publius

New EFCA Site

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by publius One more public service announcement before Santa departs — the AFL-CIO just launched a new EFCA website for those interested. It has lots of good resources for people seeking either to get more involved or simply to get better educated. Here, for instance, is a video I found on the site featuring a … Read more

Computer Gods Are We

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by publius Only about, oh, years too late — the technical wizards at ObWi are pleased to announced the “sharethis” widget at the bottom of our posts. 99% of you probably know this, but (as I keep trying to explain to Vint Cerf) the widget allows you to email the link to others or share … Read more

The Road to Copyright Reform

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by publius I’m almost finished with Remix — and like all Lessig books, it’s very good. One interesting part is that his rhetoric has subtly changed to attract more Republicans. That’s not a bad idea, but I think it’s ultimately a futile effort. Lessig was apparently influenced by a reviewer of his earlier book Free … Read more

A Special Note Re: Senator Shelby

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by The Management*

Most readers know that the views expressed by Publius are his own and don’t always reflect the views of the institutional blog. Such is the case with regard to Matt’s Publius’s comments about Senator Shelby and the bailout. Shelby is a fine principled man, and he just paid all of us (except for Publius) $100. Therefore, we have a great deal of respect for his critical thinking and excellent, totally principled work product. Therefore, we are intruding and actually posting on this blog to let you know that we think Shelby is awesome. Senator — we emailed you our mailing address.

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Detroit and the Battle for Norms

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by publius So I’ve been reading Lessig’s new book Remix, which provides further examples of how idiotic our copyright policy is. I’ll write more later, but one of Lessig’s main goals is “norms” reform. That is, he wants to change what people conceive of as normal and accepted. For instance, it would be perceived as … Read more

Epstein’s EFCA Hackery

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by publius

Richard Epstein takes to the op-ed pages of the WSJ to argue that the EFCA is – wait for it – unconstitutional. Make no mistake – this is a highly misleading op-ed made in bad faith. If Epstein is right, then 80 years of post-New Deal precedent is wrong. In short, it’s an extremely radical position – though one Epstein has been unsuccessfully peddling for decades. Details below.

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The Warren Wedge

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by publius

Since my spectrum post didn’t get many comments, you’ve forced me to talk about Rick Warren. And while I’m not exactly a fan of this guy, I don’t think inviting him to give the invocation is a big deal. Ready to comment now? I thought so.

On one level, no one should be surprised by this move. Obama consistently reached out to evangelicals throughout the campaign. He also quite deliberately avoided hot button cultural issues that galvanize these voters. The invitation to Warren is consistent with a long pattern of outreach. That said, the mere fact that he’s reached out in the past doesn’t necessarily mean that this particular invite is a good idea.

Obviously, Prop 8 complicates things. If the wounds of Prop 8 weren’t so raw, I think the invite would be a no-brainer good idea. But as Ed Kilgore astutely observes, Prop 8 has radicalized progressives. It’s a little bit like the backlash that followed the Fugitive Slave Act. It was one thing to know that slavery existed in some faraway land. But the FSA forced people who were already free to be captured and sent back to slavery. Seeing freemen seized on the streets of Boston radicalized the North in a new kind of way (I have an old old post on this). Perhaps the analogy is strained — but I think something similar has happened with Prop 8. California reached in and destroyed existing marriages — and now, something has changed.

And I don’t mean to discount that anger at all. It’s well-deserved, and Rick Warren deserves plenty of blame. But all that said, it’s important not to let blinding anger obscure the larger long-term political benefits of Obama’s outreach. Nixon famously said you can’t ignore a billion people. That logic applies here too. More on that below.

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Why Spectrum Policy Matters

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by publius There’s a school of thought in the telecom world that the fight over wireless spectrum is overblown. At the end of the day, they argue, wires will always be better than wireless. The policy implication is that, rather than trying to build crappy muni-WiFi on the cheap, we should be digging holes and … Read more

Why The Caroline Kennedy Appointment Sort Of Stinks

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by publius

As the last person on earth to write about Caroline Kennedy, I too am pretty strongly against handing her a Senate seat. Nothing personal — but I’m anti-dynasty, and feel that a Senate appointment requires at least some minimum threshold of experience and engagement.

It’s worth emphasizing though how unseemly the whole thing is, particularly in the age of Blago. The Blago pay-for-play raises some interesting line-drawing challenges. Legislators seek favors all the time — that’s a huge part of what legislating is. But where is the line?

The key I think is to focus one the purpose of the benefit sought. If it’s for some plausibly public benefit, then fine. If it’s for private benefit, then that’s where things start getting smelly. If Blago, for instance, had said “I demand that you push for universal health care. If you do, I’ll appoint your preferred candidate.” That’s pay-for-play in a sense — it’s demanding a “payment” of sorts — but that’s perfectly acceptable in our current system.

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Lessig Clarifies

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by publius Lessig clarifies, claiming the the WSJ got his comments wrong. Lessig’s stance is a bit controversial — but he claims it’s a position he’s long had (i.e., there’s no “shifting”). Essentially, Lessig is ok with some forms of priced priority access levels. He just wants to prohibit any form of discrimination. For instance, … Read more

Google — Cashing Out on Net Neutrality?

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by publius

The WSJ has a good policy overview of net neutrality this morning. But the bigger news from the article is that Google (along with other big content providers) appears to be backing away from its support of net neutrality. It’s disappointing and consequential, but not very surprising. [But see the Update on Google’s response to the article below the fold].

Honestly, what’s surprising is that Google, et al., ever supported neutrality requirements. After all, one of the primary justifications for neutrality is that it prevents incumbent entrenchment. In this respect, “pay-to-play” access protects big companies like Amazon and Google from future competition from less well-funded upstarts.

Let’s back up. Remember that what neutrality proponents are trying to prevent is “tiered access.” In this brave new tiered world, Internet access providers (AT&T, Comcast, etc.) want to not only charge you, but to charge companies like Google for “prioritized” access to you. Google would thus pay an additional premium to ensure that your computer gets Google faster than, say, Ask.com who might only be able to afford a lower tier.

In the long run, the fear is that it would fundamentally change the Internet by creating a separate and unequal “lane” for companies who couldn’t afford the higher tiers. Thus, new companies (particularly bandwidth-heavier video sites) would be relegated to an increasingly crowded, congested, and slow lane, while richer companies get the equivalent of a HOV lane free and clear.

Anyway, it makes perfect sense why Google and Amazon would support tiered access. Quite simply, they can afford it and new upstarts (the future thems, if you will) won’t be able to pay. In essence, the established companies would be paying a chunk of their profits to entrench their current success – which of course runs counter to how the Internet should be run (according to the old Google anyway).

But even if it’s predictable, it’s an unfortunate development from a legislative perspective. To win anything in DC, you generally need a well-funded lobbying effort. The only reason net neutrality ever got this far was in part because a lot of these big companies were pushing back, thus providing the Madisonian cross-vector. With that pressure gone, it’s going to be much harder for progressive advocates to get a voice with Congress and the FCC. All in all, bad news.

One last thought – what the hell is wrong with Larry Lessig? More on that below.

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Intel’s Sophie’s Choice

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by publius Intel asks the truly tough questions (the point of the study was ostensibly to show how important the Internets have become): Men have always faced challenges when it comes to romance. Here’s a sign that technology may have raised another hurdle. An online survey commissioned by Intel has found, among other things, that … Read more

A Few Bad Apples up on the Very Top

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by publius I’m not sure it tells anything we don’t already know (read, e.g., The Dark Side). But the Levin-run Senate Armed Services Committee report on detainee abuse is now out (pdf exec summary). And it deserves some press attention. It confirms that senior administration officials authorized torture. Specifically, they authorized the “SERE” techniques — … Read more

Blago 2016!!

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by publius Hilarious: The government alleged Mr. Blagojevich was considering appointing himself to the Senate to avoid impeachment, resuscitate his career and make corporate contacts that would pay off after leaving public office. He also believed, the government claimed, that he would have greater leverage to rehabilitate his reputation and consolidate his power base for … Read more

The Post’s Crappy EFCA Article

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by publius The Post’s article today on the Employee Free Choice Act (EFCA) is an example of a new pet peeve of mine — namely, the failure to fairly explain the reasons why the EFCA is so essential. The article is nominally about the looming legislative battle. But the article — unwittingly — presents a … Read more

Why Care About The Rule of Law?

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by publius I’ve been reading Jane Mayer’s The Dark Side, and it’s very good. The book provides a comprehensive look at the administration’s novel and generally lawless response to 9/11 (detention, rendition, etc.). It’s a somewhat radicalizing read (and frankly, I don’t need the help these days). But it got me thinking about the larger … Read more

Don’t Throw Me In The Briar Patch

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by publius It’s a bit amusing to see all the conservative schadenfreude about progressive whining about Obama. McArdle, for instance, writes: He also wouldn’t be president-elect without the drivers who piloted the campaign bus, but this is not a reason to make bus drivers the central concern of his new administration. Frankly, the knowledge that … Read more

Heckuva Job

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by publius Another ringing empirical endorsement of the Kagan/Kristol worldview via the NYT’s article on Somalia: In 2006, Islamist troops teamed up with clan elders and businessmen to drive out the warlords who had been preying upon Somalia’s people since the central government first collapsed in 1991. The six months the Islamists ruled Mogadishu turned … Read more

The Next Showdown – Cert for al-Marri

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by publius

Big news on the national security front — the Court today (over the objections of the DOJ) granted cert in the al-Marri case. The case is arguably the most important yet because the Court seems ready to weigh in on one of the most sweeping powers claimed by the Bush administration — the power to indefinitely detain legal residents arrested in the United States (and thus citizens).

I’m sure we’ll return to it later, but below is a very high-level summary of the case and what’s at stake. For more thorough backgrounders, see Greenwald, Lederman, the Brennan Center, and SCOTUSblog.

Al-Marri was a legal resident — a graduate student — living in the United States. He was arrested for credit card fraud and was awaiting trial in 2003. Right before trial, the Bush administration declared him an enemy combatant and whisked him away to a naval brig, where’s he been held (and allegedly tortured) without charge ever since.

After a complicated legal proceeding, a splintered 4th Circuit (en banc) essentially affirmed Bush’s authority to detain him indefinitely under the post-9/11 Authorization for Use of Military Force (AUMF). Actually, the split court had two separate holdings: (1) the government could detain al-Marri indefinitely if it proved he was an “enemy combatant”; but (2) the government had yet to adequately prove that he was in fact an “enemy combatant.”

In short, the 4th Circuit said that if the government can prove he meets the enemy combatant definition, then the AUMF authorizes indefinite detention without charge. The court added, though, that the administration hadn’t yet proven the former. (This latter holding isn’t much of a protection, though, given that — under Hamdi — the “due process” required to establish combatant status is far below normal due process standards required for imprisonment).

Anyway, the upshot here is that if Bush can detain al-Marri indefinitely by calling him an enemy combatant, then Bush can detain anyone — citizens included. That’s because legal residents are generally deemed to have the same due process protections as citizens. So yeah, it’s an important case.

A few other scattered thoughts below:

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Sanford-nomics

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by publius “Rising star” Mark Sanford shows off his economic chops in today’s WSJ. The quote comes from an article explaining that GOP governors who have national ambitions are going to find it hard to approve tax increases of any kind. Anyway: Gov. Sanford, unlike most of his colleagues, speaks out against any federal bailouts, … Read more

Meat

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by publius Ben Adler has a good thorough rundown at TAP on the effects of meat consumption on global warming. Interestingly, he notes that environmentalists have been hesitant to urge people to eat less meat, despite the fact that it’s one of the easiest and most effective ways to reduce your carbon footprint. The reason, … Read more

Black Mirror

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by publius Ezra Klein argues that people — with their fancypants synthetic CDOs — are making the financial crisis too complicated. At heart, the basic problem is still the housing market: [A]t the heart of all this was a fairly simple dynamic. The subprime market — which is to say, the market of loans sold … Read more

One To Go

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by publius As expected, Chambliss held on in Georgia. I suppose there will be some grumbling that Obama could have done more for Martin, but I think Obama made the right call by staying out of it. Let’s face it — it was pretty much hopeless from the moment in went to the runoff. There … Read more

Terrorism’s Perverse Success?

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by publius There are many enraging aspects of the Mumbai terrorist attacks. The worst, though, is the sobering realization that terrorism can be wildly successful. A few preliminary points though: For now, I’m rejecting the idea that Mumbai was a new breed of “celebrity terrorists” who are essentially nihilistic (via abu m). I’m assuming the … Read more

Centrist Like a Fox

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by publius To follow up on Hilzoy (and Yglesias), I too was encouraged by the NYT report that Obama’s national security team wants to shift resources away from the bloated military budget to fund other diplomatic initiatives. It’s encouraging not merely for its own sake, but because it reassures skeptics like me that Clinton and … Read more

The Political Isn’t Personal

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by publius Poor poor Susan Collins – she might have considered voting with Dems if only they hadn’t been such meanies: Collins told colleagues . . . she still felt lingering resentment toward Democratic senators who campaigned against her in Maine. She confessed that she had “trouble forgiving colleagues” who traveled to Maine and told … Read more

Seeking the Wisdom of the Crowd

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by publius Megan McArdle takes a stab at justifying the proposition that GM workers make $70/hour (contra Cohn and Salmon, who say $28). Basically, to get to $70, you have to add in retiree health care. And so here’s the part I don’t understand: So from the worker’s point of view, it is true, they … Read more

Who Decides?

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by publius One last point on the Christian Right. In Orin Kerr’s admittedly insightful post, he views the culture wars through a “political process” lens. That is, he argues that social conservatives’ preferred constitutional positions (e.g., abortion, school prayer, gay rights) simply preserve the political process. Liberal positions, by contrast, remove those issues from the … Read more

The Psychology of Oogedy-Boogedyism

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by publius

Kathleen Parker’s column has stirred up a lot of debate about what exactly is so “oogedy-boogedy” about the “Christian Right.” (Jonah Goldberg thinks not much; Kevin Drum disagrees). It’s true that many liberals and secularish conservatives are a bit freaked out by that particular wing of the party – but why exactly?

It’s certainly not because of religion alone. And it’s not simply because liberals strongly disagree with social conservatives’ political views. I mean, I happen to think that strong versions of economic libertarianism are pretty silly – if not downright pernicious (though I do consider myself a hard core social libertarian). But I don’t have the visceral loathing toward economic libertarians that I have toward, say, James Dobson or Sarah Palin. Why is that?

Personally, I think the oogedy-boogedyness stems from fear – on some level, liberals are simply afraid of social conservatives. Fairly or no, liberals perceive them as a direct and credible threat to their own personal liberties.

Interestingly, this same fear is precisely why social conservatives loathe liberals – on some level, they are afraid of us. Orin Kerr had a very insightful post on this issue a few months back. His question was simple – why do conservatives care so much about the courts? In particular, why do average conservatives obsess about courts more than average liberals do?

His answer was that conservatives tend to perceive courts as direct threats to their personal lives. He writes:

For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them.

For liberals, by contrast, the question has merely been whether the court will mandate their preferred views on “hot button” cultural issues such as abortion and school prayer. I’d quibble with parts of his post, but I think he’s right at least in terms of perceptions. Conservatives hate courts because they view them as direct and tangible attacks on their liberties. That’s the same reason why social conservatives hate liberals.

I think a similar dynamic, however, exists with liberal perceptions of social conservatives.

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Persona Non Grata

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by publius I think Kathleen Parker is officially off the NRO cruise invite list: To be more specific, the evangelical, right-wing, oogedy-boogedy branch of the GOP is what ails the erstwhile conservative party . . . . So it has been for the Grand Old Party since the 1980s or so, as it has become … Read more

Somethin’s Better Than Nothin’

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by publius The Detroit bailout obviously raises several thorny questions. But Sebastian raised a more basic one – why do anything? It’s a fair question, so I’ll bite. First, I think the bailout makes sense even if you concede many of the critics’ arguments. For instance, let’s stipulate to the following: (1) the Big Three … Read more

The Only Story That Matters

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by publius The new Google mobile iPhone app is out. I can now do voice-enabled Google searches. Please cue the big drums from 2001: A Space Odyssey. I predict we’ll soon solve the dark matter mystery, and possibly reconcile the theories of gravity by Thursday.

Save the Soft Money Ban

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by publius

One of the most important post-election stories is the RNC’s lawsuit to strike down soft money bans as unconstitutional. Specifically, the RNC wants to restore unlimited donations for “state” or “non-federal” purposes (pdf complaint here – via Hasen). This is a huge story – particularly given the looming redistricting state elections of 2010.

Two quick observations: First, the suit is a blatant attempt to relitigate the issue before the new Roberts Court. The Court – on a 5-4 vote with O’Connor – decided this precise issue in 2003 in McConnell, and upheld the ban. The RNC is politically gaming the Court – and I fear the conservative Justices will play along.

Second, make no mistake – unlimited state donations will effectively eliminate the federal soft money ban (which the RNC technically isn’t challenging). As I’ll explain below, the federal/state issue is a distinction without a difference. If the state ban is lifted, the federal ban will be completely gutted.

After the jump, I’ll first discuss why soft money bans are good ideas generally. Next, I’ll get into some of the more specific legal issues with the RNC’s complaint.

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