Balkinization  

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.


Friday, December 11, 2009

Information Technology Principles for Open Government

Guest Blogger

Laura DeNardis
Executive Director, Yale Information Society Project

Citizen access to government information is a necessary condition of a free society. In the 21st century this access primarily takes place online, a phenomenon that increases prospects for an informed citizenry but also enables more direct citizen participation in government processes and a wide range of activities including citizen journalism, technological innovation, and scientific research.

In an important step toward greater government openness, the Obama administration this week released its Open Government Directive calling upon federal agencies to take a number of concrete steps to increase online access to government data. Among other things, the directive establishes a deadline of 45 days for agencies to publish in an open format "at least three high-value data sets" not previously online and to register these data sets via data.gov. For anyone interested, the Sunlight Foundation reorganized the Administration's directive into a convenient timeline checklist.

Even while welcoming this announcement, some have noted remaining open issues such as how to address possible policy barriers to openness (e.g. the Paperwork Reduction Act). On his first day in office, President Obama issued a memorandum committing his administration to providing unprecedented levels of openness. This week's Open Government Directive gives some teeth to this commitment despite any questions yet to be answered.

I would like to open a discussion of a closely related topic. The Open Government Directive calls for openness and transparency of data but to a certain extent leaves the issue of openness and transparency in the underlying technologies for another day. Because of the integral role of technologies in democratic processes, technologies of open government should meet the same principles of openness, transparency, and participation required of open government data itself.

The Yale Information Society Project, an intellectual center and think tank at Yale Law School, has developed some draft guiding principles for the technologies of open government. Previous recommendations about open government principles have focused on the data rather than on characteristics of the underlying technical architecture that delivers open government data. For example, thirty open government advocates gathered in 2007 to develop a set of principles of open government data. Some Fellows of the Yale Information Society Project met to quickly draft some initial guiding principles for the technologies of open government and would like to issue a request for comments on these draft principles.


DRAFT STATEMENT OF GUIDING I.T. PRINCIPLES FOR OPEN GOVERNMENT

Developed by the Information Society Project at Yale Law School

ACCESSIBILITY - Access to government information should be available to all regardless of disability, socioeconomic status, position, ethnicity, age, or other characteristic and should be accessible in all parts of the country by any Internet device, easy to search, find, and use, and easily translatable into a wide variety of formats. The government should impose no fees for accessing government records and impose no proprietary controls over use of the data by the public.

INFORMATION DIVERSITY - Open government information should not only include alphanumeric text but also the audio, video, and image records that are now a routine part of 21st century government operations and public records. Technical architectures must be capable of supporting these multimedia norms and must ensure that the information will survive and be accessible in the future.

PRIVACY - Technologies of open government should protect human dignity, autonomy, and privacy by providing individuals with control over the collection, use, accuracy, and distribution of their personal information and by protecting the anonymity of those who access publicly available government databases. Access to open government data should be available without formal registration or technological tracking.

SECURITY - Technologies of open government should incorporate security features to ensure the integrity of data, to prevent unauthorized tampering or interception of information, and to provide means for authenticating data.

FREEDOM TO INNOVATE - Technologies should be sufficiently open and flexible so that others may innovate on top of them and reuse and redistribute the information on new devices, applications, and platforms.

INTEROPERABILITY - Government infrastructure should include open standards that promote software and protocol interoperability, promote civic engagement in and public accountability over technologies, and that improve competitiveness and innovation in I.T.

TRANSPARENCY - The government should make public not only government information but also information concerning the technological architecture supporting public data and the means by which those technologies were selected.

* * * * *

All comments invited and welcome. The Yale ISP is interested in the possibility of collaborating with open government scholars and advocates to improve these principles, to explore each principle in greater depth and to enter specific policy conversations about technologies of open government.

Hopefully, this draft list of principles will open a discussion about how to reflect values of openness, participation, and transparency not only in government data access but also in the underlying technologies of open government.


Thursday, December 10, 2009

Net Neutrality and the 21st Century First Amendment

Marvin Ammori

Next Tuesday, the Federal Communications Commission is holding a “workshop” on the issue, as part of the important FCC rulemaking to codify “network neutrality.” The workshop’s title is, “Speech, Democratic Engagement, and the Open Internet.” Net neutrality, as I'll explain is of one of the most pressing First Amendment questions of our time, having an enormous impact on individuals' power to speak with one another, to organize politically, and to change society. Yesterday, the same day the USA Today had an excellent, comprehensive article about network neutrality, the cable industry's head lobbyist delivered a speech claiming that a net neutrality would violate the First Amendment.

This post (which is indebted to Ed Baker the way all my thinking on the First Amendment is) discusses some of the speech implications of network neutrality--both how net neutrality advances the speech interests of millions of Americans and the arguments that net neutrality burdens the speech rights of phone cable corporations.

It provides quite a bit of detail...


What is network neutrality?

The best general introduction may be yesterday's USA Today article (or this Jon Stewart clip).

Of note here, nearly every cyber scholar has written on network neutrality, including JB (and Lessig, Wu, van Schewick, and others) in favor and folks like Chris Yoo and Jim Speta against.

Phone and cable companies want to be “in charge of” the Internet; they want to be able to block user requests, charge software companies and websites discriminatory prices to reach users, and even cut exclusive deals (which could extend to details with, say, MSNBC.com over Fox News). Essentially, they want no rules.

A network neutrality rule, quite simply, would forbid the phone and cable from interfering with the Internet in these ways. If adopted with appropriate teeth, the rule would forbid Internet discrimination by providers of Internet access like phone and cable companies.

It’s a pretty simple and (in my view) an obviously good,innocuous, populist idea. But, because phone and cable companies are so powerful in DC, this issue is actually debated in Washington (and it's been a long, uphill slog so far).

The debate over network neutrality.

Network neutrality has been the most contentious tech policy issue in DC, resulting in (literally) hundreds of millions spent lobbying, several introduced bills, thousands of pages of comments, dozens of hearings, and a major FCC adjudication. In the process, well over a million Americans have declared their support for network neutrality, standing alongside groups as disparate as Moveon.org, the Christian Coalition, and the CEOs of Twitter, Facebook, Google, and Echostar. The conservative blogger Glen Reynolds, aka Instapundit, is part of the same coalition as Tim Wu, an Obama campaign advisor. Everyone from NPR to the Daily Show has covered it several times.

In addition, network neutrality was a presidential campaign issue. McCain supported the phone and cable companies, big campaign contributors. Senator Obama made his support for network neutrality the central pillar of his technology & innovation agenda that inspired the netroots, consumer organizations, and Silicon Valley. He said he would take “a backseat to no one” in his commitment on net neutrality.

Interestingly, during Justice Sotomayor’s confirmation hearings, a pro-network neutrality Senator asked the judge’s views on network neutrality and the freedom of speech. But the Court’s role will likely be small. The action will be at the FCC and Congress.

Network neutrality and the First Amendment.

Network neutrality is just one of the many important free speech questions being decided not in Supreme Court decisions but in laws yielding a “legislated First Amendment.” Congress and the FCC enact these telecommunications, media, copyright, and privacy laws shaping our speech networks. These laws, effectively, make tweeting or posting on Balkinization more or less possible.

Network neutrality, for example, ensures the Internet remains place where, in the Supreme Court's words, "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox."

But both sides of the network neutrality debate invoke the First Amendment.

On the one hand, network neutrality advocates argue that the policy advances First Amendment values through freedom of speech for all—democratic participation, autonomy, a marketplace of ideas, checking power, speech diversity.

Network neutrality, in short, translates the First Amendment for the 21st Century.

On the other hand, opponents claim that network neutrality violates the First Amendment rights of phone and cable companies.

Network neutrality promotes free speech.

The advocates, I believe, are right. (And I'm one of the advocates...)

Network neutrality promotes freedom of speech in several ways.

First, it ensures cable and phone companies cannot engage in online censorship. One of Canada’s largest phone companies, Telus, blocked a website run by a member of the Telecommunications Workers Union—during a workers strike by that union against Telus. While AT&T and Verizon want the power to interfere with the Internet, their track record isn’t great. AT&T silenced anti-Bush lyrics on an AT&T-owned website during a Pearl Jam concert. Verizon Wireless refused to honor a short-code text message from NARAL Pro-Choice to its own members, as Verizon has a policy against transmitting "controversial or unsavory" speech. As a senior White House official said: "If it bothers you that the China government does it, it should bother you when your cable company does it." Several officials said we cannot argue for democracy and free speech abroad if we do not respect net neutrality at home.

Second, violations of network neutrality raise the cost of speech, resulting in less egalitarian opportunity to speak, and therefore fewer speakers. For example, last year Comcast was blocking peer-to-peer transfers, including those using BitTorrent. This blocking raised the costs of content-providers who used peer-to-peer technologies to reduce the cost of transmitting online TV. Take, for example, speakers using Miro. Miro is open source video application first called the “Democracy Player,” distributed by the nonprofit Participatory Culture Foundation in Boston, whose goal is to “build a fairer, more open, and more democratic media space.” To belabor the point, their interests are speech-based, not economic. Users can access 4,000 “channels”, most high-definition, through Miro, and anyone can have a channel, from an individual to a large corporation. But Comcast was impeding users’ ability to use peer-to-peer applications like Miro, making it more costly for Miro to distribute content, and therefore less likely that individuals could distribute their own TV channels online. (Other peer-to-peer applications include Skype and Vuze.)

The First Amendment Argument Against Network Neutrality

In its landmark network neutrality order in the Free Press-Comcast case, which Jeff Rosen called a model for the free speech issues of our times, the FCC has already rejected the First Amendment arguments against network neutrality—the argument merited no more than a footnote (see note 203 of the order). Comcast hasn’t even appealed the First Amendment in its DC Circuit appeal.

Nonetheless, opponents of network neutrality raising the First Amendment question include, among others, an FCC Commissioner who thinks cable ownership limits trample on the First Amendment (you can watch his net neutrality argument here) and by the great Laurence Tribe (maybe the best longtime lawyer for the cable and phone industry). With such thoughtful opponents, the issue may be worth discussing.

These opponents argue that imposing a network neutrality rule implicates the First Amendment rights of phone and cable companies. Phone and cable companies, they say, have “editorial” rights to act as newspaper editors over the Internet and decide what speech to carry, and what speech not to carry. Requiring Comcast not to block file transfers is like requiring Comcast to say things Comcast doesn’t want to say. Net neutrality is like the classic forced speech cases requiring a schoolchild to pledge allegiance to the flag, despite her religious objections, or forcing a parade to include gay rights activists (here).

I think this argument is wrong. Whatever the speech or press rights of corporations, a first-year law student can tell you the cases are not analogous. Cable companies are not school children or parades; imposing a nondiscrimination rule on basic infrastructure like the Internet is not akin to forcing a child to violate her religious beliefs or a parade to change its character.

Keep in mind, cable companies will argue that even basic utilities-like price regulation violates their First Amendment rights.

But let's continue the analysis. Because network neutrality involves “forcing speech,” it should be judges under First Amendment doctrine, they say.

So first, is the rule content-based? They say yes—it aims to promote “diverse” speech The case law soundly rejects this argument. For example, the law requiring cable companies to lease access to independent channels was held content-neutral. (For just one link, see pages 294-305 of this paper.)

Second, if it’s content-neutral, does it pass the judicial test set forth in Supreme Court cases decided in the 1990s pertaining to the relationship between cable and broadcast television, Turner Broadcasting v. FCC? The Turner test requires an important interest and intermediate narrow tailoring. The important interest for net neutrality is the same interest found important in Turner—promoting the “widest possible dissemination of information from diverse and antagonistic sources.” The narrow tailoring prong—which is pretty lax when you read the case applying it, referred to as Turner II, in 1997—should be easily met. The FCC has more than enough evidence to demonstrate narrow tailoring and the Supreme Court doesn’t review the enormous record de novo.

But I don’t even think Turner applies. Turner applied to the one-way medium of television, not the two way medium of the Internet. However you read Turner, all nine Justices seemed to agree that common carrier regulation was constitutional. Common carrier regulation—a nondiscrimination rule analogous to network neutrality—was the traditional regulation applying to two-way communications networks like the phone network, rather than to one-way broadcast networks. As the dissent conceded: "it stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of cable companies."

Moreover, the FCC agreed that Turner didn’t apply. In the FCC's Free Press-Comcast footnote (203) rejecting the First Amendment argument, the FCC wrote:
This prohibition [on blocking peer-t0-peer] does not prevent Comcast from communicating with its customers or others. Nor do we find Time Warner Cable’s analogy of a broadband provider to a newspaper to be apt. [citation] For one, the Commission is not dictating the content of any speech. Nor are we persuaded that Comcast’s customers would attribute the content delivered by peer-to-peer applications to Comcast, rather than attributing them to the other parties with whom they have chosen to interact through those applications. Under these circumstances, we find that our actions do not raise First Amendment concerns.

So the FCC--granted, the previous FCC under George W. Bush--rightly rejected the First Amendment arguments that Comcast has wisely abandoned on appeal.

But the FCC went further, getting it absolutely right on how net neutrality promotes free speech:
we believe that taking action to preserve the open character of the Internet “promotes rather than restricts expressive freedom” because it provides consumers with greater choice in the applications they may use to communicate and the content they may access. [citation] We therefore believe that our action today furthers First Amendment values; as the Supreme Court has stated, the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

But the phone and cable companies, and their lawyers, will be repeating their failed arguments.

Conclusion.

If the FCC gets it right, a network neutrality rule would preserve the practical freedom of speech Americans experience every day.

The FCC’s policy likely will have far greater effect on how Americans speak with one another and participate in our democracy than many Supreme Court cases anthologized in First Amendment textbooks.

The FCC hearing next week will help highlight that point—and hopefully put a nail in the coffin of arguments around the First Amendment rights of cable and phone companies to block speech.

Monetizing Frustration

Ian Ayres

Crosspost from Freakonomics:

When I’m upset about the minor annoyances of life, I sometimes find it helpful to think of the price I’d charge for enduring the annoyance. For example, when my wallet was stolen, I wondered how many dollars would someone have had to pay me to consent to the taking. This thought experiment is comforting because the amount is usually much less than the daily fluctuation in my stock portfolio. Why should I be so bent out of shape for something that “all in” has a frustration cost of X, when I routinely endure a portfolio loss of 2X or 3X without wrinkling a brow?

But Orlando Magic coach Stan Van Gundy has an even better “Why Not?” idea about monetizing frustration. After one of his players, Matt Barnes, was fined $20,000 for throwing a basketball into the stands, Van Gundy joked:


Barnes should consider throwing cash into the stands instead of a ball next time.

“That’s basically what he did,” the coach said. “At least if you did that, it’d be the same amount of money, and you’d be very popular. If he threw $20,000 in cash, he’d be very popular.”

Actually throwing money into the stands might cause a riot. But you could imagine a team keeping some cash on hand at courtside to let players, who were about to commit a finable offense, bypass the NBA middleman and give the fine directly to some designated recipient. Instead of throwing a ball into the stands, Barnes could have ceremonially and publicly deposited cash into a courtside forfeiture drawer — with the money going to charity or to rebate part of the ticket prices.

Publicly forfeiting money is a pretty credible way to signal that you are upset about a blown call. It is not cheap talk. Forfeiting money to fans or a charity that players like makes the talk a bit cheaper because players might get some value from making such a donation. But then again, the current NBA fines suffer from a similar problem:

The NBA and National Basketball Players Association (NBPA), per the league’s collective bargaining agreement, equally split fines paid by players, then donate the respective shares to the charities of their choice.

Rasheed Wallace
or Mark Cuban may be less deterred in criticizing the refs if they think the ensuing fine will ultimately go to a worthy charity. If Wallace plans to give a bunch to charity anyway, he can just reduce his non-fine giving so that the fine won’t have much of an effect. The NBA wisely chose to “not specify which charities benefit from the league’s donations.” It’s harder to rationalize that your fine is going to a good charity that you support if you don’t know the beneficiary of your fine.

The commitment website I cofounded, stickk.com, takes a similar approach. Users who put money at risk to keep a commitment have the option of designating a specific charity or anti-charity. But we also give them the option of forfeiting money (if they fail to stickK to their goal) to a more ambiguous “charity” option — where we, like the NBA, choose not to specify the recipients clearly. When you’re trying to deter particular behaviors, sometimes it is better to make it harder to put a price on the frustration.


Wednesday, December 09, 2009

More on Ed Baker

Andrew Koppelman

I join Jack in mourning Ed Baker. This post is a short note on one of his books, so those readers unacquainted with his work can get some idea of what we have lost.

I recently read Ed’s book, Human Liberty and Freedom of Speech, a lucid, philosophically sophisticated treatment of free speech issues. Baker’s central claim is that there really isn’t anything special about speech. Speech is a subset of liberty, and liberty ought to be protected. Government regulation is appropriate in those spheres in which there is no liberty anyway, because absent regulation, the impersonal forces of markets determine what is going to happen. The boundary between the realm of freedom and the realm of appropriate regulation cuts across the category of speech.

Drawing on Marx, Weber, and C.B. Macpherson, Baker argues that the market is a realm of alienation, in which actors are forced to relentlessly pursue profit in order to remain viable. (pp. 105, 198-200) Baker’s most fundamental aim is to transform society in order to end this alienation; “to reverse the current dominance of purposive-rational action and establish the social and political supremacy of undistorted symbolic interaction.” (96)

I’ve never seen the influence of the “marketplace of ideas” on the Supreme Court documented or criticized as thoroughly as Baker does it in his first chapter. Every free speech scholar should read the book, but that first chapter is brilliant and absolutely indispensable.

More generally, I admire his effort to link up the theory of free speech with our broader social aspirations, and to make the law responsive to Marxist concerns about alienation. A persistent problem about free speech, indeed about any kind of liberty, is that it will disable the government from addressing pressing problems. What Marx adds to this is the idea that an unregulated private sphere has a logic of its own that is inimical to human purposes.

With respect to speech, this is particularly salient in the cases of campaign finance and commercial speech. Baker worries about “oligopolistic control of the media, lack of access for disfavored or impoverished groups, overwhelmingly pervasive participation by favored groups, techniques of behavior manipulation, [and] irrational responses to propaganda.” (4-5)

The loss of human control over the social world is a real problem, and I’m glad that Baker has brought it to the fore in the way he has. For that reason, the book is likely to be incorporated into the permanent architecture of my thinking about free speech, in ways that I’m sure I don’t yet fully recognize. Ed and I were in the middle of an extended email conversation about the book when I got the news of his passing. I will badly miss him.


Ed Baker, 1947-2009

JB

The University of Pennsylvania Law School reports that Ed Baker died suddenly on Tuesday the 8th. He was 62 years old.

C. Edwin Baker, the Nicholas F. Gallicchio Professor of Law and Communication at the University of Pennsylvania Law School and a leading scholar in the fields of constitutional law, communications law and free speech, died suddenly on Dec. 8 in New York City, where he had lived the past 20 years. He was 62. He collapsed while exercising and could not be revived.

Professor Baker was considered one of the country’s foremost authorities on the First Amendment and on mass media policy. Most recently, he focused his work on the economics of the news business, political philosophy, and jurisprudential questions concerning the egalitarian and libertarian bases of constitutional theory.

I knew Ed for many years and he was a wonderful, sweet, and gentle soul. He was also the finest media law scholar of his generation. His 2002 book, Media, Markets and Democracy, is a great achievement and essential for anyone teaching in the field. He was an endlessly inventive and creative scholar, who was not afraid to take contrarian stands about freedom of speech. In his writings on freedom of speech, campaign finance, and telecommunications law he emphasized that the purpose of the First Amendment was the vindication of individual liberty and not the protection of corporate power.

Ed always celebrated the dignity of the individual and the creative powers of the individual and he himself was a individualist in the finest sense of that word. He died at the height of his powers.

We will miss him.


The Structure of Government and The Argument in the Sarbanes-Oxley Act Case: Part II

Rick Pildes

A previous post noted that I was surprised by many aspects of this week’s argument in one of the most important cases in years on the Constitution and administrative agencies. By surprised, I don’t mean arguments I disagree with. I mean things like views from the Court about big issues in administrative agency design that have never been expressed before, or uncertainty even about what an independent agency is.

So here’s another surprise: there was virtually no discussion of what the consequences across the government might be if the Court were to hold unconstitutional the administrative structures created to enforce the Sarbanes-Oxley Act. The Court seemed most concerned about the “dual for-cause” removal structure: because the SEC is an independent agency (or has always been assumed to be), the President cannot remove SEC Commissioners except for good cause. And the SEC cannot remove members of the Public Company Accounting Oversight Board (the Board), who work under the control of the SEC, except for good cause. How common is this kind of structure? If the Court holds the Act unconstitutional, how destabilizing would such a decision be?

For starters, it’s worth noting that this would create special constitutional doctrines that apply only to independent agencies. Other agencies and departments, like the Treasury Department or the EPA, can include inferior officers protected from at-will removal. But the independent agencies could not. The Justice who has argued most convincingly against such a regime is, perhaps ironically, Justice Scalia. For he is the Justice who has been most committed to the view that independent agencies are, per se, unconstitutional. But he has also written that, once the constitutionality of independent agencies is accepted, it would be a mistake for the Court to create special constitutional rules for those agencies, or to try to adjust the rest of the Constitution to compensate for the existence of these agencies: “adjusting the remainder of the Constitution to compensate for Humphrey’s Executor is a fruitless endeavor.” Freytag v. Commissioner, 501 U.S. 868, 921 (1991) (Scalia, J., concurring in judgment). In other words, as I understand it, once the constitutionality of independent agencies is accepted, they should be treated, constitutionally, like all the other agencies.

In any event, on the substantive issue: Dual for-cause removal structures, or variations of them, might be more common than the Court assumes. The question is how common is it for independent agencies – the various “commissions,” such as the FCC, FTC, FEC, NRC, and the like – to have inferior officers working for them who are protected by “for-cause” removal provisions. The entire Senior Executive Service (SES) of the government, which includes many high-level policy figures (who are certainly inferior officers) is protected by such provisions. See 5 U.S.C 7543 (a). Employees who fall under the protections of the Civil Service system are similarly protected by “for-cause” removal provisions, see 5 U.S.C. 7513 (a); I cannot say how many, if any, of this latter group would be considered inferior officers. From these sources alone, there are probably, then, hundreds of officials in the independent agencies who are separated from direct Presidential control by a “dual for-cause” removal structure. Indeed, my understanding is that the head of the SEC’s Enforcement Division would be protected by these for-cause removal provisions. If so, the President would have about the same amount of direct control over him as he does over the Board. There is one difference: even though independent agencies cannot fire at will inferior officers who are protected by the SES laws, the agencies can transfer them to perform other functions. Does that make a constitutional difference? The answer is hardly obvious, since the SEC can strip Board members of authority and enforce the Act itself -- thus essentially reassigning any Board investigation or the like to its own staff. See 15 U.S.C. 7202(b), 7217(d)(1).

Beyond that, there are other specific agency structures that include dual for-cause removal structures. For example, Congress in 1975 created the MSRB, which pervasively regulates the municipal-bond markets, under the SEC’s control. And the SEC can remove MSRB members only under what is, essentially, a for-cause standard. 15 U.S.C. § 78o-4(c)(8) (SEC can remove Board members, after notice and hearing, only if they have willfully violated any provision of the Act, or relevant regulations and rules, or abused their authority). And the financial regulatory system makes use of many so-called “self-regulatory organizations,” which function under the control and supervision of the SEC. Here, too, the SEC can remove the heads of these organizations only for cause. 15 U.S.C. § 78s(h)(4) (SEC can remove heads of these organizations, on the record after notice and hearing, only if they have violated or are unable to comply with any relevant Act, rule, or regulation, or without reasonable justification or excuse has failed to enforce compliance). Outside the area of financial regulation, there are other examples of dual-cause removal structures, such as officers who serve under and are appointed by agencies as diverse as the Social Security Administration, the Federal Labor Relations Authority, the Postal Service, and others, not to mention all the administrative law judges who can only be removed for cause (arguably, though, judges are different from those who propose rules and orders, like the Board).

It’s not possible to know how many of these other dual for-cause removal structures would be unconstitutional, should the Court strike down Sarbanes-Oxley on that basis. For one, we’d have to see what the Court’s analysis would be. For another, we would have to sort through each of these officials and decide which ones are “inferior officers of the United States,” in the constitutional sense. But what can safely be predicted is that a Court decision on this basis would provoke uncertainty and challenges to these structures; we can certainly expect years of litigation to sort out all the arguable distinctions. To return, then, to the main point: I was surprised that the Court neither asked about these possibilities, nor seemed aware of them at all.

Tuesday, December 08, 2009

What news about our war in Pakistan will be "fit to print"?

Sandy Levinson

The New York Times, in its editorial "Pakistan and the War," which generally supports the Obama policy, includes the following sentences:

"Such strikes have killed several top extremists, but the program is hugely unpopular in Pakistan and Mr. Obama must be judicious about expanding it. That means three things: extremely careful targeting, no civilian casualties or as few as possible, and no publicity."


Isn't it interesting that our leading "paper of record," whose slogan is "all the news that's fit to print," is suggesting that a program of attacks on a foreign country that will inevitably involve civilian casualties, however careful the targeting, should receive "no publicity." Does this mean that the Times will refrain from publishing any articles about the frequency of such attacks or, indeed, the inevitable civilian casualties? Does it mean that the Times will support efforts by the Obama Administration, should they choose to take them, to enjoin the Times from publishing such "sensitive" information whose publication would "harm national security" (according to the Times own editorial)? It is one thing, of course, to say that newspapers should refrain from publishing (and the public thereby prevented from knowing) sensitive information about very short-term future events (troop movements and the like). It is another thing to say that we should be kept in the dark about past events that may have extremely serious consequences for many different polities and populations.

Monday, December 07, 2009

Notes on our constitutional dictatorship (continued, sadly)

Sandy Levinson

Tomorrow's NYTimes apparently will have as its lead story "Administration Presses Pakistan to Fight Taliban," which begins as follows:

"The Obama administration is turning up the pressure on Pakistan to fight the Taliban inside its borders, warning that if it does not act more aggressively the United States will use considerably more force on the Pakistani side of the border to shut down Taliban attacks on American forces in Afghanistan, American and Pakistani officials said."

Perhaps I'm missing the point, but this distinctly sounds like the threat of a unilateral declaration of war against Pakistan, "unilateral" because there is, of course, not the slightest hint that the Administration will go to Congress for a declaration of war against our putative ally, Pakistan. What this also reminds me of is the Nixon Administration's rationale for taking the Vietnam War into Laos and Cambodia, because they were being used as bases for attacks on US forces in Vietnam. This continues a pattern of presidential unilateralism begun by Harry Truman in 1950 and carried to most recent excess by George W. Bush.

I wonder, also, if we are seeing the beginning of a "credibility gap," particularly as regards the terms of our involvement and the phantasmic "withdrawal date(s)" that are now being bruited about. We are still living with the consequences of developing during the Vietnam Era a corrosive cynicism about whatever "our" government told us about the most fundamental issues of war and peace, life and death. Why, exactly, should we believe what we're being told, given that the premises of the articulated policies are incoherent and/or rest on an extraordinary degree of magical thinking, such as the relevance of the COIN manual to Afghanistan, the second-most corrupt country on the face of the earth that has never, apparently, had a strong central government in its centuries-long history, for starters. And, according to tomorrow's Times story, “'We concluded early on that whatever you do with Pakistan, you don’t want to talk about it much,' one of the president’s senior aides said last week. 'All it does is get backs up in Islamabad.'” Presumably it really doesn't matter what the American people know (or think) about such things, save that the Administration will presumably ratchet up the argument that we "must" move the war into Pakistan in order to protect Ameicans at home. "The implicit threat of not only ratcheting up the drone strikes but also launching more covert American ground raids would mark a substantial escalation of the administration’s counterterrorism campaign." What will happen if the Taliban retaliates by increasing terror bombings in Pakistan and destabilizing control of Pakistan's nuclear arsenal. Will we be sending in troops (with India?) to gain control of that arsenal, which is even more important than the Iraqi oil fields?

I still feel it necessary to say that I am pleased that Obama is President instead of either Clinton or McCain; I admire the demeanor described in the NYTimes story about the many deliberations leading up to the "surge." And I was reinforced in my suspicions last year about Hillary Clinton, who would apparently have gladly sent the full complement of 40,000 troops to Afghanistan. But I increasingly have a sickening feeling that he is almost willfully destroying the hopes that so many of us had that he would in fact bring us change we could believe in.

This is truly an ominous moment in American politics.

The Structure of Government and Today's Argument in the Sarbanes-Oxley Act Case

Rick Pildes

As someone who has followed the important issues in this case closely, including by filing an amicus curiae brief on behalf of seven former Chairmen of the SEC in support of the government's position, there were a number of surprising comments from various Justices about central administrative law issues. I will only note the first of these here; with time, I will note a few others.

Independent agencies, like the SEC, the FCC, the FTC, have been held constitutional since the famous Humphrey’s Executor case. But today, Justice Scalia asserted -- at the very start of the government's argument -- that independent agencies are constitutional only because the President has the power to remove the Chair of these agencies. This did not seem a casual comment from Justice Scalia; it also seemed that some other Justices might share this view.

The first reason this is such a surprising position is that it has never been expressed before, at least as far as I know. Certainly, it has not been expressed in any Court opinion, including Humphrey's Executor, when the Court upheld the constitutionality of these agencies.

Second, there's a problem with the point: although the President now has authority to select the Chairman of the SEC from among the Commissioners and remove him from that position at will, that was not the way the statutes worked at the time Humphrey’s Executor was decided (for either the FTC or the SEC). In 1935, the Commissioners themselves chose the Chairman from among their own membership; the President had no greater authority over him than he had over any other Commissioner. See Humphrey’s Executor v. United States, 295 U.S. 602, 620 (1935) (“The commission shall choose a chairman from its own membership.” (quoting ch. 311, § 1, 38 Stat. 717, 718 (1914)). The President was only given authority over the Chairman in 1950. See Reorganization Plan No. 8 of 1950, § 3, 15 Fed. Reg. 3175, 3175 (May 25, 1950) (“The functions of the [Federal Trade] Commission with respect to choosing a Chairman from among the membership of the Commission are hereby transferred to the President.”); Reorganization Plan No. 10 of 1950, § 3, 15 Fed. Reg. 3175, 3175 (May 25, 1950) (same for SEC). So the Court certainly could not have thought, at the time it decided Humphrey's Executor, that the FTC was constitutional only because the President could remove the Chairman of the FTC.

To put the point another way, the position of a Chairman only exists because Congress by statute eventually decided to create one -- and Congress could eliminate the position of Chair. For example, the President does not appoint a Chairman of the Federal Election Commission; that position rotates among the six Commissioners. Does Justice Scalia believe the Constitution affirmatively requires Congress to create a Chair of an independent agency -- and that the President be given the power to remove that Chair at will?

I find it hard to believe that Justice Scalia, or any other Justice, really thinks that, once he sits down to think it through. But that would seem to be the logic of the position that independent agencies are only constitutional if the President can remove their Chairs.

This was only one of several, similarly surprising comments from the Court at today's important argument. With time, I will try to address some of the others.

Sunday, December 06, 2009

More on Desiree Rogers and congressional oversight

Sandy Levinson

The New York Times has an interesting story today on the White House Social Secretary, Desiree Rogers. At the very least, I am persuaded that she is worth every penny (and probably much more) of the $113,000 that she receives in her position. Indeed, I have second thoughts about having emphasized her salary in my previous posting, because my view is that almost all federal officials, beginning with civil servants and going through the Cabinet, are significantly underpaid. I have no doubt that she could earn far more doing similar things in the private sector. The story describes someone who is extremely competent, even if she seems to have been somewhat unwise in becoming too much of a public fashion plate. But she seems to be quite imaginative in her conception of the kinds of social activities the White House should engage in.

All of this, however, is really beside the point to the Administration's invocation of a constitutional privilege to prevent her testifying before the House committee looking into the fiasco at the State Dinner for the Indian President. I continue to believe that there is no good reason to prevent her testifying. Perhaps there is good reason to limit oversight of the National Security Advisor, but I do think the rebuttable presumption should be that Congress can require the testimony of any member of the executive branch who receives a salary from the national government unless the official in question can be compared, say, to a judge's law clerk. This would mean, at the very least, that the President would have to put in writing the reasons (beyond simply citing the vague principle of "separation of powers") for preventing the appearance. I presume that what's ultimately at stake is whether, e.g., Larry Summers can be required to testify in the way that Ben Bernanke and Timothy Geithner most definitely can. To this extent, Ms. Rogers may simply be a placeholder, for all sides, for a much more profound debate about whether the Madisonian promise institutional oversight will survive the ever greater number of staff and "czars" that distinguish contemporary presidencies.



Saturday, December 05, 2009

Why California's Tuition Hike Might Be A Good Thing

Ian Ayres

Crosspost from Freakonomics:

Students at University of California schools have been protesting the decision of the Board of Regents “to raise undergraduate fees — the equivalent of tuition — 32 percent next fall.” But higher tuition, if it is accompanied with higher financial aid for lower- and middle-income students, improves equity. As Aaron Edlin and I wrote back in 2003:

It might seem … that raising state college tuition is plainly a bad thing. High tuitions mean students will find it harder to finance college — and may not even attend, or may drop out due to costs. And for the students who attend state colleges, many of whom are of modest means, the tuition crunch may be especially painful.

In fact, that is absolutely not the case. The truth is that increasing public college tuitions are not a problem at all. Indeed, the biggest problem in pricing tuition at public universities is not that the poor pay too much, but that the rich pay too little.

Tuition increases are actually a good idea — as long as they are matched with financial aid, including scholarships, for poor students.

The Huge Gap Between Average Public and Private University Tuitions

Consider a comparison: U.C. Berkeley offers more courses taught by more Nobel laureates than Yale. Yet Yale charges $28,400 per year in tuition and fees, while Berkeley charges $5,858.

And this is no anomaly: tuitions at public universities average $4,694 compared with $19,710 at private colleges. In short, public university tuition, on average, costs less than one-quarter of private university tuition. (And that is even in light of this year’s public university tuition increase of 14 percent — the largest in at least a quarter of a century.)

Who benefits from the low public-school tuitions? A disproportionate amount of the benefits go to rich students who attend schools like Berkeley because of the way financial aid operates.

The Problem for Poor Students Is Low Financial Aid, Not High Tuition

What happens, then, when public university tuitions rise, as has occurred recently? Perhaps surprisingly, the situation becomes fairer.

The rich Berkeley student now must pay a tuition much more commensurate with what he or she can afford. And the poorest Berkeley student are typically not much worse off: as tuitions have risen this past year, those from the poorest families saw their financial aid packages rise almost dollar for dollar.

For poor students, then, the important issue isn’t tuition so much as financial aid. [If] students can’t afford the fee increases at UC Berkeley, … the answer isn’t a tuition decrease; it’s a financial aid hike.

Why Public Universities Should Continue to Raise Tuitions Even More

Thus, the member schools of the California system, for example, would be wise to radically increase both their tuitions and their financial aid.

For instance, suppose UC Berkeley raised its tuition by $20,000 per year and gave all but its richest students an extra $20,000 scholarship. With the extra money it got from its richest students, it could balance its budget. And, having done so, it would not need to burden students even from middle-class families.

A side benefit of raising tuition and financial aid is that it would increase UC’s position in U.S. News rankings which turn in part on the amount of financial aid granted:


Would Berkeley deserve this position increase? Absolutely. The bump up in ranking might seem to be the result of sleight of hand or subterfuge; after all, Berkeley’s increased financial aid would be required only because of its own decision to raise tuition.

But in fact, the change would only equalize Berkeley with schools like Yale, which currently get a ranking advantage using the very same “sleight of hand.” That is, Yale chooses to charge a very high tuition, but then effectively waives a great deal of it through financial aid.

Moreover, Berkeley is already, in effect, giving lots of financial aid out — but it goes to the wrong people, and it isn’t counted in U.S. News ranking. Every affluent student who attends Berkeley, not Yale, in effect gets a $20,000 scholarship to do so. The current aid is just given in the hidden form of low tuition.

Financial aid is, at its core, a price-discrimination scheme. Consumers pay different prices (net of financial aid) for the same service. Higher education is the very rare market where the seller says “Tell me in detail about your ability to pay, and I’ll tell you what your (net) price will be.” But instead of maximizing firm revenue, the goal is to enhance equity. By increasing the effective tuition for some of our wealthier students, we might be able to reduce the price for some of the less wealthy.


Friday, December 04, 2009

A new type of affirmative action for veterans?

Sandy Levinson

The most important "affirmative action" program in American history was the GI Bill of Rights, a thoroughly defensible program in which a grateful nation justifiably made it possible for millions of veterans to attend colleges and universities after World War II and to transform the nation as a result. Perhaps there was so much support for the program because most veterans were draftees. Today, of course, we have a "voluntary army," and I suspect that for all of the public rhetoric about "our heroes," there is insufficient support to provide them with sufficient contemporary forms of benefits because of a belief that, after all, they knew what they were in for when they signed up. I think this is a mistake, not least because I suspect that the "voluntary army" is composed disproportionately of youngsters who do not have better economic prospects, especially if, as I assume is the case, the immediate post-Sept. 11 spate of patriotism has diminished in the face of two wars, one of them indefensible from the outset, the other only barely defensible (if that) as we enter its ninth year. But this post isn't intended to promote a debate about Afghanistan or the wisdom of President Obama's decision to escalate the war there.

Rather, it appears that there is a new form of affirmative action for a certain subset of veterans, courtesy of the United States Supreme Court. The Court in effect seems to have declared that veterans should get special legal solicitude when they are sentenced to death for committing brutal murders. As Linda Greenhouse points out in a remarkable post on the New York Times blog site, titled "Selective Empathy," the Court, in an unsigned per curiam opinion issued without a moment of oral argument, said that it was obviously ineffective assistance of counsel to fail to point out to a jury that the murderer had been in the Korean War 38 years before and had gone through some really horrific events then that, apparently, traumatized him sufficiently thereafter to make it more understandable that he would become a brutal murderer. Indeed, the Court apparently sketched its own version of the argument the lawyer should have made, "with," according to Greenhouse, "a vivid recitation of the battles Mr. Porter’s unit had fought 'under extreme hardship and gruesome conditions.'”

She compares the unanimous verdict in this case with a similar case, also unanimous, in which the Court "also per curiam and also unanimously, sent chills down the spine of death-penalty opponents by overturning a different federal appeals court’s grant of habeas corpus to an Ohio death-row inmate who also claimed ineffective assistance of counsel. The inmate, Robert J. Van Hook, robbed and murdered a man he picked up in a gay bar. He is also a military veteran, but one whose service was terminated because of alcohol and drug abuse." There the Court held that the failure of his lawyer to present a host of potentially mitigating evidence about his abusive childhood was well within the range of professional responsibility, regardless of the views of the courts below. So that poor wretch will die, perhaps (if one favors the death penalty) justifiably. But the problem, of course, is trying to explain why the other poor wretch receives mercy from the Court save for its solicitude for veterans.

Perhaps the Court was being less causal in its analysis, with regard to the consequences of having served in Korea, and simply was sugggesting that a jury would of course wish to spare the life of a veteran as a gesture of appreciation even if they would fail to do so in the case of another murderer who hadn't served in the armed forces. After all, the per curiam opinion noted that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.” So, query: Would it be constitutional for a state simply to exempt any and all honorably discharged veterans--or at last those "who fought on the front lines"--from the possibility of receiving the death penalty, while keeping that possibility open for all the rest of us who did not serve in the armed forces (or served but received less than honorable discharges)? If not, then is the point that we rely on low-visibility and unaccountable juries, with the imprimatur of the United States Supreme Court, to administer such an affirmative action program? I leave open that perhaps the answer to my question is yes, since the Court upheld permanent veterans' preferences for civil service jobs money years ago in spite of the evidence that men were the overwhelming beneficiaries inasmuch as women had had very little opportunity to serve in the armed forces until quite recently. And the Court also upheld the right of Congress to treat veterans' groups uniquely by exempting contributions to them from certain tax treatment even if similar contributionsn to other groups engaging in similar lobbying would make it impossible for the contributor to deduct the contribution as a charitable contribution. So perhaps the next step is indeed to exempt veterans from the death penalty. That's cheaper, after all, than making sure that our veterans enjoy jobs and a full measure of food, clothing, and shelter on their return to civilian life.

In any event, I am delighted to have the opportunity, yet once more, to read Linda Greenhouse's observations on the work product of that most peculiar of all American institutions, the United States Supreme Court.


Implications of the 2008 Election for the Voting Rights Act

Nate Persily

I have placed up on SSRN a revised version of my paper with Stephen Ansolabehere and Charles Stewart, "Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act," which will be published this spring in the Harvard Law Review. The article develops the arguments made in an amicus brief we filed with the Supreme Court on behalf of neither party in last year's voting rights case, NAMUDNO v. Holder. The article examines election returns and survey data from the 2008 election and previous elections to gauge the trends in racial polarization in the electorate and to assess whether the jurisdictions covered by section five of the VRA differ along these dimensions in any systematic way from those not covered by section five. The study finds the following:

Racial polarization in the electorate, as measured by the gap between whites and racial minorities in the share voting for a particular candidate, increased in the 2008 election. This is due in large part to Obama's increase in vote share among racial minorities as compared to his predecessors, especially John Kerry. Obama gained a greater share of the white vote (about 3 percentage points more) than Kerry did four years earlier. However, most of this gain can be attributed to gains among whites in states not covered by section five of the VRA. Among the covered states, as a group, Obama did just as well among whites as John Kerry. While he did better among whites in Virginia, for example, he actually did worse among whites in the Deep South states of Alabama, Louisiana, and Mississippi. (He also did worse, as compared to Kerry, among whites in some noncovered states, such as Arkansas.) Survey data indicate that in 2004 the differences in voting patterns among whites in the covered and noncovered states could be attributed to partisanship, ideology, and religiosity. In 2008, however, those same variables cannot explain away the differences in voting patterns between whites in the covered and noncovered states. Survey data concerning reported vote in the 2008 Democratic primaries and caucuses point to similar results, but the differences are not as stark as they were for the general election.

Thursday, December 03, 2009

Citizens United, Corporate Personhood and the Constitution: CAC Releases Discussion Draft of New Report in Advance of Major Supreme Court Ruling

David Gans

As we await the Supreme Court’s decision in Citizens United v. Federal Election Commission, expected any day now, Constitutional Accountability Center (CAC) has continued to build on the scholarly research discussed in our brief filed with the Court: whether corporations have the same rights as individuals, particularly when it comes to influencing electoral politics in this country.

The result of this work is this discussion draft, tentatively titled “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution, which we intend to release more formally in January as the latest installment in our Text & History Narrative Series. The text of our Constitution never mentions corporations and, as our narrative explains, this was deliberate: the framers wrote and the American people ratified the original Constitution, the Bill of Rights, and the three Civil War amendments -- the Thirteenth, Fourteenth, and Fifteenth -- to secure the inalienable rights of “We the People” -- living human beings. Governments create corporations and give them special privileges to fuel economic growth, but with these special privileges come greater government oversight. Indeed, in the early 20th Century, the American people added the Sixteenth and Seventeenth Amendments to the Constitution, at least in part, to ensure greater governmental control over corporations and less corporate influence over our democracy.

The narrative traces the Supreme Court’s treatment of corporations from the Founding era Court under John Marshall, through the Lochner era, the New Deal, and up through the Roberts Court today. The narrative shows that while corporations have long enjoyed some protections under certain constitutional provisions, they have only been granted equal constitutional rights once – in a series of opinions in the infamous Lochner era. Today, those opinions have been repudiated by liberals and conservatives alike and have been dismissed by the Supreme Court as a “relic of a bygone era.”

Citizens United and its supporters are portraying their case as a fight over the meaning of the First Amendment, but this obscures the far more fundamental question that underlies their claim. In arguing that there is no difference between corporate speech and the political speech of We the People, Citizens United seeks a radical constitutional result -- one that the framers of the Constitution and the successive generations of Americans who have amended the Constitution and fought for laws that limit the undue influence of corporate power would find both foreign and subversive.

Given the Court’s forthcoming decision in Citizens United, we are posting the narrative as a discussion draft now on a number of legal blogs, with the hope of better informing the discussion of the case. We enthusiastically welcome your thoughts – criticisms, oversights, suggestions, and more – in the comments section below.

David H. Gans is Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC). He is lead author of the discussion draft posted above, and co-author of the brief CAC filed, along with the League of Women Voters, in Citizens United v. Federal Election Commission.

This article is cross-posted at Text & History.

Wednesday, December 02, 2009

Original intent and the White House Social Secretary

Sandy Levinson

The White House is apparently invoking the theory of separation of powers to prohibit Desiree Rogers, President Obama's Social Secretary, from testifying on the recent imbroglio regarding gate-crashing at the White House. My own view is that the White House is making a big mistake for no defensible reason. The reason for my title is that it is literally inconceivable that anyone drafting the Constitution would have imagined the position of White House Social Secretary, paid for with taxpayer funds, and that the majesty of separation of powers rhetoric would apply to a situation like this. I note, incidentally, that Ms. Rogers's salary is listed as $113000, the same salary received by her predecessor in the Bush Administration, Amy S. Zantzinger. I can't help noting that Ms. Zantzinger received more than the $107,836 received by Marcella Moira Green, the hitherto unknown "Ethics Advisor" in the Bush White House. There may be reasons for invoking presidential privileges to prevent associates from testifying before Congress (it might certainly be embarrassing to know what Ms. Green might have said in her capacity as ethics advisor to Bush), but this most certainly isn't one of them. This is simply yet more evidence that all presidents, regardless of political party and ostensible commitment to "transparency," take on royalist airs when taking their oath of office. Gerald Ford, recall, chose to testify on the Nixon Pardon, and the country survived just fine (and he died a reasonably beloved ex-President). The separation of powers will easily survive a decision by a gracious President to let his Social Secretary testify, even as he, perhaps defensibly, reminds the Congress that they indeed have no "right" to have her appear.


The "Stupak-Pitts" Amendment to Health Care Reform

Priscilla J. Smith

Part II of II: Is there a Silver Lining for Those who Support Women’s Ability to Choose Abortion?

As a natural pessimist, I never expected a U.S. national health care plan, much less any watered down health care reform, to cover abortions, though as an eternal optimist, I was hoping to be surprised. Since I expect a Stupak-Pitts approach to prevail (pessimist), it occurred to me that there might be some silver linings here (optimist) and that Stupak-Pitts might open the door to a new challenge to one of the oldest abortion restrictions, and undoubtedly the most devastating, since Roe: the bans on government funding for abortions for low-income American women.

From a public relations viewpoint, it is possible that by extending the double standard that already exists for poor women’s health care to middle class women, the inequality and injustice of the restriction on funding for poor women will come into greater focus for the more fortunate. The sting of the public funding ban is much greater for poor women than it will likely prove for middle and certainly upper class women. Studies have shown that approximately one-fifth to one-third of Medicaid-eligible women who become pregnant and would have obtained an abortion are forced to carry their pregnancies to term because they cannot raise the necessary funds. Still, despite significant success in state courts which have repeatedly pointed to the harmful and discriminatory nature of the bans, the political will has not existed to change the policy on the federal level. If middle and upper class women feel the sting of discrimination that many poor women have already felt -- when the men in their lives get their Viagra prescriptions filled but they are forced to pay out of pocket for their abortions – perhaps a new understanding of inequality and what poor women have gone through will gain hold. This isn’t much of a silver lining – rob Debra to pay Diane?

Perhaps more importantly, Stupak-Pitts could change the landscape against which an equal protection claim was heard, perhaps leading to a renewed challenge to the Hyde Amendment itself:


• First, it magnifies the equal protection violation caused by the Hyde Amendment and prevents health care coverage of one health care service, abortion, that is needed only by women, not only in the “exchange,” but by extension if the experts at George Washington are correct, in the private market itself, while allowing health care coverage of lots of stuff that men need, especially treatments for erectile dysfunction which anyone watching television or videos on the internet knows is a HUGE problem out there;

• Second, equal protection challenges to abortion restrictions have gained support over the last ten years or so, resulting in the dissent (okay I know) by Justice Ginsburg in Gonzales v. Carhart, 127 S. Ct. 1610, 1641 (2007), in which she wrote:

[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.

• Third, remember that the U.S. Supreme Court in Harris v. McRae 448 U.S. 297 (1980) (upholding ban on federal funding for abortions in the Medicaid program), did not consider a sex discrimination claim so the field is open.

• Fourth, in Harris the Court decided was focused on a privacy claim and found that the Hyde Amendment didn’t infringe the right to obtain an abortion at all; it wasn’t the funding ban that made it harder for women to obtain abortions, it was their indigency that was too blame. As crazy as that argument might sound, it would be irrelevant in a sex discrimination claim; it would Stupak-Pitts that discriminated against women by preventing them from receiving coverage for all medical-indicated services while granting coverage to men for all their medically-indicated and even what could be called “elective” needs, in other words needing to have an erection at a given place and time. By the way, I only think medical services for erectile dysfunction are “elective” in a world in which abortion is considered “elective,” not a world I’d advocate for, but a world in which many anti-choice folks live.

• Finally, I’m under no illusion that Justice Kennedy would provide a fifth vote; my Kennedy illusions are a thing of the past. Still, I’d point out to any overly confident member of the National Right to Life Committee that when Gonzales v. Carhart was filed, Justice O’Connor was still on the Court and the plaintiffs’ victory was a sure thing. When she retired leaving George Bush with an open pro-choice seat, the vote in the case went from 5-4 to 4-5 overnight. It is possible for things to change quickly again.


Tuesday, December 01, 2009

The “Stupak-Pitts” Amendment to Health Care Reform

Priscilla J. Smith

Part I of II: Banning Public Funding or Refusing the Abortion Discount?
(Coming Tomorrow -- Part II: Is there a Silver Lining for Those who Support Women’s Ability to Choose Abortion?)

Now that the Senate has begun its health care debate, the specter of abortion reenters that Chamber – this time in the form of the “Stupak-Pitts” Amendment to the House health care bill. How tired am I of women’s reproductive organs being used as political footballs (softballs?) in the – dare I say it – male-dominated halls of Washington, D.C.? (Women represent approximately 17% of the members.) Well, of course I’m tired of it and probably you are too.

But hold on. There are two particularly interesting things about this debate on “Stupak-Pitts” (hold comments from the peanut gallery) that should make those tired of the abortion debate pay attention this time. The first is the suspect notion of “public funding” that is being bandied about to promote the Amendment. The second is the possibility of a silver lining for pro-choicers that should perhaps give anti-abortion folks pause: does Stupak-Pitts offer the opportunity for a new equal protection challenge to the federal abortion funding restrictions? Before turning to these points (my comments on the second point will be posted tomorrow), I’ll outline briefly how Stupak-Pitts would operate and its likely impact on health insurance coverage for abortion care.


What Stupak-Pitts Would Do

The Health Exchange

The House’s health care reform package that we may or may not get sets up a “health care exchange.” The exchange is essentially a new marketplace for private health insurance plans – and maybe a public option – that would be available to the uninsured (@ 17 million of whom are women 18-64), the underinsured or overcharged with coverage purchased in the individual market (@ 5.7 million of whom are women), and employees of small employers.

Subsidies

Some of those purchasing plans in the exchange will receive a subsidy to assist them in purchasing a private plan or a public plan option, if the latter survives the political battle. Many others purchasing insurance through the exchange, however, will not meet the income eligibility limits and so will get no subsidy. The plans they purchase will however be subject to the health exchange rules.

Stupak-Pitts would prohibit:

• the use of federal funds to pay for abortions directly; NB: this requirement seems unnecessary since health care reform is unlikely – to put it mildly -- to include a single payer system, like Medicare;
• the use of federal funds – defined to include any subsidy that reduces premium costs -- to buy a private plan offered in the exchange that covers any abortions (other than in cases of life endangerment by a physical condition, rape or incest). In other words, no woman buying a subsidized plan would be able to receive a plan that covered abortion.
• the coverage of any abortions (other than in cases of life endangerment by a physical condition, rape or incest) in any public plan made available. Briefly put, no woman purchasing the public plan will receive coverage for abortion.

Stupak-Pitts would allow:

• companies to sell, and nonsubsidized individuals to buy, supplemental coverage, i.e., “riders,” or complete coverage plans, that include broader abortion coverage, but only if two conditions are met:

o First, all administrative costs and services offered through those riders or plans must be paid for only with premiums collected for those plans. Companies that offer riders or plans that cover abortion would be forced to set up completely segregated financial, claims approval and payment systems for its riders or abortion covered plans versus its non-abortion covered plans.

o Second, companies also offer a non-abortion coverage plan as well, subjecting themselves to the financial segregation requirements and additional costs discussed above. In other words, companies that currently offer plans that cover abortion would only be able to participate in the exchange if they set up a duplicate company within the company to sell a non-abortion coverage plan.

In other words, any company that wants to offer individuals who are not receiving subsidies a plan in the exchange that covers abortions, industry standard in private plans today by the way, or a “rider” to cover abortions can only do so by incurring the additional costs of offering two plans that do not share any administrative costs or infrastructure. Much has been made of these provisions but in truth the conditions undermine any benefit they offer.

Real Life Market Impact:

In an “Analysis of the Implications of the Stupak/Pitts Amendment for Coverage of Medically Indicated Abortions,” the George Washington University School of Public Health and Health Services has stated that the size of the new market created by the exchange – estimated by the Congressional Budget Office to include 30 million people within six years of implementation -- “is large enough so that Stupak/Pitts can be expected to alter the ‘default’ customs and practices that guide the health benefits industry as a whole.” GWU Analysis, at 9. Two major impacts on the market are anticipated.

First, although most abortion plans currently cover abortion, the GWU experts expect that the health benefits industry will “drop [abortion] coverage in all markets in order to meet the lowest common denominator in both the exchange and expanded Medicaid markets.” Thus, not only will women purchasing coverage in the health exchange be left without abortion coverage, women who currently have coverage through employer sponsored plans will lose that coverage as well. Id. at 5-6 & 10-12.

Second, according to the GWU experts, the inability of companies to intertwine administration of plans that cover abortions with plans that don’t will “defeat the development of a supplemental coverage market for medically indicated abortions.” Id. at 1-2, 12. Indeed, in the five states that already ban coverage for most abortions in private plans, but allow insurers to offer additional abortion coverage through an additional rider requiring payment of an additional premium, see Restricting Insurance Coverage of Abortion, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf, there is no evidence that riders are available. For example, the National Women’s Law Center reports that Blue Cross Blue Shield of North Dakota, which has 91% market share in the state fails to offer any optional riders for abortion coverage. Moreover, because most pregnancies are unplanned, it is at least unknown if not unlikely that women would plan ahead to purchase the additional rider.


Public Funding or an Abortion Discount?

Stupak-Pitts is being sold as a “simple” ban on federal funding for abortion consistent with the ban on federal funding for most abortions in the Hyde Amendment. See Appendix A below for a description of Government Restrictions on Coverage of Abortion Care. However, given the design of health care reform, I query whether there is any actual “funding” of abortion being prevented by Stupak-Pitts?

If health care reform created a single payer system, a Medicare-like program or maybe even a Medicaid program which outlines which services must be covered, then we could have an honest debate about whether that government payer should write the checks to medical providers of one of the most common forms of women’s reproductive health care there is – abortion.

For example, we could talk about how one in every three women will have an abortion in her reproductive life and why that is so; about unplanned pregnancy, contraceptive failure, and sex ed, etc..

We could talk about how a fast increasing percentage of women obtaining abortions, now over 60%, already have at least one child, and cite concerns about their ability to care for and nurture the children they have as a major factor in obtaining an abortion. We could talk about how women still bear the burdens of childrearing disproportionately with (with?) the biological fathers of the children.

We could talk about how 12% of women obtain abortions because of their own health and 13% obtain abortions because of concerns about the health of the fetus and argue about whether women deserve to have their reproductive organs cared for on an equal basis with men.

In other words, we could talk about whether and how abortion serves women’s interests in equality, liberty, and equal liberty, and whether the government has an obligation to insure that it treats women the same as men with respect to their health, not to mention with respect to their ability to maintain their dignity, to define what is sometimes called “the course of one’s existence.” We could argue about whether deciding not only whether or not to be a parent, read mother, but also whether deciding how to parent, read mother, is an integral part of determining the “course of one’s existence.”

And ultimately, we could argue whether a government interest in distancing itself from abortion, or even expressing its disapproval of abortion, is important, or compelling, enough to justify treating women differently with respect to their physical integrity and ability to safeguard their health, their decisional autonomy, their equal right to determine the course of their existence and maintain their dignity.

Okay. But whatever health care reform will end up being, it won’t be a single-payer system, and whatever Stupak-Pitts is, it is not, as Stupak claimed recently in an attempt to refute the George Washington University study, a simple extension of the Hyde Amendment – the ban on federal funding for most abortions. Given this, there are two serious problems with this so-called public funding justification.

First, when we buy health insurance plans that cover abortion care, from an actuarial perspective that plan should be less expensive than one that covers only prenatal care and delivery services. All but a tiny fraction of abortions – those performed in high risk situations in hospitals – are significantly less expensive than prenatal care and delivery and so they save insurers money.

Of course, this isn’t a reason to cover abortions. But it does mean that when we are talking about buying health insurance instead of paying directly for services, we aren’t really talking about “federal funding for abortions” at all. Really, we should be talking about whether or not the federal government wants to accept the abortion discount, not whether or not the federal government is going to pay for abortions.

Second, Stupak-Pitts claims as “federal funding” the subsidies offered through tax credits and disallows abortion coverage in plans purchased with these tax credits. This expanded definition of federal funding to include tax relief to middle-class families not only extends Hyde restrictions to a new population, it also potentially expands government control to other aspects of our lives? If these tax credits are federal funds that can be restricted, what about my child care credit, or my standard deduction for that matter, or the tax relief I get for my employer health plan? How far will anti-abortion advocates go in their efforts to stop women from obtaining abortions? If they can reach into private plans in the exchange, why can’t they restrict health insurance tax deductions to those who purchase private plans that don’t offer abortions? Well, that will be next.

Tune in tomorrow for a discussion of silver linings and the potential for a new equal protection challenge!


APPENDIX A: Government Restrictions on Coverage of Abortion Care:

Restrictions on Federal Coverage: The federal government already bans federal funding for abortion, except for in cases of life endangerment, or pregnancy based on rape or incest, as follows: . These bans prevent coverage for abortions for:
• Coverage for low-income women on Medicaid is prohibited pursuant to the “Hyde Amendment,” first enacted in 1977 and reenacted every year since;
• Coverage for federal employees, including women serving in the military, their spouses, and female dependents is prohibited; (the latest Senate appropriations bill would not renew this restriction, though the House bill would); and
• Coverage for prisoners in federal prisons is prohibited.
(For women in the military serving overseas, there is an additional wrinkle. Beyond their limited employee health insurance, many women serving overseas are hard pressed to obtain an abortion using their own private funds because the government prevents abortions from being performed in U.S. military medical facilities, even where the woman uses her own money. She would have to find a facility off-base that would perform the procedure. If she is serving in a country where abortion is illegal or severely restricted, as it is for example in Iraq and Afghanistan, this will prove impossible.)

Restrictions on State Coverage: At the state level, the picture is mixed:
• Coverage for low income women on Medicaid:
o Thirty-three states and the District of Columbia ban most Medicaid funding for abortion. (Thirty-two and D.C. follow the federal standard and cover abortions only where the pregnancy endangers the woman’s life, or where the pregnancy was caused by rape or incest; one provides even more limited coverage, funding abortions only where the pregnancy endangers the woman’s life. See State Funding of Abortion Under Medicaid, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_SFAM.pdf).
o Seventeen states cover all or most medically necessary abortions in their Medicaid program using state funds; four states do this voluntarily; the other 13 do so pursuant to a court order.
• Coverage for Public Employees: twelve states restrict abortion coverage in insurance plans for public employees of which:
o two prohibit insurance coverage of any abortions, even those which could kill the woman;
o three allow abortion coverage only when the pregnancy endangers the woman’s life;
o seven allow coverage only when the pregnancy endangers the woman’s life or in cases of rape, incest, or fetal abnormality.

Government Restrictions on Private Insurance

Less well known than the public funding restrictions is the fact that five states place restrictions on what private insurers can cover. Four states, Idaho, Kentucky, Missouri, and North Dakota allow coverage only where the pregnancy endangers the woman’s life; Oklahoma’s restrictions mirror the Hyde restrictions allowing coverage only where the pregnancy endangers the woman’s life or where the pregnancy results from rape and/or incest. See Restricting Insurance Coverage of Abortion, (Nov. 1, 2009 GUTTMACHER INSTITUTE) available at http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf.

Insurers are allowed but not required to offer additional abortion coverage through an additional rider requiring payment of an additional premium. In fact, there is no evidence that riders are available in the individual market in any of the five states that restrict coverage in private plans. For example, the National Women’s Law Center reports that Blue Cross Blue Shield of North Dakota, which has 91% market share in the state fails to offer any optional riders for abortion coverage. Moreover, because most pregnancies are unplanned, it is at least unknown if not unlikely that women would plan ahead to purchase the additional rider.

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The Voting Rights Act's Secret Weapon?

Heather K. Gerken

There's a new paper up on SSRN that ought to be of interest to anyone who cares about the constitutionality of Section 5 of the Voting Rights Act. (In the interest of full disclosure, I should note that I supervised the paper, though the ideas are entirely the author's). Written by Travis Crum, it's the first sustained treatment of the "pocket trigger" or "bail-in" mechanism, a little-known provision of the Voting Rights Act that authorizes courts to subject jurisdictions that have discriminated against minority voters to the Section 5 "preclearance" process (described here).

The pocket trigger is interesting for two reasons. First, it could help protect Section 5 from constitutional invalidation when the next challenge occurs. Second, even if the Supreme Court struck down Section 5, the pocket trigger could provide a model for enacting a new Section 5 in the future.

For those who continue to think that Section 5 remains vulnerable to a constitutional challenge (an issue the Court ducked last Term), the pocket trigger might help alleviate some of the concerns the Court has raised about Section 5. Section 5 is vulnerable to constitutional challenge in large part because it covers some jurisdictions and not others . . . using a formula that dates back decades. The worry is that jurisdictions that ought to be covered are not (e.g., places with recent histories of racial discrimination that weren't included in the original formula) and that jurisdictions that should no longer be covered are still on the Section 5 list (e.g., places that discriminated in the past but look little different from non-covered jurisdictions today). Michael McDonald has suggested a proactive bailout of states that fall in the second category to address the second problem. The "pocket trigger" would address the first, pulling in bad actors that ought to be covered by Section 5 but aren't. One can imagine that if the two provisions were used in tandem during the next few years, mitigating both the underinclusion and overinclusion problems, supporters of the Act would have a stronger argument that the Act should withstand constitutional scrutiny the next time around.


Even if Section 5 doesn't survive its next trip to the Supreme Court, the pocket trigger is intriguing. One of the reasons that Congress didn't change the coverage formula when it last renewed Section 5 is that it’s hard to come up with a sensible -- and politically palatable -- formula to replace it. As Crum points out, the pocket trigger sidesteps that problem because it uses a trigger, not a formula, to determine which jurisdictions must comply with Section 5 and which need not. This type of approach might create a more flexible, dynamic preclearance process that should be less vulnerable to constitutional challenge than the current regime.


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