Wednesday, September 30, 2009

Who is a terrorist? Whoever we need to be a terrorist

Who is a terrorist? Just as important: How do we differentiate terrorists from freedom-fighters, mere criminals, outspoken political dissidents and soldiers, and keep the "war against terror" from poisoning everyday life? A recent report from a watchdog group suggests that federal agencies can't agree on just what defines a terrorist -- and that their confusion endangers civil liberties.

In Who is a Terrorist?, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University reports that, looking back over the last five-and-a-half years, "a comparison of all of the terrorism cases listed by three separate and independent agencies — the courts, the prosecutors and the [National Security Division (NSD) — an office in the Justice Department] — found that there were only 4% of the defendants in common."

The problem is that these different agencies use the words "terrorist" and "terrorism" to mean different things, so that overlap between their various lists can sometimes seem purely accidental. As a result, one-third of defendants who were charged in federal court for specific terrorism offenses were not categorized as having any connection to terrorism by prosecutors. Just as troubling, more than a quarter of people listed as terrorism defendants by the NSD were not ultimately classified as having anything to do with terrorism by the prosecutors in their cases.

Ultimately, federal prosecutors refuse to pursue two-thirds of the terrorism cases referred to them by investigative agencies. The minimal overlap between lists of terrorists, refusal of prosecutors to label defendants as terrorists and rejection by prosecutors of supposed terrorism cases suggests that large numbers of people are being improperly labeled as terrorists or potential terrorists at a time when federal officials can't even agree what it means to be a terrorist or to commit terrorism. People so labeled are subject to special scrutiny, restrictions on travel, and other impositions that are troubling in themselves when applied to people convicted of no crime, and are even worse when the arbitrary nature of such labeling is revealed.

As TRAC points out:

[W]hile the treatment of the comparatively small number of terrorism detainees held in Guantanamo has for many months been the central focus of an intense political debate between President Obama, former Vice President Dick Cheney, members of Congress, civil liberties organizations and others, the subject of the government's poorly focused and often inept handling of the far larger number of individuals drawn into the traditional criminal process or improperly listed on the government's watch list has received comparatively little attention.

In fact, the prosecution of "terrorism" cases with no connections to actual terrorists may be no accident. As TRAC reveals, U.S. attorneys were issued a directive just last year saying that federal terrorism cases "may have, but are not required to have, identifiable links to terrorist activity." NSD lists of suspected terrorists include people charged with fraud, drug offenses and violations of immigration statutes. These names make up 43% of the total.

Of course, anti-terrorism resources expended to track and prosecute non-terrorists are resources that aren't available for use against the real thing. The government's refusal to settle on a firm definition of what constitutes a terrorist may put us in danger from both the authorities and from the real terrorists.


Tuesday, September 29, 2009

And with Bill Ayers as John the Baptist ...

I've been accused of being a bit hyperbolic in portraying government as a religion-substitute for some people. Hmmm ... Have I gone overboard? Have I pushed the point too far by suggesting that the state has become a stand-in God for folks who just must have something ruling over their lives?

You watch the video below and tell me.

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Monday, September 28, 2009

(Fewer) rules of the road

Officials in Drachten, Holland, wanted to reduce accidents and injuries on the town's roads, so they turned to a traffic engineer with an unusual idea: eliminate rules. Hans Monderman believes that people are more careful when they are subject to fewer commandments and less direction. So he removed road signs, traffic lights and even markings. The so-far positive results suggest that better results may well come from letting people make ad hoc arrangements on the spot than from subjecting them to top-down control.

Part of the problem is that regulations seem to create a false sense of security -- and entitlement. A recent British study found that drivers actually give bicyclists less room when cycle lanes are explicitly marked on the road. Leaving the road unmarked creates greater perceived danger and forces drivers to make their own arrangements -- generally creating a safer situation for bicyclists. The same dynamic, Monderman claims, prevails in all traffic situations. Leave drivers, cyclists and pedestrians to their own devices, and they come to better arrangements than any that can be forced on them.

So far, the data seems to support Monderman's theory. At least one report (PDF) on Drachten's traffic experiment found a significant drop in accidents and injuries after traffic signals were removed at a busy intersection -- from between four and ten a year before the change to one per year thereafter. Traffic also began to move faster through the intersection even as it became safer. "On the busiest streets average times to cross the intersection have fallen from 50 seconds to about 30 seconds."

There's a concept called "spontaneous order" popular among many philosophers and economists. The idea is that people are perfectly capable of adapting to new situations and establishing rules of the game for dealing with one another that are better than those imposed from above. The Drachten experiment looks to be an example of spontaneous order in action, as people create, on the fly, safe, sane ways to negotiate their way through busy roads.

Monderman's ideas are now being implemented in other municipalities in Holland and Germany, and are under consideration in the United States.

But left for the future is the idea that there might be wider lessons to be drawn from Drachten's experiment in letting people negotiate their relationships with one another with fewer rules standing in the way of better outcomes.


Thursday, September 24, 2009

Pirates prepare to hoist jolly roger in Germany

According to Newsweek:
Schneider, a 24-year-old TV producer, and his crew—one of dozens across Berlin—are the grassroots base of a political phenomenon sweeping through Europe: Pirate parties. Concentrating on Internet privacy, copyright reform, and online freedom of speech, pirate parties have recently gained official recognition, public office, and tons of newspaper ink in 10 countries, most notably Germany and Sweden (where they are the third-largest party in terms of membership). ...

The Pirates are, at heart, left-leaning libertarians—they want to get government monitors off the Internet and reform copyright laws to allow file-sharing and copying. They oppose biological patents and call for greater government transparency. And they propose vastly increasing educational spending, particularly in IT-related fields, as well as a new Internet ministry that would coordinate the federal government's online activities. Schneider, like most Pirates, says that without his party he would probably back the Greens or the Social Democrats, but "we're really not for left-right politics. These old ideological fights don't work for us."
The article goes on to point out that both of Germany's major political parties -- the Christian Democrats and the Social Democrats -- are hostile to the free-wheeling nature of the Internet and have tried to impose regulations and censorship on the cyber world. That, of course, helped pave the way for a tech-inspired quasi-libertarian party (the Swedish incarnation of the Pirate Party is explicitly market-oriented, with founder Rick Falkvinger calling himself "ultra-capitalist").

It's interesting how the parliamentary system in Europe has left many countries more open to new parties and political movements even though those countries are, in many ways, more top-down governed than the United States and, traditionally, less open to grassroots movements. My personal theory is that Europeans are much more skeptical of their governments and ruling elites, having seen too many regimes degenerate into horror and too many "respectable" leaders collaborate with dictators and occupiers. Americans, on the other hand, have a quasi-theological regard for electoral outcomes and authorities, rooted, I would say, less in any earned respect than in long-term stability that has blunted the majority's spidey-senses when it comes to the evil that governments can do.

Note: I'm on vacation outside Seattle, with a really unreliable Internet connection.


Friday, September 18, 2009

Rep. Ron Paul on liberty and the need for a revived anti-war movement

Rep. Ron Paul in an interview by Time magazine. You have to love a guy who can coherently link a denunciation of the income tax to a denunciation of conscription.

By the way, Alexander Cockburn has made the same (accurate) point about how the anti-war movement has neutered itself now that Bush is out of office.

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Wednesday, September 16, 2009

It's 1969, all over again

Under siege by Atlanta's gay and lesbian community, as well as by supporters of social tolerance, the Georgia city's police department is scrambling to justify a violent raid on a popular bar that caters to a leather clientele. In a city that is not known for having solved all its problems with crimes against people and property, Atlanta Police Chief Richard Pennington argues that the raid on the Atlanta Eagle was justified because ... well ... there was consensual sex among adults going on in the establishment.

Seriously. That's the police excuse for a raid by more than 20 officers, during which, says the Atlanta Journal-Constitution, "62 patrons were ordered facedown on the bar’s floor, some for more than an hour. The customers were searched illegally and some were taunted with anti-gay slurs by some of the officers..."

Co-owner Robert Kelley told CBS, "The only thing they'd tell us is we need to sit down and shut the (expletive) up, and if we asked any questions, they'd bash us with a bar stool."

All this because of allegations of open sex on the premises, as well as the presence of illicit intoxicants.

Even when it comes to pursuing a full-court press against victimless "crimes," the police walked away empty-handed. Eight bar employees were ultimately arrested -- for permit infractions.

But even if there was sex on the premises, the police have raised no allegations that the conduct was anything but consensual, in an enclosed and seemingly safe environment. As for drugs ... I've written often enough about the pointlessness of trying to dictate to people just what intoxicants they may and may not use, as well as the individual rights violations inherent in any attempt to enforce such rules. The report of sixty-two people verbally abused while handcuffed face-down on the ground -- without the police even making arrests for violating those laws against sex and drugs -- amply illustrates that point.

Honestly, why should the police care how people are enjoying themselves in a place and with companions of their own choosing? And why should the police expend such resources on this raid in a city where the murder and nonnegligent manslaughter rate edged up, according to the Bureau of Justice Statistics, from 20.9 per 100,000 people in 2005, to 22.6 in 2006 to 25.9 in 2007? Admittedly, that's a vast improvement over the rate of a decade ago -- so are all crime statistics in Atlanta -- but it would seem the police still have plenty of real offenses against people and property to occupy their attention.

In the end, it's none of the government's business what consenting adults do with each other, on their own property or in an establishment owned by somebody who welcomes them.

Ironically, it was a raid much like this one, at the Stonewall Inn in New York City in 1969, that launched the modern gay rights movement. At the Stonewall Inn, gays and lesbians fought back, defeated the police and claimed a little respect for the right to be left alone.

With the Atlanta Eagle raid following so closely on the police assault on the Rainbow Lounge in Fort Worth, Texas, maybe it's time for another Stonewall-style push-back.

Or maybe the authorities could just learn, finally, to mind their own business and tend to more important concerns.

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Saturday, September 12, 2009

Tea Party turnout (and it's not astroturf!)

Nice write-up from the Associated Press about the 9/12 protest against big government and excessive federal spending. It's actually respectful of the much bally-hooed event and the grassroots rage that's driving the demonstration.

Turn-out estimates are vague, but obviously substantial, to judge by the statements "Tens of thousands of protesters fed up with government spending marched to the U.S. Capitol on Saturday ..." and "The line of protesters clogged several blocks near capitol, according to the D.C. Homeland Security and Emergency Management Agency." I take that to mean "a whole lot of people showed up." If I remember right, the D.C. authorities have stopped releasing crowd-size guesstimates in order to avoid ruffling feathers, so we'll just have to work with the post-protest claims and counter-claims by supporters and opponents.

Perhaps the most important paragraph in the piece is the following:
Many protesters said they paid their own way to the event — an ethic they believe should be applied to the government. They say unchecked spending on things like a government-run health insurance option could increase inflation and lead to economic ruin.
That not only underlines a major motivation for the protest, it undercuts charges that the day is an exercise in "astroturfing."

It sounds like the event is staying reasonably on-topic, with opposition to expanding the role and expense of the state.

Nice take here from the Washington Post:
The groups behind the protests include a broad array of self-described libertarians, independents and other factions, who have emerged as a force largely independent of GOP leaders in Washington. Some of that is by design: Leading activists among the conservative groups say they remain suspicious of a party that endorsed runaway deficits, a Wall Street bailout and other Bush-era policies they found objectionable.
The media seems to have moved beyond the claim that this is some sort of fake protest, to growing concern that the peasants really are revolting without any insiders at their head.

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Friday, September 11, 2009

Politicians may hate us, but we should trust them anyway

Deputies of Arizona's Maricopa County Sheriff's Office are being, rightfully, lambasted, for confiscating a journalist's camera even as they tell him, "We're not on the same level, here. I'm up here, you're down here." But there's more to that dismissive comment than the arrogance of one cop or one agency; there's an insight into general government attitudes toward the public. Officials entrusted with the power of the state often develop open contempt for the people they coerce -- which raises big questions about the wisdom of giving them an even bigger say in our lives.

There's an awful lot of quasi-theological nonsense in circulation these days about how "we are the government." The premise seems to be that, because the country was set up by founders invoking nice words about "we the people," and we get to cast votes from time to time, the governing apparatus that exists today is a sort of direct expression of the will of the population.

Does the population even have a single will? Well, never mind.

But, if the people are the government, officeholders seem to miss that point -- frequently.

It's a moment of truth when a police officer admits his disdain for the public in a recording he mistakenly believes is about to be destroyed. But what does it mean when elected officials voice their contempt in front of a room full of people -- or reporters?

Indiana's Rep. Baron Hill currently faces a wave of criticism over his answer to a question about why he'd forbidden recording a town hall meeting with members of the public.

"This my my town hall meeting for you. And you're not going to tell me how to run my congressional office. Now the reason why I don't allow filming is because usually the films that are done end up on YouTube in a compromising position."

Fortunately, Hill's refusal to be recorded was secretly videotaped -- and posted to YouTube.

Sometimes, officials of sufficient power don't care who is listening. Last December, Senate Majority Leader Harry Reid raised a fuss with his off-the-cuff comment in front of journalists that the new Capitol Visitors Center will make visits by constituents a little less offensive.

"In the summertime, because of the high humidity and how hot it gets here, you could literally smell the tourists coming into the Capitol."

And just as often, government officials don't want to do any listening themselves. Under former President George W. Bush, people critical of the government were shuffled off into "designated free-speech zones" out of sight or hearing of the president. According to the American Civil Liberties Union, which sued over the practice:

[P]eople expressing views critical of the government were moved further away from public officials while those with pro-government views were allowed to remain closer; or everyone expressing a view was herded into what is commonly known as a ""protest zone,"" leaving those who merely observe, but express no view, to remain closer.

In 2003, the Department of Homeland Security warned law-enforcement agencies to look out for anybody who "expressed dislike of attitudes and decisions of the U.S. government."

That's not a far cry from House Speaker Nancy Pelosi's recent complaint that critics of the current administration are "un-American."

Let's face it. Government officials high and low alternately fear and despise the people over whom they rule (and supposedly serve). They'd much prefer that we let them get about the business of setting the laws and regulations by which we have to live, without raising any peeps of protest about the details -- or straying too near their exalted selves.

They want to rule without excessive interaction with the ruled.

We can discuss all day why people with such attitudes rise to positions of political and legal authority -- there's a PhD thesis or three in there. But the fact is that people who look down on the public demonstrably occupy positions of great power.

So, given what we know about government officials' attitudes toward us, why would we even consider allowing them to expand their reach into our lives? Do we really want people who hold us in contempt to legislate our morality? To control how and when we receive medical care? To monitor our communications? Regulate our businesses?

Could it be that allowing them the extensive say they already have in the conduct of everyday life has helped to create the contempt in which government officials hold the public? After all, a shepherd may tend a flock of sheep, but he's unlikely to hold the creatures in great respect -- respect he saves for the independent creatures prowling beyond his control.

Maybe I'm wrong. Maybe powerful officials who despise us really can be trusted with even greater authority over our lives. You go first and tell us how it works out.

But, for now, it's worth considering the idea that people who think they're "up here" and we're "down here" already have too much power.


Hard choices

I know somebody who is very vocal about the "need" for single-payer health care in this country so that people don't get stuck with medical bills and have to make hard choices. This is a person who enjoys frequent travel, a comfortable life style and a very nice home full of top-notch appliances.

Because nobody should ever have to make hard choices.


Thursday, September 10, 2009

Joe Arpaio's boys are 'up here,' while the rest of us are 'down here'

In Arizona, the shenanigans of the Maricopa County Sheriff's Office are an open embarassment. Well, I take that back. Some people actually cheer on Generalissimo Sheriff Joe Arpaio and his merry band of third-world-style goons, but the fact that they abuse prisoners, stage events for the camera, spy on opponents and engage in overall civil rights violations is no secret. So there's little surprise when an MCSO officer tells a journalist, "We're not on the same level, here. I'm up here, you're down here," right before stealing his equipment.

Too bad for the officer that modern technology ensured the video remained secure and accessible to Radio KASA's Carlos Galindo, even as the equipment was confiscated.

The MCSO's excuse for taking the equipment was to protect the identity of supposed undercover officers sweeping through Phoenix's Gran Mercado. But not only is the "undercover officer" claim one that is wielded all too frequently, without regard to the actual presence of such officers -- it's one that, in the end, is a police concern, not a public directive. People are free to photograph and videorecord police in public spaces so long as they stay out of the way. It's up to the cops to cover their faces.

Though you wouldn't always know that from official conduct.

View the video yourself and make up your own opinion.

Incidentally, this isn't Galindo's first go-round with the MCSO. As an immigrant-rights activist as well as a journalist, he's almost certainly on Arpaio and company's radar.


Tuesday, September 8, 2009

Hey, Mr. President, leave those kids alone

President Reagan spoke to school children when he was in office over two decades ago; so did President Bush the first. Sadly, there's little doubt that many (but not all) of the people screaming about President Barack Obama's nationally broadcast classroom snooze-inducer had, or would have had, no problem with the speeches given by Republican office-holders in educational settings. But beyond partisanship, there's good reason to object to today's presidential eat-your-veggies nag-fest. Frankly, mere government officials have no business bypassing parents and speaking directly to children.

There's something unseemly about the idea of politicians in general eating up valuable school time for a one-on-one with kids. Most of us seem to know that it's wrong to let a city councilman or a state legislator pretend to have any moral high ground on which to stand while addressing tots and teens. "What's that SOB up to?" we ask ourselves. "Is he planning a Senate run ten years out and already stroking future voters?"

But that healthy skepticism seems to evaporate when it comes to whatever ethically challenged work-dodger is currently resident in the White House. For some reason, we've laden the office of the presidency with far more prestige and respect than the founders ever thought appropriate. From an office that George Washington simply described as "chief magistrate," the presidency has mutated into what presidential scholar Gene Healy snarkily refers to as "a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise."

The presidency has taken on the characteristics of a secular papacy -- an unhealthy quality in a republic where free people are supposed to take responsibility for their own lives.

Remarkably, even after scrubbing the originally worshipful lesson plan (PDF) for President Obama's speech, the Department of Education wants students to ask of themseves, "How will he inspire us?"

Inspire us? He's a politician. At best, we can hope he doesn't put everybody in the classroom into a coma and then steal their iPods.

And all this before we even get to the fact that the Constitution gives the federal government, of which the president is just one part, no authority whatsoever over education. Go ahead and check: war, diplomacy, commerce -- but nothing about education. That's a state, local and family matter. There's no more reason to let President Obama nag children about their futures than there is to hand an hour of classroom time to the head of the plumber's union.

Whether you approve or disapprove of any given president's policies isn't the issue. What's important is that the president is a government official with no authority over schools, and no business speaking directly to kids.

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Friday, September 4, 2009

Talk about your police department vs. fire department rivalry!

In the wake of the recent "disorderly conduct" arrest of Harvard Professor Henry Louis Gates after a confrontation with a police officer, noted civil libertarian Harvey Silverglate wrote in Forbes, "There is a serious problem in this country: Police are overly sensitive to insults from those they confront." Right he was -- but even Silverglate can't have anticipated the shooting of a man in Jericho, Arkansas, for objecting in court, to a traffic ticket.

Don Payne, the assistant fire chief, was in court for the second time that day, on August 27, for traffic tickets, and vocally objected to Judge Tonya Alexander over the speed traps maintained by the seven-officer police force in the town of (according to various reports) between 150 and 175 people. Police officers in the courtroom apparently took offense to Payne's criticism. Report's MyFoxMemphis:

Investigators say even though Payne was unarmed one of the police officers pulled out his weapon and fired, hitting Payne in the back and a fellow officer in the finger.

The Associated Press says that seven officers were in court that day -- which suggests the town's entire force had turned out.

The shooting has drawn international attention, and the local police force has, at least temporarily, been disbanded as a result of the incident. Payne is in the hospital recovering after the removal of a .40 -caliber bullet from his hip. Not everybody seems to appreciate the seriousness of the matter, though. Prosecutor Lindsey Fairley told the AP that no felony charges are contemplated against the officer, but that Payne may face a misdemeanor charge.

There's plenty to be said about the town of Jericho, which is so obviously being run as a racket that Thomas Martin, chief investigator for the Crittenden County Sheriff's Department, tells the AP, "You can't even get them to answer a call because normally they're writing tickets."

Jericho cops even go so far as to park their vehicles out of town at sheriff's department facilities, so that town residents won't vandalize the cars in retaliation.

But Jericho isn't so much a special case as an extreme case, and an illustration of the importance of training law-enforcement officials to understand that they're no more immune to argument or criticism than are car mechanics or physicians. In Jericho, police officers took the same umbrage at criticism as did Cambridge Police Sgt. James Crowley, the man who arrested Professor Gates. But since the Cambridge city government isn't completely out of control and hasn't given its employees completely free rein, Crowley confined himself to punishing Gates's harsh words with handcuffs and a disorderly conduct charge. The important fact here is that, even in Cambridge, a public official felt entitled to punish verbal opposition.

That sense of entitlement, set loose, logically results, in extreme cases, in incidents like the shooting in Jericho. If it's OK to punish criticism, then public officials with short tempers will frequently resort to the harshest measures tolerated by the local culture. That's offensive when the punishment involves the humiliation and expense of an arrest. It's potentially lethal in a completely perverted political culture, like that prevailing in Jericho, Arkansas.

So even if you're not a free-speech absolutist, it should be clear why it's never OK for powerful public officials to punish criticism. We don't want to normalize the idea that government employees can penalize their critics, if only so we aren't confronted with police officers opening fire on their antagonists in crowded courtrooms.


Where do all good things come from?

Tired of endless pie-in-the-sky promises from Uncle Sugar? Bent out of shape that government largesse is little better than two dollars taken from your left hip pocket and one dollar stuffed into your right hip pocket (unless you're well-connected)? So is funny man Tim Hawkins. But he's a lot better at voicing his discontent -- and puncturing official posturing -- then most of us.

So look below for a musical interlude in which Hawkins sings and dances his way to an honest assessment of a government that wants to set itself up as ... well ... the candy man.

Never forget, though, that the smiling officials who promise the world and tax the sunrise have to build up a powerful state apparatus of tax collectors, enforcers and strong-arm men to even pretend to keep up with the IOUs they've issued. As tempting as it may be to accept an offer from the government, when you do so, you're not just mortgaging your kids' future, you're empowering the folks who will mug your grandkids.

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No free speech in Scottsdale (or Tucson either, it seems)

According to a recent legal opinion issued in Arizona, if you want to do nothing more than say nice things in public about your favorite elected officials, you have to register as a political action committee and submit to a spiderweb of red tape that's confusing even to legal experts. That interesting opinion was issued in a case involving endorsements made by the Scottsdale Area Chamber of Commerce, and it's further evidence that the always questionable effort to guarantee "clean elections" by regulating speech is nothing more than censorship intended to muzzle non-politicians.

The issue came up during last year's city council elections in the prosperous community of Beverly Hills in the desert ... err ... Scottsdale, Arizona. In the weeks leading up to the vote, the local chamber of commerce sent out mailings and bought time for television advertisements praising four candidates who "support Scottsdale's quality of life." The ads never said "vote for" these candidates or "vote against" their opponents because, under the law, that clearly qualifies as "express advocacy." Such advocacy is a sort of speech that, First Amendment not withstanding, is so allegedly dangerous to the public that the government has determined it can be exercised only after filing the proper paperwork, and subject to close scrutiny.

Really! According to Arizona law, which is based on U.S. Supreme Court opinion:

A. For purposes of this chapter, "expressly advocates" means:

1. Conveying a communication containing a phrase such as "vote for," "elect," "re-elect," "support," "endorse," "cast your ballot for," "(name of candidate) in (year)," "(name of candidate) for (office)," "vote against," "defeat," "reject," or a campaign slogan or words that in context can have no reasonable meaning other than to advocate the election or defeat of one or more clearly identified candidates ...

If you want to engage in express advocacy, you have to register as a political action committee and ... well ... the paperwork equivalent of a colonoscopy is required. You'll find the easy-to-read details here (see Chapter 6 in particular). But if you avoid express advocacy, you can supposedly still engage in something resembling free speech.

That's what the chamber of commerce relied upon when it went forward with its efforts, and it's the section of law the chamber's attorneys cited when they responded to two inevitable complaints from candidates not lucky enough to be given attaboys in the flyers and the ads.

But Scottsdale officials referred the complaints to a supposedly disinterested party, in the form of the Tucson city attorney. And Tucson obliged its sister city with an opinion (PDF) condemning the chamber of commerce for engaging in unregulated political speech, and calling for thousands of dollars in fines. To reach this conclusion, Tucson's Principal Assistant City Attorney, Dennis P. McLaughlin, emphasized the next paragraph of the law:

2. Making a general public communication, such as in a broadcast medium, newspaper, magazine, billboard, or direct mailer referring to one or more clearly identified candidates and targeted to the electorate of that candidate(s):

(A) That in context can have no reasonable meaning other than to advocate the election or defeat of the candidate(s), as evidenced by factors such as the presentation of the candidate(s) in a favorable or unfavorable light, the targeting, placement, or timing of the communication, or the inclusion of statements of the candidate(s) or opponents, or

(B) In the sixteen-week period immediately preceding a general election.

But, as the chamber points out in its response to the initial complaints, that wider definition only applies if speech is coordinated with the candidates in question. "The Chamber did not coordinate its educational effort with any candidate or campaign. No such coordination has been alleged." Says the next paragraph of the law:

B. A communication within the scope of subsection A, paragraph 2 shall not be considered as one that "expressly advocates" merely because it presents information about the voting record or position on a campaign issue of three or more candidates, so long as it is not made in coordination with a candidate, political party, agent of the candidate or party, or a person who is coordinating with a candidate or candidate's agent.

The Tucson opinion concedes that the expenditures were independent -- not coordinated with the candidates -- but asserts that this is a violation in itself, since independent expenditures are regulated by another section of the law. Says McLaughlin:

Because SACOC's expenditures were independent, SACOC also violated A.R.S. 16- 912(B) and (D) by failing to put the statutorily required information regarding its three largest political committee contributors on its direct mailer and television advertisement.

Is your head spinning yet? Mine is, and I read laws and legal opinions all the time. We don't really need to delve into whose opinion of the law is better grounded here, all we need to do is recognize that we're well into questions involving how many law school grads can dance on the head of a pin. (The answer is "none" -- law school grads can't dance. But they do make a lot of money debating the interpretation of supposedly clear language!) It doesn't matter who's right, because it's clear that no matter the supposed risks of respecting free speech rights, regulating political speech is enormously dangerous, risking legal sanction and fines that can't help but discourage political participation.

The harm here isn't so much that the Scottsdale Area Chamber of Commerce has had its rights threatened by this opinion. Even if McLaughlin's legal excrescence is allowed to stand, the chamber can afford to pay its fines and jump through legal hoops during the next election. It will be an annoyance, but chambers of commerce are generally sophisticated and well-heeled and can afford to pay the admission fees established by campaign finance laws.

But what about you? If the Scottsdale Chamber of Commerce is ensnared in an expensive battle of the lawyers, what happens to your ad hoc group of neighbors when you put up posters saying that your local representative is a jerk (or, less likely, a credit to the community)? Will you pony up the cash for an election attorney who can get you properly registered and regulated? Or will you keep your mouth shut?

Or will you take the best option under current law and put your information out anonymously, trusting that the state can't muzzle people it can't find?

Restrictive campaign finance laws aren't peculiar to Arizona -- they apply across the country under the laws of the many states, and in elections regulated by the federal government. You might want to consider pushing for their repeal, in hopes of restoring some protection for free speech rights.

Just be careful that your efforts don't slip over into "express advocacy."


Wednesday, September 2, 2009

The Hamptons just got a little more interesting

The inhabitants of two well-heeled towns on New York's Long Island are reportedly shocked to discover that brothels have been operating in residential neighborhoods -- and enjoying a booming business in otherwise trying economic times. Given the large number of politicians who maintain vacation houses in the area, you'd think the good people of Westhampton and Southampton would be accustomed to their neighbors peddling favors from their homes. But if they really want to minimize the disruption caused by underground prostitution, they should learn a lesson already taken to heart elsewhere, and eliminate laws against the trade.

Prostitution, for example, is legal in much of Nevada. The ability to work in legal -- and heavily regulated -- brothels has cut down the need for sex workers to operate under the radar by selling their services in venues that might not always be perceived as appropriate (such as residential neighborhoods).

But Nevada's solution isn't ideal. That heavy regulation forces sex workers into brothels, limiting their independence and their negotiating power. Given that an imbalance of power is already an issue (the prostitutes in the Hamptons brothels kept only $15 of the $40 charge for each trick), something a little more liberating may be in order.

Which brings us to New Zealand. In 2003, that nation decriminalized prostitution, essentially returning the sex trade to legal, free-market status. The government enforces laws against force and fraud as it does for other above-ground industries, but otherwise generally stays out of the way.

Last year, a government reviewed the impact of the reform -- and liked what it saw. According to the conclusion of the Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003.

The PRA has been in force for five years. During that time, the sex industry has not increased in size, and many of the social evils predicted by some who opposed the decriminalisation of the sex industry have not been experienced. On the whole, the PRA has been effective in achieving its purpose, and the Committee is confident that the vast majority of people involved in the sex industry are better off under the PRA than they were previously.

In contrast with conditions where prostitution is illegal, only 4.3% of female sex workers (and half as many male prostitutes) in New Zealand have been coerced into the business. Employment conditions have dramatically improved now that sex workers have access to legal redress for mistreatment by employers and customers. They can also go to work on their own, without need of the "protection" of an established pimp.

Most importantly, the trade is now above-board, and doesn't need to pop up in odd locations, like rental houses in the Hamptons, in an effort to avoid the authorities.

Laws against prostitution don't do much but make life difficult for sex workers and the occasional unlucky customer -- just ask Eliot Spitzer, the last governor of New York, how deterred he felt by the laws he had enforced as attorney general. They also drive the trade into inconvenient locations through efforts to evade the police (and let's not forget the corrupting effect on public officials who take money or sex to look the other way).

So if residents of Westhampton, Southampton and points beyond want to get prostitutes out of their neighborhood, their best bet is to get rid of the laws against the sex trade.

As for getting politicians out of their neighborhood ... That's a tougher challenge.

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Tuesday, September 1, 2009

On second thought, a small, inexpensive government does sound enticing

According to Rasmussen Reports:
Seventy percent (70%) of likely voters now favor a government that offers fewer services and imposes lower taxes over one that provides more services with higher taxes, according to a new Rasmussen Reports national telephone survey.

That’s up five points over the past month and is the highest level measured in nearly three years.

Just 19% would prefer a government that provides more services in exchange for higher taxes, down five points from July and the lowest level in over two years. This marks the first time the percentage of voters who prefer this type of government has fallen below 20%.
Shockingly, even 48% of Democrats agree with the small-is-better meme. Additionally, "Fifty-four percent (54%) of voters worry more that the federal government will try to do too much to fix the economy rather than not enough. That’s up three points from a month ago and the highest level of concern found on this question since Obama was elected president."

Isn't it funny how this shift in public opinion took place after one not-so-honest-about-it big-government administration was replaced by an overtly big-government administration, substituting policies that bankrupt our children with policies that essentially impoverish our grandkids?

Odd, that.

Will Barry soar to the tops of the pops?

Well, OK, perhaps it's a little early to ponder President Barack Obama's likely assessment by historians of the future. But it's certainly not too early to point out that he's well on his way to high regard according to the usual blood-and-brutality standards set by most scholars -- but that he's vying for a very low rank according to an intriguing rating system that grades presidents according to the service they do in maintaining peace, prosperity and liberty.

Earlier this year, for Presidents Day, C-Span released the most recent scorecard judging the nation's former chief executives on their leadership. These rankings have become a semi-regular event, during which historians are polled on their subjective assessments of the relative merits of the presidents. Not surpisingly, they reveal more about historians than they do about the men they rate. Tellingly, the top of the list almost always features the same names. Abraham Lincoln, George Washington and Franklin D. Roosevelt featured prominently this year, as they do in almost all such exercises.

I say almost all, because there are a few dissident voices playing this game. The latest such contrarian ratings come from Ivan Eland, Director of the Center on Peace and Liberty at the Independent Institute, and author of Recarving Rushmore: Ranking the Presidents on Peace, Prosperity, and Liberty.

It's not fair to say that Eland's rankings turn the usual results upside down -- but they come pretty close. At the top of Eland's list is John Tyler, who comes in at number 35 on the C-Span list. Pulling the worst rank on Eland's list is Woodrow Wilson, who finished in ninth place for C-Span.

How could the results be so wildly at odds?

Easy -- Eland uses very different criteria than those used by most historians when ranking the presidents.

As the title of his book suggests, Eland rates the presidents according to their ability to preserve and defend peace, prosperity and liberty. Specifically, as Eland puts it, "this analysis gives presidents credit for avoiding wars and conducting only necessary wars of self-defense." In terms of prosperity, Eland judges presidents not just by prevailing conditions while they were in office, but for the effects of their policies after they left -- presidents who artificially pumped up the economy and left a shambles for their successors get dinged. When it comes to liberty, the author looks at deeds more than words. "Presidents often claim that they are preserving liberty while, at the same time, they are taking actions to subvert it. Only genuine acts promoting economic freedom (deregulation) and political liberty will be counted in the plus column in this analysis."

Since bad presidents have frequently done their worst damage while expanding their authority at the expense of the other branches of government -- and in defiance of constitutional strictures -- Eland also looks at the extent to which they resisted the urge to illegitimately expand the power of the presidency to the near-monarchical clout it wields today.

C-Span, on the other hand, asked historians to rate presidents (PDF) on "Public Persuasion," "Crisis Leadership," "Economic Management," "Moral Authority," "International Relations," "Administrative Skills," "Relations with Congress," "Vision/Setting An Agenda," "Pursued Equal Justice for All," and "Performance Within the Context of His Times."

But it was considered inappropriate for presidents to appeal directly to the public until the twentieth century, automatically hobbling earlier officials in the rankings. "Crisis Leadership" and "Economic Management" inherently put at a disadvantage presidents who manage to avert crises and who believe they have no business managing the economy at all.

Most telling is that, of the five top-rated presidents in the C-Span list -- Abraham Lincoln, George Washington, FDR, Theodore Roosevelt and Harry Truman -- three presided over wars (and Theodore Roosevelt was overtly bellicose -- only George Washington seemed to have any taste for peace, and even he suppressed a tax revolt with troops and seized Indian lands). While the C-Span scholars celebrate these presidents' wartime leadership, Eland holds them to account for being unable or unwilling to avert bloody conflict.

Of those presidents, Lincoln and FDR get severely down-graded by Eland for civil liberties violations directly related to their war efforts, showing that much of what makes a president great or poor goes hand-in-hand.

Overall, most historians clearly prefer those presidents who leave the biggest mark on history -- in terms of blood, brutality and expensive monuments to themselves.

But the presidents who serve us best, as Eland points out, are those who quietly pass through office by using diplomacy, self-restraint and established channels to prevent crises, avert conflict, preserve our liberty and otherwise give us every reason to tend to our own affairs without worrying about political goings-on.

Ultimately, Tyler ranks so highly in Eland's list because of quiet actions like ending the Second Seminole War, slashing the size of the army by one-third, peacefully settling a boundary dispute with Canada, declining to send troops to suppress a minor rebellion in Rhode Island, maintaining sound money and controlling federal spending -- all while battling his own activist Whig party. That's not splashy stuff -- but it's the necessary basis for allowing people to raise families, build businesses and plan for the future.

Woodrow Wilson, on the other hand, ranked last on Eland's list for pushing America into an unnecessary war, criminalizing dissent, jailing political opponents and seizing private businesses. Those actions won him high rank among the C-Span historians.

So, how will President Barack Obama fare in the future? It's early yet, but based on his record, so far, of massive spending, continuing military adventures in Iraq and Afghanistan, expanding the role of government in the economy, and building on the authority and secrecy of the presidency, it's safe to predict that most historians will view him with fondness. They like the imperial presidency. He's unlikely to place very high on the Peace, Prosperity and Liberty index, however.

Of course, there's room for agreement even among scholars using very different criteria. Both Eland and C-Span ranked the last president -- George W. Bush -- at number 36, very near the bottom.

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