Campaign Finance Decision: Right in Principle, Wrong in Practice

Frequently the most difficult legal issues arise at the intersection of two separate and distinct areas of the law.  The Supreme Court’s recent much-criticized First Amendment/campaign finance decision in Citizens United v. Federal Election Commission is a good example of this.

On its face, given the facts of the particular case in front of it, the decision seems to me to be entirely correct.  A conservative non-profit corporation, formed for the purpose of engaging in political speech, made a disparaging movie about Hillary Clinton and wanted to air it on cable stations during the 2008 primary election campaign.  Federal law, however, prohibited such “electioneering communications” by corporations using their general treasury funds during this period.  The question was whether this violated the First Amendment free speech rights of Citizen’s United.  The Court answered (correctly in my view) that it did.  Banning associations of private citizens from trying to convince voters to elect a specific candidate is squarely contrary to the First Amendment.  As the Court noted:

the following acts would all be felonies under [the federal law]: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

Left here, the decision would have been both correct and measured.  The notion that groups such as those mentioned above — the Sierra Club, the NRA, the ACLU — should be prohibited from expressing their views during an election campaign seems unquestionably to violate the First Amendment.

But the Court’s decision went far beyond this.  Even though Citizen’s United, the group bringing the suit, would have been satisfied with a ruling that overturned the federal law only as to “nonprofit corporate political speech funded overwhelmingly by individuals,” the Supreme Court held that the First Amendment barred federal restriction on the electioneering activities of for-profit corporations primarily formed for non-political purposes.  This portion of the opinion was both disappointing and wrong.

It was disappointing because after decades of conservative criticism (correct, in my view) of “judicial activism,” the new Roberts court engaged in that very thing.  My view is that, for better or worse, laws enacted through the democratic process should be accorded a strong presumption of constitutionality, and should be overturned by courts on constitutional (or other) grounds only to the extent that the clearly and obviously violate a clear, well-established, and (in an ideal world) textually-based constitutional (or other) rule.  The Citizens United decision fails to do this.  The Roberts court had the opportunity to — and indeed, was apparently invited to — decide this case on narrow grounds that would have upheld the most important part of the federal law.  By failing to do that, by failing to adhere to its professed belief in judicial restraint, it squandered an opportunity to make a hugely important point by putting its money where its mouth is.

And why was the decision wrong?  Because it chose to ignore (apparently willfully) the way corporate governance operates in the real world.  It is one thing to say that the First Amendment protects the rights of like-minded citizens to associate together to speak on matters of public concern.  But what does this have to do with the political speech of Chevron?  Individuals contributed to Citizen’s United because they wanted it to engage in a particular type of political speech.  Individuals are shareholder of Chevron (frequently involuntarily, through investments made on their behalf by retirements systems) because they want to make money.  Not allowing the First Amendment to distinguish between these two situations is wrong.The Court tries to address this issue in its opinion, but its treatment of the issue is lame:

The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. …  There is, further more, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democracy.”

It is hard to know whether the Court’s apparent ignorance of the limits of what it calls “corporate democracy” is willful or unintentional.  There is no “corporate democracy”; shareholder influence over the management of corporations is largely absent, for reasons both procedural and practical.  This is the key reason why the decision is wrong — it allows the assets of individuals to be used by corporations to advocate the election of candidates that some, or most, of the owners of the corporation may not support.  It is hard to envision a First Amendment rationale for such a result.

In other circumstances, courts have been solicitous of protecting the rights of individual from having their money used by organizations for speech they may not support.  Here in California, for example, attorneys must be members of the State Bar.  The California Supreme Court has held that attorney dues paid to the State Bar cannot be used for political lobbying without individual members’ consent.  Thus each year I deduct from my bar dues the amount that the bar will use to lobby.  Similar arrangement exist for union members, so conservative members of a union do not have to pay to support the largely liberal political activities of the union leadership.

Here, in my view, is the legislative solution to the United Citizens decision: Enactment of a federal law that would require the affirmative consent of a majority of a corporation’s shareholders before the corporation can engage in any specific “electioneering communications.”  Lesser restrictions could also be adopted (e.g., providing an opportunity for shareholders to object; rebating amounts spent on political and lobbying activities to shareholders who do not wish to support them).

Such a remedy would do away with the fundamental problem in the Citizen’s United decision:  Yes, the First Amendment protects the right to associate for the purpose of political speech; but no, it should not be interpreted to require individuals to support political speech with which they do not agree.

I am an Ubuntu Nerd

My laptop died during my trip to the ACWA conference in San Diego in early December. It wouldn’t boot up, and the hard drive icon didn’t light up, suggesting that the hard drive was dead. So the day before yesterday, while I was in Best Buy to get my son a graphics card for our main computer (which didn’t end up working), I bought an inexpensive replacement hard drive in the hopes that I could make my laptop work again.

I managed to get the old hard drive out and the new one in without destroying anything, but was then faced with a computer without an operating system. I tried to figure out how to download a replacement version of Windows XP, which had come with the laptop, but wasn’t able to very quickly. Then I had an idea: For a long time, I’d been wanting to load one of the various Linux operating systems on the notebook. Since I now had a notebook with a completely empty hard drive, I decided this was the time.

I had previously downloaded several Linux distributions and tried them out on a “live CD” basis (where the OS boots off of a CD). Those included Puppy Linux, Ubuntu, OpenSuse, and one other whose goofy cute name escapes me. I managed to locate the OpenSuse CD and loaded it on, but had a problem with the wireless access (which, as will be seen, seems to be common). So I downloaded a new ISO file of Ubuntu, burned it onto a CD, and installed Ubuntu on the laptop.

Unfortunately, that wireless connection problem persisted under the Ubuntu installation. Figuring out what the problem was wasn’t easy; it required finding the model of my wireless card, then browsing various web pages and posts before finally (after a period of almost two hours) finding one that had the solution, which involved downloading a new driver for the wireless card. I was pretty pleased with myself for figuring it out.

Now I could surf the internet. But soon I discovered another problem … no sound! This took me another couple of hours to figure out (again, IDing the sound card, looking on line for similar complaints, etc.). In the end, I figured out the sound problem on my own (the software that controlled the sound card had for some reason made the assumption that there would be an external amplification of the sound; unchecking a box fixed the problem).

So I’m running my newly-fixed computer on Ubuntu Linux. I am an Ubuntu nerd! But my experiences convince me that these free OSs still have a long way to go if they are to be more broadly accepted. I was able to get my machine working because I have the aptitude for working on computers, I had some extra time because I was off this week, and I enjoy the challenge. But Joe Schmoe isn’t going to want to mess with wireless cards and sound cards, he just wants his computer to run. For all its faults, I never spent 4 hours plus trying to get basic functions to work on Windows XP.

The good news is that I love the system now that it’s working. It boots up in a flash (unlike Windows XP), it runs one of my favorite open source programs (the image editor GIMP) much better than XP (probably because GIMP was designed to run on Linux), it is much more configurable and fun to mess around with. The OS doesn’t treat you like an idiot, as Windows often does.

My first output on the new system was this wild picture of Elsie, created on GIMP just for fun:

Technology is a wonderful thing, no?

Back in the Saddle Again

Today was my first day back on my bike riding in the “real world,” as opposed to riding inside on the trainer, since my accident on July 3.  For a long time, I couldn’t ride without risking hurting my arm if I fell, but lately I’ve been putting off riding out of what I now understand was just pure fear.  An odd fear, not one that I was even conscious of, even if I kept finding reasons not to get back on my bike — too cold, too windy, too much to do, needed a new helmet, etc., etc.  Only when I got back on the bike and started down the hill did I recognize:  I was afraid.  I felt uncomfortable, unsure, wobbly, the tires seemed to narrow, the road passed under me too fast.  I kept saying to myself, ’slow, just go slow, don’t fall.’

Right after it happened, it would replay over and over in my head: beginning the turn, suddenly becoming aware that I was not going to make it, drifting toward the stone wall while desperately trying to avoid it, then the sharp crash, a feeling of “ooof” as I struck the wall straight on, following by a consciousness of flying uncontrollably through the air with my bike, finally landing on my back, stunned and motionless, then hearing myself moaning, groaning, moaning, groaning, rocking from side to side like a baby, trying without success to lift my head, thinking to myself, ‘I have to move out of the road, I don’t want to get hit by a car,’ then looking up at a man and a woman, trying to sit up but still too stunned.

It took several minutes before I could sit up, and when I did I was automatically holding my left arm with my right, conscious that I had probably broken it.  I wasn’t so much in pain as I was in shock.  I didn’t have many cuts and scrapes, but I was aware on some primal level that I’d hurt myself badly.  The people who helped me tried to get me to stand up, but the first attempt did not work; I felt like I was going to be sick and had to sit back down on the pavement for several minutes before I could finally get up.  My whole body felt bruised.  I could barely lift myself into the back seat of the SUV that took me to the emergency room.  When I got out at the hospital, still holding my left arm, I felt woozy, unsteady.  I wondered if I could make it inside on my own.

I did, of course, but didn’t realize until later how seriously I’d broken my arm.  Not until a week and a half later did I discover I’d also broken a rib.  And the deep purple, almost brown bruises on my upper arm and side took many weeks to resolve.

So fear of getting back on the bike was, I guess, to be expected.  I had never had an accident so serious, and getting back on the bike, on  the road, I was right there again, in the same position, vulnerable.  To compensate, I took it slow and went on an easy short ride, on familiar roads, through a pretty, fresh, clear autumn afternoon.

Et voilà, quelques photos que j’ai prises sur la route….

Me and the bike:

Part of my route:

Grapevines in Autumn:

Finally, a cool technological thing:  I used the Google My Tracks application and the GPS on my new phone to create statistics and an xml file that works on Google Earth, Google Maps, or other mapping software.  Here’s the route shown on Google Maps:

View Larger Map

As for the statistics, well, they were nothing great, except to note that even with my fear of this ride, I managed at some point to hit 26 miles per hour, and had a total elevation gain of 700 feet.  Not too shabby, I guess, for the first time in almost 5 months.

Droid Review After One Week

I’ve had my new Droid phone now for a little over a week, so being a somewhat tech guy I decided to post a short review.

The bottom line: 8 (maybe even 8.5) out of 10.  I really like it.

The positives first.  The Google Android 2.0 operating system on the phone is very, very good.  It’s simple, straightforward, and fast.  It integrates smoothly with GMail, my business email, and social sites.  The screen is bright, colorful, and clear; video looks great.  The browser is faster than I expected, and works perfectly with mobile web sites (and does a passable job with regular ones).  While much has been made of the fact that currently there are fewer apps available for the Android OS than for the iPhone, I’ve been able to acquire most everything I’ve wanted from the Android Market (the notable exception being my inability to find a keyboard that will let me type French characters such as é, à, ç, û, è, and so on).  And no doubt as more and more carriers sell Android phones, the number of apps will increase.

One problem with the phone so far probably has more to do with my large clumsy fingers than anything else — both the onscreen and the pull out, physical keyboards are just too small for me.  While the onscreen keyboard has very good word-suggestions (thus making typing a little faster), that feature doesn’t work for the physical keyboard.  Several times I’ve sent out posts accidentally, which I then have to manually delete, a real pain.  I did find a voice-recognition app that works passably well, but you can’t always use that.  I’m hoping that with time I’ll get better at the keyboard(s), but for now it’s painful.

My biggest complaint, though, is with the camera.  It focuses slowly (sometimes not at all), and the pictures look washed-out and dull for the most part.  While I didn’t expect the camera to come anywhere close to my Canon DSLR, I did expect it to be comparable to the iPhone, which at this point it is not.  Ironically, video taken with the phone looks great — it’s 720 x 480 resolution, very colorful and clear.  The web says that a software update in early December will correct the camera problem; we’ll see.

I resisted buying an iPhone on principle (I liked neither the fact that it was non-open source nor the attitude that goes along with it), and I’m glad that I did.  The Android OS is great, and will only get better over time.

On Health Care Reform

One of my four readers asked if I’d considered writing a post on health care reform in the U.S.  I don’t know that I will say anything that hasn’t been said elsewhere, but here we go …  et voilà:

The health care issue in the U.S. is so difficult for four reasons.

The first reason is economic, and really a no brainer:  The real costs of health care are hidden.  People wrongly think (because it seems that way day-to-day) that they are getting something for nothing.  Because the costs are hidden, the system generates services that are constrained by normal cost considerations.  This was driven home to me two Sundays ago when I picked up a prescription for my son, who has bad acne.  The clerk at the pharmacy handed me the prescription and said, “That’ll be twelve hundred dollars….” before realizing he had been reading the “actual cost” information rather than the co-pay information.  Incredible but true — the actual cost of a one-month supply of this stuff was $1,217.  My co-pay was $10.  I rather think, as much as I love my son, that if I had to pay the actual cost, he would be using over-the-counter acne medicine, or some cheaper medical treatment.  But if, God forbid, the insurance company refused to pay, I’d go off cursing the evil, profit-mongering health care companies.  Demand will always go up for services seemingly priced so very much below actual cost.  Hence the reason health-care premiums have skyrocketed over the past 15 years.  Even when employers off-load more of the cost to workers (thus making the impact of health costs more directly felt), without some day-to-day, service-to-service price signals, people will just want, and take, more and more health care, even if, like my son’s acne medicine, some of it can probably be done without.

The second reason has to do with the unique nature of what’s being “consumed” by “customers” of health care.  Being badly sick or wounded is horribly frightening.  Death petrifies most people.  Next to money, our physical well-being is so critical to our overall sense of happiness that it overwhelms most rationality.  The power of modern medicine seems closed to magical or mystical, and how much would we pay for magic?  I was going to die, and now I’m going to live — how much is that worth, anyway.  The intensely emotional nature of decisions about our health care would skew our rational economic behavior even if the system itself could send accurate price signals.

The third reason is political, the subject, really, of a full week of lectures when I teach my intro Political Science class.  By virtue of the weak party system; the fact that legislators are elected on a local, not national, basis; increasingly “safe” districts and thus increasing powerful incumbents; the primacy of the committee and sub-committee system in Congress; and the increased importance of special-interest funding in Congressional elections, those same special-interests are able to exert an oversized influence on legislative outcomes.  Since there’s big, big money to be made in the health care industry, and many existing parties with an interest on seeing the present system continue, the odds of Congress ever enacting a truly effective health care reform bill is practically non-existent.

The fourth reason is sort-of political, but really beyond that:  The massive distrust of government that has engulfed the right wing and, less obviously, subtly infiltrated the center and left as well.  The federal government is inexorably involved in the health care system today, and any effective reform requires the federal government (or the state governments under a program of federal design) taking on a larger role.  But because a solid minority of citizens believes the government is a dishonest, corrupt, self-serving, power-mad meddler that wants nothing more than to stomp out all individual freedoms, any “government” program for health care starts at a huge disadvantage.  The reason we’re at that point deserves another post, which hopefully I’ll get to some day, but for now let’s leave it there.

So there you have it — it’s a big, ugly, multifaceted mess.  The economics are screwed up, people’s emotions get involved, huge moneyed interests want to keep their piece of the pie, and many are distrustful of the government’s competence and motives.

Could Obama have done anything differently that might have made things go better?  Some have suggested that he should not have been so willing to work with Congress, or so willing to compromise with the Republicans.  But these criticisms ignore the respective flip sides:  Obama can’t pass legislation alone, only Congress can, so working with Congress was a necessary evil.  And Obama came to office believing that he should try to change the nasty, vitriolic awfulness that passes for discourse in Washington, D.C.  He wasn’t wrong, in my opinion, for trying to compromise, for even though he’s reaped the wrath of Republicans on this issue (and may ultimately have to assemble his party and push something through), he has managed to stay above the nastiness fray in a way that’s refreshing.

My one criticism would be that his plan is not bold enough.  If you are going to address this issue, and have such a huge prolonged fight about it, do something big.  From what I can tell, the current plan just nibbles around the edges.  It doesn’t really do much to contain costs (and, disappointingly, does almost nothing to further medical malpractice reform which, I believe, could have swayed moderate Republicans to support the bill).  In fairness, Obama had a tough, tough road, and his pragmatism may, in the end, have been the best path.  But we won’t have a real solution until, unfortunately, the system starts to collapse around the heads of the middle class.  The current plan, in my view, just puts that day off a few years.

Bonne Citation Politique

C’est à Alain Minc, dans Le Point le 6 aout:  “Etre un libéral de gauche, c’est posseder un mauvaise chromosome, atypique dans l’ADN politique; c’est croire que l’intérêt général existe en dehors le marché, mais que l’Etat n’est pas l’expression naturelle et exclusive de cet intérêt général.”

Je le crois aussi.

Rough translation:  To be a conservative leftist is to possess a bad chromosome, unusual in political DNA; it’s believing that the public interest exists outside the market, but that the State is not the natural and exclusive expression of that public interest.

Bien dit.

A Brief Film Review — Séraphine

Those who know me know I’m not a huge movie fan, but I do watch movies in French (some from Netflix, but mostly on TV5 Monde).  This weekend Suzie and I went to the Rialto to see a French movie called Séraphine.  Based on the remarkable and true story of the French artist Séraphine Louis (also known as Séraphine de Senlis), the movie slowly absorbs you into the mind and life of the central character.  Winner of 7 César awards (the French equivalent of the Oscars), including Best Picture and Best Actress, the movie includes a one-in-a-lifetime performance by Yolande Moreau, who brings the difficult character of Séraphine to life in a way that is both utterly realistic and yet somehow mythical.  It is a story about struggle, creativity, religion, human decency, money, class, nature, and madness, beautifully filmed and directed.  One of those few films that stays in your mind afterwards; one of those films that you leave thinking, “That could not have been more perfectly made.”  For you non-Francophones, fear not — the story moves as much through pictures and scenes as through words, making the subtitles tolerable.  A definite recommend very highly.

Thoughts on a Trip to SFO and Back

Left Santa Rosa at 3:00 p.m., back with Will at 7:30, not as bad as I expected, thanks to diminished August traffic.

Some random observations:

I don’t think I’ve ever seen the light more beautiful in San Francisco than it was today.  The air was crystal clear, the buildings were bathed in a pure white light, everything stood out in extraordinary relief, like a digital photo with the saturation and the sharpness on high settings.  The Bay was a deep blue-green, the sky a deep blue, the buildings sharp rectangles, the trees lush green.  One of the most beautiful settings for a city in all the world, with the hills and water, the residents never frankly seem deserving of it, for reasons I can’t put my finger on.

Amazing how quickly you can get there with no traffic.  I was from Airport Boulevard to the Golden Gate Bridge in 60 minutes.  I hate the fact that some love to pile on the stop-and-go as a measure of growth control.

Airports can be fun places if you’re not traveling.  I had some coffee and then took a walk from the United area over to the International Terminal, both to admire the space and to listen to all of the conversations in foreign languages — I heard Portuguese and German and some sort of Eastern European language that I couldn’t place, along with Spanish, of course, but no French.  Noticed that $1 will only get you 61 euro cents.  Wondered what Security Level Orange meant.  Thought about what must go on in the mind of someone who would plant a bomb in a place like this and kill innocent people and think it justified.

As I watched my 6 foot 4 1/2 inch 16-year-old son come down the escalator, I wondered if he’d had a good time in D.C., wondered if it would make some difference in his life.  He seemed to have grown in 11 days, either that or I remembered him smaller.

Listening to the Giants on the radio on the way back, I fell into automatic-driving mode.  Tired, I didn’t see the sights anymore, just the lanes and the changing positions of all the cars.

Stopped at the big Safeway in Strawberry in Marin County to get Will something to eat.  Was glad I didn’t have to live in Marin anymore.  Noticed that most of the checkers were Hispanic while most of the customers were older white former Yuppies.  Marveled again that some guys still like the socks-and-sandals look.  Parked between a Porsche and an old beat up Chevy pickup truck.

Told Will not to swear when the Giants lost their lead.  Told Will not to swear when the Giants’ 9th inning rally failed.

Tried unsuccessfully to get Will to tell me a little more about his experience in D.C.

Then the miles just seemed to meld together and now I’m home.  Decided to blog, although reading back on this now, I’m not exactly sure why.

Mordu par un Serpent

Il y a une expression en Anglais — “to be snakebitten” — qui veut dire mot à mot “être mordu par un serpent,” mais veut dire figurativement “avoir de malchance.”  Moi, je suis “snakebitten” cette semaine.  Ca commence par mon accident à velo. Puis hier soir, notre chienne Elsie, la plus mignon chienne du monde (regardez), a été mordue par un serpent à sonnette, qui est très dangereux à cause de son venim, qui peut tuer des animaux et des hommes.  Elsie a été mordue à sa bouche, qui a commencé à saigner.  J’ai dû la emmener à la clinique vétérinaire à vingt-deux heures; nous avons eu peur qu’elle puisse mourir.  Elle est restée à la clinique vétérinaire jusqu’à ce soir.  Sa bouche est très enflée, mais la vétérinaire m’a dit qu’elle serait meilleure après deux ou trois jours.  Mais le traitement a couté plus de mille dollars, parce que le “anti-venim” est très cher.

Je ne voudrais pas penser à ce que peut être se passera demain!

The Short Version

Friday was a beautiful day for a ride.  I rode into Santa Rosa, stopped downtown for a soda, then started home.  I was riding up Old Redwood Highway, wanting to get to my son’s Geometry class (the last of his difficult summer school session) before it ended, so I could surprise him.  I started to make a right-hand turn onto Angela Drive, but realized at the last second that I was going too fast.  I tried to brake and turn to avoid a decorative rock pillar on the left side of the road, but was unable to, and crashed directly into it, leading with my left forearm: a hard, sickening crash that threw me onto the pavement and left me stunned.  A very kind couple took me to Kaiser.  These pictures are not for the squeemish; I was probably going 25 mph and stopped all of my momentum with my forearm:

I needed surgery immediately, and ended up with a steel plate and 9 screws in my arm.  Yesterday all the pain medicine made me sick; today all the other non-arm bruised and battered parts of my body are aching.

The staff at Kaiser were fantastic, and some very funny things happened during the experience, which I will post later, but all in all it was not at all fun.