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.
Friday, February 19, 2010
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:
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.
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.
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.
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.
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.
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