February 8, 2012

Reason and Rhetoric in the Digital Age

Posted by Andrew under politics, rhetoric, society | Tags: , , , |
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Cary Sherman did his job as chief executive of the Recording Industry Association of America and submitted a column for publication in the NYT opinion pages bemoaning the sudden demise of the House and Senate bills that would have greatly amped up copyright enforcement and facilitated pre-trial injunctions shutting down websites potentially subject to enforcement.

On the substance, the population thus far unburdened by IP law can still stand for some hearty and honest debate, a brief outline for which follows for a few paragraphs.  But this blog frequently turns attention to public discourse, civic participation, and the general level of earnest reasoning put into lawmaking.  Sherman’s column touches those themes, and I’ll look into that after this brief SOPA intermission.

The most interesting provisions for civic debate are (1) the definitions at sec. 103(a)(1) and the (2) the preliminary injunction provision at sec. 103(c)(5). (I’m using SOPA’s provisions).

Existing copyright law generally uses a litigation scheme of copyright owner against copyright violator. SOPA allowed enforcement against a new group: sites “dedicated to the theft of US property.” That notion seems uncontroversial, so it is the definition of that phrase, at sec. 103(a)(1), that deserves good discussion. Such a site, says the bill, is “primarily designed” to violate copyrights (seems reasonable), or has little purpose other than violating copyright (a little more hazy), or “marketed … for use in, offering goods or services in a manner that engages in, enables, or facilitates” violating copyrights (hmmm?).

That last prong of the definition–marketed for services that might enable copyright violation–is I think the bone of contention for most folks opposing the bill, as a great many social media sites allow people to post originial, derivitive, and copyrighted work without pre-screening.  Easily, a lawyer could argue that fits this definition of sites “dedicated to the theft of US property.” It seems to me alot of good debate is to be had, in any event, on (1) whether we want to allow enforcement against copyright infringement facilitators and (2) how to define such actors.

And what to do with them? That is another ripe topic for debate – such as whether courts should be able to allow a website to be shut down prior to the trial that determines whether the site fits whatever definition we settle upon for sites “dedicated” to IP theft.

My sense is that about 99% of the debate could be had over those two sections. The techies can cover the remaining 1% by providing points and counterpoints on the merits of enforcing against domain names rather than an IP address to obtain copyrighted data on a particular server.

But, back to Sherman. It is predictable that the RIAA head would present an argument in favor of more stringent IP enforcement. What I found more interesting was an argument he promised in the first sentence: “how the democratic process functions in the digital age.”

Parsing out the meta-arguments regarding civic participation and social policy from the his arguments attached to SOPA/PIPA, I got this:

Hyperbolic sloganeering hinders sound public policy-making, particularly when injected by corporations with an ability to reach and sway a large audience.

And here are some of what I glean as his preferred norms, with his specific arguments in quotes:

  • Civic choices should be based on reason rather than rhetoric (“We need reason, not rhetoric, in discussing how to achieve it.”);
  • Companies purporting to provide information without bias should not be allowed to present an opinion (When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading ….);
  • No one sector in american economy should be allowed to drown out another perspective (“Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.”);

and

  • It is problematic that people can so easily spread a civic meme without being experts on the underlying issue (Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing?).

 

I couldn’t agree more with what I’ve interpreted to be the basic normative assumption in Sherman’s argument.  (And I’ll be interested if someone has a conflicting interpretation – just remember to strip out SOPA, et al).  Indeed, I would be forever grateful if the Sunday morning shows and cable news anchors began their analysis of political talking points with whether they were hyperbolic, reduced to slogans, or injected into the public conscience by unduly influential corporate spending or unfair (let’s call it) pulpit-advantage.  Indeed, the civic necessity of education is, in my mind, to cause citizens to enter knowingly and thoughtfully into policy decisions affecting them and their fellow citizens.

Each of the four specific points could be the subject of some interesting debate.  I can imagine good arguments all around.  Reason seems preferable; but rhetoric, sometimes, can reach through the reasoning of self-interest for certain common goods.

Bullet two is a bit of a mess.  Companies like Google can certainly provide neutral search results and still submit a message of its own.   (And a quick note on the substantive argument – Google and Wikipedia, insofar as their webpages sent a message, are not the infrastructure providers with the ability to speed up or slow down particular content that advocates of net neutrality wish to keep neutral).

Sectors interested in particular policy tend to be more tuned to bills affecting them than the general public that might eventually be affected by the policy.  Lots of good government groups try to rectify that problem, for bills and subsequent agency regulations.  My gut cheers Sherman’s call for broader participation; but the fourth bullet point tempers that enthusiasm.

Because we undoubtedly do want some expertise going into policy and regulatory decisions.  How to balance the desire for public input and accountability with the real need for technocratic competence?

A glance at the comments section under Sherman’s column offers little hope that folks want to thoughtfully confront these broader themes of “the democratic process functions in the digital age.”  Still, I’ll stay tuned.

 

 

 

December 7, 2011

REINS and rulemaking existentialism

Posted by Andrew under administrative law | Tags: , , , , |
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The REINS Act presents an opportunity for those interested in administrative law to look into their assumptions and values. A few ideas immediately come to mind: efficiency, accountability, expertise, and good government. The prospect of a process in which the political branch passes a law, then passes it along to agencies to promulgate rules, then brings back in those rules for approval before agencies may start enforcing them presents a shift in the administrative process, the fascination of which I’m not sure either side in the debate really trumpets.

The supporters seem to think the rulemaking process is a part of process of making the statute in the first place; so it makes perfect sense that Congress should sign off on the rules promulgated pursuant to its own initiatives. Supporters also assume the elected representatives’ quick votes on the rules provide a measure of democratic accountability. They are generally skeptical of the competence and accountability of bureaucrats.

Objectors seem to think rulemaking is a function by which Presidents impose policy and assert power as a useful opposing branch to Congress. Objectors assume voters can hold agencies accountable every four years during the Presidential elections. They are generally skeptical of the political motivations and monetary capture of Congresspeople.

I haven’t seen as much discussion on what REINS means for the process of governing, and the values we attach to the various actors within government. So, below are a few questions.

Should a current Congress be able to prevent the promulgation of statutes passed by a prior Congress, without actually repealing the statute?

Say the GOP won both houses in 2010 with a veto proof majority and promptly passed laws requiring the Occupational Safety & Health Administration to revise its regulations to prevent only the workplace hazards causing “severe or frequent injuries.” OSHA works on the new rule for a few years, researching the severity and frequency of each occupation’s injuries, and finally produces the rule to Congress in 2013. Meanwhile, Democrats swept back into control of the House in 2012. The Democrats don’t have the votes to repeal the 2010 “NOSHA Act,” but when presented with OSHA’s rule, reject it by resolution. And they do so on every revised rule.

Is it desirable to allow a representative to vote in favor of a popular bill, but against its implementation?

Obstruction by resolution might not be by a later Congress against its predecessor. As I mentioned in a prior post, a representative might vote for the “Everyone Likes it in Theory” Act, but against the “Actually Putting it into Practice” regulation. REINS, then, might afford our elected officials another tool in the trickery of campaign ads.

Certainly it is possible that a representative will sincerely believe an agency got something wrong in its rule, and want to send it back for revision. That presents its own danger–the sometimes endlessness of noodling in minutia. Until now, we’ve left it for agencies to do the fine tuning, which takes years. REINS invites politicians into that process.

What does it mean to interpret a vague piece of legislation; when agencies add the necessarily tremendously detailed rules to statutes, are they in fact legislating or implementing existing legislation?

On one end of the spectrum, if a court believes that an agency actually changed a statute through rulemaking, the rule will be overturned. On the other end, a rule carrying out a specific statutory directive will stand.

In between are those rules that inspire the most written about doctrine in administrative law, Chevron, in which the statute was a little fuzzy and the agency decided on a particular interpretation.

Or rules that apply expertise where Congress asked for such expertise: like, Congress instructing the EPA Administrator to prescribe emission standards for air pollutants “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7521(a)(1).

Is a rule an executive or legislative function?
Writers commonly describe agencies as performing quasi-legislative (rulemaking) and quasi-judicial (enforcing, adjudicating) tasks. I’ve wondered whether it’s appropriate to allow the “quasi-legislative” description to place agencies within the legislative branch in a separation of powers argument. Indeed, in my mind, rulemaking is neither an executive nor legislative function.

Rulemaking is simply an agency’s placing into executable rules already existing legislation. If an agency changes the legislation in the process of making a rule, the rule is invalid.

Execution, I think, is better left to those activities that enforce rules in effect. Note, of course, that a great deal of interpretation (guidance, decisions on when to enforce, allocation of resources) goes on in the act of enforcing.

Rulemaking, though, involves an effort to take a law and apply a framework with which it will apply to the real world. The idea has long been that Congress is institutionally unable to prescribe every detailed rule, so it delegates to experts that last step, teeing up one more question for now:

What is the best structure for, and by what process can we assure, an appropriate balance of expertise and accountability in the final rules governing our day-today lives?

The Constitution failed to provide a framework for the administrative state, even though (thanks to Professor Mashaw we know that) the framers should have seen it coming. Thus, statutory law (the APA) provides our structure, and that is what REINS aims to alter.

Far more than the canards of jobs, red tape, or the benefit of having regulations generally, the discussion REINS should be inspiring is of the basic processes of lawmaking and rulemaking. Will better (whether your opinion of “better” means fewer, more, or more effective) regulations result from providing Congress an up or down vote on every promulgated rule?

Will that process add significantly to the time it takes to put any given rule into effect, and is that good or bad? Will that process push agency rulemaking staff to work with Congressional staff and lobbyists far more while drafting rules, and is that good? Will they pay more attention to politics and less to economists and scientists? Will the need to pass Congressional approval become a response to public comments?

I tend to think REINS allows for political cover and massive regualtory delay. I doubt it will ever make the President’s desk, and if it does it’ll be vetoed. However, in another time, if such a change indeed comes along, I will dream of a world in which voters pay attention to how their representatives vote (on both the bill and the rule); in which every representative has the philosophical capacity to vote for or against general principles and the technocratic capacity to vote for or against the subsequent rule; and in which every representative can speed read sufficiently to fully understand and give a fair assessment of a rule within 15 to 30 days.

Finally, a correction: when I first posted on REINS I’d only read Section 1. REINS requires both houses of Congress to approve by joint resolution any new major rule. I thought a vote wasn’t required, which would have problematically allowed Congress to kill rules through inaction. That’s not the case, but the actual provisions, which do require an up or down vote, pose some problems.

The process is roughly this, for major rules: an agency submits to Congress its rule; the majority leaders of the House and Senate introduce resolutions accepting the rule, and then pass it on to the relevant committee; that committee then has 15 days to allow the joint resolution to stand, or propose amendments to the underlying statute; the joint resolution then goes tot he calendar for an up or down vote that must happen within 15 session days, with debate limited to 2 hours.

Jonathan Adler praises REINS’ expedited review and mandatory vote, but it is a strange comfort. Agencies take several years to develop major rules, and Congress is to vote on the thing in about 30 days. If one house plays more safe than sorry, and rejects the rule, it is back to the perdurable drawing board.

 

February 28, 2010

the farmer and the biz-man can be friends

Posted by Andrew under history, society | Tags: , , |
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In the Fury of Democracy post a couple down, I wondered about the difference between an aristocratic, old wealth versus a meritocratic view of the national leader class.  A few pages after those that prompted that question, Professor Ferling gave me a word for the former: squirearchy.

And this latest section of Ferling’s A Leap in the Dark prompts another, similar question: which is the more egalitarian, Hamilton’s vision of an industrial, merchant society, or Jefferson’s collection of minimally governed self-sustaining yeomen?

One can make the case for each.  A commercial society is (kindof)  inherently egalitarian, profits are status-blind, and so on.  Self-sufficient farms are egalitarian in the sense that they allow a family to live largely off the social-status grid; one need not be connected to grow sweet potatoes.  And they are, from Ferling, “uncorrupted by the snares of capital.”

For the cons of each, here is Ferling:

Jefferson foresaw, correctly, that the world Hamilton wished to create would consist of considerable pain, including widespread exploitation of white workers, among them very young children, unspeakable urban squalor, and the emergence of a commercial and industrial plutocracy that would ravage the promise of individual liberty that had been the cornerstone of the republican ideology of the American Revolution.  However, the world that Jefferson hoped to sustain was not without pain.  It included abused slaves, who lived without hope under the most abominable circumstances, and many free persons who eked out a living from timeworn lands while paying homage to a squirearchy that monopolized political power.

In any event, it strikes me as a good American History exam question: the respective visions of Hamilton vs Jefferson, which is the more egalitarian?

 

February 23, 2010

the fury of democracy

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A few Federalist essays have described a benefit to the scope of federal elections; in quick summation: with a nation-wide pool of candidates free from local squabbles, the very best policy and governance thinkers will rise to federal office.  (Each Publius has offered the argument; Jay in F3, Madison in F10, and Hamilton in F27.)  It has been, on my first impression, a meritocracy argument. And it is, tonally, a very different argument for national leadership than another theme that Professor Ferling describes in A Leap in the Dark. In the chapters covering the Articles of Confederation and the Constitutional convention, Ferling describes the creeping fear – buyer’s remorse? – that the Nation may swing from one problematic pole (monarchy) to another (hasty democracy). Ferling describes the eagerness of many delegates “to limit democratic impulses.”

I always think it’s worth remembering the neoclassicism flowering at the end of the Enlightenment; and, more importantly, really, the historiographical context. Then, as now, students of Greek history learned that while, yes, Athenian democracy was an important human development, the institution ultimately brought Athens down because the demos couldn’t govern. By the time I reached college, the story was that the voting poloi’s livelihoods relied overwhelmingly on war – so they voted for war all the time. And they voted myopically. And with blinders. The point being, the masses were not good at governing. Our Founders had basically the same understanding of that history, which reinforced a general notion that you don’t want straight democracy.

And so, this different theme regarding the makeup of the national leader class has a slightly different feel than meritocracy. Ferling writes that most founders, forgetting that they were upstarts by Londond’s standards, regarded the post-war Congress as a bunch of scrubs, elected by unthinking populist-driven localities. I actually think Sarah Palin may be a bit of an analogy.

Also, it was interesting to read about that fear now, during the Great Recession. The policies passing through state governments, so fear-provoking to several founders, sometimes resulted in creditors losing their claim to money because of debtor-friendly relief laws. Shay’s Rebellion started as a foreclosure protest. The big deal, among nationalists startled by these developments, was the need for a federal government that could protect property. The states, they felt, were unable to stand up for property rights (of creditors and land owners) against popular sentiment for debt-relief and redistributionists.

Ferling offers a few quotes:

“Our chief danger arises from the democratic parts of our constitutions.”

The “people … should have as little to do as may be be about the Government.”

The “evils we experience flow from the excess of democracy.”

Randolph urged checks against “the turbulence and follies of democracy” and maintained that ways must be found to restrain “the fury of democracy.”

The Constitution “embraced what Madison subsequently called the ‘republican remedy’ against radical change.” The factions (F10) would prevent any hasty, democratic policy-making. Here is Ferling:

Indeed, Madison boasted proudly that the system would “refine and enlarge the public views,” resulting in national policies “more consonent to the public good than if pronouced by the people themselves.”

…But somewhat cryptically he also explained why this new national government would not be susceptible to the sort of substantive changes that had occurred in several states. Few of the “new men” so visible in state politics, Madison said, were likely to rise to this higher level. The “vicious arts by which elections are too often carried” in the states would be unavailing in the national electoral systems by this convention. …National officials would be “a better class” of society….Madison’s communication, first to the majority that attended the convention, then to like-minded nationalists throughout the county, was that the way had been found by which to make radical change difficult, if not impossible. Change at the state level would be impeded by the national government. At the national level, the separation of powers and numerous checks and balances erected within the proposed new constitutional system were to constitute purposeful barriers to change. …If this Constitution went into effect, the “changeableness” that had been set afoot by the American Revolution would henceforth be unlikely or, at best, would occur at a glacial pace.

Fewer of the “new men” would rise to national leadership. In the context of these few quotes, that fear of the new man is a much different driver, regarding national leadership, than the big pool, meritocracy driver.

A meritocracy implies an egalitarian playing field and one in which particular talents are recognized with all other things being equal. The bigger the net, the better chance of finding the right fish. There is something quite different to the notion that we need national leaders to keep a status quo.

I cannot help but think of Hamilton and Madison. Hamilton, a foreign bastard, could become a national leader because of meritocracy. Madison, the wonk-gentleman, typifies the landed interests prominent among most other founders.

They both predict, in their Federalist essays, a finer breed of national leaders. But, I wonder if their assumptions and motivations for that leadership were quite unalike.

 

February 6, 2010

Occasional leaps

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Heads up – I’m reading John Ferling’s A Leap in the Dark.  So far, it’s a great read.  The book covers American history approximately between 1750 and 1800; I wanted it mainly for more context with our Federalist project.  But I doubt I’ll write much more about this one on the forest scale; rather, I want to climb the occasional tree.

Yesterday, happily snowed home, I read about the first Continental Congress’s debates while drafting a note to the King.  Questions, wrote Ferling, “over the colonists’ rights has stirred a firefight.”

The radicals in the committee insisted that Americans had derived their rights from nature; two years later this would become the now familiar “truth” that “all men are … endowed by their Creator with certain inalienable rights.”  Conservatives argued that the rights enjoyed by the colonists had been bestowed by the English constitution and the colonial charters.  The differences were resolved by a compromise.  The eventual Statement of Rights and Grievances listed all three as sources of the rights of colonists.

(p120)

It the great old question, and always worth considering.  Do we, with Locke, believe that a human being possesses rights upon birth, regardless of the amount of and type of society and government the human pops out into?  Or, chuckling with Bentham, is that a bunch of nonsense on stilts?

It occurs to me the the word “rights” has no meaning without a society to define it.  And there are no “rights” without a government to set them apart for protection.  But, in governments such as ours, we identify rights by looking into the inalienable world of natural law.  So, government creates rights, but does so by looking for rights that government is powerless to create.  Sounds like a koan.

 

August 11, 2009

blowing rhetoric

Posted by Andrew under politics, society | Tags: , |
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“When all you can do is yell epithets, that means you are intellectually bankrupt.”

- Congressman Tom Tancredo

 

April 14, 2008

selecting national politicians

Posted by Andrew under politics | Tags: , |
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In my last post, I wondered about John Jay’s notion that a larger pool of of contestants (at a national versus local level) naturally leads to better leaders. I think it is worth examining two issues: (1) with what attributes do we rank national-level leaders; and (2) who or what (process) filters out such individuals?

The Constitution, for which Jay argued adoption, rules that you can be President if you are a natural born citizen, have resided here 14 years, and are 35–millions of folks could be President. What is the initial filter between those millions and the dozen or so that show up in the first CNN debate?

The initial filter likely contains various threads of an individual’s career, background, social contacts, and aspirations. Most people never seek the Presidency, and that is likely the most significant sieve; but, it is a somewhat artificial sieve, in that most people do not consider the Presidency because it is considered to be in some other career-potential realm. It simply does not arise as an option (though it Constitutionally, if not realistically, is. On that point, I wonder how earnest the Constitution’s eligibility clause is…was it imagined that there would be, as Jay’s argument supposes, a national pool of contestants; or is there an unspoken weeding out?)

(more…)

 

July 24, 2003

Posted by Andrew under politics, Uncategorized | Tags: , |
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Go listen to Nina Totenberg’s story on yesterday’s vote in the judiciary committee on sending Pryor to a vote- and explain to me why I shouldn’t think the GOP are a bunch of thugs.

This commercial sent out by the GOP, declaring that the Democrats are discriminating against Pryor because of his Catholicism is especially distressing, because of the layers of intellectual dishonesty involved. Listen to Totenberg’s story to see why.

The commercial, put out by a group supporting President Bush’s judicial nominees, showed a locked courthouse door with a sign reading, “Catholics need not apply.” During Pryor’s confirmation hearings, Senator Hatch, asked him to acknowledge that his beliefs stemmed from his strict Catholicism. The beliefs being those of anti-abortion and favoring policies to further the role of Christianity in public life. The GOP ad bluntly says that the Democrats, because of Pryor’s Catholicism, are blocking the nominee.

Hmmm…the GOP and that ‘technically true’ thinking: Here, the GOP is asserting a discriminatory effect- because Catholicism doctine opposes abortion, and becasue Democrats traditionally oppose anti-abortion judges, the Democrats oppose Catholics. Pretty nifty reasoning, ain’t it?

Of course, that’s B.S. Democrats don’t oppose anti-abortion judges, they oppose judges that rule on their own principles rather than the principle of law. One’s beliefs regarding abortion should never dictate their role as judge- and any Democrat that turns down a nominee on that belief I will disagree with forever. However, it is certainly right to have concerns about a judge who was nominated largely because of his anti-abortion views- and with the expectation that the judge would rule in accordance with those views. Why, it is perfectly obvious to wonder, is this belief such a qualifying criteria in the selection of judges? Namely, does the nomination of judges who despise Roe v. Wade arise out of an academic agrement that that decision was a mess- or does it arise out of a mutual hatred of abortion, and an expectation that the judge will do whatever possible to end abortion? If this is the case, the judge is an activist who cares more about his agenda than about the particular case before him.

Further, as was mentioned in the comittee meeting, Cathlolics oppose the death penalty. And even though Antonin Scalia gave a speech once arguing that those opposed to the death penalty should perhaps not be judges, I submit that such judges make perfectly wonderful judges to the extent that their belief does not capture their legal mind. Is Scalia anti-Catholic for his remarks? Seeing that he is a Catholic, I doubt it. I’m guessing that he is arguing that the anti-death penalty belief causes judges to slip into activist roles. Much is similar to anti-abortion judges. The Dems should have Scalia explain all this to the GOP.

Perhaps I should summarize my complaints as such: it is too simplistic to “wave the bloody shirt” of discrimination in this circumstance. Or more directly, it is a corrupt deception.

Note: I am being overly simplistic on the Scalia/Catholicism/death penalty discussion. For greater depth, see the forum in the National Catholic register here, and here.

 

April 28, 2003

Posted by Andrew under Uncategorized | Tags: , |
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Here’s a Greensboro News and Record story on BLOGGING.

Must say, i like its broad pronouncement:

“Blogging is the heart of the Constitution at work. Technology is its life blood.

When the founding fathers framed the Constitution, they gave freedom of the press to the people, believing that it was every American’s right to have a forum for his views. Over time, though, that forum came to belong only to those who owned the presses — basically, corporations. But the Internet has returned that freedom to citizens: Anyone with a computer and modem is, potentially, a publisher.”

 

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