A nearly unanimous Supreme Court ruled Wednesday that the First Amendment protects even hurtful speech about public issues and upheld the right of a fringe church to protest near military funerals.
Chief Justice John G. Roberts Jr. wrote that the Topeka, Kan.-based Westboro Baptist Church’s picketing “is certainly hurtful and its contribution to public discourse may be negligible.” But he said government “cannot react to that pain by punishing the speaker.”
“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.
Justice Samuel A. Alito Jr. was the lone dissenter.
“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote.
Stepping aside from the emotions and bizarre facts, this case implicates all sorts of legal issues aside from the First Amendment. A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery. A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions. Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument.
As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade. If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.
The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding. “The record makes clear that the applicable legal term—‘emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street.” The Court continued: “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. … Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The Court left undecided two important issues that it concluded were not squarely presented. First, recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws. The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.
Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.
Justice Roberts, for the majority, noted that “Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.” That is nearly always the case, so much so that the Court does not generally bother to mention it in its decisions unless it intends the comment to have significant effect beyond a yawnIn his concurrence, Justice Breyer expanded on this cautionary note:
I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”
While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. . . . [S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected (emphasis added).
Justice Alito expanded on the points raised in Justice Breyer’s concurrence at some length in his dissent at pages 23 – 36, particularly the analogy to a physical assault by A on B in order to gain an otherwise unlikely media audience for his views. Both Justices Breyer and Alito seem to think that A’s statement of views in the media presence would not shield him from liability for the assault, physical or verbal.
In raising the matter, Justice Alito seems to rely on matters noted by Justice Breyer not to have been before the Supreme Court. The majority opinion observes, in a footnote:
A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral.” (emphasis added)). . . .
It is up to the petitioner for certiorari to do what Mr. Snyder evidently did not do. Unfair, perhaps, but here it serves to emphasize and give some flesh to the statements in the majority opinion as well as in the concurrence that the majority opinion is narrowly limited to the facts before the Supreme Court.
This is a tough decision (and one which I grudgingly concede until I can read the actual decision) which is only tempered if you believe that there is a special place in hell for the Phelps family.
Also, please remember that these protests are stunts in order to evoke a visceral reaction from normal Americans in order to sue them in court and receive funds which keeps bread on the Phelps family table. Do not engage these horrible disgusting animals as that is exactly what they want.
It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.
Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter. You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.
Sarah Palin voiced disappointment with a Supreme Court decision Wednesday protecting the First Amendment rights of anti-gay protesters at military funerals.
“Common sense & decency absent as wacko ‘church’ allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square,” Palin tweeted .
On Friday, the Obama administration laid the foundation for what is sure to be a fierce debate about the role government should play in supporting homeownership in the United States in the wake of the housing bubble and financial crisis.
The Treasury Department and the Department of Housing and Urban Development issued a report to Congress outlining how government can gradually scale back its involvement in the mortgage market and transfer housing finance to the private sector. The report proposes abolishing the government-backed mortgage providers Fannie Mae and Freddie Mac within ten years and suggests three possible systems to take their place.
With that said, however, the government’s presence in the housing market will not disappear entirely. In fact, it would certainly remain intact for the affordable housing initiatives through the Federal Housing Authority and other targeted programs, as it had in the past. The big change would be how mortgage funding would be provided for the vast majority of mortgages in the U.S., which have heavily relied on Fannie and Freddie for decades. The Treasury wants the private market to step in and take on most of that funding responsibility and relieve taxpayers of some or almost all of the mortgage market’s risk.
Before getting into the three alternative policy possibilities that it offers, the plan explains how the mortgage market would be weaned off of Fannie and Freddie over a period of time. One change would be to gradually increase the guarantee fees that the GSEs charge, so that private guarantors would be able to better compete. Another change would be to require Fannie and Freddie to obtain more private capital to cover subsequent credit losses. The Treasury also intends to reduce the size of mortgages that qualify for Fannie and Freddie guarantees. Finally, the administration intends to wind down Fannie’s and Freddie’s mortgage portfolios, by at least 10% per year.
The Treasury also provides some guidance on mortgage underwriting and measures to crack down on predatory lending. Perhaps the most surprising assertion was that loans that obtain government backing going forward — excluding those in designated programs specifically targeting lower-income borrowers — should eventually be required to “have at least a ten percent down payment.” The Treasury also stressed the importance of ensuring borrowers have the ability to pay the mortgages they obtain.
While the report does say a lot of the right things — such as protecting the taxpayer — it is awfully short on any real details. And in many areas, the report makes clear that the Obama administration intends to keep the taxpayer on the hook for future losses arising from Fannie and Freddie. For instance, after assuring us that the GSEs will have sufficient capital to meet their obligations, including debt, the report tells us that such capital will not come from investors, but from the taxpayer. One has to wonder whether this report was written for the benefit of the Chinese Central Bank (one of the largest GSE debtholders) or for the benefit of the U.S. taxpayer.
Equally vague is the discussion of “winding down” Fannie and Freddie. While that sounds great, how is this to be accomplished? And how long will it take? Again it seems that this “wind-down” will be financed by the taxpayer. It is suggested that the GSE guarantee fees will increase. Again, by how much and when?
Paragraph 2 of Section 1074 of the Dodd-Frank act, which required this study, also requires an “analysis” of various options and impacts. In all due respect to HUD and Treasury and their efforts, there is nothing in this report that remotely resembles an “analysis” — just vague generalities.
I appreciate the administration’s stated desire to move us closer to a private market solution, but we’ve heard these empty promises before. Remember that financial reform was going to end “too big to fail” and bailouts? Health care reform was going to “bend the cost curve”? It is past the time of fluff. We need actual details and an actual plan.
Beyond the basically insane structure of Fannie Mae and Freddie Mac — private institutions with lobbyists, profit motives, and the protection of an unarticulated but widely acknowledged government guarantee to cover their big losses — the administration’s diagnosis of what went wrong in the housing market speaks much more to issues dealt with in the financial-regulation law than issues included in their three options for reform of the government’s system of housing finance and insurance.
The story they tell begins in the consumer market, where inadequate protections and incompetent regulatory oversight allowed the brisk trade in bad mortgages to people who couldn’t afford them to take off. It then moves to the opaque and underregulated finance system, where the banks were packaging products they didn’t understand into securitized bonds and selling them off so quickly that they stopped worrying about how risky they were, and where regulators didn’t see what was going on and thus didn’t demand the banks hold enough capital to protect themselves from the inevitable reckoning.
Fannie Mae and Freddie Mac were part of this story, of course. But they were late to the party. They only got into the riskier stuff in 2006, while the rest of the financial industry had been playing in the mud since 2001. Reforming them can help mitigate a housing crisis in the future. But given this chain of events, it can’t prevent it.
The root causes will be fixed — or not — in Dodd-Frank. It’s up to the Consumer Financial Protection Bureau to strengthen the weak consumer protections that allowed these mortgages to be sold in the first place. Regulators will have new powers to force financial players — particularly the megafirms whose failure threatened the whole system — to hold more capital as a buffer against bad times. Banks won’t be able sell off all their risk because the law says they have hold five percent of the risk of any product they originate — though as Bethany McLean notes, that’s not true when the product consists of “qualifying residential mortgages,” and it’s up to the regulators implementing Dodd-Frank to define what a qualifying residential mortgage is.
That’s not to say reforming the way the government structures its presence in the housing market doesn’t matter. It does. But the government isn’t looking to dramatically change the role they play in the housing market. They’re just looking to get away from poorly designed institutions like Fannie and Freddie. The real action — the work that could prevent another crisis — is still in Dodd-Frank, where many of the questions central to how the housing markets works going forward haven’t been answered, and where many of the rules that might stop it from blowing up again have yet to be written.
Incidentally, the more I think about it, the more outraged I am by the sketchiness of their proposal. It takes up only a few paragraphs, and those are quite vague. It is the sort of thing that, if somebody tossed it out at a meeting or in a blog post, you would say, “Might be interesting, but I am not quite sure how you would do it. Do you have a background paper on it somewhere?” In the form that it is presented in the report, I think that it is irresponsible to even call it a proposal. Shame on Treasury for putting something so half-baked at the center of their report.
This puts me in the strange position of defending Freddie and Fannie. My first choice would be for government not to hand out any goodies. But if you are going to have the government hand out goodies, the ability of regulators to control the costs and mitigate the risks will be much greater if we revert to Freddie and Fannie than if we try something new. Under any arrangement, the hard part will be what I call “staying off the booze,” meaning keeping the government from guaranteeing riskier mortgages (second mortgages, cash-out refis, loans on investment properties, loans with low down payments, etc.) when house prices start rising again.
It’s far to ask whether we’ve been over-promoting homeownership, and, as Alyssa Katzdoes in the latest issue of the Prospect, what we maybe should do instead. Alyssa will have more detail on what happens after Fannie and Freddie on TAP Monday, but for the meantime, I’d like to point out what a symbolic victory this is for conservatives. Whether Fannie and Freddie should have been preserved probably wasn’t considered lightly, but conservatives have been vilifying the agencies as the cause of the crisis since the beginning. They weren’t, they were simply the last to ride a wave that started on Wall Street. That doesn’t mean the weird private/public limbo in which they did business wasn’t also a bad thing, but it does mean that conservatives will point to their demise as proof they were right.
I am not, with this post, going to attempt a detailed exposition on Judge Vinson’s ruling that declared the individual mandate unconstitutional and, due to the lack of a severability clause, struck the whole law as unconstitutional. But I will give you a brief overview and direct you to other good sources.
Here are the basics you will need to start your day.
First, you need to understand that the case before Judge Vinson was not directed at whether the federal government can involve itself in healthcare. Instead, the case was whether the individual mandate is constitutional.
The individual mandate is the keystone to the whole legislation. Without it, the funding mechanisms of the law collapse in on themselves. Judge Vinson ruled that forcing people to buy healthcare insurance, whether they want it or not, is unconstitutional.
In short, if I read the opinion (plus this final judgment) correctly — quite apart from both the lofty philosophical principles I applaud Judge Vinson for adopting and the nitty-gritty technical details of his individual mandate analysis — Obamacare is dead in its tracks. Now, Judge Vinson himself or the Eleventh Circuit (or even the Supreme Court) may issue an emergency stay of this or any other part of the ruling, but as of right now, the federal government must stop implementing Obamacare.
Well, go ahead, see what happens if you try to implement Obamacare without actually overturning the decision.
And notice that term “activism.” The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals. They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air. Let’s suppose for the sake of argument that the judge’s opinion is supported by the constitution or precedent—they have no principled objection to that. So their objection is merely to losing.
And meanwhile anonymous White House officials had this to say:
White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.
“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on condition of anonymity.
Hmm. I think it’s a bit curious that the White House would send an “anonymous” official to criticize the ruling of an Article III judge, and surpassingly curious that a gaggle of reporters would agree to respect the aide’s anonymity in exchange for the “anonymous” quotes.
Shouldn’t the reporters either tell the official to go on the record, or refuse to take part in a “briefing” that amounts to simply a colorful attack on an unfavorable opinion?
Now let’s return to Judge Vinson’s analysis of the Necessary & Proper Clause. The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.” Page 62. He writes:
[T]he Commerce Clause limitations on the federal government’s power would definitely be compromised by this assertion of federal power via the Necessary and Proper Clause. . . . .The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”
This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.
Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.
Anyway, I realize this argument will only resonate with readers who care about binding precedent, which at times seems like a vanishingly small group of readers. But it does seem to be the weak link in Judge Vinson’s opinion for the three of us who are interested in whether the decision is correct under existing law.
UPDATE: I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before.
ANOTHER UPDATE: My co-blogger Ilya Somin defends Judge Vinson by pointing out that the Supreme Court’s majority opinions insist that the federal government does not have completely unlimited power. Ilya’s argument is unpersuasive because the existence of nonzero limits in no way implies the existence of major limits. The current state of Commerce Clause doctrine is that there are certain largely symbolic limits on federal power but those limits are relatively minor: As Justice Thomas put it, Congress can regulate virtually anything. Judge Vinson says that this cannot be the law because it would make the federal government too powerful. But Judge Vinson does not consult existing doctrine before declaring the principle, and that’s the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause.
Based on existing Supreme Court precedents, Judge Vinson’s opinion strikes me as well-reasoned. But this case is different from any that have yet come before the Court, and the Court could go either way. The final decision will be essentially political.
While everyone purports to agree in principle that our federal government is one of limited, enumerated powers, the true liberal position is that there are no limits at all on what the federal government can do, except as set forth in the Bill of Rights. Thus, the delineation of the role and powers of the national government, as laid out in the main body of the Constitution, is ignored. On the other hand, the amendments are selectively given an expansive reading where necessary to prevent the government from doing something that liberals do not think is appropriate (e.g., enforcing laws against abortion). Affirming Obamacare would represent a new high-water mark for that philosophy.
The Jasmine Revolution in Tunisia has sent a shock wave through the Arab world. Never before has the street toppled a dictator. Now Egypt is shaking, Hosni Mubarak’s 30-year-old regime faces its most serious threat ever. The prospect of change in Egypt inevitably raises questions about the oldest and strongest opposition movement in the country, the Muslim Brotherhood , also known as Ikhwan. Can America work with an Egypt where the Ikhwan is part of a transition or even a new government?
The short answer is it is not our decision to make. Egyptians will decide the outcome, not Washington. We should not try to pick Egyptians’ rulers. Every time we have done so, from Vietnam’s generals to Afghanistan’s Hamid Karzai, we have had buyer’s remorse. But our interests are very much involved so we have a great stake in the outcome. Understanding the Brotherhood is vital to understanding our options.
The Muslim Brethren was founded in 1928 by Shaykh Hassan al Banna as an Islamic alternative to weak secular nationalist parties that failed to secure Egypt’s freedom from British colonialism after World War I. Banna preached a fundamentalist Islamism and advocated the creation of an Islamic Egypt, but he was also open to importing techniques of political organization and propaganda from Europe that rapidly made the Brotherhood a fixture in Egyptian politics. Branches of the Brotherhood grew across the Arab world. By World War 2, it became more violent in its opposition to the British and the British-dominated monarchy, sponsoring assassinations and mass violence. After the army seized power in 1952, it briefly flirted with supporting Gamal Abdel Nasser’s government but then moved into opposition. Nasser ruthlessly suppressed it.
One might wonder how an organization can be thought to have renounced violence when it has inspired more jihadists than any other, and when its Palestinian branch, the Islamic Resistance Movement, is probably more familiar to you by the name Hamas — a terrorist organization committed by charter to the violent destruction of Israel. Indeed, in recent years, the Brotherhood (a.k.a., the Ikhwan) has enthusiastically praised jihad and even applauded — albeit in more muted tones — Osama bin Laden. None of that, though, is an obstacle for Mr. Riedel, a former CIA officer who is now a Brookings scholar and Obama administration national-security adviser. Following the template the progressive (and bipartisan) foreign-policy establishment has been sculpting for years, his “no worries” conclusion is woven from a laughably incomplete history of the Ikhwan.
By his account, Brotherhood founder Hassan al-Banna “preached a fundamentalist Islamism and advocated the creation of an Islamic Egypt, but he was also open to importing techniques of political organization and propaganda from Europe that rapidly made the Brotherhood a fixture in Egyptian politics.” What this omits, as I recount in The Grand Jihad, is that terrorism and paramilitary training were core parts of Banna’s program. It is by leveraging the resulting atmosphere of intimidation that the Brotherhood’s “politics” have achieved success. The Ikhwan’s activist organizations follow the same program in the United States, where they enjoy outsize political influence because of the terrorist onslaught.
Banna was a practical revolutionary. On the one hand, he instructed his votaries to prepare for violence. They had to understand that, in the end — when the time was right, when the Brotherhood was finally strong enough that violent attacks would more likely achieve Ikhwan objectives than provoke crippling blowback — violence would surely be necessary to complete the revolution (meaning, to institute sharia, Islam’s legal-political framework). Meanwhile, on the other hand, he taught that the Brothers should take whatever they could get from the regime, the political system, the legal system, and the culture. He shrewdly realized that, if the Brothers did not overplay their hand, if they duped the media, the intelligentsia, and the public into seeing them as fighters for social justice, these institutions would be apt to make substantial concessions. Appeasement, he knew, is often a society’s first response to a threat it does not wish to believe is existential.
As bad as Mubarak is, and the Egyptian people have good reason to despise him, he is a lot better than other dictators who have led regimes in the Middle East. Remember Saddam Hussein, and also recall the forces that took power in Iran after the populace ousted the shah in 1979. I vividly remember all those student protesters on U.S. campuses bearing photos of the victims tortured by the shah’s secret police, and demanding the Shah’s ouster and his replacement by the great democratic revolutionaries led by the Ayatollah Khomeini. That was a popular theme as well in precincts of the always wise American left, symbolized by the arguments of Princeton University political scientist Richard Falk, or the comment of Jimmy Carter’s UN Ambassador Andrew Young that Khomeini was a “saint.”
It is most instructive to look back at Falk’s arguments, made a scant two weeks after the shah’s government fell and he fled Iran, and the Grand Ayatollah Khomeini returned to the country. Khomeini, Falk wrote in The New York Times(Feb.16, 1979), “has been depicted in a manner calculated to frighten,” and President Jimmy Carter had “associated him with religious fanaticism.” He was also “defamed” by the news media, some of whose pundits dared to call Khomeini an advocate of “theocratic fascism.”
Rather than being a religious leader who fit any of those dire characteristics made by his enemies, the movement had “a nonviolent record.” In addition, the would-be radical Islamist was a man who pleaded with Iran’s Jews to stay in the country. Certainly, even Falk had to acknowledge that the coming leader was against Israel. But that “of course” was due to the fact that Israel “supported the shah” and had not “resolved the Palestinian question.”
Khomeini was not dissembling, Falk assured his readers, since he expressed “his real views defiantly and without apology.” Moreover, his closest advisers were “uniformly composed of moderate, progressive individuals” and those he sought to lead a new government, all of whom “share a notable record of concern for human rights and see eager to achieve economic development that results in a modern society.” The reason the entire opposition deferred to Khomeini was not due to coercion, but because they knew that he and the Shiite “tradition is flexible in its approach to the Koran and evolves interpretations that correspond to the changing needs and experience of the people.” Its main desire and “religious orientation” was concern “with resisting oppression and promoting social justice.”
He knew that Khomeini sought “not to govern,” but instead simply to “inspire.” That is why he would live in the holy city of Qum, a place removed “from the daily exercise of power.” He would simply be a “guide or, if necessary, …a critic of the republic.” He would thus be able to show the world what “a genuine Islamic government can do on behalf of its people.” Falk assured readers that Khomeini scorned “so-called Islamic Governments in Saudi Arabia, Libya and Pakistan.” Thus one could talk of “Islam’s finest hour,” in which Khomeini had created “a new model of popular revolution based, for the most part, on nonviolent tactics.” Iran, he knew, would” provide us with a desperately needed model of humane governance for a third-world country.”
And you wonder why those of us who have become conservatives no longer trust the great spokesmen of the American left/liberal intelligentsia.
The memory of Nasser is a reminder that even if post-Mubarak Egypt doesn’t descend into religious dictatorship, it’s still likely to lurch in a more anti-American direction. The long-term consequences of a more populist and nationalistic Egypt might be better for the United States than the stasis of the Mubarak era, and the terrorism that it helped inspire. But then again they might be worse. There are devils behind every door.
Americans don’t like to admit this. We take refuge in foreign policy systems: liberal internationalism or realpolitik, neoconservatism or noninterventionism. We have theories, and expect the facts to fall into line behind them. Support democracy, and stability will take care of itself. Don’t meddle, and nobody will meddle with you. International institutions will keep the peace. No, balance-of-power politics will do it.
But history makes fools of us all. We make deals with dictators, and reap the whirlwind of terrorism. We promote democracy, and watch Islamists gain power from Iraq to Palestine. We leap into humanitarian interventions, and get bloodied in Somalia. We stay out, and watch genocide engulf Rwanda. We intervene in Afghanistan and then depart, and watch the Taliban take over. We intervene in Afghanistan and stay, and end up trapped there, with no end in sight.
Sooner or later, the theories always fail. The world is too complicated for them, and too tragic. History has its upward arcs, but most crises require weighing unknowns against unknowns, and choosing between competing evils.
The only comfort, as we watch Egyptians struggle for their country’s future, is that some choices aren’t America’s to make.
The fact that theories are imperfect does not make them any less necessary. We take refuge in foreign policy theories because there is no alternative. As Ben Friedman pointed out in responding to Douthat previously, it is impossible to have foreign policies without foreign-policy theories. The same goes for economics, domestic politics, and a whole range of human behavior. People take (or oppose) various actions based on their expectations about what outcomes the actions will (or will not) produce. Whether people are conscious of it or not, our expectations are products of our theories. People disagree about which theories are good and which are bad, but we all have them.
Just got late word that Dunne, Kagan and others from their group including former Bush NSC Middle East hand Elliott Abrams, as well as George Washington University Middle East expert Marc Lynch, and the National Security Network’s Joel Rubin, formerly a U.S. Egypt desk officer, have been invited to the White House Monday.
“We do think-tank sessions on an almost weekly basis,” a senior administration official told POLITICO’s Playbook. “The goal is to bring in some of the top opinion leaders and thinkers on a given subject and have a candid conversion. We’ve done it with China, Afghanistan, Iraq, etc. Today’s topic is Egypt.”
The Senate on Tuesday morning defeated a proposal from Sen. Tom Coburn (R-Okla.) to ban congressional earmarks.
In a 39-56 vote, members defeated a temporary ban on the appropriations procedure. The moratorium was offered as an amendment to a food-safety bill that is scheduled for a final vote Tuesday morning.
Senate Republicans have already passed a voluntary ban on earmarks in their caucus, but several GOP senators have objected to it. Democrats have so far declined to ban earmarks from their members.
Tuesday’s vote 56-39 vote on the moratorium contrasts with one last March in the Senate defeating a similar ban by a larger margin: 68-29.
Since November’s elections, the Senate Republican Conference has embraced a two-year moratorium beginning in the next Congress. Tuesday’s amendment, offered by Tom Coburn of Oklahoma, ups the ante by including this budget year and is very much in line with the thinking of incoming House Speaker John Boehner. (See: GOP backs earmarks ban in vote)
Coburn had hoped to get to 40 and was hurt by the defections of eight Republicans, many prominent in the Appropriations Committee. But the House GOP leadership has been unyielding thus far, and with the Democratic defections, hopes to put pressure on Majority Leader Harry Reid (D-Nev.) to accept a temporary ban.
In a recent private meeting, Boehner warned Reid, a long time veteran of the Appropriations process, that he would not accept any earmarks in the 2011 spending bills, according to several sources familiar with that discussion.
Seven Democrats backed the proposal: Sens. Evan Bayh (Ind.), Michael Bennett (Colo.), Russ Feingold (Wis.), Claire McCaskill (Mo.), Bill Nelson (Fla.), Mark Udall (Colo.), and Mark Warner (Va.). All are either freshman members, retiring/defeated members, or up for reelection in 2012.
Eight Republicans, primarily members of the Appropriations Committee, went on the record against the ban: Sens. Bob Bennett (Utah), Thad Cochran (Miss.), Susan Collins (Maine), James Inhofe (Okla.), Lisa Murkowski (Alaska), Richard Lugar (Ind.), Richard Shelby (Ala.), George Voinovich (Ohio).
As Cochran and other have made clear, everyone on that list — apart from Bennett (defeated in primary) and Voinovich (retiring) — should expect a primary challenge in their next election. Only Lugar is up in 2012, though he has been especially defiant in the face of criticism from the right, earning him a place in the heart of the The New York Times.
Even without a formal ban, pork-lovers are going to have a difficult time keeping the practice alive in the 112th Congress, with House and Senate Republicans voting to do away with earmarks on their own. Expect the GOP to continue its efforts to isolate Harry Reid and Senate Democrats on the issue.
If you can’t trust these feckless Republicans on a little thing like earmarks, you can’t trust them on a big, hard thing like balancing the budget. I hope the Tea Party guys are planning to primary these clowns
Harvard research shows that states that experience an increase in earmark spending suffer from decreases in corporate capital expenditures and employment. Earmarking also robs money from local government transportation priorities to pay for Senator’s vanity projects. And there is a strong correlation between high numbers of earmarks high total spending by Congress.
The earmark ban, like the freeze on pay for federal workers, is largely symbolic, but let’s be honest: symbols matter, and the voters are looking for signs that their lawmakers “get it.” With the few exceptions noted above, it seems that Democratic senators by and large don’t understand what’s afoot in the country. They remain oblivious at their own peril.
I hope congressional Republicans recognize the stakes for this 112th Congress. Even though there is little hope of major policy breakthroughs, they are exceedingly high. It’s not just a matter of setting the 2012 election up nicely. The reputation of the Grand Old Party is on the line here. The Republican party has long been known as the party of fiscal responsibility. You vote for them not because you want to them to save the world — that’s what the liberal Democrats are for — but because they’re the serious fellows who insist on a balanced budget. Yet over the last couple of years the Republican Party in Congress has totally obliterated this image. And now they lose 20 percent of the Senate caucus over what is little more than a symbolic gesture on spending? That does not fill one with confidence.
This morning the full Senate voted down a proposed rule that would have barred earmarks for the next two years. Part of the reason? Earmarks are transparent.
Here’s Senator Dick Durbin (D-Ill.), quoted in a Hill article:
There is full disclosure in my office of every single request for an appropriation. We then ask those who have made the requests to have a full disclaimer of their involvement in the appropriation, so it’s there for the public record. This kind of transparency is virtually unprecedented.
Senator Durbin doesn’t know transparency. Take a look at Senator Durbin’s earmark disclosures. Yes, you can read through them, one by one. But can you make a list of recipients? Can you add up the totals? Can you search for common words in the brief explanations for each earmark? Can you make a map showing where recipients of Senator Durbin’s requests are?
No, no, no, and no.
That’s because Senator Durbin puts his request disclosure out as scanned PDFs. Someone on his staff takes a letter and puts it on a scanner, making a PDF document of the image. Then the staffer posts that image on the senator’s web site. It’s totally useless if you want to use the data for anything. Notably, Senator Durbin doesn’t even include the addresses of his earmark recipients.
IN our society, cars receive considerable attention and study — whether the subject is buying and selling them, the traffic congestion they cause or the dangerous things we do in them, like texting and talking on cellphones while driving. But we haven’t devoted nearly enough thought to how cars are usually deployed — namely, by sitting in parking spaces.
Is this a serious economic issue? In fact, it’s a classic tale of how subsidies, use restrictions, and price controls can steer an economy in wrong directions. Car owners may not want to hear this, but we have way too much free parking.
Higher charges for parking spaces would limit our trips by car. That would cut emissions, alleviate congestion and, as a side effect, improve land use. Donald C. Shoup, professor of urban planning at the University of California, Los Angeles, has made this idea a cause, as presented in his 733-page book, “The High Cost of Free Parking.”
Many suburbanites take free parking for granted, whether it’s in the lot of a big-box store or at home in the driveway. Yet the presence of so many parking spaces is an artifact of regulation and serves as a powerful subsidy to cars and car trips. Legally mandated parking lowers the market price of parking spaces, often to zero. Zoning and development restrictions often require a large number of parking spaces attached to a store or a smaller number of spaces attached to a house or apartment block.
If developers were allowed to face directly the high land costs of providing so much parking, the number of spaces would be a result of a careful economic calculation rather than a matter of satisfying a legal requirement. Parking would be scarcer, and more likely to have a price — or a higher one than it does now — and people would be more careful about when and where they drove.
The subsidies are largely invisible to drivers who park their cars — and thus free or cheap parking spaces feel like natural outcomes of the market, or perhaps even an entitlement. Yet the law is allocating this land rather than letting market prices adjudicate whether we need more parking, and whether that parking should be free. We end up overusing land for cars — and overusing cars too. You don’t have to hate sprawl, or automobiles, to want to stop subsidizing that way of life.
As Professor Shoup wrote, “Minimum parking requirements act like a fertility drug for cars.”
Under a more sensible policy, a parking space that is currently free could cost at least $100 a month — and maybe much more — in many American cities and suburbs. At the bottom end of that estimate, if a commuter drives to work 20 days a month, current parking policy offers a subsidy of $5 a day — which is more than the gas and wear-and-tear costs of many round-trip commutes. In essence, the parking subsidy outweighs many of the other costs of driving, including the gasoline tax.
In densely populated cities like New York, people are accustomed to paying high prices for parking, which has helped to encourage a relatively efficient, high-density use of space. Yet even New York is reluctant to enact the full social cost of the automobile into policy. Proposals to impose congestion fees have failed politically, and on-street parking is priced artificially low.
I am not sure that the argument is correct. I worry that there is a lot of confusion between fixed costs and marginal costs. Creating a parking place carries fixed costs. However, the marginal cost of using a parking space is often zero.
The marginal cost of using a cell phone network is often zero, so your cell phone company tries to offer you a plan that makes the marginal cost feel like zero to you. It could be that free parking emerges for the same reason.
If we abolished free parking, would parking spaces be scarcer? Keep in mind that if the price of parking went up, this would cause movement along the supply curve as well as along the demand curve. Maybe the total number of parking places would decline (it depends on elasticities), but the one result you can predict with certainty is that the number of unused parking places would go up. Is that necessarily welfare-improving?
Suppose I have a piece of land that could be used for parking or for other purposes. You might argue that having a price for parking would send me a clearer signal about the best use.
However, the cost of converting that land from one use to another is very high, so I have to choose one purpose or the other and stick with it. One exception to high conversion cost is lanes that change from parking lanes to traffic lanes during rush hour. There, the price of parking during rush hour is very high (you get ticketed and towed), and that seems to work.
Once I have decided to use land as a parking place (say, land in front of a store), then there is no reason for me to want to deter people from parking in empty spaces. That suggests charging a price of zero other than at peak times.
The problem is one of congestion pricing. You need paid lots to charge people to park at peak times, such as concerts or sporting events.
The key is not to “abolish” free parking, but to a) abolish minimum parking requirements, and b) put prices or higher prices on congested municipal-owned parking spaces. Both a) and b) will lower the demand for parking and a) will lower the supply of parking, so why should the number of unused parking spaces necessarily go up? If you treat something as an appropriately scarce resource, it should be used more effectively.
There are plenty of DC restaurants which don’t have their own parking lots, but they use paid valet parking and find ingenious ways to store cars more effectively. The parking fee means that some people walk there or use the Metro, rather than driving and parking. No one finds this arrangement especially objectionable and while valet parking is at a discount to market still it is priced. At lunch time valet parking is less likely but still people pay to park, usually in nearby lots. No one would suggest that these restaurants be forced to put in minimum parking. Nor would anyone suggest that mandated minimums would be neutral with respect to parking efficiency.
I’m simply asking for the same switch in reverse, namely to do away with minimum parking requirements. Very likely, such a change will have a bigger impact on future developments than on past developments (it can be hard to reconfigure a parking lot), although some malls might sell off or rent their now-liberated parking spots to other commercial ventures.
I don’t have much to say about this in particular, just a general point about moving to market based allocations of some goods and services, particularly those controlled by government.
As the price of a good or service rises, it begins to price some people out of the market. I don’t mean that they choose to consume other things instead, I mean that no matter how much they want it, they can never have it. It’s not a matter of desire, or willingness to pay, they simply cannot raise the needed funds — it’s just not possible to afford the good or service in question.
Because of this there are some goods and services controlled by government, national parks come to mind, where we choose to allocate goods by other means than the price system, lotteries, waiting time, random draws, that sort of thing. It generally occurs when we think equity is a primary consideration, i.e. that everyone should have a relatively equal shot at consuming a good or service.
For example, suppose we believe that everyone should at least have a chance to swim in the ocean. Willingness to wait indicates desire for the good in the same way that willingness to pay does, and this can be used to allocate the good or service. That is, willingness to circle for a period of time looking for a parking place so you can go to the beach — which varies with demand for parking in that area — indicates the depth of desire to do this activity and thus has desirable allocative properties — and we can eliminate the externalities Tyler is worried about through a tax on carbon and congestion at the pump. The supply of parking, which is controlled by government, could be determined by the carrying capacity of the beach, which is itself influenced by considerations such as habitat protection that private markets may not handle well in any case. And, of course, public transportation could be provided as an alternative, but that’s not available to everyone so some parking would likely be needed. Perhaps parking wouldn’t be all that expensive, or maybe it would given the prices Tyler cites in the article for places like California, but the example is intended mainly to illustrate that prices aren’t the only allocation mechanism available, and that sometimes other alternatives are desirable. There are certainly cases where price is a barrier and we choose to allocate goods by other means.
Re Mark Thoma, if we were concerned about overall equity of utility, we’d just give the poor more money and let them buy what beach trips they wanted. If we paternalistically thought poor folk irrationally buy too few beach trips (why?!), we might give them beach travel vouchers. But surely the vast majority of free parking is not well explained by our thinking the poor irrationally take too few car trips.
Re Arnold Kling, I didn’t see Tyler saying to force prices above marginal cost; he just opposed laws requiring excess supply. Why should we treat parking spots much different than thousands of other familiar products whose average costs are often above marginal costs? Should we require every mall to have enough movie theaters seats to handle the premier of a record blockbuster, all because since theatres are rarely full their marginal cost is near zero? How about similarly requiring a vast supply of restaurant tables which would then rarely be full?
Sometimes good economic analysis says that the world should be different than it is. Yes you should wonder if such an analysis is missing something important. But you shouldn’t strain too much just to justify the status quo. We require the creation of way too much parking, and we’d be better off to coordinate to stop it.
a. How much land should be devoted to parking spaces?
b. Given the answer to (a), what should be the price for parking?
I argue that for (b) the answer is often zero. A higher price would simply result in unused parking places, which does not increase welfare. Robin is falling back on issue (a), and here the thinking is that the state provides, either directly or through regulation, more parking spaces than are optimal.
Suppose there were no state provision of parking places. What would the equilibrium look like? Some possibilities:
1. You get Berlin, where the public transit is highly efficient and lots of people ride bicycles, even in the rain.
2. Individual housing developments and businesses undersupply parking. The thinking is that if parking runs out in front of your business, your customers will use the parking spaces in front of the business next door. This leads to stores putting up warning signs that say, “unless you patronize my store, your car will be towed.” Neighborhoods put up signs that say, “unless you have a residential permit, your car will be towed.” This imposes all sorts of enforcement costs as well as inefficient use of space. The warning signs often deter people from parking in places where they impose no cost at that particular time.
3. Land use responds, but not toward the Berlin scenario. On the contrary, businesses relocate farther away from cities, to locations where parking is cheap to supply and you don’t get into fights with other businesses about towing rules. Housing developments are built without street parking but instead with large driveways–in effect, each household requires its own oversized parking lot to accomodate its peak demand . As a result of these sorts of adaptations, it takes more parking places to accommodate the same number of cars.
4. After a lot of Coasian bargaining, businesses agree to each provide a minimum number of parking places and housing developers agree to provide streets wide enough to allow parking.
The point is, you don’t necessarily get (1). And you might get (4).
In response to Robin Hanson, I think Arnold Kling makes some good points about why government intervention in parking may be necessary to resolve externality problems. Arnold doesn’t say that government intervention is necessary, and he would likely resist that interpretation, a Coasian bargaining solution is the outcome in his scenario. But the usual sorts of considerations, i.e. transactions costs, unclear property rights regarding street parking in front of residences — some people, for example, use cones and other devices to save parking spots — and other barriers may prevent the Coasian bargaining outcome. (Robin Hanson doesn’t like what I wrote either, though, again, I was trying to make a general point about equity versus efficiency and probably should have chosen another example besides parking near the ocean to make that point
I am disappointed that the distinguished George Mason University economist, TylerCowen, has fallen for the “high-cost-of-free-parking” arguments of UCLA urban planner Donald Shoup. Shoup is an excellent scholar, but like many scholars, he has the parochial view that the city that he lives in is a representative example of what is happening everywhere else.
Shoup’s work is biased by his residency in Los Angeles, the nation’s densest urban area. One way L.A. copes with that density is by requiring builders of offices, shopping malls, and multi-family residences to provide parking. Shoup assumes that every municipality in the country has such parking requirements, even though many do not, and that without such requirements there would be less free parking. This last assumption is extremely unlikely, as entrepreneurs everywhere know that (outside of New York City) 90 percent of all urban travel is by car, and businesses that don’t offer parking are going to lose customers to ones that do.
Shoup portrays such free parking as a “subsidy” because not all people drive and so the ones who don’t drive end up subsidizing the ones who do. But any business offers a variety of services to its customers and employees, and no one frets about subsidies just because they don’t take advantage of every single service. How often do you actually swim in the swimming pools or work out in the exercise rooms of the hotels you stay at?
Shoup also supposes (and Cowen accepts) that universal parking fees would greatly reduce the amount of driving people do. “Minimum parking requirements act like a fertility drug for cars,” Cowen quotes Shoup as saying. Metro, Portland’s regional planning agency, submitted this question to its transportation model and concluded that requiring all offices, shopping malls, and multi-family residences to charge for parking would reduce driving by about 2 percent. The model showed that charging for parking has a greater effect on driving than spending billions on light rail, building scores of transit-oriented developments, or increasing the urban area’s population density by 20 percent. But 2 percent still isn’t going to do much to relieve congestion or solve any of the other problems Cowen associates with driving. Plus he never really explains why he thinks reducing mobility is a good idea in the first place.
A key point to emphasize here is that parking mandates aren’t just a subsidy to car ownership, they’re also a burden on pedestrians, who must trek across parking lots to get to almost any building. So not only does walking mean giving up the state-mandated subsidy of free parking, but it also means walking significantly further than you’d have to in a city where the availability of parking was determined by market forces.
And this results in the opposite of the virtuous cycle I wrote about a few weeks ago: as density falls, you get fewer pedestrians, which depletes the market for small, pedestrian-friendly establishments. And fewer pedestrian-friendly businesses establishments means that even fewer people walk. The result is the situation in most cities in the Midwest and the Sun Belt, where even people who strongly prefer to live in a “walkable” neighborhood find there are few if any neighborhoods that cater to that preference.
First, this is a very difficult conversation to have because of the radical differences in reference frames of the two sides. Aside from economists, anti-free parking types are invariably urban dwellers where parking is difficult and the demand for every square foot of space is high. People who live in suburbs, especially those that don’t regularly drive into the handful of dense urban centers where any of this matters, are befuddled. Nobody would pay to park at the Hamilton Place mall on the outskirts of Chattanooga. At the Pentagon City mall, nobody thinks twice.
Second, while ordinances requiring the allocation of parking spots for apartment buildings, storefronts, and the like are doubtless a boon to car owners, they are mostly an attempt to limit negative externalities. If I build an apartment complex in a major downtown center and provide no parking, I’m obviously less competitive than those who do. But, at the same time, those who live in my building who own cars are going to have to park somewhere, and they’ll therefore occupy spaces — often for hours and days on end — that could otherwise be used by short-term parkers who want to patronize the local merchants, taverns, and restaurants. Similarly, if I run a downtown business that caters to clients who don’t need to come to my storefront, I’d never pay to construct parking spaces for my employees, as it’d be cheaper to subsidize their parking elsewhere. But, again, that means my employees, who arrive before the shops open, are taking up spots that could be used by customers of service-oriented businesses.
Taking both of these into consideration, then, it seems to me that the key good to control is street parking in crowded downtown areas at peak hours. We want residents of apartment buildings and houses and employees of businesses to be out of the way to accommodate short-term parking that allows commerce to take place. So, in places where street parking is scarce, charge variable rates at meters and limit the number of hours that can be parked there. (A tangentially related pet peeve: And delivery vehicles can’t be allowed to take up these spaces, much less double park, which means that those activities have to be time-shifted to the early morning or late evening hours.)
These regulations would be anathema in most of the United States, which simply isn’t crowded enough to have that kind of government intervention in the lives of citizens. But it makes sense in New York, Boston, DC, San Francisco, and a handful of other metro areas long since accustomed to the need for state to smooth over daily interactions.
But the main point is that it’s very difficult to make a positive case for government provision of parking spaces or mandated parking minimums. Given the existence of government provided spaces, it’s harder still to argue against market parking pricing. We have many examples of private firms building and operating parking lots or decks, charging positive prices, and doing a lovely business that seems to work well for operator and driver alike. How does one justify government intervention?
Now you might argue that there are public good considerations involved; that parking spots are like other bits of transportation infrastructure in that there is a role for government provision. Personally, I think parking spots are more like gas stations than roads, and meanwhile roads should be congestion priced (as many transit systems already are — and then some, in some cases). You’d think that libertarians making the public good argument would have no problem defending government provision of and subsidy for transit, but of course they don’t. They get around this by arguing that people want to drive and they don’t want to ride transit. This is strange in that in few other cases would a libertarian claim to know what markets want, and while they might refer to mode shares, those shares are themselves determined by decades of heavy subsidies for all things auto.
But the phrasing at the end of Cowen’s column is unfortunate, as it seems to imply that someone out there should be raising fees: “Imposing higher fees for parking may make further changes more palatable by helping to promote higher residential density and support for mass transit.” It’s clear from the beginning of the article that Cowen is speaking of removing the zoning laws and street parking procedures that keep the cost of parking artificially low in places, but I could see how a too-quick reader might wrongly infer that the column argues for high parking costs as a policy goal regardless of market prices.
Weirdly, several libertarians have taken issue with Cowen’s article. Randal O’Toole is pretty sure that “free parking is a free-market choice,” and thinks Cowen should support it. Well, I’m sure there are plenty of places where it will make a lot of sense for businesses to build large parking lots, but it’s strange to me that a libertarian would be all right with regulations that make this decision for the businessmen. Perhaps he sniffs out an urbanist agenda behind the argument…
Arnold Kling suspects that if we didn’t like state-mandated free parking, we won’t necessarily get the low-driving paradise we desire. Perhaps the American people, accustomed to driving, will simply embrace further sprawl as businesses relocate to exurbs where land is cheap. Or maybe local governments will be faced with skyrocketing enforcement costs as people cheat aggressively on parking. (Cowen thinks Kling’s microeconomic logic is a little bit off.)
Neither of Kling’s scenarios seems particularly likely to me, but then again I don’t study this stuff and I don’t really have the first clue what would happen if cities aimed at more robust markets for parking. All I can really provide is one lonely data point: having arranged my life so I can do most of what I want to do without having to drive, I can say for sure that if parking prices went up in Baltimore, I’d sell my car. At any rate, I am a huge fan of sidewalk cafes and not having to walk through parking lots to get to stores, so I’d love it if more city businesses were given the opportunity to do without parking lots.
Here’s what you need to know about Judge Vaughn Walker’s decision invalidating California’s Proposition 8, a referendum, passed by voters, that banned same-sex marriage. The decision itself will be appealed, and Walker’s reasoning could serve as the basis for argument at the appellate level — or, the appeals court could decide to argue the case a completely different way.
What matters are the facts that Walker finds. Why? As Chris Geidner notes, “[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.”
Walker, in his decision, writes that “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.” He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values.
“Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight,” Walker writes. “Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.”
The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential “rational basis” test, which applies in equal protection cases that do not involve a “suspect classification” such as race. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples.”
The decision is bound to be appealed and may ultimately reach the Supreme Court. The text of Walker’s opinion is available here. The Los Angeles Times has excerpts here. I discussed the equal protection argument for federal recognition of state-approved gay marriages here and here. More to come.
In his findings of fact, Walker pointed out that California “has never required that individuals entering a marriage be willing or able to procreate.”
He also notes that slaves were unable to marry.
“The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained,” he wrote.
Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman’s identity is subsumed by her husband’s.
Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law! A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA’s Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state’s majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today’s finding.
CNN is going to gay bars in San Francisco on TV right now, for reactions. (Update: No one was in the gay bars so they stopped. Lame empty gay bars!)
You can read the full decision here. The judge found it unconstitutional under both the due process and equal protection clauses. The ruling is expected to be appealed and could end up at the Supreme Court.
The full ruling from Judge Walker, an appointee of President H.W. Bush, is online here.
Note, the case will now go to the 9th Circuit Court of Appeals, which tends to be pretty progressive. Many legal experts I’ve spoken to expect the Supreme Court to eventually hear the case.
In the meantime, the decision is heartening. The arc of history is long, but it continues to bend towards justice.
Looking ahead, it will be interesting to see what kind of role the issue of same-sex marriage, so incendiary in California in 2008, will play in the midterm elections in the state this November. The Courage Campaign, a progressive online organizing network based in California and formed partly in response to the passage of Prop 8, has been busy pointing out the role of the National Organization of Marriage (NOM), the main nonprofit behind the passage of Prop 8, in backing California candidates like GOP senate hopeful Carly Fiorina.
“In NOM, Carly Fiorina has aligned herself with a fringe group that relies on lies and fear to advocate discrimination and second-class citizenship for millions of loving American families,” Courage Campaign Chairman and Founder Rick Jacobs said in a press release. “Bigotry is not a family value and it has no place in the United States Senate.”
The National Organization of Marriage, already under fire for failing to disclose its donors to state election officials in Iowa and Maine, has now joined up with the Latino Partnership for Conservative Principles, an initiative of American Principles in Action, and the Susan B. Anthony List, a pro-life women’s network, to back Fiorina through the “Tus Valories” (Your Values) Campaign, an independent expenditure on the part of American Principles in Action.
The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.
As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:
…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.
The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:
Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.
So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.
I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.
Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.
Since even before President Obama signed the Democratic health care reform bill into law, federal elections have been examined as potential referendums on that bill. Most notably, the dramatic turn in Massachusetts, when Scott Brown defeated Martha Coakley to steal Democrats 60-seat supermajority, was pushed as a rejection of health reform by voters.
But now voters in a true bellwether state–Missouri, which votes for the next president more often than any other state (except in 2008)–have gone to the polls and registered their opinions directly on the new law. Last night, Missourians passed Proposition C, a measure to ban the federal mandate that individuals must purchase health insurance.
The margin was overwhelming: Missourians voted 71% to 29% in favor of the measure, and against the individual mandate.
On its face, this looks like a clear victory for those who oppose health reform–proof, once and for all, that voters really don’t like the new bill.
WOW! The Show Me State showed Obamacare the door tonight.
Over 70% of Missouri voters rejected Obamacare by passing Prop c.
It’s too bad local KMOV St. Louis Channel 4 could not find any one who voted for the proposition.
Polls show continuing opposition to the Obama-Reid-Pelosi health care overhaul. It’s constitutionally dubious. And now, in the only popular vote on the bill, it received a full 29 percent of the vote. Just maybe this wasn’t a good idea.
The overwhelming rejection of Obamacare by Missouri voters –71% of the Show Me State voters said no to Obamacare– is an enormous story, one that ought to dominate the MSM today and through the week. Obamacare hasn’t gained fans –it has gained committed activist enemies who will punish the Democrats who jammed it down the country’s throat. Those same activists are listening to GOP candidates who pledge to repeal and replace the disaster for American health care.
If anything, this shows that opposition to ObamaCare is growing, not receding, but that’s probably not what actually happened. While general-population and registered-voter samples may have seen a bit of softening to ObamaCare opposition, those aren’t the people turning out to vote this year. Even Rasmussen may be underestimating the power of ObamaCare repeal in its likely-voter turnout, as their last poll on this question in Missouri clearly underestimated (in an indirect survey, of course) the results for this election.
Bear in mind that over 315,000 Democrats turned out to cast ballots in the primary that nominated Robin Carnahan, while over 577,000 Republicans hit the polls. That is about a 65/35 split — which means that a significant amount of Democrats either supported the ballot measure repudiating ObamaCare, or didn’t bother to cast a vote to defend the program. Actually, Prop C got more votes than the combined voting in both Senate primaries — which tells us something even more about the passion in the electorate.
Democrats may have to hit the panic button after seeing the results from this swing state. ObamaCare set fire to the electorate last year, and that may be an inferno for Nancy Pelosi and Harry Reid in November.
Symbolic is one way to describe Tuesday’s vote; ominous (for the Democrats) is another.
This is yet one more electoral manifestation of the dismal polling numbers the Democrats have been facing for many months now. We saw rising popular opposition to ObamaCare throughout last summer, which many liberals ignored or ridiculed. Then came the gubernatorial elections in Virginia and New Jersey and the Senate election Massachusetts. Since then the opposition to ObamaCare specifically, and to Obama more generally, has increased; as a result we saw the 40-plus point trouncing in Missouri, a margin far higher than most people anticipated.
It is hard to overstate the toxicity of the Obama agenda. Losing a net total of 65 or more Democratic House seats is now possible (if not yet likely). We are less than 100 days away from what looks to be an inflection point, one of those rare mid-term elections that altar the trajectory of American politics.
It’s unclear where things go from here with regard to this law. Missouri is not one of the states that has filed a lawsuit against the Federal Government to strike down the health care law and, given that it’s Attorney General is a Democrat, it’s unlikely that they will. Moreover, given that this referendum was on the ballot during a primary dominated by Republicans, the political impact of the victory for the anti-ObamaCare crowd is somewhat muted. It’s a victory, but not really a very important or significant one.
The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.
These are some of the findings of a two-year investigation by The Washington Post that discovered what amounts to an alternative geography of the United States, a Top Secret America hidden from public view and lacking in thorough oversight. After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine.
The investigation’s other findings include:
* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.
* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.
* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.
* Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.
* Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year – a volume so large that many are routinely ignored.
These are not academic issues; lack of focus, not lack of resources, was at the heart of the Fort Hood shooting that left 13 dead, as well as the Christmas Day bomb attempt thwarted not by the thousands of analysts employed to find lone terrorists but by an alert airline passenger who saw smoke coming from his seatmate.
They are also issues that greatly concern some of the people in charge of the nation’s security.
“There has been so much growth since 9/11 that getting your arms around that – not just for the DNI [Director of National Intelligence], but for any individual, for the director of the CIA, for the secretary of defense – is a challenge,” Defense Secretary Robert M. Gates said in an interview with The Post last week.
In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials – called Super Users – have the ability to even know about all the department’s activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation’s most sensitive work.
Figuring out exactly who’s cashing in on the post-9/11 boom in secret programs just got a whole lot easier.
U.S. spy agencies, the State Department and the White House had a collective panic attack Friday over a new Washington Post exposé on the intelligence-industrial complex. Reporters Dana Priest and William Arkin let it drop Monday morning.
It includes a searchable database cataloging what an estimated 854,000 employees and legions of contractors are apparently up to. Users can now to see just how much money these government agencies are spending and where those top secret contractors are located.
Check out the Post’s nine-page list of agencies and contractors involved in air and satellite observations, for instance. No wonder it scares the crap out of official Washington: It’s bound to provoke all sorts of questions — both from taxpayers wondering where their money goes and from U.S. adversaries looking to penetrate America’s spy complex.
But this piece is about much more than dollars. It’s about what used to be called the Garrison State — the impact on society of a praetorian class of war-focused elites. Priest and Arkin call it “Top Secret America,” and it’s so big and grown so fast, that it’s replicated the problem of disconnection within the intelligence agencies that facilitated America’s vulnerability to a terrorist attack.
With too many analysts and too many capabilities documenting too much, with too few filters in place to sort out the useful stuff or discover hidden connections, the information overload has become its own information blackout. “We consequently can’t effectively assess whether it is making us more safe,” a retired Army three-star general who recently assessed the system tells the reporters.
Intel-watchers have been waiting with bated breath for the launch of the Washington Post’s investigative series “Top Secret America,” the first installment of which appeared today, along with a searchable database showing the network of contractors doing top-secret work for the intelligence community. Despite the inevitable breathless warnings that the Post’s reporting would somehow compromise national security, there’s nothing online as yet to justify such fears, as even the Weekly Standard notes: The information was vetted by intel officials before being posted, and a good portion of it was already in the public domain, if not necessarily collated in such a convenient form. Indeed, writers like Tim Shorrock, author of the invaluable Spies for Hire, have been reporting on the explosion of intelligence contracting for some time now—and in some instances the information you’ll find in Shorrock’s own contractor database is more usefully detailed than what the Post provides. None of this, to be clear, should at all diminish the enormous achievement of Dana Priest and William Arkin here: The real threat of their damning exposé should be to the job security of intelligence officials and contractors. They paint a portrait of a sprawling intelligence-industrial complex drowning in data they’re unable to effectively process, and choked by redundancy
The first installment of the Washington Post blockbuster, “Top Secret America,” by Dana Priest and William Arkin, two years in the making, is finally out today. It paints a surprisingly unsurprising picture of duplication and triplication in the intelligence world.
The story had provoked alarm among officials, and in some conservative quarters, that vital secrets would be spilled. “Is Wash Post harming intelligence work?” asked the Washington Timeson Friday. For its part, the Office of the Director of National Intelligence even put out a preemptive memo: “We will want to minimize damage caused by unauthorized disclosure of sensitive and classified information. “
[…]
Indeed, it is hard to spot anything particularly damaging in the story. Its massive database and accompanying map of top-secret facilities in the United States, available on the Web, have been compiled from open-source material.
Leaks of highly classified information can pose a serious threat to our security. But in foreign policy reporting, leaks are also the coin of the realm. Some of them pose no danger at all. Indeed, they are a principal channel by which the public is informed, which is why the subject is so contentious. In this particular instance, there does not even appear to have been a leak. There is nothing top secret about “Top Secret America” (at least in its first installment). In this respect it is a case of false—and very smart—advertising.
Priest intends the article to be scary, and to a certain degree, it certainly is. It’s a searing reminder of how much a “big government” is out of the control even of those who purport to run it. Although the tone of the piece seems to intend the criticism to be directed toward “Top Secret America” (i.e., the post 9/11 security complex) — any thinking person will realize what the nub of the problem is, and that’s this: Government grows — always, always, always — because that’s the nature of government unless citizens are fortunate enough to have leaders who actually care about restraining it.
The Washington Post has published massive amounts of secret intelligence material in the interests, they say, of improving US national security. The two authors, Dana Priest and William Arkin, complain about a national security enterprise that has grown by leaps and bounds since 9/11. The reveal in detail the firms working for the US intelligence community including their location, contracts, and work subjects, whether border security, cyber-security or counter proliferation.
There are two common explanations for the story. First, it is juicy story. It has lots of secret information. And for two reporters, pursuing a Pulitzer Prize in journalism, well isn’t this what reporters do? The second explanation: their view is that the national security establishment represented by the $75 billion intelligence community and its network of firms, organizations and contractors is not serving the American people, that it is bloated, redundant and need of serious downsizing. But all, mind you, to make our security better.
There may be a third explanation. It may be they think little if any of this intelligence work is necessary. Nearly a decade ago, on October 12, 2002, William Arkin, the co-author of the article, spoke at the Naval War College. One key part of his talk is nearly identical to the thesis of the Post article. He said: “More than 30 billion of our tax dollars each year go towards government generated intelligence information. We had, and have, a CIA and an intelligence community that has a fantastic history of failure, that is mostly blind to what is going on in the world, that seems to know nothing and at the same time is so bombarded and overwhelmed with stimuli from its millions of receptors it can hardly sense what is happening.”
Arkin goes on in his 2002 speech to blame America for the terrorist attacks of 9/11. He says our military prowess forced our adversaries to use attacks against our vulnerable infrastructure, such as airplanes or trains because they could not successfully fight our military. And he says our support for Gulf autocracies and stationing troops there gave cause for the attacks of 9/11. The implied solution is very simple: stop supporting harsh regimes, withdraw our forces from the Gulf and terrorism disappears.
This underlying view of what we are supposedly facing permeates the Post story as well. They describe what they think this vast intelligence enterprise is trying to do: “defeating transnational violent extremists,” “fortify domestic defenses and to launch a global offensive against al-Qaeda,” and find “clues that lead to individuals and groups trying to harm the United States.”
I have one small quibble, however, which is with the “redundancy and waste” argument about multiple agencies doing the same work. This is a standard argument in favor of rationalization, and it’s not always wrong. It should be noted, however, that some redundancy is actually a good thing, particularly on an issue like counter-terrorism.
Say a single bureaucracy is tasked with intelligence gathering about threat X. Let’s say this bureaucracy represents the best of the best of the best — the A-Team. The A-Team does it’s job and catches 95% of the emergent threats from X. That’s still 5% that is missed.
Now say you have another independent bureaucracy with a similar remit. This agency is staffed by different people with their own set of blind spots. Let’s even stipulate that we’re talking about the B-team here, and they’ll only catch 80% of the emergent threats from X.
If thesr two bureaucracies are working independently — and this is an important if — then the odds that a threat would go unobserved by both bureaucracies is .05*.2 = .01 = 1%. So, by adding another bureaucracy, even a less competent one, the chances of an undetected threat getting through are cut from 5% to 1%. That ain’t nothing.
What’s most noteworthy about all of this is that the objective endlessly invoked for why we must acquiesce to all of this — National Security — is not only unfulfilled by “Top Secret America,” but actively subverted by it. During the FISA debate of 2008 — when Democrats and Republicans joined together to legalize the Bush/Cheney warrantless eavesdropping program and vastly expand the NSA’s authority to spy on the communications of Americans without judicial oversight — it was constantly claimed that the Government must have greater domestic surveillance powers in order to Keep Us Safe. Thus, anyone who opposed the new spying law was accused of excessively valuing privacy and civil liberties at the expense of what, we are always told, matters most: Staying Safe.
But as I wrote many times back then — often by interviewing and otherwise citing House Intelligence Committee member Rush Holt, who has been making this point repeatedly — the more secret surveillance powers we vest in the Government, the more we allow the unchecked Surveillance State to grow, the more unsafe we become. That’s because the public-private axis that is the Surveillance State already collects so much information about us, our activities and our communications — so indiscriminately and on such a vast scale — that it cannot possibly detect any actual national security threats. NSA whistle blower Adrienne Kinne, when exposing NSA eavesdropping abuses, warned of what ABC News described as “the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack.” As Kinne put it:
By casting the net so wide and continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack bigger and it’s harder to find that piece of information that might actually be useful to somebody. You’re actually hurting our ability to effectively protect our national security.
The Government did not fail to detect the 9/11 attacks because it was unable to collect information relating to the plot. It did collect exactly that, but because it surveilled so much information, it was incapable of recognizing what it possessed (“connecting the dots”). Despite that, we have since then continuously expanded the Government’s surveillance powers. Virtually every time the political class reveals some Scary New Event, it demands and obtains greater spying authorities (and, of course, more and more money). And each time that happens, its ability to detect actually relevant threats diminishes. As Priest and Arkin write:
The NSA sorts a fraction of those [1.7 billion e-mails, phone calls and other types of daily collected communications] into 70 separate databases. The same problem bedevils every other intelligence agency, none of which have enough analysts and translators for all this work.
The article details how ample information regarding alleged Ft. Hood shooter Nidal Hassan and attempted Christmas Day bomber Umar Abdulmutallab was collected but simply went unrecognized. As a result, our vaunted Surveillance State failed to stop the former attack and it was only an alert airplane passenger who thwarted the latter. So it isn’t that we keep sacrificing our privacy to an always-growing National Security State in exchange for greater security. The opposite is true: we keep sacrificing our privacy to the always-growing National Security State in exchange for less security.
Beyond this, my main reaction is to think Glenn Greenwald draws too sharp a dichotomy between the view that Priest and Arkin are detailing a story of too much waste and inefficiency and the view that Priest and Arkin are detailing a story of “an out-of-control, privacy-destroying Surveillance State.” The point, as I see it, is that the one necessarily leads to the other. A surveillance state that sucks in everything creates an unmanageable flow of information. Pervasive secrecy makes coordination impossible. The scope and covert nature of the enterprise destroys accountability. In fact, it’s so unaccountable that even the people to whom it’s supposed to be accountable have no idea what’s going on:
In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials – called Super Users – have the ability to even know about all the department’s activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation’s most sensitive work.
“I’m not going to live long enough to be briefed on everything” was how one Super User put it. The other recounted that for his initial briefing, he was escorted into a tiny, dark room, seated at a small table and told he couldn’t take notes. Program after program began flashing on a screen, he said, until he yelled ”Stop!” in frustration.
You can’t possibly run an effective organization along these lines, and the idea that pouring even more hazily defined powers to surveil and torture people is going to improve things is daft. The potential for abuses in this system is tremendous, and the odds of overlooking whatever it is that’s important are overwhelming. Meanwhile, though it’s hardly the key point I note that for all the vast sums of resources poured into the national security state since 9/11, the US government’s foreign language capabilities remain absurdly limited. But it seems to me that just being able to talk to people (and read the newspaper, watch the news, etc.) in their native tongue would produce much more in the way of useful information than all the wiretapping in the world.
The idea of public funding for the press stirs deep unease in American culture. To many it seems inconsistent with our strong commitment, embodied in the First Amendment, to having a free press capable of speaking truth to power and to all of us. This press is a kind of public trust, a fourth branch of government. Can it be trusted when the state helps pay for it?
American journalism is not just the product of the free market, but of a hybrid system of private enterprise and public support. By the middle of the last century, daily newspapers were becoming natural monopolies in cities and communities across the country. Publishers and editors drew on the revenue to develop highly specialized expertise that enhanced coverage of economics, law, architecture, medicine, science and technology, foreign affairs and many other fields.
Meanwhile, the broadcast news industry was deliberately designed to have private owners operating within an elaborate system of public regulation, including requirements that stations cover public issues and expand the range of voices that could be heard. The Supreme Court unanimously upheld this system in the 1969 Red Lion decision as constitutional, even though it would have been entirely possible to limit government involvement simply to auctioning off the airwaves and letting the market dictate the news. In the 1960s, our network of public broadcasting was launched with direct public grants and a mission to produce high quality journalism free of government propaganda or censorship.
The institutions of the press we have inherited are the result of a mixed system of public and private cooperation. Trusting the market alone to provide all the news coverage we need would mean venturing into the unknown—a risky proposition with a vital public institution hanging in the balance.
Ironically, we already depend to some extent on publicly funded foreign news media for much of our international news—especially through broadcasts of the BBC and BBC World Service on PBS and NPR. Such news comes to us courtesy of British citizens who pay a TV license fee to support the BBC and taxes to support the World Service. The reliable public funding structure, as well as a set of professional norms that protect editorial freedom, has yielded a highly respected and globally powerful journalistic institution.
There are examples of other institutions in the U.S. where state support does not translate into official control. The most compelling are our public universities and our federal programs for dispensing billions of dollars annually for research. Those of us in public and private research universities care every bit as much about academic freedom as journalists care about a free press.
Yet—through a carefully designed system with peer review of grant-making, a strong culture of independence, and the protections afforded by the First Amendment—there have been strikingly few instances of government abuse. Indeed, the most problematic funding issues in academic research come from alliances with the corporate sector. This reinforces the point that all media systems, whether advertiser-based or governmental, come with potential editorial risks.
To take a very current example, we trust our great newspapers to collect millions of dollars in advertising from BP while reporting without fear or favor on the company’s environmental record only because of a professional culture that insulates revenue from news judgment.
Is it time for another bailout? Should the government save the news? Lee Bollinger argues yes, for at least two reasons.
First, we depend on publicly funded news, already. The BBC, PBS and NPR all receive federal funding. The artery from federal coffers isn’t always large or direct — NPR applies for competitive grants and gets about 2 percent of its funding from the federally supported organizations like the Corporation for Public Broadcasting and the National Endowment for the Arts — but it’s undeniably public funding. And yet, the BBC, PBS and NPR are consistently among the most trusted sources of news.
Second, as Bollinger points out, there are other publicly funded institutions we commonly accept as independent from federal control. “The most compelling are our public universities and our federal programs for dispensing billions of dollars annually for research,” he write. “Those of us in public and private research universities care every bit as much about academic freedom as journalists care about a free press.”
Bollinger’s broader point — serious news struggles to pay for itself — isn’t special to the recession. Newspapers rarely made bank on the kind of undercover investigative stories about City Hall, or Kabul. The money came from somewhere else. Somewhere else used to mean classifieds and lucrative leisure sections. But as James Fallows wrote in his cover story on Google and the news, “the Internet has been one giant system for stripping away such cross-subsidies.”
So there are a few ways to recoup the missing subsidy. For some companies, that will mean seeking rich benefactors (obvious example: Carlos Slim). For others, it will mean relying on foundations. For others, it might mean relying — partially, even indirectly — on government-funding. All of these additional sources of income theoretically compromise news-gathering, because the news is beholden to outside sources who might themselves become newsworthy. But some combination of outside support will probably become increasingly necessary as journalism continues to undergo wrenching change and unspectacular revenue growth. It doesn’t have to be a terrifying future. In fact, we’ve been living with it for decades.
Bollinger thus makes common cause with the intentionally misnamed Free Press coalition led by the neo-Marxist McChesney, an Illinois university professor of communications who, presumably with a straight face, claims “aggressive, unqualified political dissent is alive and well” in the thug state formerly known as Venezuela.
Several of the Free Press coalition’s flawed assumptions are prominent in Bollinger’s argument, including the notion that America never had a pure free market in news. We can’t do that because “trusting the market alone to provide all the news coverage we need would mean venturing into the unknown – a risky proposition with a vital public institution hanging in the balance.”
Never mind that the Internet with no federal subsidies to preferred media outlets today provides more independent news gatherers and analyzers – they’re called “bloggers” – than ever worked in all the newsrooms combined in the old media’s glory days.
Or that the Internet is driving news delivery technology in new directions at warp speed, thus promising more independent checks on politicians and bureaucrats than Publius could ever have dreamed.
In place of this present and future reality, Bollinger wants to preserve and extend the “hybrid system of private enterprise and public support” he claims has always existed in America. So subsidized postal delivery of publications in Ben Franklin’s day is no different from federal bureaucrats collecting billions of tax dollars to hand out to favored media organizations, as advocated now by Free Press?
Not to worry, though, because we have the comforting example of heavily subsidized colleges and universities where, according to Bollinger, “those of us in public and private research universities care every bit as much about academic freedom as journalists care about a free press.”
Somehow I doubt Bollinger would understand that those of us fighting to preserve freedom of the press are anything but comforted by his example, publicly assisted schools being among the least free-thinking institutions in America, owing to their pervasive speech codes and other forms of censorship.
See, for example, this New York Sun story in 2007 on how Columbia, just one week after proclaiming itself a bastion of free speech for hosting a speech by Iran’s Mahmoud Ahmadinejad, insisted on exercising pre-publication censorship reviews of documentary filming shot on its grounds.
But then maybe we shouldn’t be surprised that Columbia University’s president sees no difference between a government-subsidized university system that perpetuates a suffocating academic orthodoxy and government-subsidized news media like that praised by an apologist for Hugo Chavez’s suppression of the Venezuelan media.
After all, his final argument is a warning that other countries are doing it, countries like still-communist China, with its state-run Xinhua News and Central China Television. Clearly, independent journalism is doomed if it must depend for its defense upon “friends” like Bollinger.
The argument, in essence, is this. The communications revolution has decimated media budgets. Indeed, “the proliferation of communications outlets has fractured the base of advertising and readers,” leading to shrunken newsrooms, especially in foreign bureaus. Thus the FCC and FTC are now studying the idea of enhanced public funding for journalism. Not to worry, Bollinger assures us, since “we already have a hybrid system of private enterprise and public support” – to wit, public regulation of the broadcast news industry and the Corporation for Public Broadcasting. And the most compelling example of state support not translating into official control, he continues, can be found in our public and private research universities, which receive billions of government dollars annually with no apparent problem.
Really? Try getting your hands on some of those funds, or an appointment in one of those departments, if you have reservations about global warming. Or do we need any better example than the case of Elena Kagan, now before us. When the good dean took her principled stand against admitting military recruiters to the Harvard Law School, the larger university community reminded her of the government funds that were thus put in jeopardy, and she adjusted her position accordingly.
But here comes the kicker: Like those who imagine that there’d be no art without the National Endowment for the Arts, Bollinger tells us that “trusting the market alone to provide all the news coverage we need would mean venturing into the unknown—a risky proposition with a vital public institution hanging in the balance.” Was there no news before the invention of NPR, all things considered? And back on the academic analogy, he adds, “Indeed, the most problematic funding issues in academic research come from alliances with the corporate sector. This reinforces the point that all media systems, whether advertiser-based or governmental, come with potential editorial risks.” True, but government is categorically different than private businesses, of which there is no shortage. Yet those who fail to notice that difference, or discount it, are forever drawn to government because it is, as we say, so easy to get in bed with.
Bollinger anticipates that the public’s chief concern with his plan will be that a press that gets its paychecks from the government cannot effectively perform its function as democracy’s watchdog. That is not my concern. My concern is that journalists on the public payroll will become even more fervently dedicated to the idea of higher taxes and more spending. If you thought the press had a big-government bias before, wait until it is officially run by quasi-government employees.
Bollinger’s example of how a government-funded enterprise can carry on without its ties to the government compromising its mission is academia. I’d say that illustrates my concern perfectly. I do not think it is any coincidence that the academy has drifted further leftward as its reliance on public funding has grown.
Bollinger’s conception of “watchdog” is too narrow: I am sure the press would continue to try to expose corruption on the part of public officials, as it does now. But I am also sure that many journalists would, consciously or subconsciously, fall victim to the already common tendency to look a little more carefully for corruption on the part of those public officials who oppose missions for thegovernment that fall beyond the protection of basic liberties and the defense of the nation’s strategic interests — missions such as, say, subsidizing newspaper writers and TV reporters.
What if viewers and readers, um, don’t think they need what Big Government News is serving up? And how do we know what we “need”? Ah, Bollinger and his fellow Ivy Leaguers will tell us. Such is the state of liberal thinking and the mind of an Ivy League president. Yeah, I’m thinking the same thing: people spend money to send their kids to these places?
Around The Sphere 
Congress, Can You Hear Me? Can You Feel Me Near You?
J. Taylor Rushing at The Hill:
David Rogers at Politico:
Kevin D. Williamson at The Corner:
Conn Carroll at Heritage:
Jennifer Rubin at Commentary:
Jay Cost at The Weekly Standard:
Jim Harper at Cato:
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