family would have afforded treating my mother's ailments over the past decade without the private and public insurance she has continually been covered by.

Earlier this year, I had hoped to be a larger part of the academic legal debate on health reform. But my mother broke her back in early September after falling off a scale in her bathroom, and I am her primary caregiver. Attending to her has taken up much of my free time since then. It's hard to explain how much pain this incident has caused her, and how it has disrupted her life. All I can say is that I cannot imagine how stressful this incident would have been if she were one of the 46 million uninsured. Without question, her 3 weeks in the hospital, four weeks in rehabilitation, and related care, would have bankrupted her (and nearly bankrupted me). Millions of people may end up in such a situation--without coverage, battered by fate, and broke--if progressives in Congress stand on principle (or dubious constitutional arguments) and torpedo the bill.

Nevertheless, I also realize that this immediate victory, like 2009's stabilization of the financial system, may be a Pyrrhic one for the Democratic Party. It entrenches the power of one more sector of America's overweening FIRE industries (finance, insurance, and real estate). I've recognized the potential of private insurers to rationalize health care, but that potential is rarely realized. I am very worried that just as "GM hired a thousand lawyers, and Toyota hired a thousand engineers" in response to the Clean Air Act, private insurers will plow new revenues attributable to an individual mandate into endless lobbying to hollow out the terms of "minimum creditable coverage." They will certainly devise clever tricks designed to drive away the 5% or so of the population that accounts for 49% of medical expenses. If pervasive regulatory capture occurs, the "reform" will be an albatross around the necks of Democrats for years.

"In their determination to avoid Harry and Louise, they’ve become Thelma & Louise." That's the verdict on the Obama Administration from a Democratic strategist tweeted by horserace reporter extraordinaire, Chris Cillizza. Although it's a characteristically snide and smug observation from The Village, I think this bon mot has some chance of coming true. Like most of the conventional wisdom excrudescing from Beltway pundits, it's less a reflection of reality than a narrative our entrenched political class enacts. The "politics of reform" will be endlessly refracted in DC media celebrities' halls of mirrors, where a 24-hour news cycle is always hungry for "backlash." The lazy conventional wisdom has already coalesced around a narrative of Obama-as-Icarus, perpetually mistaking his cautious incrementalism as a seamless web of socialism.

The real tragedy here lies in a struggle for the soul of the Democratic party--between idealists like Greenwald, Hedges, Woolhandler, and Kos, and the DLC/Brookings "realists" who've dominated the official Democratic response to the financial and health care crises. The sclerotic Senate's supermajority rules have put the realists in the driver's seat, and idealistic progressives have been left with little more than the power to refuse the bill that Reid & Co. craft. Idealists want an FDR-style rejection of what TR called the "malefactors of great wealth," and they also want to see the millions of Americans without health insurance coverage given some semblance of a safety net beyond the bankruptcy courts. But we cannot have both. As Martha Nussbaum writes in The Fragility of Goodness (speaking generally about such quandaries),

We are considering [a] situation[], then, in which a person must choose to do (have) either one thing or another. Because of the way the world has arranged things, he or she cannot do (have) both. . . . He senses that no matter how he chooses he will be left with some regret that he did not do the other thing. . . .


Aristotle speaks of a captain who throws his cargo overboard in a storm in order to save his own and other lives. The man sees all too well what he must do, once he grasps the alternatives. . . .And yet he was also attached to that cargo. He will go on regretting that he threw it into the ocean--that things turned out so that he had to choose what no sane person would ordinarily choose, throw away what a sane person would ordinarily cherish.


By passing this reform bill, Democrats will jettison whatever "populist" credentials they once had, opting instead for an early-twentieth-century "progressive" vision of technocratic alliance between corporate and government experts. However many disastrous missteps the FIRE industries make, this is the only arrangement that the media will credit as responsible governance. We'll commence an endless argument (read: notice and comment rulemaking and subsequent administrative adjudications) over what constitutes an adequate baseline of coverage, what is the fair share of revenue for middlemen like insurers, and what regulatory infrastructure can best vindicate the entitlements (and impose the burdens) specified by the bill. But the fundamental victory of reform--the national commitment that no one should have to choose between death or bankruptcy when confronted with a serious illness--will also endure. The tragic paradox is that the Democrats can only achieve this great cultural and ideological victory by becoming identified with the very interests that only they are willing to confront.

X-Posted: Health Reform Watch.

Thursday, December 17, 2009

Barack Obama's Constitutional Moment

JB

My colleague Bruce Ackerman's theory of "constitutional moments" is designed to explain how large scale constitutional change occurs. This theory is actually a collection of different mechanisms, which, together, show how a mobilized public gives its support to constitutional change.

One of these components is the idea that politicians, in desperate political circumstances, engage in what Ackerman calls "unconventional adaptation" to political impasse, leading to a "switch in time" by a recalcitrant institution that is threatened by the unconventional adaptation. If the unconventional adaptation succeeds, if the recalcitrant institution backs down, and if the public supports reform in subsequent elections, a new set of constitutional customs and understandings is created.

We are at such a moment now. The political impasse is over health care reform. The institution is the United States Senate.


The question is whether the Democratic Party led by Barack Obama, will threaten unconventional adaptation so that the Senate (in this case, a small number of moderate Democratic Senators) will back down and allow passage of health care reform by a simple majority, creating a new precedent for Senate practices.

If Obama does not make this threat credibly, opponents of reform will succeed and the Senate-- and particularly the power of the Republican minority and Blue Dog Democrats in the Senate-- will become more powerful than ever.

It is, in other words, a match to the death between Obama's promise of a new politics and the existing forms of politics.

The Senate played a similar role in the 1964 Civil Rights Act. As before, the filibuster held up passage. But in 1964 the filibuster was rarely used (usually only on civil rights measures) and it was far easier to wait out because the opponents had to keep debate going.

Since 1964, however, the Senate's practices have turned into a de facto 60 vote requirement for all legislation, enforced by the ability of Senators to use the Senate's many unanimous consent procedures to bring Senate business to a halt.

Following two strong Congressional showings in 2006 and 2008, the Democrats face a third election in 2010. They fear that if they do not pass health care, they will be punished at the polls. In off-year elections, the President's party usually loses seats anyway, even greater losses mean that they will certainly lose their working majority in the Senate and may lose much of their majority in the House.

Obama's promise of reform depends on the Democrats' enjoying a "little constitutional trifecta", i.e., control of the Presidency and both houses of Congress--including 60 votes in the Senate--as opposed to the "big constitutional trifecta" which involves control of all three branches of government, which is more difficult to obtain.

The 2010 elections threaten the continuation of this constitutional trifecta.

Previously, moderate Democrats like Ben Nelson and Joe Lieberman and moderate Republican Olympia Snow have threatened to prevent the Democrats from reaching 60 votes and used their leverage to demand concessions. Repeated appeasement of these politicians has now led Democrats on the left side of the party to threaten leaving the reform coalition. The President's candle is burning at both ends, and may not last the night.

Thus, time is of the essence. Obama must win big or he will surely lose bigger.

It is time, in short, for unconventional adaptation.

There are at least two possibilities. One is the use of the reconciliation process. The other is the nuclear option that the Republicans themselves threatened (with respect to judgeships) in 2004-2005.

No doubt both the Senate's leadership and the President are considering these options right now. The only question is whether they will try to implement them. That depends on political will and political resources. It is not yet clear whether Obama has either.

Previously, the President and the Senate Leadership took reconciliation off the table, in part because President Obama wanted to try a new post-partisan form of politics. This politics has failed miserably. The Republican Party in Congress has a unified and single minded focus on his political destruction, to make health care, in the words of the Senator from South Carolina, his "Waterloo." The Republican Party's hope is that weakening Obama will increase their gains in the 2010 election.

Obama and the congressional leadership have been pushed against the wall. They must win now or be decimated politically.

It is precisely these desperate circumstances that lead to unconventional adaptations in American politics.

If Obama can route around the 60 vote requirement through unconventional adaptation, and pass health care reform, he can go to the American public for ratification of his actions in the 2010 and 2012 elections. If he cannot do this, then he puts himself at the mercy of Joe Lieberman and Ben Nelson, which means a very watered down bill that may not pass because of opposition from his left.

The question is whether this will be Obama's greatest victory or his political Waterloo.

American politics is getting very interesting indeed.

Wednesday, December 16, 2009

Remarks at FCC Workshop on Speech, Democratic Engagement, and the Open Internet

JB

Yesterday I was in Washington D.C. at an FCC workshop, one of several where the FCC is taking testimony connected to its rule making deliberations on network neutrality issues. Here is the text of my prepared remarks.

Remarks of Professor Jack M. Balkin at FCC Workshop on Speech, Democratic Engagement, and the Open Internet, December 15, 2009

Good afternoon. My name is Jack M. Balkin and I am the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and Director of Yale’s Information Society Project, which studies the effects of new information technologies on law and society.

I’m here today in my capacity as a First Amendment scholar to explain why an Open Internet is crucial to freedom of speech and democracy.


The Internet's Greatest Gift: Participation

What do digital networks make possible? First, they allow people to become active speakers and creators instead of merely passive consumers of information and entertainment. Second, they decentralize innovation, giving people abundant opportunities to create and use new applications for communication and creativity. Third, they allow people to form new kinds of social relationships, groups and communities.

In short, digital networks allow people to participate in culture, society, and politics in ever new ways: individually or in groups, locally, nationwide, or around the world. The ability to participate is the Internet's great gift to mankind.

Participation is also central to the First Amendment. Some scholars say that the point of the First Amendment is liberty; others say it is democracy. I combine the two: for me, the point of the First Amendment is to foster a democratic culture: a culture in which ordinary people can have a say about the forces that shape them and make them who they are. A culture is democratic not because people vote on it but because they get to participate in making it. A participatory and democratic culture requires more than protecting political speech; it requires a vibrant public sphere that makes self-government possible.

Permission and Media Gatekeepers

But participation means little if we need permission to participate. An Open Internet means that we can speak, organize and innovate without getting anybody's prior permission. This idea, too, has deep roots in the values underlying the First Amendment. One of the earliest conceptions of freedom of speech was freedom from prior government restraints. And I'm sure you remember the saying that the real freedom of the press belongs to the person who owns one.

Until recently, nobody could gain access to mass communications unless they had the permission of a big media company like a newspaper or a television station. Even then, they only got access on the broadcaster's terms, and often were heavily edited. And good luck getting access if you said something a little oddball or unpopular.

An Open Internet changes all this. People can reach audiences that only large media corporations could reach before. The Internet lets us route around traditional media gatekeepers, who often functioned like private censors. People can create new tools and applications for speaking, communicating, and organizing, all without having to get anybody's prior permission.

Just imagine a world in which you had to get permission from Internet service providers before you could create a platform like Typepad or YouTube; or upload content onto Flickr or Facebook. Free speech and democracy thrive precisely because we don't have to ask somebody's permission before we speak, engage in politics, upload files, or create a new social media application. An Open Internet is an Internet that is open to new content and new applications, an Internet where your ISP doesn't try to block you or shut you down for daring to compete with its favored content partners.

A Conflict of Interest

The Internet allows us to route around the old gatekeepers. But the challenge we face today comes from the new gatekeepers: the broadband companies who own and operate the conduits through which everyone speaks.

Although broadband providers are private companies, their business is affected with a crucial public interest. Broadband services allow us to communicate, form groups and create new kinds of community. They are the infrastructure of free expression and democracy.

Yet there is a mismatch between the private interests of these new gatekeepers and the public interest. Their private interest, like that of any company in the United States, is maximizing profits and pleasing their shareholders. The public interest, however, is in giving as many people as possible the opportunity to innovate, create, speak, debate, express themselves, spread information, and organize politically. The public interest, in short, is in promoting the values of free expression and democratic participation.

The mismatch between the public interest and companies' private interest would be less troubling if there were many sources of broadband access. But there are not. For most people in the United States, there are only two: the local cable company and the local phone company. This duopoly in Internet access makes broadband companies very powerful. They control the central conduits for speech, innovation, and self-governance in the Information Age. They can slow down Internet traffic and applications to a crawl or block them entirely, and because they have no obligation to report their decisions, nobody can know what they have done or why they did it.

Broadband companies tell us that they have no interest in censoring unpopular ideas. As a general matter, I believe them. There are a few examples of political censorship on the record, but for the most part this is not the central problem.

What is the problem? It is a conflict of interest between public and private interests: Broadband companies further the public interest when they operate as open, non-discriminatory platforms for other people's innovation and as open, non-discriminatory conduits for other people's speech. But their private interests inevitably lead them to play favorites. A democratic culture requires a level playing field for expression and innovation, but broadband providers don't always have an economic interest in a level playing field.

Broadband providers want end users to consume content and use applications from the companies they own or contract with, because this makes them money. Conversely, they don't want other traffic, other content, or other applications to get in the way of their profits. Broadband companies are not opposed to the Internet's interactivity; they just want the interactivity to be on their own terms. End users or non-favored businesses who want to broadcast their own content, including video content, will have to take the slow lanes. Conversely, broadband owners want to be able to extract payments from applications providers and content owners in exchange for preferred service.

These incentives mean that even if broadband companies have no plans to censor unpopular speech, they won't really want or enforce a level playing field for private speech and innovation. That is why there is a conflict between the public interest and private interests. And that is why regulation is necessary.

Remedying the Conflict of Interest


To preserve the great participatory promise of the Internet, we must confront this conflict of interest head on. When companies act as primary conduits for other people's speech, they may not discriminate in content or applications and they must be transparent about how they maintain and manage their networks to promote efficiency. They can produce and distribute their own content and they can create their own applications. But they may not play favorites between the content of their business partners and the content of everyone else. And they may not move to block or hinder innovations and applications that they didn't invent and don't control.

Seeing that regulation is on the way, broadband companies have begun to argue that they have a constitutional right to block applications and discriminate against content, and that any attempt to keep them from maximizing their profits in this way violates the First Amendment. Nothing could be further from the truth. Under the First Amendment Congress can make both telephone and cable companies into common carriers who must take on all traffic. Congress can certainly require a much milder non-discrimination requirement like network neutrality.

The First Amendment protects speech, not business models. The FCC's job is to make sure that communications companies serve the public interest as well as their own private interest. This idea has been the basis of telephone and cable regulation for decades. The public interest demands that we secure the benefits of an open and participatory Internet for this century. Network neutrality rules are a good place to start.



Saturday, December 12, 2009

Ian Ayres

Crosspost from Freakonomics:

I eagerly awaited and quickly devoured SuperFreakonomics when it appeared a few weeks ago. And while many reviewers are focusing on the substance of the book, I’m struck by two shifts in the Levitt/Dubner method.

First, SuperFreakonomics is more of an effort at problem solving. The original Freakonomics book showed how creative econometrics applied to historic data could be used to uncover the “hidden” causes of observed behavior. To be sure, SuperFreakonomics retains many examples of the hidden-side-of-everything data mining. But the new book is much more of a solutions book. It uses economic thinking to generate new ideas to solve really big problems. Levitt and Dubner are admirably leveraging the success of the first book to try to make the world a better place. They are on the lookout for concrete suggestions to reduce the lives lost from hurricanes, hospital infections, global warming, automobile accidents and even walking drunk.

In the original book, number crunching itself was the solution. Forensic number crunching could help identify whether Sumo wrestlers had thrown a match or whether Chicago teachers were cheating on test scores. In the new book, number crunching is instead used to verify that a particular solution (such as hand-washing or ocean cooling) is likely to work.

The Randomization Lens

The second methodological shift is subtler. The first book focused on historical data. For example, a core story of the original book looked at data on crime and abortion. In a truly inspired moment, Levitt (and his coauthor John Donohue) were able to show that legalizing abortion reduced the amount of crime — 18 years later. Mining historic data can produce truly startling results.

But a higher proportion of the new book is devoted to studies that use randomized field experiments to find out what causes what. If you want to know whether offering donors a two-for-one matching grant produces more charitable donations than a one-for-one grant, you randomly assign potential donors to receive one of these two solicitations and then look to see whether the two groups give different amounts.

One sign of the shift toward randomization is the prominence of John List and his rise to fame in the economics profession. John is one of the great field experimenters in economics today. He’s the kind of guy who goes to baseball card shows and at random treats one set of card dealers differently from another and then sees whether they offer different prices. (You can read an excerpt of the book’s discussion of List here).

SuperFreakonomics not only relates the results of more randomized experiments than Freakonomics did, it also explains how the idea of randomized experiments is leading statisticians to think more clearly about how to use regression analysis to test for causal effects with historic data. There is a new zeitgeist in the way economists think about running regressions. Today, statistical economists explicitly think of their regressions in terms of randomized experiments. They think of the variable of interest as the “treatment” and ask themselves what kind of assumptions they need to make or what kind of statistical procedures they need to run on the historic data to emulate a randomized study. This new way of thinking is very much on display in the truly excellent (but technically demanding) book, Mostly Harmless Econometrics: An Empiricist’s Companion, by Joshua Angrist and Jorn-Steffen Pischke. (I praised the book in a previous post because it “captures the feeling of how to go about trying to attack an empirical question….”). For example, Angrist and Pischke show that the regression-discontinuity design (which I’ll say more about in a later post) provides causal inference from historic correlation because it emulates randomized assignment of a treatment to otherwise similar subjects.

What Economists Would Really Like To Do

SuperFreakonomics very much reflects this new randomization lens as a way of thinking about data-mining. Without off-putting jargon, Levitt and Dubner explain how regressions can give you quasi-experimental results. Indeed, with help from my Kindle, I found three parallel descriptions that turn on making the randomization analogy. For example, listen to how they describe testing for sex discrimination on the job:

Economists do the best they can by assembling data and using complex statistical techniques to tease out the reasons why women earn less than men. The fundamental difficulty, however, is that men and women differ in so many ways. What an economist would really like to do is perform an experiment, something like this: take a bunch of women and clone male versions of them; do the reverse for a bunch of men; now sit back and watch. By measuring the labor outcomes of each gender group against their clones, you could likely gain some real insights. Or, if cloning weren’t an option, you could take a bunch of women, randomly select half of them, and magically switch their gender to male, leaving everything else about them the same, and do the opposite with a bunch of men. Unfortunately, economists aren’t allowed to conduct such experiments. (Yet.)

They go on to describe how, in the absence of randomized data, some (limited) progress might be gleaned by looking at the historic experience of transgendered people — before and after sex reassignment surgery. They take a similar approach when tackling the question of testing physician quality:

What you’d really like to do is run a randomized, controlled trial so that when patients arrive they are randomly assigned to a doctor, even if that doctor is overwhelmed with other patients not well equipped to handle a particular ailment. But we are dealing with one set of real, live human beings who are trying to keep another set of real, live human beings from dying, so this kind of experiment isn’t going to happen, and for good reason.

Since we can’t do a true randomization, and if simply looking at patient outcomes in the raw data will be misleading, what’s the best way to measure doctor skill? Thanks to the nature of the emergency room, there is another sort of de facto, accidental randomization that can lead us to the truth.

The “next in line” queue at some emergency rooms provides quasi-random assignments and allows researchers to emulate the results on a randomized test. The magic “really like to do” words appear a third time when Levitt and Dubner talk about testing whether more incarceration would really lower the crime rate:

To answer this question with some kind of scientific certainty, what you’d really like to do is conduct an experiment. Pretend you could randomly select a group of states and command each of them to release 10,000 prisoners. At the same time, you could randomly select a different group of states and have them lock up 10,000 people, misdemeanor offenders perhaps, who otherwise wouldn’t have gone to prison. Now sit back, wait a few years, and measure the crime rate in those two sets of states. Voilà! You’ve just run the kind of randomized, controlled experiment that lets you determine the relationship between variables.

Unfortunately, the governors of those random states probably wouldn’t take too kindly to your experiment. Nor would the people you sent to prison in some states or the next-door neighbors of the prisoners you freed in others. So your chances of actually conducting this experiment are zero.

That’s why researchers often rely on what is known as a natural experiment, a set of conditions that mimic the experiment you want to conduct but, for whatever reason, cannot. In this instance, what you want is a radical change in the prison population of various states for reasons that have nothing to do with the amount of crime in those states. Happily, the American Civil Liberties Union was good enough to create just such an experiment.

The methodological repetition across these examples is one of the book’s strengths. This is really the way that many empirical economists talk to themselves about testing. Regardless of the problem, we often now start with the same basic question.

One of the great early stories from SuperFreakonomics is the finding that “even after factoring in the deaths [innocent bystanders from drunk driving], walking drunk leads to five times as many deaths per mile as driving drunk.” The substantive fact is not only surprising, but the story also metaphorically foreshadows the book’s new emphasis on experimental approaches. After all, what makes a drunkard’s walk so dangerous is that the drunkard lurches from side to side randomly.


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