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A Nation of Laws, Not Men (Defining Ideas) September 3, 2013

Posted by daviddavenport in Op/Eds, Policy Articles & Papers.
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On September 4, a court in Pennsylvania will consider whether a county registrar of wills may issue marriage licenses to same sex couples in contravention of state law because he has decided that law is unconstitutional. This official has now issued over 100 such licenses and other public officials (mayors) have used them to perform same sex wedding ceremonies. The legal challenge by the Pennsylvania Department of Health, which has overall responsibility for marriage laws and licensing, is loaded with constitutional, legal, social, and marital consequences, all of which deserve careful consideration.

At the same time, the Governor and Attorney General of Pennsylvania have exchanged political blows over whether that state law banning same sex marriage should be defended in court and, if so, who has the responsibility to do that. The attorney general says Pennsylvania’s 1996 law stating that marriage is between a man and a woman is “wholly unconstitutional” and she will not defend it, even though the recent Supreme Court decision in Windsor v. United States said states were free to make their own decisions about gay marriage.

This follows on the heels of President Obama’s and Attorney General Holder’s decision to not to defend the federal Defense of Marriage Act (DOMA) in the years prior to the recent determination by the U.S. Supreme Court that the law is unconstitutional. And similar questions arose in the recent California Proposition 8 case when that state’s governor and attorney general declined to defend the law because they felt it was unconstitutional, with the remarkable result, handed down by the Supreme Court, that no one had standing to defend that part of the California Constitution in court.

It looks like a virus is spreading among public officials creating delusions that any one of them may unilaterally decide a law is unconstitutional and decline to follow the law or defend it in court. Setting aside for a moment the same sex marriage context of these actions—we could be talking about environmental laws or gun control or taxes—is it really the case that a single federal, state, or county official is free to make a judgment about the constitutionality of a law and decline to execute, enforce, or defend it? Are we no longer what founder (and second president) John Adams called “a nation of laws and not of men”?

To read the rest of David’s article, please click the link below:



The Roberts Conundrum (Townhall.com) July 6, 2012

Posted by daviddavenport in Policy Articles & Papers.
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Chief Justice John Roberts was apparently on the fence on the healthcare decision and fell off on the wrong side. And he ended up violating the very principles he was trying to uphold.

After rightly declaring the healthcare bill an unconstitutional stretch of Congress’ power under both the commerce and spending clauses, Roberts strained to uphold the bill under the taxing power. Sources for one CBS story indicate he did so fearing damage to the Court’s reputation for being too political and activist.

But if, as it seems, Roberts actually felt the measure was unconstitutional, he himself played politics to uphold the Court’s reputation over the Constitution. And he strained to, in effect, rewrite the law in order to save it, a classic example of judicial activism.

 To listen to the audio please click on the link: http://townhall.com/talkradio/dailycommentary/643434


Happy Birthday International Criminal Court (Forbes.com) July 1, 2012

Posted by daviddavenport in Policy Articles & Papers.
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July 1 marks the tenth anniversary of the founding of International Criminal Court in The Hague.   With an agenda driven by human rights organizations and middle power states, the ICC was launched with high hopes and lofty rhetoric but, after ten years and a billion dollars, only one trial has been completed, and the Court appears to be yet one more international institution that has over-promised and under-delivered.

Following the ad hoc tribunals for the genocide in Rwanda and the war crimes in the former Yugoslavia in the 1990’s, there was a sense that a permanent international criminal court should be established.  But a small group of NGOs, led by Amnesty International and Human Rights Watch, and a coalition of small and middle-power “like-minded states” (Canada, Australia, Germany and others) overreached the international consensus, insisting on a court with broader jurisdiction than ever before (over citizens of nonparty states) and a controversial independent prosecutor.  As a consequence, the U.S. and other major powers backed away from the Court and it became an institution with considerable power and independence on paper, but one that lacked sufficient support to be effective.

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Starting with a requirement that only 60 of the world’s 190-plus nations join in order to form the Court, what kind of support does it enjoy after 10 years?  On the surface, its base appears to have doubled, with the 121st nation, Guatemala, set to join on the Court’s birthday.  Yet the nearly two-thirds of the nation-states who have ratified the treaty to join the Court represent only one-third of the world’s population.  When you start down the list of the world’s largest countries, the first four, and six of the top ten, are not members of the Court.

In addition, very significant regions of the world—Asia, the Middle East and North Africa—are woefully underrepresented in the Court’s membership.  How do you create a significant international institution without the involvement of strategic powers such as China, India, Russia, Israel, Egypt, Pakistan, and the United States (a list that includes three of the five permanent members of the U.N. Council)?  You really can’t, which exposes the weakness of the Court’s membership philosophy to take a “coalition of the willing” rather than reaching compromises to attract a wider support base, which is the very essence of treaty-making.

One of the Court’s biggest membership problems is that the kind of countries most likely to be battlegrounds for the crimes within its jurisdiction—war crimes, genocide, crimes against humanity—simply do not sign on.  So, for example, attacks on civilians in Syria do not fall within the jurisdiction of the Court.  A study by Terrence L. Chapman of the University of Texas and Stephen Chaudoin of Princeton University concluded that nations with “the most to fear from ratifying the ICC—those with worse political and legal institutions and with more severe recent civil conflicts—tend to avoid ratifying.”  By contrast, the vast majority of nations that have joined are more stable democracies that have good judicial institutions, so that the ICC is not needed there.

The ICC Prosecutor, who also concludes his term this month, has had difficulty bringing cases that could really make a difference.  For example, he spent three years fussing over whether Palestine could refer Israel for alleged war crimes in Gaza, even though Israel is not a member of the Court and Palestine is not a nation-state.  This is precisely the kind of politicization and over-reaching that was feared from an independent prosecutor.  In Sudan, the prosecutor indicted President Omar al-Bashir, but he has been sufficiently protected by his allies and friends that the Court can’t even reach him; whereas some lesser figures could have been targeted, captured and prosecuted.  Probably the most notable war crimes conviction of recent years—of former president Charles Taylor in Liberia—was accomplished by an ad hoc tribunal and not by the ICC.  There are important questions about whether the ICC even makes situations worse, preventing alternative solutions such as a negotiated local settlement.

When I lecture on international criminal law, people wonder why it can’t do something about Somali pirates or drug lords.  With nearly 750 staff spending $100 million a year at the ICC, it’s a fair question.  Wouldn’t that money be better spent trying pirates or drug lords, or supporting more localized tribunals such as those that brought hundreds of people to trial in Rwanda, Sierra Leone, the former Yugoslavia and elsewhere?

On its tenth birthday, the International Criminal Court needs to undertake a careful self-examination.  The new prosecutor should spend less time on highly visible and politicized cases and bring some cases of war crimes and crimes against humanity she can actually try and win.  And the Assembly of States Parties, which is the policy body that oversees the Court, should look at compromises to its jurisdictional and prosecutorial powers on paper in order to win wider global membership and support.  Otherwise, the ICC goes down as one more proof that international law is all show and very little go.

Federalism’s Silver Lining in the Healthcare Decision (Forbes.com) June 29, 2012

Posted by daviddavenport in Policy Articles & Papers.
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Perhaps only an academic could appreciate theoretical victories on the battlefield of a major defeat.  But the 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement.

The 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement. (Photo credit: Wikipedia)

In fact, one could argue that conservatives won all the major constitutional battles in this case but, thanks to some deft footwork by Chief Justice Roberts, still managed to lose the war.  The big constitutional questions in this case were whether there are any limits to the federal government’s power under the Commerce Clause and the conditional spending power and, to each of those questions, a strong majority of the Court said “yes,” and moreover, held that Congress’ actions in this case exceeded those limits.

When this case was first brought, you couldn’t have found more than a handful of legal experts who thought there was a serious chance that the federal courts would rule the healthcare reform bill unconstitutional on commerce clause grounds, yet that is exactly what happened.  People laughed initially at the argument that not buying health insurance constituted economic inactivity and the commerce clause only allowed the regulation of activity, and yet that argument prevailed.  As Chief Justice Roberts wrote in his majority opinion:  “[T]he distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.”  The Court’s conclusion in this regard is powerful and clear:  “The Framers gave Congress the power to regulate commerce, not to compel it.”

But of even greater practical significance was the Court’s holding that the federal government had, through its conditional spending power, unconstitutionally coerced the states into bending their Medicaid programs to the preferences of Congress.  The last major Supreme Court decision in this area, South Dakota v. Dole in 1986, addressed a state complaint that the federal government overstepped its authority when it said South Dakota would lose federal highway money if it did not raise its legal drinking age to 21.  Since the federal government has no constitutional power to set the legal drinking age, it was attempting to use financial leverage to get the states to follow its policy.  The Court held that Congress could deploy its spending power in this way, but that there was a limit, when the financial inducement was “so coercive as to pass the point at which pressure turns into compulsion.”  Not surprisingly, no case has found such a limit to have been reached in the 26 years since.

Today, the Court said the limit on the federal spending power had been improperly crossed by Congress in the healthcare reform bill.  Rather than the “relatively mild inducement” the Court found when five percent of South Dakota’s highway funds were at risk, today’s Court said that losing all of a state’s Medicaid funding was more like “a gun to the head.”  The Court noted that Medicaid spending accounts for over 20% of the average state’s total budget, whereas 5% of South Dakota’s highway funding was less than one half of one percent of its total budget at the time.  So we now know there is some limit beyond which the federal government may not go in withholding state funding to incentivize (bribe?) a state to do Washington’s bidding.

I can hardly wait for some states to follow this holding right back into court to challenge the federal takeover of K-12 education.  Over the last decade, beginning with President George W. Bush’s No Child Left Behind legislation to President Obama’s Race to the Top grants, the federal government has gone from the back seat to the driver’s seat in K-12 education policy.  What was only a decade ago cited as the classic example of a state or local policy matter, K-12 education is now dominated by federal testing and accountability measures, and now the beginnings of a national curriculum.  Although it falls somewhere between South Dakota’s share of federal highway money and the average state’s federal Medicaid money, the Court today opened the door for such a challenge.  Beyond the money, it is the kind of pervasive and dominating scheme that should be examined.  So this is not just a theoretical victory, but perhaps the setting of a practical stage for more state challenges to federal power.

In the end, having won these Constitutional victories, the states and conservatives lost the case because of clever maneuvering by Chief Justice Roberts.  He undercut the commerce clause argument by finding that Congress had the taxing power to regulate healthcare, even though the federal government itself said this wasn’t a tax.  And he cushioned the blow of the Medicaid provision by saying that Congress could only withhold new Medicaid funding, not existing funding, and that Congress surely intended the law to shift to that ground if the Court found any part of the Medicaid funding issue to be unconstitutional.

The high road reading of Roberts’ decision was that he himself was acting conservatively, citing the Court’s appropriate “reticence to invalidate the acts of the Nation’s elected leaders.”  Still, especially when the presumed swing vote of Justice Anthony Kennedy went with the conservatives, it was a bitter disappointment that Roberts went out of his way to rewrite and reinterpret legislation in order to save it.  Still, despite the loss, states’ rights and federalism made significant gains in this decision, and live to fight another day.

To view the Forbes.com article please click on the link:  http://www.forbes.com/sites/daviddavenport/2012/06/29/federalisms-silver-lining-in-the-healthcare-decision/


The ICC and Palestine: A Response (OpinioJuris.org) April 6, 2012

Posted by daviddavenport in Policy Articles & Papers.
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In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could:  the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States.  The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.  Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009).  Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.

The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg.  A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction.  Those debates belong in political bodies, not in criminal courts.  This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.

So, what now?  Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally.  How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later?  If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations.  And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations.  Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.

Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively.  Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.

To view the op/ed please click on the link:  http://opiniojuris.org/2012/04/06/the-icc-and-palestine-a-response/

International Criminal Court Prosecutor Resists Palestinian End-Run (Forbes.com) April 4, 2012

Posted by daviddavenport in Policy Articles & Papers.
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For three years, the Prosecutor of the International Criminal Court in the Hague has been trying to decide whether he had jurisdiction over Israel for alleged war crimes in Gaza. Even though the legal answer (“NO”) seemed obvious from the start, both politics and the inevitable expansionist agendas of international courts kept the question alive and Israel potentially subject to the Court.

Finally this week the Prosecutor announced that he would not pursue the investigation of Israel “for acts committed on the territory of Palestine since 1 July 2002.” For now, this closes off yet another legal front of attack on Israel, and also thwarts another end-run by Palestine around the path by which Palestinian statehood is supposed to be resolved; namely the Middle East peace process and the United Nations.

The interesting question is why it took so long for the Prosecutor to reach what seemed like a no-brainer outcome from the start. In January 2009, the Palestinian Minister of Government filed a submission with the ICC asking the Court to take jurisdiction over Israel’s actions in Gaza. But the Court’s own rules require that any matters submitted must come from a “State.” Since Israel is not a party to the treaty creating the Court (nor is the U.S. and 70 or so other nations), and since Palestine is neither a party nor a State, it seemed obvious to most international lawyers that the ICC had no jurisdiction over the matter.

This is precisely what Prosecutor Luis Moreno-Ocampo concluded at first, that he had no jurisdiction. But a few weeks later, he reversed field and said he wanted to think further about whether Palestine might have sufficient earmarks of a State to submit a case to the Court. And so the hunt for those earmarks began. Some argued, for example, that because Palestine walks like a state and talks like a state, it therefore must be a state. Only in the vagaries of international law might one describe such a legal argument as “teleological” and therefore be taken seriously. Others said that because some states interact with Palestine as a state, it must be a state.

But when you look at the list of nation-states that belong to the United Nations, Palestine is not there. Instead it is listed as an “observer” at the U.N. And when you review those who attended the meetings creating the International Criminal Court itself, again Palestine is not listed as a state, but rather as one of the “other organizations” in attendance. Indeed, Palestinian officials themselves have long admitted that statehood is their objective, not something they have already attained.

Yet the ICC Office of the Prosecutor spent three years pursuing a lengthy and, for a prosecutor, almost bizarre process of consideration. First, prosecutors entertained “submissions”, not only from parties but from anyone, really, who had something to say. Memoranda were filed by human rights organizations, NGO’s, academics and countless others, with many of these posted on the Prosecutor’s website. Then the Prosecutor invited eight international lawyers who had made submissions, to come to the Hague for a chat about the matter. If it’s difficult to imagine your local prosecutor holding afternoon tea sessions to discuss whether to prosecute war criminals, again welcome to what passes as the world of “international law.”

It is both interesting and important to understand why the Prosecutor took so long with this question. For one thing, the impulse of international organizations is inevitably to expand their jurisdiction. They want more power and influence, not less. Since the purpose of the ICC was to halt impunity for war crimes, genocide and crimes against humanity, the human rights organizations that were behind formation of the Court worry less about legal niceties such as jurisdictional rules and want broader jurisdiction. The Prosecutor himself may share those views but, at the very least, he feels pressure from those who founded this relatively new court in 2002, a court that only recently completed its first trial.

The Prosecutor also faces political pressures that he is only bringing cases against Africans and not those from other, more powerful countries. Indeed, virtually all of his early investigations have been against Africans and perhaps he needed to keep this case alive, if only to demonstrate some balance. Further, he may have been under pressure to keep his hand in the Middle Eastern peace process, holding the threat of prosecution over Israel’s head. And, the ICC could have been one more ticket for Palestine to punch in its effort to receive recognition from international organizations and move along toward its goal of statehood.

But in the end, all those political pressures could not find a proper legal argument to carry the day, and the Prosecutor had to admit that the question of statehood, and therefore the ability to bring cases to the ICC, was really a decision for the United Nations, and not for the Court. Imagine, though, all the time, effort, frustration, and political leverage that were invested in a decision that could and should have been reached three years ago.

To view the article please click on the link:  http://www.forbes.com/sites/realspin/2012/04/04/international-criminal-court-prosecutor-resists-palestinian-end-run/

The Prosecutor of the International Criminal Court Makes a Sensible, if Delayed, Decision (Advancing A Free Society) April 3, 2012

Posted by daviddavenport in Policy Articles & Papers.
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The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.”  This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.

But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state.  To that the answer is “no, for now.”

The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation.  But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.

The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in The Hague.  He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally.  He spent three years looking at arguments that Palestine possessed this or that mark of statehood.  One sensed that he was under political pressures to open the doors of the Court more widely to take this case.

In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer.  It thus becomes a political decision for the U.N., rather than a legal decision for an international court, which was surely the right answer all along.  The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.

To view the article please click on the link:  http://www.advancingafreesociety.org/2012/04/03/the-prosecutor-of-the-international-criminal-court-makes-a-sensible-if-delayed-decision/#more-5729

Urging the FCC to Tune In, Drop Out (Hoover Digest » 2012 no. 1 » Regulation) January 23, 2012

Posted by daviddavenport in Policy Articles & Papers.
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In announcing recently that the Fairness Doctrine would be wiped off the books, the Federal Communications Commission took one small step into the information age. Characteristically, the commission was decades behind the times, and it left other media regulation still stuck in the industrial age and in serious need of rethinking.

A major problem with government regulation of business is that it is based on markets and technologies as they exist when the rules are imposed. In the case of radio, this body of law has largely been the Radio Act of 1927, the Communications Act of 1934, and the Fairness Doctrine adopted by the FCC in 1949. There were fewer than three thousand radio stations in the country in 1949, compared to the fourteen thousand that ply today’s robust and competitive market.

The Fairness Doctrine required radio stations to air opposing points of view. So, for example, if a radio host or guest favored a particular policy, the station was obligated to air a message against. Perhaps this made some sense when a geographic market had few stations, but today, with satellite radio, Internet radio, and thousands more terrestrial stations, every point of view under the sun can find its way onto the air. For decades, the market itself has provided protection for minority points of view, so the primary question should be why it took government so long to catch up to market realities.

horse and carriage

If the Fairness Doctrine were enforced today, there would be no Rush Limbaugh, no Sean Hannity, no talk show hosts with a point of view. Whether you enjoy their programs or not, these radio talkers have rescued and re-energized talk radio. If a listener wants balance or fairness, he or she can simply turn the dial to another station whose talkers have a different point of view. Rather than diversity on every program, there is a diversity of programs and even a variety of distinctive stations and networks—a market that achieves the same fairness goals intended by the outdated Fairness Doctrine.

In the end, like many government regulations, the Fairness Doctrine had become a political football as much as an agency rule. The FCC suspended it during the Reagan years but didn’t take it off the books. Then for years, concerned about the rise of conservative talk radio, Democratic leaders in the House and Senate threatened to put it back in force. Finally it died as part of President Obama’s push to satisfy business that he was seeking to streamline government and eliminate unnecessary regulation. Even now, the moldering regulation doesn’t seem fully dead. Some of the Occupy Wall Street protesters, for instance, have called for reinstating it. Such is the life of federal regulatory schemes.

Taxpayers continue to provide up to 20 percent of public broadcasting’s budget. Some of its executives make more than the president of the United States.

What federal agencies in general, and the FCC in particular, need to be concerned about is whether federal regulations continue to make sense as markets and technologies develop. In that sense, eliminating the Fairness Doctrine was no better than a baby step into the information age. What about the equal time rule, a kind of companion to the Fairness Doctrine? It requires that if one candidate for an office appears on the broadcast media, other candidates must be given equal time. This rule also is anachronistic and has been so swallowed up in exceptions as to be meaningless. If Donald Trump had run for president, for example, his appearances on The Apprentice might require equal time for other candidates, unless the show were on cable television, which is a meaningless distinction in these days of cable and satellite TV. If a candidate sits down for a few minutes with Letterman or Leno, another exception for “news/interviews” illogically comes into play. Isn’t it time for equal time to go the way of the Fairness Doctrine?

And how about government subsidies and funding for public broadcasting? Again, the support may have made sense when there were only three or four television networks. If there’s a need for public broadcasting’s programs today, shouldn’t they compete for funding and airtime with everyone else? I find little justification for a nearly bankrupt government to spend money on television and radio programming when we live in a 24/7 media cycle. Yet taxpayers continue to provide more than $400 million for public broadcasting, roughly 15–20 percent of its budget, and some executives in that business make more than the president of the United States. Further, it drags the government directly into questions of political content, exemplified by the controversy surrounding commentator Juan Williams and the termination of his contract by National Public Radio. The bipartisan budget deficit commission recommended phasing out taxpayer subsidies to public broadcasting.

So, one cheer for the FCC for burying the Fairness Doctrine. But let’s hold off on three cheers until more work is done to align government policy toward the media with the market realities of the media age in which we live.

Special to the Hoover Digest.  Link to the article:  http://www.hoover.org/publications/hoover-digest/article/105206

The Reagan Library Debate: Round One of the Two-Man Race (Advancing a Free Society) September 12, 2011

Posted by daviddavenport in Policy Articles & Papers.
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Political debates rarely live up to their name, much less their hype. It is especially difficult to have any sort of debate when the stage is crowded with multiple candidates, each trying to get in a memorable sound bite or talking point.

But the Republican candidates almost had a debate Wednesday night, as most of them shrank into the background and the two leading contenders, Mitt Romney and Rick Perry, squared off. Rick Perry was surprisingly good in his first debate and, even more surprising, he seemed to make Mitt Romney better.

The entire Republican race to date has been an audition to see who would emerge as the second semi-finalist alongside Mitt Romney. Although Michele Bachmann had a brief try-out in that role following her strong finish in the Iowa straw poll, no one really thought she had the staying power to end up there. But Rick Perry, whose appeal appears to be broad and strong, seems likely from day one to make it to the final round with Romney.

As a front-runner in his first debate, it was clear Perry would be a target of the moderators and the other candidates, and he seemed ready for it. The key is that he kept his composure and his smile, shrugged off multiple attacks, and held his ground. He responded to the gang attack with humor, noting he was the “piñata,” and quickly got into a jab and punch with Romney over who had created more jobs as governor. He stood by his rhetoric that Social Security was a “ponzi scheme”—questionable on the substance, but strong on style—and gave as well as he took.

Romney, finally facing a formidable opponent, really seemed to rise to the occasion. Rather than steer the middle of the road with bland responses as he has done most of the year, Romney attacked Perry’s record as governor and was spirited in the defense of his own. You don’t understand Massachusetts, he said. We don’t have oil wells and no state income tax. And he was a gentleman when Perry acknowledged he might have handled a matter better with the Texas legislature, noting that we had all made mistakes, had done things we might do differently.

This is rapidly becoming a two-man race, and a potentially interesting one at that. Romney has the experience of running before and a huge head start in fundraising. His strength—the economy—matches what voters say is their biggest concern. I have a friend who says Romney’s best campaign speech would simply mention jobs and his ability to understand and create them about every third sentence. But his conservative credentials are subject to attack and somehow he seems to impress voters as running for chief operating officer more than president.

Perry is the candidate with, as they say these days, strong positives but also strong negatives. In a political party with so many different kinds of conservatives (social, fiscal, constitutional, religious), Perry seems to be conservative across the board. And though it will be attacked, still his record in Texas speaks well to the big issue of the day: the economy. His problem—which was not helped in this debate—is he doesn’t yet seem to get the difference between running for office in Texas and nationally. His rhetoric and ideas (social security as a ponzi scheme, should Texas secede from the Union, a governor leading a huge Christian prayer rally) often fit Texas more than they do the greater diversity of the country. He clearly needs some help outgrowing his parochialism, without seeming to be reinventing himself or flip-flopping (as Romney is often accused of doing).

So, they’re off, these two interesting, contrasting candidates, Perry and Romney. Soon enough, the other candidates will fall to the wayside, and we may end up with a compelling two-man race to the Republican nomination next summer.

Read the entire piece on Advancing a Free Society here: http://www.advancingafreesociety.org/2011/09/12/round-one/

FCC Takes a Small Step into the Information Age (Advancing a Free Society) August 28, 2011

Posted by daviddavenport in Policy Articles & Papers.
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In announcing recently that the Fairness Doctrine would soon be removed from the books, the FCC took one small step into the information age. Unfortunately there is still plenty of media regulation that is stuck in the industrial age and in serious need of rethinking.

A major problem with government regulation of business is that it is based upon markets as they exist at the time regulations are imposed. In the case of radio, this body of law has largely been the Radio Act of 1927, the Communications Act of 1934, and the Fairness Doctrine adopted by the Federal Communications Commission (FCC) in 1949. The nature of the problem becomes clear when you recognize that there were fewer than 3000 radio stations in 1949 compared with some 14,000 today.

The Fairness Doctrine has required radio stations to air opposing points of view. So, for example, if a radio host or guest favored a particular policy, the station was obligated to air a message against. Perhaps this made more sense when a geographic market had few stations, but today every point of view under the sun finds its way into the thousands of media outlets available, so the market itself provides plenty of protection for minority views. Really, the only question should be why it took government regulators so long to catch up to market realities.

But while we celebrate this small step, we must acknowledge that government has so far to go to square up government policy with market realities of the media age. Take the equal time rule, which is a kind of companion to the Fairness Doctrine requiring that, if one candidate for office appears, other candidates must be given equal time. This rule is also anachronistic and has been so swallowed up in exceptions as to be meaningless. If Donald Trump were to run for president, for example, his appearances on “The Apprentice” might require equal time for other candidates, unless the show was on cable television, which is a meaningless distinction these days. If a candidate sits down for a few minutes with Letterman or Leno, another exception for “news/interviews” ridiculously comes into play. Isn’t it time for “equal time” to go the way of the Fairness Doctrine?

And, while we’re at it, how about government subsidies and funding for public broadcasting? Again, these may have made sense when there were only 3 or 4 television networks, but if there is a need for their programs today, shouldn’t they have to compete for funding and air time with everyone else? I find little justification for a near-bankrupt government to spend money on television and radio programs when we live in a 24-7 media cycle.

So one cheer for the FCC. But I’ll hold off on three cheers until more work is done to align government policy toward media with the market realities of the media age.

Read the piece on Advancing a Free Society here: http://www.advancingafreesociety.org/2011/08/28/fairness-doctrine/