Sunday, February 28, 2010

There They Go Again: College Sports

Binghamton University is the "academic jewel" of the SUNY system. According to the New York Times, Binghamton was also the site of gross academic misconduct, including the lowering of admission standards and the changing of grades, in the name of "athletic glory."

This was in the sports section of the paper, though it really should have been front page news.

This story epitomizes the vacuity of college athletics.

Somehow, the Times missed the larger import of the story. As you turn to the rest of the story, you find out about the lengths to which university administrators went to improve the men's basketball program. It is all pretty sickening. Yet it also made me wonder: surely, if small Binghamton University goes to these lengths, what else is everybody else doing to either achieve athletic excellence or to remain there?

Perhaps coincidentally, perhaps not, the Times included an AP story on the next page about how the "Longhorns are Preparing for Life After McCoy." This is a story about the University of Texas' football program and the upcoming season. This is the same program whose coach will be paid in excess of 5 million dollars a year, and whose budget is around 127 million dollars.

To pose the obvious question: if it happens at Binghamton University, what are the chances that it does not happen at the University of Texas? or put a different way: to what lengths would administrators at the top revenue producing programs go in order to reel in top recruiting classes while ensuring that their players remain academically eligible?

We can only wonder.

However, it is hard to be optimistic.

Friday, February 19, 2010

Fun Friday Post: Mike Celizic and Tiger Woods's Apology

I'm not quite sure how I feel about the whole Tiger Woods affair (or affairs). It is obviously wrong that he betrayed so many people, including himself. But my general inclination is that what Tiger Woods did is none of my business and is between him and his family. His apology was painful to watch (in my view unnecessary).  But I guess that was the price demanded of him by public commentators, especially the sports commentators.  Perhaps it is my general libertine attitude that makes inclines me to poke holes in the outrage expressed by many sports analysts. Mike Celizic is an easy target.

Thursday, February 18, 2010

What Representation Means: Why Jonathan Chait Is Wrong to Savage Harold Ford Jr

It's hard to figure out what it is about Harold Ford Jr that is so polarizing.  People seem to either love him or hate him.  Count Jonathan Chait of the New Republic as one of the haters.  In this article he savages Ford's character.  His chief complaint is that Ford does not have any principles.  But Chait's analysis is not only gratuitously uncharitable, it is also based upon an assumption about representation that, as Luis has shown in a prior post, is contestable.  Because smart people keep screwing this up, it's worth revisiting.

Wednesday, February 17, 2010

More on Citizens United and Segregated Funds

In previous posts I offered two observations on Citizens United.

Sunday, February 14, 2010

Should we Expect More From the Congressional Black Caucus?

In a previous post, Luis referred to this excellent article from the NY Times by Eric Lipton and Eric Lichtblau. In his post, Luis raises a very important question: whether we should expect more from the Congressional Black Caucus. In my view is the answer is a clear yes.

Luis's important question is whether we expect more from our black leaders than white leaders. The article leaves one with the very clear impression that CBC members have accepted contributions from corporations in exchange for access and votes. Luis's question is whether this makes CBC members any different from any other politicians. Should we expect more of black congressional leaders?

My view is a definitive yes. The black community overall is in such dire straits we can't have the CBC selling out the interests of their constituencies to support lavish parties. Moreover, the CBC has long served as the conscience of the nation. An important part of the CBC's influence (and that of other civil rights group) is their moral authority. What makes this story interesting and what makes it news is the fact that the institution that served as the conscience of the nation is engaged in influence peddling. (By the way, if you don't believe me about the moral authority of CBC members, recall that in Georgia v. Ashcroft, the Supreme Court largely accepted the legitimacy of a redistricting plan because John Lewis supported the plan.)

The fact that all of Washington may also be up for sale, is of no moment. As we all tell our kids, it does not matter if everybody else is doing it. So, yes we should expect more of our black leaders, not least because the black community needs all of its leaders working together in the community's best interest.

What the NY Times article describes is deplorable. The CBC has set-up a number of non-profit entities but the money is not being used primarily to support the non-profit purposes but mainly to support parties and pet projects. Take for example the CBC's Political Education and Leadership Institute. The mission of the Institute is:
is to provide political education and training to the next generation of African American leadership. The Institute provides a vehicle for those who seek to support the charge of establishing positive role models in all walks of life, particularly public service - the noble role of putting service above self. The Institute also performs critical research of political issues that affect the African American community.
When I visited the Institute's website, I saw one conference a year dedicated to providing leadership. I did not see a single report on issues critical to the Black community. The website gives credence to the implication of the NY Times story that these entities are largely shells. They have a nice facade and do some substantive work, but that is not their primary purpose.

We need to hold our leadership to the highest standard. The CBC has done great work over the years. But the facts described in the Article calls for accountability.

In Defense of the Congressional Black Caucus?

An article in today's New York Times depicts the Congressional Black Caucus as a "fund-raising powerhouse." I first saw the headline last night, when it appeared on the Times' website sometime in the evening. My initial reaction was puzzlement, yet also curiosity. How could this possibly be news?

My second reaction to all of this, to the lavish and opulent parties on the Potomac, large money contributions, and trips to a Mississippi Casino resort?

Long live the First Amendment.

That, of course, is a reference to the recent Citizens United case. The example of the CBC shows us democracy at its worst, with major corporations contributing inordinate amounts of money supporting their candidates of choice.

Here's the puzzlement: why is it news, and big news at that, for a caucus to receive contributions from major corporations? According to the headline, the corporations are seeking to buy influence, and the article describes instances when such influence leads to changes in policy on the part of caucus members. Thusly put, it sounds bad, slimy, even immoral. It might even run counter to our intuitions about how our democracy ought to work. But that cannot possibly be news. I would have thought this is true of Congress as a whole, which led to the passage of our campaign finance laws in the first place. So why the article?

One answer may be that we expect more form our black legislators, most of whom are elected from majority black districts. Under federal law, black voters must have the same opportunity as other voters to elect their candidates of choice, an opportunity that is largely afforded by these majority black districts. How to defend the creation of these districts if representatives elected from them are no different from members of Congress as a whole? Worse yet, voters within these districts often have no other choice than the incumbent representative.

In response, members of the Caucus say all the right things. "We're unbossed and unbought," says Rep. Barbara Lee, the chairwoman of the Caucus. Elsie Scott, chief executive of the CBC Foundation, acknowledges that the companies "are trying to get the attention of the C.B.C. members," yet she doesn't "think there is anything wrong with that." These companies simply want to deal with people in positions of influence. This is not to say that the caucus would turn on its constituents.

I was unmoved about all of this until I came to the last part of the article, which described the success of the rent-to-own industry within the caucus. According to the article, "few of these alliances have paid off like the caucus' connection to rent-to-own stores." The industry acknowledges as much. In an industry newsletter, the president of the rent-to-own association wrote that “[w]ithout the support of the C.B.C. . . . our mission in Washington would fail.”

This took me back to my first year of law school, when we were discussing the unconscionability doctrine and the Williams v. Walker-Thomas case. This was a case brought by a plaintiff against the Walker-Thomas Furniture Company for its predatory rent-to-own practices. The facts were pretty onerous. Plaintiff Williams had made purchases through the years totaling $1,800, and had made payments totaling $1400. She then defaulted on the contract, and the furniture store sought to repossess every item purchased by Ms. Williams, irrespective of how much money she had already paid. This was, according to the D.C. Circuit, unconscionable.

The day we discussed this case in law school remains clear on my mind. Some students argued the law, and how the economics of renting to own in poor and minority communities necessitates the Walker-Thomas repossession policy. It was either this policy, or else these poor and minority communities could not rent to own at all, because nobody would want to do business with them.

Some students, mostly students of color, responded just as vehemently against the policy. This is the part that sticks in my mind. One student in particular argued that this was outrageous and businesses would never get away with this outside minority communities. This was predatory, plain and simple. We were young and naive, to be sure, but we knew right from wrong.

Apparently, and shamefully, the CBC does not.

Saturday, February 13, 2010

Prisoners and the Census

Many states disenfranchise prisoners but prisoners are counted by the census as "residents" of the place in which they are incarcerated. This practice is particularly notable when it comes to congressional apportionment.

Because Congressional apportionment is done by population, the more residents you have the more congressional districts, and representation in Congress, that your state is likely to get. States with large prison populations get to count the prisoners as residents even though the prisoners are not allowed to vote. The upshot of this practice is the state to provide more representation for its voting citizens by using the prisoners who of course get no representation. The practice is even more pernicious in states that permanently disenfranchise ex-felons.

It seems that the Census Bureau is taking some steps to at least make this issue more transparent. See here.

Friday, February 12, 2010

Part Two-Understanding Citizens United: Why Segregated Funds are Insufficient

In a previous post, I argued that the Court could have concluded that because Citizens United is a non-profit corporation and because it received a de minimis amount of contributions from for-profit corporations, the federal statute forbidding corporations from making campaign expenditures from their general treasury does not apply to Citizens United and non-profit corporations like Citizens United. I argued that the Court did not opt for that option because it wanted to find the prohibition unconstitutional. In this post, I explain why the Court did not find the segregated fund requirement sufficient.

Even though Justice Kennedy's opinion for the majority in Citizens United (CU)describes the federal statutes as prohibiting corporate speech, that description is not fully accurate. What the statutes at issue basically say to corporations (and unions) if you want to spend money on campaigns, you have to create a separate, segregated fund or PAC, for that purpose; you may not use funds from your general treasury. Thus, as a matter of fact, corporations could spend, they just had to create a separate fund to do so. So, why was that not good enough?

The Court's first argument is that a PAC is a separate association from the corporation. Thus, when the PAC speaks, it is the PAC speaking and not the corporation speaking. It seems to me that the Court simply made-up that argument and it is demonstrably wrong. The PAC can easily speak on behalf of the corporation. Afterall, this is the corporation's PAC. The money comes from the corporation's employees and officers. Alternatively, the corporation can choose to use the PAC to speak but obscure the association between the corporation and the PAC. It is pure sophistry to conclude that when the corporation's PAC speaks it is not the corporation that speaks.

The Court's second move is more compelling than the first. Here the Court argues that setting up a PAC is a burdensome affair: they're expensive to administer, they're subject to extensive regulations, you have to file detailed reports etc.

So, the question for the Court then is whether there is a good reason for the government to require corporations to assume what the Court views as a tremendous burden before the corporation can engage in political speech.

Tuesday, February 9, 2010

Obama and Race

Sheryl Gay Stolberg has written this article for the NY Times making the point that Obama's nuance on race is increasingly frustrating black leaders and black scholars. The question raised by the article (and a question that has been asked since President Obama was a candidate) is a normative one: what should be the relationship between the Mr. Obama and African-Americans.

After spending some time thinking about this question, my answer is the relationship should be viewed as one between a representative and his electorate. President Obama is right to constantly remind us that he is the President of the United States not simply of African Americans. his is good politics on the part of the President. But I also think that he is right.

African Americans are right to ask President Obama how his policies will benefit them, not because President Obama is black, but because he is the President. This is the same question that should be asked of every President, but more particularly, of those who owe their office in part to the support of the black community. Thus, the black community has no special race claim on the President.

Note however, that there are two sides to this coin. Black people were excited to vote for President Obama in part because he is one of them. Though most black people have more affinity for the Democratic Party, they did not turn out simply to vote for a Democrat. They were obviously excited to vote a black Democrat for President. Now that the President has clarified that the electoral connection, as opposed to the racial connection, is the lens through which he views his relationship with the black community, I wonder to what extent this will change the way the black community views the President.

Will black voters be excited to vote from President Obama again in 2012 because he's a black Democrat or will it be a case of "what have you done for me lately"? If black voters will turnout in strong numbers no matter what, then the President's current posture is brilliant. If however black voters are going to hold him to account, then he has to walk a fine line.

Sunday, February 7, 2010

Part One-Working Through Citizens United: Confrontation

I've had a chance to re-read Citizens United (CU), the Supreme Court's latest campaign finance decision and upon re-reading I've found the majority much more interesting than I did on the first reading.  In a series of posts, I will work through the Court's CU reasoning.  In this post, I make the point that the Supreme Court wanted to reach the constitutional question.  Even though the Court had an option of avoiding the constitutional question, the simple fact of the matter is that the Court sought a confrontation with Congress on this issue.

Wednesday, February 3, 2010

Harold Ford, Jr., Media Star

A few nights ago, Harold Ford, Jr. appeared as a guest on the Colbert Report, to the delight of columnists and bloggers everywhere. Depending on who you ask, the interview was "painful -- yet strangely captivating;" a "skewering;" and "[t]he most charitable thing to say about it is that it did not go well." In a word: Colbert "destroyed" Ford, Jr.

Undoubtedly, this was not a good interview. Again.

Rather than focus on the limitations of his as-of-yet unannounced candidacy, however, we should focus on the opportunities that his candidacy bring.

Think of it as community service.

I alluded to some of the lessons of his candidacy last week. Are representatives supposed to speak for us, so stand-in and say the very things that we want them to say? Or are they to act as trustees, doing what they deem best and irrespective of what we would want them to do? This is by no means an easy question, nor does it have a definitive answer. In fact, Ford's candidacy amply demonstrates that we hold conflicting views on this important issue.

Sometimes we criticize him for changing his views and pandering to a New York constituency; while other times we criticize him for misunderstanding this constituency in the first place.

Thus the opportunity: rather than criticize him for trying to squirm out of the difficult position he is in, we should engage the larger debate that his candidacy represents. To run for office in Tennessee, after all, is far different than running for office in New York state. I am afraid that it is just too much fun to watch him squirm, so the larger lessons and debates will have to wait for another day.

In fairness, he is partly at fault for this. Rather than try to make his views square up with the the electoral realities of his new state, Ford should just embrace the change and be honest about it. The evidence is clear and unassailable, and trying to re-write it only makes matters worse.

In this, he should listen to Kelli Conlin, President of NARAL Pro-Choice New York. When asked why NARAL had backed Ford initially and even gave him a 100% rating at one time, she answered: "You have to look at it in context. In the South, we're constantly looking for candidates that will be moderate and progressive. It's hard down there."

It is hard down there indeed, not just for NARAL, and context is everything.

This is all to say that Ford should just stop treating New York voters like idiots. This reminds me of President Obama's speech on race during the campaign. This is similarly a teachable moment.

While in the end he might lose all the same, at least he would do so with dignity.