US Elections

Certainly the Australian government is currently doing better at implementing reforms than its American counterpart. The United States' Madisonian democracy, however, is not the reason. Consider the above graph, from Ezra Klein, and based on data from the US Senate website. It explains far more about the sclerotic state of American government than the Constitution does.

It is not as if the US has not tried to undertake major reforms recently. Indeed, it's even successfully reformed its health care system and introduced new financial regulations during the term of the current president. But the consistent road block to greater reform has been the Senate, and the mechanism a Senate minority has used to block those reforms has been the filibuster.

As James Fallows wrote this weekend, the Senate was never designed to be a body that required a supermajority. The filibuster was created by accident, and, as the above graph shows, senators used it sparingly for most of its existence. The US government's gridlock has not arisen from a constitution that has functioned well over its 223 year history. The recent problems are due to recent changes in political norms.

Says Carr:

The polarisation seems to have its roots in President Richard Nixon’s grand strategy in the late 60s of mobilising white voters in southern states to move from Democrat to Republican ranks. Race, rights and taxes were the rallying cries. And the result? A diminution of the centre and more extreme political rhetoric and political behaviour.

That's accurate, and you can see from the graph that the first big spike in cloture motions occured in the 92nd Congress, elected in 1971, half way through Nixon's first term. The second big spike occured during the late '80s and early '90s. Both of these, however, were dwarfed by the number of times the senate has had to try to end a filibuster during the 110th (2007-2008) and 112th (2008-2009) Congresses, in which Democrats have controlled majorities of both the House and the Senate, and a minority of Republicans turned a rarely used rule into a unremarkable legislative tactic. It's been so thoroughly normalised that when I visited a Tea Party rally in Seattle last year, a protester told me without a hint of irony that the Obama had passed his health care legislation through the 100 member Senate "without having a majority of 60 votes!"

Indeed, many of the deficiencies Carr identifies with Madisonian democracy are features that, if corrected, would make the US's problems even worse. There is an "absence of party discipline" says Carr — except the unprecedented disciplined of the Republican caucus is exactly why it has been able to make the filibuster such a devastating weapon. (Incidentally, though it's correct to say that Republicans "can’t tick off tax increases," its wrong to say Democrats "can’t tick off cuts to entitlement programs." During the debt ceiling negotiations, Obama offered Republicans a deal that would have cut entitlements by $3 trillion, in exchange for $1 trillion in new revenues. Democrats been willing to give on entitlements. Republicans have been unwilling to give on taxes.)

The US government's inability to accomplish needed reforms is a serious problem, but it isn't due to weaknesses in its system of divided government. The blame lies in recent changes in legislative norms, and the solution lies in changing the legislative rules that permit minorities to excessively obstruct legislation. James Madison isn't culpable for this one.

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• Conor Friedersdorf decided to cover the Orange County premiere of The Undecided, a new documentary about Sarah Palin. He was the only one in the theatre:

I hurried through the teenage hordes, bypassed a concession stand that sold 1,020 calories of soda for $5.25, and entered theater number 30, hoping I'd have ample time before the previews to talk to some people. But inside, the theater was empty. I sat there alone for 20 minutes, at which point an usher stuck his head in the door, gave me a quizzical smile, and said, "How come you're not watching Harry Potter?" Then he left me by myself again, and without any good answer.

• In things the Internet was bound to have done sooner or later: Debt Ceiling Cat is now a Tumblr.

• Jack M. Balkin argues that the debt ceiling is not unconstitutional, but using it as a bargaining chip is:

Let me put it differently: The current strategy of congressional leaders in the Republican Party violates the Constitution because they are threatening to take us over a cliff in order to push their radical policy agenda. Threatening to undermine the validity of the federal debt in order to gain political points is precisely what section 4 was designed to prevent. Secretary Geithner does not believe that the President is allowed to violate the Constitution himself to stop congressional Republicans, but it does not follow that what the Republicans are doing is constitutional.

• Judges in Alabama can override a capital jury's sentence, and they usually do it to turn a life sentence into a death sentence:

Alabama judges have justified their decisions to override in favor of death on other grounds as well. Judge Dale Segrest, who retired in 2001, said he had rejected one jury’s recommendation that a white defendant’s life be spared on the ground of racial equality. “If I had not imposed the death sentence, I would have sentenced three black people to death and no white people,” he said at a sentencing hearing in 2000.

• The above chart is from Nitsuh Abebe's excellent defence of narcissism in pop culture:

This isn’t some arcane sociological observation; empowerment is a selling point of the music itself. It’s almost redundant to explain how hip-hop has schooled the nation in some of the tools and postures of an under­class, from persona-building to competitive braggadocio as a form of entertainment ... Today’s dance music still carries traces of gay club culture—spaces where people could perform gender and sexuality in ways they couldn’t elsewhere. Just about every young woman on the charts is navigating a complicated matrix of beauty standards, sexual roles, power dynamics, and good-girl/bad-girl dichotomies. Questions of self and self-esteem are unavoidable.

• A Grand Forks, ND man thinks North Dakota isn't a state because of a quirk in the constitution. He might be right.

• Jonathan Bernstein advises one of his readers on the best way to get the constitution changed:

Ideally, you would want a set of Congressional sponsors: at least one Democrat and one Republican from each House of Congress — even better (and somewhat more likely to happen) if they're on the Judiciary Committee, and even better if they're the chair and ranking members of the relevant subcommittees. That's the gold standard. How does that happen? Members of Congress are always looking for good ideas to champion, because it produces favorable publicity. So the trick is to get the idea out to where they (or their legislative staff) would notice it. Get it mentioned frequently in high-profile blogs, get someone at a think tank interested enough to hold an event around it, get an op-ed in the New York Times or the Washington Post.

• According to a study by Andrew Healy, Neil A. Maholtra, and Cecilia Hyunjung Mo, voters are slightly more likely to kick an incumbent out of office if their college football team just lost a game.

• Video: Ezra Klein talks to Jay Powell, the deputy Treasury Secretary for Finance in the George H.W. Bush administration, about the nasty consequences of the debt ceiling not being raised by August 2nd.

• Johnny Depp is producing and starring in a movie about Paul Revere. Expect Sarah Palin to show up on opening day.

• Song of the week is the comeback single from San Diego's greatest and most juvenile contribution to the '90s: Blink-182. Here's "Up All Night."

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This is not a new argument. Garrett Epps proposed it back in April, and Bruce Bartlett echoed him. I am in two minds about it. Certainly, the Constitution appears to forbid the kind of default that is otherwise expected to occur in early August should Congress not raise the debt ceiling. The President is obliged to preserve, protect and defend the constitution, and would be entitled to act to ensure the government does not do something forbidden by that document. And the debt owed by the government only arises from laws passed by the Congress and enacted by the executive. At the same time, however, Congress clearly intended to limit the amount of money the government could borrow. If two of Congress's desires come into conflict, may the executive simply choose which law to ignore so it can fulfill its constitutional duty to ensure the validity of the public debt?

Whatever the answer to that question — and I could be persuaded either way — the practical outcome is that if the President decides to ignore the debt limit, Congress may not be able to do anything about it. Jonathan Zasloff details the argument:

But if the administration takes the position that it must continue to borrow to comply with the Fourteenth Amendment, who would stop it? Put another way, who would have standing to sue? Taxpayers clearly would not. Individual members of Congress? No: the Supreme Court’s 1997 decision in Raines v. Byrd would seem to foreclose that. Congress as a whole? Perhaps; but what would it require for Congress as a whole to bring the lawsuit? A joint resolution would be blocked by Senate Democrats. That leaves the House to bring the lawsuit, and one could easily argue that one house would not have standing any more than individual members of Congress would.

The only solution I could see to such an impasse would be for Congress to use the one power it has to check Presidents who disregard the constitution: Impeachment. Certainly, I could imagine an outraged Republican-controlled House may impeach President Obama if he decided to ignored the debt limit, but it's difficult to see the Democratic-controlled Senate coming up with anywhere near the two-thirds majority required to convict.

The problem with all this is that the United States would prefer not to spook the markets — that's the point of avoiding a default — and a protracted constitutional crisis of this sort certainly wouldn't have a calming effect. It's the sort of brinksmanship it would be better for everyone to avoid, though the same is true for any brinksmanship over the debt limit to begin with. Further, Congress would not be eager for if the administration to declare the debt ceiling unconstitutional. As the current negotiations have shown, it's a source of great power for the legislative branch, and Congress would have a lot to lose if the executive credibly threatened to take that power away. Such a threat might even convince Republican negotiators to back down from some of their more extreme demands — some conservatives are hoping to extract a balanced budget amendment from the Democrats. I don't see it as particularly likely however. Whatever the tactical wisdom of such a move, such extreme measures are not Obama's style.

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• Just who are the rebels? The Republican Senator from South Carolina, Lindsey Graham put it well:
  

  I would love to give arms to opposition forces, but I don't know who they are, and I don't know what they believe in... One thing I've learned from Afghanistan and Iraq is that you need to know who you're dealing with. There are 30 different tribes in Libya.

  In spite of this warning, Graham has critiqued Obama for taking too long to intervene.
• What is the plan? Writes Ross Douthat, "But the difficulty is that nobody has even defined what success would mean. The survival of the rebellion? Qaddafi’s ouster? Complete regime change? A democratic Libya at peace with its neighbors?" These are all good questions, and there are too few answers to them.
• Was it fanciful to expect continued support from the Arab League? One of the better trump cards the US and its allies had for intervention was that the Arab League supported the No Fly zone. It didn't take long for that to change, and critics of the war say that's no surprise; the Arab League could never have been expected to support prolonged Western incursion on a Muslim country.
• Clintonian foreign policy wasn't always successful. Douthat decries the success rate of "liberal internationalist intervention." Wars like that tend to be fought slowly and by committee, he says, and are too tenuously connected to the US national interest. He finds fault with the '90s peacekeeping in Somalia, the former Yugoslavia, and Kosovo, saying they encouraged short term bloodshed and took too long to resolve.
• What about the constitution? Article I, Section 8 of the US Constitution unequivocally reserves to Congress the power to declare war, and like every President since Harry S. Truman, Obama did not seek Congressional approval for this military action. Matt Yglesias argues that Congress has abdicated its responsibility to decide whether or not to use force, which may be correct: Congress would probably approve the action if it were asked, and by not having to vote on the matter, politicians will be able to gripe about the war if things should turn out for the worse. Further, since this is a multilateral military action, Congress can be said to have approved it when it approved the United States' entry into NATO and the UN. Being a part of those organisations is fairly meaningless if the US will not act without fresh Congressional authorisation each time they decide to do something. Ironically, by allowing the rest of the world to lead on this matter, Obama has become yet another President to commit forces to military action in way that smells at least a little bit fishy under the constitution. Even if convention has practically made a Congressional declaration of war redundant, Obama should have revived it. He would have received much credit if he had.

If I were forced to choose, I'd come down on the side of the intervention. I do believe that if the world is able to stop atrocities, it should act to do so, and I think that the United States should be a part of that action. In Libya it seems like the world is able to make a difference. However, the arguments against intervening are strong, and should definitely be heeded. One of the worst aspects of the war in Iraq was that the Bush administration consistently disregarded and demeaned the opposition to the war. Wars are often fought better when they are fought with an ear to those who would prefer to see them not fought at all.

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But it's just not true. The American War of Independence was at heart a war for democracy and republicanism — the "overweening government power" the revolution was fought against was a non-representative monarchy, something to which both liberals and conservatives can be safely said to oppose. Public schools and highways were neither here nor there, and the split within the new American republic was between Federalists and the Anti-Federalists. That is, state government and federal governments. An opposition to government itself didn't enter into it.

Take the Constitution. Far from being an anti-government document, it was one explicitly concerned with enhancing and defining government power. It was ratified in 1788, after the new republic had tried and failed to govern itself with the far more libertarian Articles of Confederation. These established a congress, but no presidency or court system, and gave the government no way to raise funds for itself. Under the Articles, the new nation almost fell apart, and it was for this reason the Founders called a convention and undertook the decidedly un-libertarian practice of strengthening the government.

If any document could be said to be a libertarian one, it was the ten amendments to that constitution that quickly followed its ratification: the Bill of Rights. But even this, with its protections against federal intrusion for free speech and fair trials, was as liberal as it is libertarian. And remember, the quarrel in doctrine during this period was among Federalists and Anti-Federalists. Many of the state governments the Anti-Federalists wished to see empowered had decidedly anti-libertarian ideals, like a commitment to slavery, or laws regulating free speech. The Anti-Federalists' opposition to a strong federal government was not the opposition to government as espoused by modern libertarians.

It is certainly true that the United States has had a historical fondness for individualism, and libertarians would like to think that equates to an alignment with their philosophy. But American individualism expresses itself as an opposition to all sources of power including some that libertarians have no problem with, such as social or corporate power. (And at the same time, that individualism is often countered by the opposing American tradition of cultural puritanism.) Libertarianism is an American phenomenon, but it is one arising in the 20th century, not the 18th, and should be understood as such.

UPDATE: 

While posting a link to this post on Twitter, I discovered John Veccione posted on the same subject at FrumForum:

In fact, this assertion confuses constitutionalists with libertarians. George Washington belonged to the Established Church (Episcopalian) of the State of Virginia; he also was the chief vindicator of national power in the new republic. Thomas Jefferson determined to wage war by simply denying foreigners the right to trade with the U.S. So did Madison. What libertarian has ever thought the government could cut off trade between free individuals? Further, Thomas Jefferson and Thomas Paine supported the French Revolution. That revolution denied there was anything the state could not do in the name of the people. Jefferson never repudiated his support for that tyranny and Thomas Paine was only slightly more dismissive even after it nearly killed him. Of all the Founders, Patrick Henry is closest to the libertarian beau ideal. He was against the king, against the Constitution and against the French Revolution all of which he saw as an assault on traditional liberties. But for all of the Virginians, I leave aside the issue of slavery entirely.

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It still is frivolous, only it now has some judges willing to heed that frivolity. Until recently I would not have thought such judges might be sitting on the Supreme Court. Not so much because I think the sitting justices are strikingly sober-minded individuals, but because in recent times, absent the rather glaring exception that was Bush v Gore, the Supreme Court had been leery of doing anything radical.

The last few years of the Rehnquist court and the first few of the Roberts one were characterized by reservation and deferral to Congress and established precedent. The court was not comfortable with bold decisions. Striking down the health care bill on an unconventional reading of the constitution would be quite outside its wheelhouse.

But of late, the Roberts court has had a lot more time for overturning well established precedent, and has been more willing to listen to novel legal ideas. This was most prominently seen in recent decisions like McDonald v Chicago, which overruled a well established interpretation of the Second Amendment, and Citizens United v Federal Election Commission, which did the same for campaign finance law. Though it is more likely to than not, considering its recent form, I can't be certain this court will uphold the constitutionality of the Affordable Care Act. Ultimately, it all comes down to what Anthony Kennedy thinks.

And even so, as Ezra Klein points out, the Hudson ruling might not be as sour for health care reform as supporters fear.

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"The president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here," said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.

Remember, until now, Congress has failed to repeal the policy because Republicans (and a few Democrats) in the Senate started squabbling over a procedural issue. While the courts have every responsibility to protect a minority's Constitutional rights against the wishes of the government, it can't even be argued in this case that they are circumventing the will of the people's representatives. Where Don't Ask Don't Tell is concerned, the Senate's lack of action has been due to incompetence, not a lack of will.

So there's no defensible reason for Barack Obama or his Justice Department to appeal Judge Phillips's ruling. The Administration has a responsibility to uphold the law, and that includes defending current interpretations of it in court. But that does not mean it must defend it beyond its hearing. The government made a case for the law, and lost. The right thing to do, particularly for an administration opposed to the policy, is to allow Don't Ask Don't Tell to end here.

It would have better for Obama and the Democrats if a Congress controlled by the party could have put a bill on the President's desk so he could take credit for ending the policy, but as it is, the folks who put the final nail in the coffin might just have been a bunch of Republicans.

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I'll give you one more quote from the article:

The investigative trail was warming up.

Later Sunday, a sketch artist was brought in from the Connecticut State Police to work with Ms. Colas on a portrait of the man who had bought the S.U.V. The work was promising.

Sketch artists, tracking down vehicle ownership, tracing phone numbers, catching and charging court suspects? This sounds a lot like what we all recognise, from years of reading crime novels and watching cop shows, as old-fashioned police work. Someone committed a crime, and the authorities got to work finding out whodunnit, then putting them behind bars. So why the sudden urge, once the authorities have caught the guy they reckon did the deed, to act like this is something old-fashioned justice can't deal with?

To wit:

The suspect, Faisal Shahzad, was interrogated without initially being read his Miranda rights under a public safety exception, and provided what the F.B.I. called “valuable intelligence and evidence.”

After investigators determined there was no imminent threat to be headed off, Mr. Shahzad was later read his rights to remain silent, but he waived them and continued talking, the F.B.I. said. Authorities charged him as a civilian on Tuesday, but postponed plans to bring him to court.

We go on to learn that, predictably, Republicans are accusing Democrats of being overly concerned with "legal niceties." (In less euphemistic circles, "legal niceties" refers to "the U.S. Constitution.") John McCain set up a false equivalency between interrogating prisoners and honoring their right to remain silent; Rep. Peter King (R-NY) pouted that Shahzad, an American citizen charged on American soil, should be sent before a military commission, not a civilian court; and Joe Lieberman, the independent who spends his time trying to out-hawk Republicans, fantasised about legislation that would strip Shahzad of his citizenship. 

(In news worth reporting only for its counter-intuitiveness, Glenn Beck stood against his fellow conservatives, arguing Shahzad should have been Mirandaised. As Mike Barthel reacts: "it’s only the natural result of a man whose political beliefs are fundamentally untethered being shoved in front of a camera or microphone and paid to opine about politics for 8-some hours a day; you flip a coin often enough and eventually it has to land on liberal.")

One of the United States' greatest qualities is the protections woven into its constitution designed to ensure accused criminals are treated fairly. If and when Shahzad is proved beyond reasonable doubt to have left a car bomb in Midtown Manhattan, a crime he admits to having committed, then he should be found guilty and given a sentence both just and severe. But to bring about that end doesn't require suspending the rules that have protected Americans for centuries, that were put in place in response to a government that did not treat accused criminals fairly, and that are perfectly capable of defending the American public against those who would do it harm. As the Times front page today shows, accused criminal Faisal Shahzad is in custody right now because of an ordinary police investigation. In America, after a police investigation, the accused is tried in a fair and open court. There is no reason anything different should happen in this case.

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Communications Minister Stephen Conroy says that the Internet is not special, and just as Australia censors books, television programs, magazines, and movies, it should be able to do the same for online material. The bad news for opponents of Conroy's filter is that he sort of has a point.

In Australia, unlike the U.S., we think it perfectly reasonable for the government to control what speech we are allowed to see or hear. To sell a movie or a book or a video game in Australia, you need to get the government's permission. If it refuses to classify the work in question, then too bad; it's illegal to distribute it. And apart from the occasional complaint Margaret Pomeranz makes when an artsy European flick gets banned, Australians don't bat an eyelid at this.

Even opponents of Conroy's filter seem OK with the government banning other forms of speech. The Herald article I linked above quotes the University of Sydney's Bjorn Landfeldt splitting hairs over different form of censorship:

University of Sydney associate professor Bjorn Landfeldt said the difference between submitting a book for classification and having an organisation classifying and blocking websites without anyone's knowledge was that, in the book case, "it is well known that the book was censored and there can be a debate about the correctness of the decision."

The U.S. has a much more robust conception of freedom of speech, and even though the U.S. Supreme Court does not consider it totally illegitimate for the government to ban certain types of non-political speech, in practice it tends to side with the First Amendment's sweeping instruction that "Congress shall make no law ... abridging the freedom of speech." That's why in America, there is no equivalent of Australia's Office of Film and Literature Classification. Classification bodies like the Motion Picture Association of America are industry-run and submission of content to them is voluntary. Even the infamous Federal Communications Commission, which is a government agency, has authority over a very small slice of American media; it can ban content from network television and radio, but it has no authority over cable.

In America, people consider it far less legitimate for the government to decide what sort of speech is acceptable for adults to make and hear. That's why the U.S.'s own attempt at Internet censorship, the Communications Decency Act of 1996, was found to breach the First Amendment in Reno v ACLU. 

I disagree with Conroy; the Internet is special. It combines content distribution with telecommunications in a way that makes it comparable to neither magazine publication nor telephone discussions. But it is not that special. The reason Australia is even considering joining dictatorships like China and Iran in online censorship is that, unlike the U.S., we consider it fundamentally reasonable for the government to control our speech. It is no wonder the U.S. and Australian governments disagree on this issue; they are operating from different cultural assumptions as to what constitutes free society.

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