Before we begin just consider the fact that creating a second senate consisting of hundreds of senators from each state with the power to repeal legislation with a 2/3 majority of the states would be essentially equivalent to this proposal. If you don’t think that a second senate with this limited power would be beneficial what could possibly be beneficial about this proposal? Now let’s consider the particulars.

First the purely practical aspect: what does it mean to repeal a piece of legislation? Does this mean that the states can repeal any passage/clause/section in federal legislation or does it only grant them an all or nothing choice to repeal an entire bill. I presume the suggestion is the later (so a repeal acts like a late presidential veto) since otherwise the state legislatures would effectively be a second congress, e.g., if congress strikes a balance between some kind of invasive search and judicial protections the states would be essentially writing their own legislation if they could simply strike out half that balance. Since this is the reasonable interpretation and the one closest to the proposed text I’ll assume that only entire bills or regulations could be repealed.

But this now creates massive problems. What if congress passes a law that changes the classification of Marijuana and psychedelics from schedule I to schedule II allowing it to be used medicinally then later congress decides that since it’s only `hard’ drugs in schedule I to increase the penalties for trafficking in a schedule I substance. If the states later repeal the bill reclassifying the psychedelics does trafficking these substances now come with a greater criminal penalty than congress (or a majority of the states) ever intended? This is just the tip of the iceberg.

What if congress decides to change the nomenclature in the same bill in which they legalize the medical use of Marijuana so instead of schedules I-V it’s now class A-E. Shortly afterward congress passes another bill revamping all the criminal penalties and whose text indicates that it repeals all previous criminal penalties for trafficking in drugs in favor of a new system of penalties phrased in terms of classes A-E. If the states repeal the bill legalizing medical use of Marijuana does this mean that all criminal penalties for drug trafficking are eliminated? After all the only non-repealed trafficking laws reference class A-E substances which no longer exist since the law creating them was repealed. As nice as result as that might be in this case the problems are starting to mount.

These issues were bad enough when we imagined the conflicts occurred by accident but what happens when congress wants to prevent the states from repealing their bills? They could simply pass popular bills right after the legislation at risk of repeal in such a way that should the states repeal the controversial bill the popular legislation would be rendered inoperative. As a silly example one might pass an agriculture funding bill which reads “No monies shall be distributed in excess of the number of words in section Y of the law multiplied by 10 million dollars,” where section Y was introduced by the controversial bill. Thus were the controversial bill to be repealed farm subsidies would be immediately halted. Should they wish to be less obviously contrived congress could simply package up the various bills they plan to pass in such a way that 2/3 of the states wouldn’t be able to agree on exactly what to repeal.

Finally, since the house and senate set their own rules it’s quite possible that “deem and pass” is perfectly constitutional. If so congress could break up the laws into an arbitrary collection of bills to undermine any potential state coalition. Alternatively congress could simply rewrite the rules preventing them from packing absolutely everything into one giant bill to evade the veto in that manner.

Now that we hit upon some of the practical problems let’s move on to the theoretical failures. The first and most puzzling of which is why would such a legislative veto be desirable now that we have direct election of senators? For a bill to pass congress it must have already received support from a majority of the elected senators so why should we let state legislatures which are often ignored by voters override the choices of the senators they elected? Despite the implications by Barnett that somehow state legislatures have more wisdom for the most part state legislators are much less likely to be knowledgeable about policy than our federal representatives. Indeed, it should strike one as weird that 2/3 of state legislators might vote to repeal what a majority of senators supported when they represent the same constituents.

This consideration exposes the true effect of such a measure and the motivation for considering it now. State legislators have national party affiliations and feel obligations to support that parties national views. Thus even though you may have voted for your republican state assemblyman because he has reasonable moderate views on taxes, school funding and etc.. he will likely feel pressure to vote for repeal of moderate democratic initiatives at the national level. In conservative states the democratic candidates for state legislature tend to be fairly conservative and vice versa but would still feel pressure from the national party to tow the national party line. In short letting state legislatures repeal federal laws would force voters to compromise between the candidates who have the best local policies and those that are most likely to be loyal to the voter’s favored national policies yielding less optimal results. It’s only because currently states are more heavily republican than the federal government that this suggestion is gaining any traction but if the states started repealing laws then the parties elected at a state level would start to follow the federal trends.

Lastly allowing states to repeal regulations as well as legislation totally undermines the benefits of regulation. The advantage of regulation, and the reason we don’t do everything by legislation, is that regulations can be issued by appointees under less direct political pressure. For instance regulations about safe levels of chemicals in drinking water can be issued by regulators who are some distance removed from lobbyists. Allowing state legislatures to repeal regulations puts this advantage at risk.

UPDATE 2: The bit about fraud seems to have been more populist BS spread by Andrew Cuomo, the New York Attorney General. It seems highly likely this was just an attempt to ride the wave of populist anger to ‘get those guys.’

Anyone who has been paying attention to the media lately will have noticed the outrage over the bonuses being paid to AIG employees, particularly employees in AIG’s financial products division. The division responsible for the deals that necessitated the government bailout. Disgustingly even relatively clearheaded individuals have jumped on this populist bandwagon and just in case we needed another lesson in the failures of democracy congress is demanding heads. People complain about the lack of transparency about the government’s response to the financial crisis but if this is how the public responds maybe they don’t deserve it.

Let’s be totally clear. This outrage is over mere terminology. No one was making a fuss about the fact that AIG employees, even those in the financial products unit, continued to be paid their salaries. Getting mad because some employee compensation is called bonuses rather than salary is about the stupidest thing imaginable. No one even looked at what these people were payed before this bonus scandal. People are mad for no other reason than the fact that wall street pays out significant chunk of it’s employee compensation in the form of bonuses. Sure, there were demands that the very top level of the company (CEO, CFO etc..) no longer be paid their huge salaries but we aren’t talking about sweatheart deals cut by a friendly board in this case but relatively standard payments on wall street to top level talent¹.

Just in case rational thought escapes you on this issue let me put this question another way. Do you think that the government should stop payment on all uncashed paychecks to AIG employees in the financial products division? Even those employees who did their job well and are needed to help unravel this mess? If not why do you think it should take away bonuses for these employees? In both cases the employee was promised certain compensation in return for certain work/performance and calling it a bonus or paycheck doesn’t change that fact. Certainly it’s totally unacceptable for the US government to void valid employment contracts made by AIG after tricking those workers into continuing to labor under them since the bailout.

More reasonably one might think that the government should have allowed AIG to lapse into bankruptcy and simply fail to honor employee compensation agreements in general, no merely the bonuses. Of course this has nothing to do with the outrage being expressed by the public and their elected officials but it’s at least coherent enough to rebut. However, this would undermine the very motivation for rescuing AIG from bankruptcy as it would have created doubt about whether AIG would make good on it’s debts. Sure, the government could have decided to guarantee some AIG debts despite the bankruptcy but that leaves everyone wondering if the government will pay off their claim or if some unpopular behavior on the part of the creditor would convince congress to leave them on the hook. Any plan that let the government pick and choose which preexisting AIG obligations they would honor would have been a disaster.

Still, whatever you think about the wisdom of the bailout of AIG at this point it would be totally unacceptable for the government to renege on these bonuses. The government choose to simply infuse capital as if they were some private investor rather than to nationalize the company now it needs to live with that choice. Trying to use it’s legislative power to eliminate these bonuses now would induce fear in other AIG creditors, reduce the government’s flexibility to infuse banks with capital, and generally do great harm to future bailout attempts. Not to mention that the cost to the taxpayers from the resulting lawsuits and our interest in keeping top talent at AIG to unravel their finances. Even assuming none of the employees due bonuses leaves in anger or can find a better offer (the best people always have offers) so long as the government still owns part of AIG every single highly paid employee will wonder if they will really get the package promised them.

What’s so particularly absurd about all of this is that all this opposition that is being generated towards future bailouts or stimulus packages as well as the potential for harm if the government really voids these contracts is happening over about 1 400th of the amount we paid to bail out AIG. It’s like lending your friend $1000 to cover his mortgage this month and then making a big fuss over the fact that he still purchased coffee for the girl he asked out the month before.

The more I see the more convinced I am that democracy is a truly awful system.

This isn’t to say that none of Lessig’s (unoriginal) ideas are worthwhile. I think public funding of elections might be a good way to reduce the incumbent advantage, combat mistrust in the system and encourage a more diverse set of candidates to run². Of course the public is never likely to support the relatively large (though still small compared to the federal budget) sums required for public financing to drown out the effects of wealthy candidates or third party ads run without coordination with the campaign³. However, the belief that even a perfectly implemented public financing system would eliminate the problems of undue influence is misguided. All it would do is change the currency.

If both candidates are given the same amount of funds then aspiring office holders will simply scramble for some other kind of advantage. Likely free channels to distribute their message or celebrities to draw extra attention. If both candidates can but equivalent amounts of airtime maybe they will scramble to get the most respected celebrities to appear in advertisements to make them more effective. Maybe instead they will scramble to kiss ass to the party elite to purchase political endorsements or to union leaders to mobilize campaign workers and distribute their message. Or maybe it will be elite society so more doors are opened for them. In any case it’s simply not plausible to assume that there won’t be some group of people who are far more able to benefit the campaign than others. These people will be courted for the slight advantage they can provide. Ultimately only one person can win the election and equalizing the candidates along one dimension will simply make them compete all the more fiercly for advantage along some other dimension. At least monetary contributions have the advantage of being openly published and being available to anyone with money. That’s a lot better than many ways influence could be distributed.

Even if you imagined a world where candidates felt no need to court any power brokers to be elected it’s hard to imagine that we still wouldn’t see all the harms associated with lobbyists. Legislators often need to be informed about issues and it’s effect on industry so it would be disastrous (and likely unconstitutional) to simply ban them from interacting with industry insiders. Unfortunately there is often no other group organized enough to realize that legislation was upcoming and provide their own knowledgeable polished expert to present their case to lawmakers. Transparency and neutral government experts can help but they can’t solve the problem. Banning lobbyists or lobbying couldn’t stop companies from purchasing influence. It could only drive it underground.

Legislators have to seek advice and information somewhere and money will always enable one to make sure that it’s easier and more convenient to learn about their side of the argument. Nothing can stop corporations from establishing branches in DC and ensuring that the executives employed therein are persuasive advocates for their cause who travel in the same social circle as legislators. You can’t bar the friends and relatives of legislators from working nor from sharing their views with the legislator over Christmas dinner or at the bar. All a ban on lobbyists would accomplish is to transform a transparent, widely accessible and regulated means of purchasing influence into a complex, totally opaque system of purchasing influence that also favors established companies and interests over new players. At least now a upstart like google can hire their own lobbyists on day 1 and compete with the entrenched interests rather than suffering from unfavorable regulation for years while they learned the unwritten rules and hired the friends and families of politicians slowly enough not to draw attention to what they were doing.

In short, the open influence of money in politics may be bad but it’s not at all clear the alternatives are any better. At the very least the existence of lobbyists and campaign contributions prevents the creation of an entrenched political elite who perpetuate their power and influence by making sure they know the right people and attend the right parties. I’d much rather have a system where anyone of any background who makes it big or builds an organization of like-minded donors can purchase access than one in which unwritten rules and social status reserve influence to the established elite.

Sadly, nothing that really matters. Sure society might improve slightly, we might grow slightly strong social ties, we might erase a little pain with improved health care but nothing fundamentally is going to change. Decades of social science research tell us that our capacity for happiness is handicapped by evolution and their is no perfect social structure that can prevail over basic biological constraints. Even if Barack could spread his hands and bring forth plenty to every man, woman and child in the country he wouldn’t change our human nature. Someone is going to have more money, more power, faster cars, hotter sexual partners and (ultimately) more social status and others will crave it. A well ordered society can eliminate some small genuine efficiencies but ultimately decades of data indicate that further major improvement in overall societal happiness are denied to us by our biology. Sure, the industrial revolution made people happier but a country hits a certain minimum level of prosperity (which the western world has enjoyed for at least half a century) and everyone has indoor plumbing and gets morphine while dying of painful cancer overall societal happiness hits a brick wall.

To put the case more vivedly who would you prefer to be: a roman emperor¹ or a poor resident in an inner city slum? I know I’d prefer the former even though objectively the worst off Americans get a better education, receive better medical care and have better (non-human) toys than the most pampered Roman emperor. The worst school in the poorest slum throws knowledge at children about beyond the wildest dreams of the most educated philosophers of the classical age. No need to stab in the dark about earth, air, fire and water the book tells you about chemical elements right there, no need to wonder if moving lights in the sky are gods, your daily dose of TV makes sure you know they are other stars and planets. For all of Emperor Claudius’s imperial majesty he couldn’t command the quality of medical treatment that we provide to penniless vagrants who wander into our hospitals. Having objectively better conditions simply doesn’t keep making us more happy after some point and there’s a limit to how much fairer distribution can improve the situation.

If this was simply destiny then fine, we do the best that we can but biology need not be destiny. If evolution limits our capacity for joy, wonder and pleasure then we must remove those limits. Perhaps you think this isn’t possible, perhaps the flawed logic of Brave New World² makes you think this dream is only an illusion. However, there is solid research baking up the commonsense fact that some people have innately higher happiness fixed points than others. We all experience the ups and downs of life but some of us tend to return to a state of vague glumness while others drift back to innate happiness. Discovering a treatment, or offering genetic modification, to lift us all up to this higher set point would do an order of magnitude more for social welfare than any single payer health care scheme or universal college access could in the wet dreams of progressives. Even better we need not worry that this pleasure would undermine our social and economic systems: research indicates that hypomanic people are actually more productive and better employees than those of us more given to depression³.

Making us all as resilient and happily inclined as the most good natured of us is only what we know for sure could be achieved. There is no reason to believe that we couldn’t take average happiness to unimaginable levels. Every day could be as good as the best day of your life and there is no reason to believe some kind of drugged out stupor or uniform monotonous joy would be necessary to achieve this. Bad things would still sadden us and good ones life our moods, it’s just a question of where we want to put the baseline. Of course more radical change would have to be carried out with extreme caution but when the benefits are so unimaginably huge we have a moral duty to explore our options.

In light of all this I find myself seeing the activists on both sides of this election as tragic figures. The crusading Obama supporter thinks of themselves as fighting the good fight for a better world but in reality their only fighting over the tiniest crumbs of possible social welfare. It’s as if we are all standing out in the rain zealously debating whether to trade our umbrellas for raincoats to stay dry but failing to even ask if we might want to step inside. Then again maybe Obama is an even better man than I give him credit for, maybe he’ll start a secret government research program into biochemically improving people’s average happiness. It’s a long shot but maybe I’ll write him a note and try to convince him.

What bothers me about this Ayers business is that even if Obama and Ayers got together for dinner once a week we shouldn’t be criticizing Obama for treating someone with a checkered past like a human being. For all the Christian rhetoric one hears the Republican party use you might think it would occur to them that forgiving sinners is a virtue. No one is suggesting Ayers has done anything but virtuous scholarship and charity work for the past 20 years so why shouldn’t Obama overlook his prior bad acts and make the Christian gesture of giving Ayers a second chance?

I suspect the people pushing this attack on Obama would agree that forgiving sinners is a virtue but would try to differentiate this case based on the lack of an (sufficient?) apology from Ayers about his behavior in the 60s. But does anyone really believe that the right way to treat someone who acted badly in their youth is to alienate them until they accept your judgments about their culpability? Is that really a better way to behave than making it clear you don’t approve of their past behavior but overlooking it and treating them like a (imperfect) human being? Do the pro-lifers who buy into this Ayers criticism really think it’s wrong to be friends with anyone who had an abortion as a teenager until they admit to having done murder?

Besides, if we didn’t look past people’s idiotic moral beliefs on a daily basis we wouldn’t get anywhere. Surely we don’t think Obama is obligated to give the loony philosophy prof who, despite being a total pacifist himself, thinks the members of the weather underground may have been morally justified in their actions. So how could it be that when the loony prof and the former radical are the same person it suddenly becomes immoral to associate with them?

Alright, so those making the Ayers critique might grant that as a private citizen it’s appropriate to overlook Ayers past but that as a candidate for public office Obama needs to hew to a higher standard. But this argument only works if you think it’s merely acceptable, though undesirable, to overlook someone’s past bad acts. If you believe that it’s actually a virtue to be kind and friendly even to those who have behaved poorly then as a candidate for public office Obama should set a good example and, if anything, be more willing to interact with Ayers. Christ, I understand the McCain campaign is desperate for material to use against Obama but do they really have to suggest that it’s unacceptable to forgive others and interact with them despite their (major) imperfections?

I would like to believe in this case oversight by some board of experts, e.g., the federal reserve board, would be possible and beneficial but this might not be practical. However, the idea floating around that congress should provide direct oversight scares me. Obviously, congress should follow the actions taken during the bailout and intervene legislatively if it discovers any abuses but, even if constitutional¹, giving a congressional committee the power to review bailout decisions would be a bad idea. Not only do the congressmen involved lack the expertise to make truly informed decisions but they’ve already demonstrated their willingness to put the rhetoric of getting even above the interests of the country. Senator McCain has even done this in the name of putting America First, though Obama and the democrats in the senate aren’t any better.

Rather than focusing on fixing the financial meltdown from the news I’ve seen congressmen are getting caught up in making sure that CEOs are denied their golden parachutes or demanding that we bail out homeowners as well as the ‘fat cats’ on wall street. Now one might think this rescue package is unjustified or unnecessary but the only reason to pursue the bailout is to prevent the economic instability from spreading to the larger economy. The worry is that without government intervention confidence in financial instruments will collapse thus denying individuals and businesses the credit they need to drive the economy. If you don’t think the problems in the financial sector threaten the general economy then you shouldn’t supporting any bailout at all. Unlike the collapse of the financial sector there is no reason I’ve heard to believe that not bailing out homeowners would cause a general economic collapse. Maybe as a matter of policy the government ought to be helping these troubled homeowners more but that’s a different issue and should be carefully considered not allowed to interfere with an emergency bailout.

The obsession with golden parachutes is even worse. One can argue all day about whether it is just for CEOs to receive gigantic compensation packages but the truth is that the cost of CEO compensation at financial institutions is a minuscule percentage of the 700 billion dollars proposed bailout. Rather than focusing on this insignificant cost our representatives could be doing more to save us money by focusing on the details of the actual bailout. Moreover, I worry that some kind of golden parachute poison pill in this bailout would create an incentive for CEOs to avoid taking part even if it is in their companies best interest. Besides, I don’t see why the fact that these CEOs miscalculated means they shouldn’t be compensated at the rate they negotiated. We don’t think basketball players who don’t perform as well as expected or get injured making a stupid play ought to return the money from their contracts why is it any different for CEOs? This isn’t to say there aren’t general reforms that should be taken about CEO pay in general, e.g., giving stockholders greater control over it, but it is to say that congress should be more concerned with saving the US economy rather than making sure everyone suffers.

Specficially what I’m talking about is the hubub caused by some criticism of Sarah Palin suggesting that as a mother to 5 (one of whom has special needs and another is pregnant) she might find it difficult to manage the responsibilities of the president’s office if it came to that. Many people have shot back that this is unfair since no one is asking Obama about how much time his family will occupy. Maybe it is unfair maybe it isn’t. I don’t find fairness a very useful (or meaningful) concept in situations like this. However, absent further evidence it is a worry that is more reasonable to have about Palin than about Obama.

For starters Palin has a larger family with younger children and most importantly has a special needs child (downs syndrome). Right away this makes comparisons to Obama invalid. Still, one might point out that even if Obama was in this position the same questions wouldn’t be asked of him because he is a man. That’s completely correct. However, this isn’t some groundless double standard. As many feminists have been complaining about for years it really is still true that women do more of the child rearing than men. It really doesn’t matter whether you think that is the result of a chauvinistic society, an intrinsically greater maternal instinct or space rays affecting our brains. Given that women are much more likely to be the ones on call for their offspring’s minor emergencies and problems it’s a valid question to ask whether such an eventful family life will interfere with Palin’s ability to function as president if McCain passes away (if she can govern Alaska she can handle being VP). Like it or not our culture (either innately or historically) is one in which women tend to put a greater priority on childcare relative to their work than do men. Given all the social pressure evaluating women based on their maternal success rather than their professional success it would be quite surprising if this wasn’t the case even disregarding the impact of breast feeding, giving birth and the evolutionary psychology reasons to expect this outcome.

Of course Palin’s husband might be the primary caregiver for their children (many men are) and Palin might neglect her family for the sake of her career to the same extent the average male VP candidate does. In fact I am quite confident that Palin’s family wouldn’t substantially interfere with her being president. Which is really too bad because given what i know about her views I’d be much more comfortable taking my chance on whatever adviser might run things in her place. Partially my convinction stems from the fact that I’m not convinced that the long nights and extra hours pay off that well for a president but more so from the fact that Palin has managed to make it to this point with her family. However, none of this changes the fact that it perfectly reasonable to believe that a woman with a large family with special needs would be more likely to have difficulty giving the crazy dedication to the job than a man in a similar circumstance. I don’t believe this is enough of a difference to justify trumping policy/judgment considerations with this relatively minor worry but this whole `experience’ debate is no less trivial.

In short I find it annoying when people go to great trouble to assert something (women work harder than men because they must do more childcare when they get home) and then turn around and try and deny the obvious consequences when they support (even if weakly) a conclusion they dislike². Ultimately what puzzles me about this whole thing is why people feel inclined to go down this path at all. If people would just say a more understandable version of something like this I would be happy, “Yes, women might be slightly more likely to invest time at home but anyone at this level must have heroic dedication to their work and any minor difference in probabilities is outweighed by the potential for overestimation of this effect due to reliance on stereotypes .”

Another debate swirling around Palin is the acceptability of pulling her teenage daughter’s out of wedlock pregnancy into the campaign. Before I say anything more about this point I want to express how sorry I feel for her daughter. It’s bad enough that she isn’t going to get an abortion³ and worse that she is going to be pressed into marriage at 18 but she has to deal with normal teenage embarrassment plus the shame of being knocked up all on national TV. However, no matter how emotionally salient this particular girl’s suffering may be to us she is just one person while the choice of our next president will dictate policies affecting teen pregnancies in the thousands at the very least not to mention deciding matters of life and death for millions and setting the fates of nations. Thus my conclusion is that if this girl’s plight can bring home the consequences of abstinence only education and abortion restrictions enough to really affect policy then we would be remiss to let hundreds or thousands of other girls end up in much worse positions just to shield this one girl from the spotlight. That having been said we should minimize the intrusion that the political campaign has into this girl’s life, e.g., the policy of avoiding her first name seems appropriate, and avoid anything but the most indirect of references lest one trigger a backlash.

Now is it possible that top members of the Bush administration will face prosecution for things they did in office? Yes, if later revelations stoke up sufficient public outrage they could face charges in the US but even that seems most unlikely. But the idea that Bush might end up being arrested during a trip to Europe after he leaves office is simply laughable. It’s one thing for the Europeans to arrest the former dictator of Chile and prosecute him for crimes that he had legal immunity for in Chile. Not only was there enough support in Chile for him to be (unsuccessfully) prosecuted but a country like Chile has much less international influence than the United States. Given the attitudes of US citizens toward international courts and US independence it’s simply not plausible that we wouldn’t make a fuss if another country tried to arrest Bush after he left office. It’s one thing to arrest a foreign dictator another to arrest a US president whose actions were supported by a substantial fraction of the populace. Even many people who might favor a prosecution in the US would recoil at the idea that the Europeans or anyone else could tell us what we could and couldn’t do. Arresting a former US president is the kind of stupid idea that could lead to a war (but won’t since no non-symbolic arrest will happen).

Moreover, perpetuating these simplistic attitudes about international law actually encourages human rights violations. Despite the fact that Chinese leaders and Kim Jung-Il have certainly committed human rights violations, including some that likely amount to torture, there is no serious suggestion that they will be prosecuted. This is appropriate as productive engagement is much more likely to improve the human condition than a hard line attitude. However, foreign leaders, knowing they won’t have the protections former US presidents enjoy, aren’t stupid will react accordingly. If they see that leaders of repressive regimes will be protected from prosecutions but former leaders of more open societies are not they have a substantial incentive to cling to power. On the other hand if we save war crime prosecution for truly horrific acts (genocide etc..) it might persuade dictators to soften their tactics or even give up power in exchange for pledges of immunity.

Finally I have to say I’m boggled by the idea that merely expressing a legal opinion about what US law allows could make one a war criminal. I mean if Yoo is supposed to be a war criminal for suggesting that water boarding was legal wouldn’t the human rights activist who protests the lack of a law preventing a US president from ordering water boarding be equally guilty? Now of course a legal opinion from the president’s legal advisers has legal significance that the opinion of a human right’s activist lacks but surely that legal significance doesn’t make it a war crime not to lie. If that human rights protestor was appointed as a legal adviser to be president he surely would not suddenly then be obligated to lie and pretend there was a law that barred water boarding when there was not. But if it isn’t criminal (or even immoral) for a legal advisor to say that water boarding isn’t currently illegal but really should be outlawed surely it can’t be criminal for him to mistakenly claim it isn’t currently illegal.

Now certainly, as we saw during the Nuremberg trials, if a lawyer goes beyond observing that something is legal to actively participating in decisions that choose to implement it than things are different. I suspect the intuition that Yoo has committed war crimes comes from people’s assumption that he deliberately twisted the law to achieve his preferred policy outcomes. However, as hard as it may be to believe, it’s far from clear that Yoo consciously did anything of the kind and it would certainly be near impossible to prove any such thing even if you think that water boarding rises to the level of a war crime.

Now the video from the women’s media center certainly succeeds in convincing me that Chris Matthews is a sexist jerk but aside from that it’s fallacious confusion of the media’s constant microanalysis of electability and likability with sexism. Asking whether Hillary will succeed in appealing to men is no more sexist than asking if Barack will succeed in winning white votes. Anyone who hasn’t been living in a cave for the past 12 years has seen the stupid discussions on cable news channels of whether candidate X has an appealing enough smile, will suffer for being short or has appropriate choice in ties. Sadly, not subjecting Hillary to this ridiculous microanalyses would be sexist response to her candidate.

Of course if you try hard enough you can read sexism into anything but `likability’ isn’t some minor issues that’s only trotted out as an excuse not to vote for a woman, likability is the essence of electoral politics. As we were endlessly reminded by the pundits the voters in ’04 would have rather had a beer with Bush than Kerry. If it weren’t for the inconvenient fact that Kerry was a man this would be another perfect example of the sexist media. Of course if you just change the channel you can get an equally compelling account of how the racist media has been biased against Obama.

Listening to the recent complaints about sexism that have flooded the media over the last few days one would think that Hillary’s likability problem was a penalty she was paying for behaving too masculine but that’s a load of crap. Hillary played best with the electorate when she highlighted her strength, resolve and experience (3am phone). She alienated voters in the debates not with her confident aggressive stances but with her passive aggressive whining. If anything Hillary was given more leeway than a man would have been given when she ‘observed’ that she seemed to be getting the harder questions instead of angrily lecturing the questioner or keeping a dignified silence. Some people just come across better than others on TV (supposedly Hillary is much more likable in person).

Now this sort of poor sportsmanship from Clinton supporters is bad enough but trying to claim the moral high ground in the fight against sexism is particularly galling and hypocritical. Most of these women complaining about Clinton’s sexist treatment support her (partially) because of they identify with her over gender. These aren’t the rightful inheritors of the struggle for gender equity but rather (for the most part) a group that is happy to impose different expectations on men and women when it suits their purposes and complain about it when it doesn’t. The noble feminist crusaders of earlier generations understood that gender equity would come with a cost. Now, instead, we see casual complainers who seem to think that gender equity means nothing but indulging their feelings of sympathy for other women.

No one could reasonably deny that our society still holds men and women to different standards. I certainly would prefer a culture that treated men and women more similarly but far from working towards gender equity this sort of feminism as sympathy for/indentification with other women is one of the greatest forces holding back equality. When women reward other women with sympathy and support when they are subject to aggressive verbal/intellectual attacks but tells men to toughen up it sends a message about how it’s appropriate for women to act and men to act towards them. If these women were really interested in equality they should be working to eliminate the double standard that says it’s okay to be aggressive and critical of another man but unacceptable and mean to do so to a woman. So long as society sends the message that women are fragile and need to be treated with special delicacy it will also view men as more strong and capable.

Admittedly these last comments have limited direct applicability to the Hillary campaign but they are an indictment of the modern conception of feminism as sympathy for other women that underlies this supposed feminist cause for Hillary. Not only are their complaints largely unjustified it is people like them, not Chris Matthews who make sure that men and women continue to be treated differently in our society. Maybe as a society we simply don’t want real gender equity but what we would need to do to achieve it is to stop treating women as if they needed special sympathy and protection.

“If Obama was a white man, he would not be in this position,” she continued. “And if he was a woman (of any color) he would not be in this position. He happens to be very lucky to be who he is. And the country is caught up in the concept.” Ferraro does not buy the notion of Obama as the great reconciler.

“I was reading an article that said young Republicans are out there campaigning for Obama because they believe he’s going to be able to put an end to partisanship,” Ferraro said, clearly annoyed. “Dear God! Anyone that has worked in the Congress knows that for over 200 years this country has had partisanship – that’s the way our country is.”

I’ve included the second paragraph to make the context clear. Ferraro is obviously a bit irked by the bizarre messianic conception many people have of Obama and the perception that Clinton’s actions are frequently seen as base political gamesmenship while they see the same actions by Obama as grand leadership. Now I actually think that is a compelling argument to vote for Obama. This skill is the essence of political talent and a useful attribute to have in a canidate or leader. However, it suggests that Ferraro is likely speaking out of understandable personal frustration rather than the devious political calculation some of the media are suggesting. But understood as an off the cuff remark what did it mean and should anyone get upset about it?

Well Ferraro obviously means that in some possible scenario where Obama wasn’t black he wouldn’t be competitive in the democratic party. The million dollar question is which scenario did Ferraro have in mind? Now it seems pretty obvious to me what she meant was something like: if everything had been the same at the start of the primaries except that Obama was white he would have quickly lost. Not only is this not a racist remark it’s probably true. Even those who are denouncing Ferraro for racism admit that many blacks are voting for him because he is black and it’s silly to think that at least some of his appeal to liberals comes from their perception of him as a healer of racial discord, a trait that (like it or not) depends on his skin color.

What then of the comment that “he is lucky to be who he is?” Far from meaning that blacks tend to have it better in America than whites as many critiques assume normal english usage suggests it merely means Obama’s race is a proximate cause of this good fortune. I mean assume that your friend went down to the corner store hoping to buy a magazine but because his job pays so little he finds himself a dollar short he instead buys a winning lotto ticket. Now you might reasonably remark, “damn man, your lucky you didn’t get that raise last month.” Obviously you wouldn’t be saying that in general people are better off not getting raises. In other words she is doing nothing more than reiterating the fact that Obama’s race is a net political assest in the democratic primary.

This view is supported by Ferraro’s contention that far from being racist her remarks are a positive racial message, i.e., people want to vote for a black man to help heal racial divisions in the country, as well as her remark that she was chosen as a vice presidential nominee because of her gender. Despite the stupendously stupid suggestion by Berkeley professors Edley and Echaveste that Ferraro is demeaning herself with this comment really all she is saying is that had she been in a similar situation but been a man she would not have been chosen. Yet more evidence that Ferraro was never suggesting that Obama owes everything to affirmative action or that blacks are better off than whites as the critiques all presuppose.

Note that this interpretation of Ferraro’s remarks didn’t require any mental gymnastics. It was the obvious meaning that jumped to mind when I heard the words. Now perhaps, because the news had primed you to hear them as racist, the same might not be true of you but really all I need to show is that there is a plausible interpretation that isn’t racist to show that we should give Ferraro the benefit of the doubt based on her past behavior. Now no doubt someone is going to try to argue that even though Ferraro didn’t mean to make a racist remark that her failure to properly guard against unintended racial effects of her words is enough justification for her public flagellation. Yet on these grounds it is the Obama people who have taken it upon themselves to widely publicize these words (even though Obama is reasonably refusing to call them racist) who should be held accountable.

Ohh sure everyone has some excuse about why their behavior doesn’t really count. It was a different era back then, the pot now is weaker. I never looked at internet porn, it was just playboy (did you ever forget and accidently take it to work?). But everyone has a story. No doubt Spitzer told himself what he was doing was different because he made sure to give these girls extra cash. If it really is so different then there is no reason to hide it right? Everyone else would see it wasn’t like these bad things. Maybe you say you have to enforce the rules, that’s what the organization expects. But Spitzer could say the same and ultimately the reason our corporations and institutions have zero tolerance policies is that no one has the balls to say, “hey wait a minute, maybe this stuff isn’t that bad.” I’m not saying you need to admit to all your private peccadillos but don’t be so intimidated by them that you jump on the puritanical band wagon.

Ohh and don’t try to pretend that your real concern in this matter is Spitzer’s children or wife. I mean which do you think is going to be worse for them: Spitzer being accused of patronizing a prostitute or being accused of using a prostitute and losing his job. Hell, if your only concern here was the personal harm to his wife and children then why the fuck are you trying to make their lives worse by kicking Spitzer out of his job?

In one such case in 2004, Mr. Spitzer spoke with revulsion and anger after announcing the arrest of 16 people for operating a high-end prostitution ring out of Staten Island.

“This was a sophisticated and lucrative operation with a multitiered management structure,” Mr. Spitzer said at the time. “It was, however, nothing more than a prostitution ring.”

Now prostitution should clearly be legal. I don’t think there is anything inherently wrong with explicitly paying money for sex, and let’s not kid ourselves what differentiates prostitution from dating the guy with the nice car is only the explicitness of the transaction. In fact criminalizing prostitution, and thus requiring those women who want to monetize their sexual allure to give up their autonomy and hitch themselves to a rich guy, seems decidedly sexist to me. True, as a practical matter it is right to worry that some women may get treated badly or abused in prostitution but once as a practical matter the question is will less women be hurt if prostitution is legal (or tacitly tolerated) or if it is illegal?. I think the answer is clear. If prostitutes don’t fear arrest they can seek police protection from extortionists and pimps, can receive health care, have worker’s rights and otherwise be protected by the same systems that protect the rest of us but so long as it is illegal we create a shadowy underworld that will trap the most desperate and abused women and use the illegality of their business as a means to subjugate them.

But while some argue that the moral acceptability of prostitution is a defense of Spitzer I couldn’t disagree more. At worst patronizing prostitutes is a relatively minor moral failing. Knowingly placing people in prison who don’t deserve to be there is on the order of kidnapping, rape or murder.¹. Sure, we can’t expect any one politician to undo all that is wrong with our justice system. If Eliot Spitzer had stood up and said, “I think we should legalize prostitution,” his political career probably would have died right there and done no one any good. But it’s one thing to pick your battles carefully, it’s another thing entirely to exercise your discretion to send people to prison for being involved in the same activities you do so you can further your political career. Unless evidence comes to light that Spitzer fought to minimize the penalties or change the law on prostitution he deserves to hang for hypocritically sending people to prison for offenses he must not have thought warranted that treatment. At the very least he doesn’t deserve a free pass from the people when he wouldn’t give that pass to others.

Now some complain about the use of seemingly absurd application of laws like the Mann act or arcane financial crimes to ‘get’ Spitzer. I couldn’t agree more with the queasy unease many people have about stretching these laws to cover Spitzer’s activity to satisfy the people’s moral outrage or serve political ends. But this sort of tactic was Spitzer’s calling card. Two wrongs don’t make a right and I believe we ought to take the high road and refuse to do to Spitzer what he did to others but having made his career on this sort of ‘dirty’ legal trick it’s appropriate that he lose it for the same reason.

Ultimately if this had been Bill Clinton chared with say smoking pot I’d go to the mat for him. Certainly he has never openly spoke in favor of legalization but he didn’t choose to advance his political career by throwing others into prison for the same things he himself did and I got the impression that his administration at least slightly favored liberalization (his pardons, DOJ attitude toward MMJ). However, if we don’t hold people like Spitzer accountable to their own standards we further encourage politicians to victimize the less powerful with faux moral outrage. More on this later.

Now, I’ll leave you with some links for purient interest about the girl he was with and other details. I would feel sorry for her if I didn’t think she was sure to get a generous offer from playboy, likely to get a book deal (or payoffs from other clients) and maybe even have her CD produced.

• people about Kristen
• Hufington Post, lots of links
• Kristen’s MySpace Page, note the creepy guys leaving messages.
• Details About Trysts
• Post Identifies Prostitute

NO! That would be fucking stupid. Just as stupid as the recent petition from MoveOn.org to “let the voters decide” or any of the huge number of blogs whining about antidemocratic super delegates. All of the bizarre rules about how the democratic party chooses it’s nominee affect who is chosen. If caucuses had been banned it’s reasonable to think Obama might have quickly been dismissed as unelectable. Hell, even if you decide to count caucuses it’s not clear it’s fair to say that Obama is ahead in the popular vote. After all the citizens of two entire states were disenfranchised by the actions of a few of their state officials. Even if you agree (as do I) that the national party is reasonably deterring rule breaking that doesn’t mean excluding the millions of innocent residents in those states isn’t antidemocratic¹. Hell, if you believe superdelegates are antidemocratic then you should think the entire primary process in which national party officials reserve early voting for certain states is inherently antidemocratic and it seems clear that placing Iowa first while obscuring the results from large coastal states like New York and California in the mass of results from Super Tuesday was a substantial and likely decisive factor in Obama’s lead.

But we don’t even need to go there to see this antidemocratic argument is total bunk. The entire idea that somehow any deviation from the popular will (even in a private political organization) is somehow antidemocratic (in a bad sense) is simply absurd. I mean is the supreme court antidemocratic? It overturns majoritarian demands based on pre-written rules. Should Senators refuse to filibuster horrific bills so long as 51% of the population (or 51% of representatives) favor it? Hell, the very idea of the constitution is a set of rules that override majoritarian sentiments. Is it antidemocratic²? In a certain technical sense these things are probably ‘antidemocratic’ in that they circumscribe majoritarian power but they are not antidemocratic in the sense of being antithetical to the ideals of a free republic as the word is used in common discourse. Thus it’s simply not true that Clinton’s superdelegate strategy is antidemocratic (in a bad sense).

If you still aren’t convinced ask yourself if you think the parliamentary system used throughout most of Europe is antidemocratic. After all the parliamentary system chooses the prime minister without any direct input from the voters. Sure you might point out that most canidates are committed to a particular party and thus, just like the US electoral college, the voters in effect pick who will be the next prime minister; but this overlooks what happens when no party controls more than half the seats. Just as in the democratic primary when parliament is too closely divided for any one party to claim a majority the MPs get together and decide who they will elect as prime minister based on coalitions and bargains without any voter input at all. Surely if it isn’t antidemocratic to totally leave the decision in the hands of our duly selected representatives then it can’t be antidemocratic to select a canidate based on the popular vote as well as the judgement of the superdelegates that we selected.

Ultimately there just isn’t a serious argument that Clinton is doing anything different than Obama in using the existing rules of the democratic party to maximum effect in pursuing the nomination. Obama isn’t going to renounce caucuses even though they skew the vote in his direction nor is Clinton going to renounce superdelegates. Now there may be reasonable arguments that the superdelegate system is bad but the mere fact that it can reverse the delegate count doesn’t make it any more suspect than our constitution or supreme court. Realistically, I think what is going on here is that most Obama supporters (like almost everyone) were pretty ignorant about the nature of the democratic nomination process and just assumed that it was a simple majoritarianish election. Thus when they felt they’d won that majoritarian election it felt deeply unfair that their ‘win’ might be undermined by these superdelegates though of course in actuality they had never won and it was never a simple majoritarian contest. Besides, nomination decisions aren’t about being fair at all; they are about maximizing the chances that reasonable views will prevail for the nation.

That is why, despite the fact that it’s perfectly reasonable for her to win using superdelegates, Clinton should drop out of the race now. I voted for her in the California primary because I thought she was a more reliable choice to run the country but for the good of both the party and the country she should give it up now. Like it or not people perceive the superdelegates to be some kind of sketchy cabal overturning the will of the people rather than the way they see senators or MPs. By extending the campaign Clinton will only tarnish the appeal of both her an Obama and if she wins after this she will immediately alienate a large section of the party. I mean can you imagine how many people would be disenchanted with the party if the first credible black canidate won the national party vote only to be passed over because of opaque party machinations of (mostly white?) insiders? It’s totally unfair but as I said the nomination is not about being fair to the canidates but about picking someone a good canidate who is likely to win. Besides, after she started whining about always being asked questions first I began to have serious doubts about her electability. Doesn’t matter if she is right you can’t whine while running for president (and yes it would be just as bad if not worse if she was a man).

Critically FISA does not contain any general procedure to handle exceptional circumstances. If the government ever discovered compelling evidence that one of the 5000 people with a certain first name in the US had a live nuclear bomb and planned to detonate shorty FISA would offer no legal means of handling the situation. In this case attempts to execute physical searches on these people might risk spooking the terrorist into early detonation (and is no less of a constitutional violation) and the right answer (if the intel was good) would be to simply monitor all the communications of those individuals and pay them damages after the fact for the constitutional violation. However, FISA doesn’t allow a warrant to be issued without probable cause and being one of 5000 people with a particular name just doesn’t qualify and the executive couldn’t even plausibly bluff the telecoms with one of the non-warrant provisions as they only apply to non-US persons. This is just one hypothetical but it illustrates the point that FISA simply can’t handle all exigent circumstances and may sometimes need to be ignored just like we ignore other laws in an emergency.

I don’t think this is a flaw in FISA. We can’t have a general legal process to handle monitoring in truly exigent circumstances without creating the potential for massive abuse by the executive. Rather the law should continue to make these acts illegal so only when the decision maker is suitably convinced of the need to head off imminent danger that they risk legal penalties and do it anyway hoping that people will choose not to prosecute them after the fact. The question is who should be making this call.

Currently the FISA process places that burden primarily on the telecoms. A poor choice as they aren’t in a position to evaluate the true danger being faced. I would agree completely with the strict enforcement of liability against the telcos in the future so long as we tweaked the law to allow the attorney general to issue the telcos a letter assuming their liability for them. Issuing such a letter in violation of the law would carry a criminal sentence for the attorney general ensuring it would only be used in truly exigent circumstances but merely knowing such a general purpose out existed would relieve the telcoms of the need to judge the severity of an illegal request and try to guess how it will be viewed in several years and allow them to always follow the letter of the law.

As far as the current lawsuit is concerned I see a very small benefit and, so long as we retain the current framework, a danger of causing them to second guess government claims of exigency in the future. Or to put the point differently I kinda feel that back when this program started the telecoms were between a rock and a hard place. Remember the (kinda insane) attitude people seemed to have after 9/11? If the telcos had refused to hand over data even if it was illegal when the government said it was vital to stopping terrorists and it turned out that we failed to avert a major attack as a result they would have been held responsible. Once the telcos had signed on to the program they couldn’t very well back out once they realized government officials had overstated the danger since that would simply appear to be an admission of guilt to a jury with retrospective bias.

It’s a complicated question but my intuition is that the answer is no. Whatever you think about how clearly illegal their decision was in this particular case what’s relevant for the future is the fact that it’s certainly possible for future government requests to occur in a grey area of the law, especially if they invoke special emergency provisions. Moreover, whether we like it our not in practice the law doesn’t really penalize what it says is illegal on the books. Rather we apply the law flexibly ensuring that what might be technical violations of the law aren’t treated as such in exigent circumstances. However, the only reason not to grant immunity to the telecoms is to create a precedent demanding they second guess executive requests and refuse those they decide are ‘illegal.’ But given our tendency to bias our interpretation of the law depending on the context this means that the telecom companies would have to be making judgements on the actual seriousness of the claimed threat. Even though a genuine urgent, serious need for the disputed information would have caused us to forgive and forget the administrations requests it simply wouldn’t suffice as a defense for a telecom to now try and claim they were justified in bending the rules because it might have been a serious situation.

Now the telecoms aren’t exactly an optimal place to put responsibility for weighing the seriousness of executive need for information and thus what constitutes acceptable grey areas and unacceptable overreaches. I agree this would hardly be a compelling point if there was some great service the telecoms could provide by holding out but the truth is that the executive branch has so many tools and methods for violating the privacy of americans that this liability really brings no benefit. In fact to the extent that people put any faith or trust in this sort of safeguards rather than placing the safeguards and penalties inside the government it puts us at further risk.

I don’t think we should eliminate the law under which the telecoms could have been liable. If it happens again they should need to get another immunity bill passed. Nor do I think the democrats should just role over and sign this bill without a fight. The condition for granting immunity should be a full disclosure by the administration to congress (who could then collectively decide what to disclose to the people) of the full extent of these problems. Then congress should work on passing bills that make high ranking government employees personally liable for knowingly making illegal requests of telecom companies. These people have the information and position to know what is going on and they should be the ones taking the risk in extreme circumstances.