Archive for July, 2005

Let a Thousand Flowers Bid

My most recent column in The Post, on why payola in the music business is just fine:

Maybe Attorney General Eliot Spitzer should simply pay radio stations to mention his name on a daily basis as he gets ready to run for governor. That way, at least, we’d all be spared wastes of time and money like his recent investigation into music-industry payola.

On Monday, Spitzer’s office announced one of its famous “settlements” with Sony BMG. After months of taxpayer-funded investigation, Spitzer got Sony to admit to bribing radio stations to play its artists: $1,000 to get a J. Lo track added to a playlist in Buffalo, $750 to get more Beyoncé and Train on the air in South Burlington, Vt., a digital camera for this DJ, a laptop for that program director — and on and on.

The company agreed to pay a $10 million fine, and it promised (not incidentally) to stop bribing people.

And, so, now we know . . . what exactly? That all those Celine Dion, J. Lo and Audioslave songs on the radio aren’t actually the most meritorious music out there?

That radio isn’t a juried art exhibition, with critics picking winners and losers based on artistic merit and moral integrity?

Thanks a lot, Eliot.

For robbing millions of New Yorkers of their child-like innocence.

Of course music companies pay for play. And, yes, it is illegal.

But the real question New Yorkers should be asking themselves is whether any of what Sony did is actually wrong or harmful to consumers.

Payola is as old as recorded music itself.

In fact, it’s older.

Spitzer should concentrate on more important things. Meanwhile, let a thousand flowers bloom. And let them bid for their places in the sun.

It was also payola day at the Times, with this op-ed and this one, too.

Draft Allison

Allison Hayward that is, for FEC commissioner.

Bush could (and will) do a lot worse.

FEC v. CBS

Last week, the FEC threw out a complaint against CBS for supposedly “coordinating” with the Kerry campaign in running its botched National Guard story — and, thus, making an illegal contribution to said campaign.

Allison Hayward analyzes what this decision means for “media” (an important question for bloggers) here and here.

I would also note that just because the FEC reached a reasonable decision here doesn’t mean that campaign-finance laws aren’t a direct threat to the media. The fact that such a complaint can even be brought is a tremendous injustice in and of itself.

And the FEC isn’t always going to act rationally. John McCain and Russ Feingold are constantly suing to make sure of that. And now they’re lobbying for more extreme reformers to be appointed.

McCain-Feingold must be repealed, or it must be taken apart in court once Justice O’Connor (the swing vote in the case that upheld McCain-Feingold) is gone.

The Bingo Bob Court

My most recent Tech Central Station column takes a closer look at the question of questioning Supreme Court nominees:

Sure, Roberts is not quite “mediocre.” It’s hard to call a guy with his resume mediocre. But after a week of every liberal interest group in the country digging around in the judge’s past like a bunch of coked-up ferrets for his positions on various issues, we’ve learned … precisely nothing.

This nominee’s not just stealth. He’s actually invisible.

But while the Roberts nomination may seem like a sly move to a White House that clearly sees itself in a weak position politically, is this the kind of behavior anyone wants to encourage in a president? Is this any kind of process, where a nominee to the Supreme Court having an opinion on anything — like, say, the Constitution — is seen as a potentially devastating liability?

It’s been an interesting debate, and I’ve been encouraged to see some conservatives I trust come out on the side of serious questioning (Ponnuru, Barnett and some other folks at Bench Memos).

Sen. Schumer’s general grandstanding and dumbassitude has made it a harder debate to have within the conservative movement (though I don’t think we’d be having the debate at all if not for his agitation). But it’s starting to proceed.

It probably won’t affect the process for this nomination, which is basically a lock. But it could make people think a bit harder in the future.

Or, Roberts will sail through so easily — precisely because of the “stealth” strategy — that a dangerous precedent will be set for decades to come.

Could go either way, I guess.

Oh well.

Schumer’s Credibility

Neither Sen. Schumer’s credibility nor mine is bolstered by this:

In The New York Post, the paper I don’t always agree with, today there’s an article by one of their leading columnists, very conservative man. “Question the court. Sorry Republicans, Senator Schumer’s got a point.”

My more partisan friends are not happy with me appearing in enemy propaganda broadcasts.

Call me Jane Fonda.

Ramesh and Randy

Ramesh Ponnuru takes a stand similar to mine on the question of questions in the latest NR on dead tree.

Randy Barnett also has some questions for Roberts over at Legal Times, but it seems you need a subscription for that.

Here’s a clip:

John Roberts Jr.’s credentials and legal ability are beyond question. But there is one added qualification a Supreme Court nominee requires: a judicial philosophy of respect for the rule of law provided by the Constitution as written.

No matter how otherwise qualified, if a nominee favors a method of interpretation that calls for a bit of text, a dash of history, a dollop of precedent, and a pinch of pragmatism, he can reach almost any result. We must then fall back on the nominee’s political preferences to predict the type of justice he will make. That is a bad idea. Far better to choose candidates whose approach to the text is both constraining and predictable, while independent of ideology.

Barnett also has been following the debate over at Volokh.

Schumer v. Roberts

R1218773385

In my Post column today defending Sen. Schumer’s position on the question of questions for nominees, I referenced a few quotes from Schumer’s exchange with Judge John Roberts, when Roberts was before the Senate for confirmation to the D.C. circuit.

The full transcript of those proceedings is available here (in a 1,236-page, 40 MB PDF). But, for convenience, I’ve formatted the Schumer-Roberts portion and I’m posting it here after the jump. I’ve highlighted a few portions that I find particularly interesting.

In short, I think Schumer makes a very convincing case — regardless of his motivations. These points, in particular, strike me as persuasive:

1) “Judges disagree because there is a degree of subjectivity of the law. You can’t avoid it. If there weren’t, there wouldn’t be dissenting opinions. There wouldn’t be legal debate. We could put black robes on computers and put them on the bench instead of going through this process.”

2) “How is this different than us examining the precedents of judges who have written, you know, pages and pages of cases?”

3) “The Framers … when they had John Rutledge, the first nominee before the Senate—and I believe it was 12 of the 22 Senators were actual Framers—they talked about— you know, they talked about his views on the Jay Treaty. They clearly intended specific issues and specific cases to be discussed.”

4) “Why doesn’t every person who is involved in federalism or violence against women who goes before the Court think that the four Justices who dissented are biased and the process is damaged? I mean, this is an absurd argument, in all due respect. Justices on the bench dissent. They criticize opinions that, by definition they are in dissent, that become part of the law. And that would mean on a whole variety of different instances every one of the nine Supreme Court Justices would be held not to be fair, not to be unbiased. People have their opinions. We all know that.”

5) “Is it better or worse if, in fact, you have opinions, which clearly you must, but these opinions aren’t revealed? How does it make it any different?”

I would be very interested to hear from anyone on the right (or the left) serious arguments in rebuttal of Schumer’s various points here. And I don’t consider citing the “Ginsburg precedent” a serious argument.

Assuming that precedent is not controlling, and assuming Schumer’s good will (I know, not easy for many Republicans), what are the concrete reasons Schumer is wrong? Why don’t the Senate and the American people have a right to ask extensive questions of the nominee and have them answered? How exactly does it compromise a justice or compromise the process?

I’m more than open to hearing the different arguments in this debate. And I think that even if Schumer is right that the Senate should take more latitude in its questioning than it has in the recent past, there still should be some lines. And, to channel Justice Scalia a bit, I’m wondering how a “bright-line” test could be formulated for this, if it’s possible at all.

(Also, don’t miss Hatch calling Schumer a “dumb-ass” toward the end.)

Question the Court

Here’s my latest column from The Post. It (mostly) defends Sen. Schumer’s position on how much questioning Supreme Court nominees ought to be subjected to:

Republicans can’t have it both ways. Either judges are fallible human beings, prone to substituting their own biases for sound constitutional reasoning at the clack of a gavel, or they’re cool-blooded automatons, applying the Constitution to specific cases in a way not dissimilar to old punch-card computers.

If they’re computers, a check of the specs should do just fine for vetting a nominee to the Supreme Court like Judge John Roberts (Harvard, check; appearances before the Supreme Court, check).

But if they’re human beings — as President Bush and many in his party have made clear when criticizing “activist judges” and a runaway judiciary over the years — then it matters quite a bit what a nominee actually thinks.

About Roberts, so far the American people have been told . . . not much.

Judge Roberts, it seems, has no opinions. He’s just a resume with a goofy grin.

And many in the Republican Party would like to keep it that way. They’ve spent years arguing — regarding Bush’s lower-court nominations — that the Senate’s confirmation process should be based almost solely on a nominee’s credentials, not on such nasty business as “ideology” or “litmus tests.”

But New York’s own Sen. Chuck Schumer has another approach in mind: Fire up the grill.

The piece goes on to lay out some of Schumer’s case and why I particularly think he has a case as regards blank-slate Roberts.

Keeping Coulter

Why, again, do conservatives tolerate Ann Coulter?:

After pretending to consider various women and minorities for the Supreme Court these past few weeks, President Bush decided to disappoint all the groups he had just ginned up and nominate a white male.

So all we know about him for sure is that he can’t dance and he probably doesn’t know who Jay-Z is.

That’s not cheeky or politically incorrect. It’s just moronic.

And then there’s this:

The only way a Supreme Court nominee could win the approval of NARAL and Planned Parenthood would be to actually perform an abortion during his confirmation hearing, live, on camera, and preferably a partial-birth one.

OK. I wish I’d thought of that one.

Hippo

Hippo_turtle

USPS instructions on how to pack a hippo.

(via Geek Press)

UFT Scam: Up and Running

As the United Federation of Teachers gets ready to open a charter school this fall, we at The Post want to make sure New Yorkers know just what it’s all about:

Now, students in Brooklyn will be pawns as the union uses the school to try to demonstrate that its restrictive contract — which prevents principals from doing their jobs — is not a problem in the public-school system.

The school has been set up to benefit teachers, not kids:

* It has no extra class time for kids, but plenty of (paid) professional-development time (i.e., overtime) for teachers.

* It has a weak curriculum.

* And there is no principal, only a “school leader” whose every move will be subject to approval by a UFT-stacked board of directors.

No one, of course, wishes the kids badly. For their sake, it can only be hoped that the UFT school will succeed.

But New Yorkers must be leery of what passes for “success,” for the UFT has seriously stacked the deck relative to the city’s public-school system.

To cite just one example, the union has already circumvented its own contract with the Department of Education by setting it up as a new charter school — as opposed to converting an existing school to a charter, which would have mandated keeping the original school staff in place.

So, from the outset, the UFT will have more flexibility than almost any principal in the city in selecting its own staff.

Wouldn’t it be nice if the union were to depart from the 250-page labor contract it clings to so tenaciously, and cut the kids a break in the same way it serves its own narrow interests?

Not likely — now, or ever.

Kids don’t count; contracts do.

We’ll be watching.

Constitutional Leeway

OK, one more on campaign-finance reform before I have to run.

Bob Bauer asks why The Washington Post, so skeptical of politicians’ intentions in all other matters, is so eager to grant Congress “constitutional leeway” when it comes to campaign-finance reform.

To wit:

Why would the Post turn over to these types of leaders the temptations of writing the rules for their own political survival and prosperity? Why in this instance, in the writing of campaign finance rules, do these individuals allegedly infected with self-interest, instinctively mendacious, given to pandering and straddling, and in a generally “fallen” state, suddenly become a mighty “Congress” wisely entrusted with broad “constitutional leeway”?

There’s actually an answer, and it’s not pretty. Read the whole thing.

Dictatorship 21

The Lonely Centrist asks: Is Fred Wertheimer (enemy of free speech, president of Democracy 21) the most naïve man in America?

Bingo Bob

This may not be fair, but the president’s choice makes me recall this bit from “The West Wing”:

Toby: “In a triumph of the middling, a nod to mediocrity, and with gorge rising, it gives me great nausea to announce Robert Russell - Bingo Bob, himself - as your new Vice President.”

Will: “This lapdog of the mining interests is as dull as he is unremarkable…”

Toby: “…as lackluster as he is soporific. This reversion to the mean…”

Will: “…this rebuke to the exemplary…”

Toby: “…gives hope to the millions unfavored by the exceptional… Bob Russell: not the worst, not the best, just what we’re stuck with.”

Bartlet wanted a quick confirmation, too.

(ok, credit has to go to the girlfriend for this comparison. but it’s apt.)

A Correction

Also, one correction to my TCS column. My knowledge of the Washington state media market is… limited.

Readers wrote in very quickly to tell me that the Seattle Times is actually the largest daily newspaper in the state. Not the Seattle P-I. (Though, apparently, the P-I is the only paper in the state with statewide circulation.)

Mea culpa.

Some also wrote in to say that the Seattle Times is a conservative paper. I think that’s relative. The paper endorsed Kerry. And, relevant to my article, it supports the gas tax (making it admirable of the paper to have opposed Judge Wickham’s ruling).

That is all.

Trahant Responds

The Seattle P-I editorial page editor, Mark Trahant, gives a short response to my TCS column in the comments:

Thanks for writing this.

I also said that I think there’s no question about the right of KVI (or any talk show) to promote a position. But I think the notion of responsibility is fair comment. Is it a First Amendment right? Yes. It is responsible for someone who controls air time? I am not so sure.

Mark Trahant

Again, Trahant has been very gracious to debate this issue publicly. Us editorialists often like to stay behind our editorials.

But I find his response puzzling. The First Amendment applies to “responsible” and “irresponsible” journalists alike. I appreciate his point about journalistic ethics — though I think different papers are entitled to have different positions on reporters/editorialists giving to campaigns and volunteering their time for political causes — but I think it’s irrelevant to the Washington case.

I don’t consider the talk show hosts in question irresponsible. But even if Trahant and the rest of the P-I edit board do, that shouldn’t have a single thing to do with whether or not a radio commentary should ever count as a campaign contribution.

Unless we’re talking about a paid ad — and even then, remember I’m against all campaign-finance regulation — there’s simply no defending it.

Reality Be Damned

What I didn’t expect when I wrote my column on how NYC parents could sue to get rid of the teachers contract was that the Daily News’ education guy, Joe Williams, filling in at Eduwonk, would do me one better: vouchers.

If the state can be sued for billions more in education aid, he asks, why can’t the court say that that money can’t go to the failed public system, but has to go to parents directly, for them to spend at private schools?

It’s a good idea. Unfortunately, it just couldn’t happen within the framework of the CFE case — which is probably where it would have to happen. In that case, the courts have already decided that more money for the public schools is the only acceptable remedy.

My column was intended to give a plausible alternative to the ideal scenario Williams describes, one that at least reforms the public schools a bit in exchange for giving them billions of new dollars.

(Those billions of dollars may never come, though. The dirty secret of the CFE case is it’s utterly unenforceable.)

Anyway, I probably should have written a column making Williams’ point a while ago. But I’ve become so conditioned to New York politics — and the implausibility of vouchers here — that I limit my own thinking on the matter.

But that’s not what we’re paid to do. So, in the future, I will propose even more unlikely solutions to New York’s problems. Reality be damned.

Hmmm…

As of 11:20 p.m., I’m really starting to doubt the Clement rumor.

Stupid, Baseless Speculation…

Put me down as a skeptic on the Edith Brown Clement rumor.

This is, I stipulate, fully uniformed. But this White House loves misdirecting the press.

My fingers remain crossed for Janice Rogers Brown.

Seattle, Post Intelligence

My obsession with the Washington radio case continues. In my latest TCS column, I take the Seattle P-I to task for its stance on the case:

First, Washington state’s speech police came for the talk-radio hosts, and the Seattle Post-Intelligencer said nothing. In fact, the Evergreen State’s largest daily newspaper said worse than nothing; it actively cheered on the enemies of the First Amendment.

The piece includes an interview with the P-I’s editorial page editor. Needless to say, I find his reasoning… unpersuasive.

Suing for the Schools

My latest column for The Post, on how New York City’s oppressive teachers contract could be dealt with through the courts:

For years, New York City’s teachers contract has been one of the major obstacles standing between public-school children and a decent education. But there seemed no way to remove the albatross: The United Federation of Teachers would have to sign off on any deal giving up the perks and privileges it has built up over the decades.

Yet there may be a way to obliterate the contract without the UFT’s consent — by turning the union’s own tactics against it. But it will require private citizens to pitch in to help reform the schools from the outside.
The basic idea is this:

If a teachers-union front group (the Campaign for Fiscal Equity) can successfully sue New York state for not spending enough on schools — supposedly denying kids their right under the state Constitution to a “sound, basic education” — why can’t the union be sued for the problems it causes in the school system?

Earlier this year, Eugene Harper, a bond lawyer who’s done work for the state, circulated a paper in education and labor-law circles arguing that a lawsuit could be designed to challenge the work rules that bar principals from running their schools.

I am, of course, fully aware that it’s not usually a “conservative” idea to try to affect such changes through the courts. But the courts in New York have already intruded so far into education policy, it’s hard to avoid them.

For those interested in the technical aspects of this idea (and I know you’re out there), here is Gene Harper’s original paper.

This is really a plausible idea. And if you’re a lawyer or very, very rich guy looking to help out in this effort, I can put you in touch with Harper directly.

Critics

Some people, of course, find nothing funny about Brett Bader’s campaign-finance performance art.

Everyone’s a critic:

Journalism 101: Right to be responsible

SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

Brett Bader is a clever man. A judge has ordered Bader and other Initiative 912 proponents to count as in-kind contributions to their campaign the on-air promotional efforts by KVI Radio talk jocks John Carlson and Kirby Wilbur. So, in his report to the Public Disclosure Commission, Bader also listed in-kind contributions to the gas-tax repeal effort from virtually every media outlet that had presumably said or written a word about the issue.

Clever. Inaccurate and misleading, but clever.

You’ll note, the P-I never points out anything “inaccurate” about Bader’s stunt. They’re right that it’s clever, though…

State law specifically exempts reporting as in-kind contributions, “a news item, feature, commentary or editorial in a regularly scheduled news medium that is of primary interest to the general public.”

The fact that Thurston County Superior Court Judge Christopher Wickham, despite that exemption, specifically ordered reporting of KVI’s efforts as an in-kind contribution made it clear that Carlson and Wilbur had crossed the line from straight commentary to outright promotion, more directly benefiting the campaign than their listeners.

Alternately, it could make it clear that Judge Wickham is, as is sometimes said of the law, an ass. But I digress…

Carlson told a Seattle Times reporter that he had donated to I-912 and collected signatures for I-912 petitions. “Endorsing and crusading for a cause you believe in is what the First Amendment and what the tradition of advocacy journalism is (sic) all about.”

Note the obnoxious use of “(sic)” …

Journalism is not only about rights, but responsibilities as well. Those of us in the media whose job it is to express opinion have a responsibility to our readers and listeners to ensure that those opinions are based on an independent review of the facts and issues, our personal, political or financial interests. You may not always (or not ever) agree with the conclusions we arrive at, but you have a right to know how we got there.

Huh? “those opinions are based on an independent review of the facts and issues, our personal, political or financial interests”???

Oh … they mean, “not our personal, political or financial interests.”

Sic.

Members of this newspaper’s Editorial Board don’t write checks, pass or sign petitions or participate in political campaigns. While we may have a personal right to do so, we recognize a professional responsibility not to.

If the P-I’s argument against Wilbur and Carlson boils down to the fact that they’ve put their money and their time where their mouths are — well, that sort of speaks for itself.

Backing up your words with action doesn’t forfeit your rights under the First Amendment. Newspapers are free to have their own ethical policies, and readers are free to judge papers by those policies. But the Constitution makes no distinctions between journalists and journalist-activists.

The P-I’s edit board might want to read it sometime.

What’s more, to pretend that a newspaper that has editorialized against a ballot initiative time and time again (as the P-I has with I-912) has no vested interest in seeing it fail is laughable.

Campaign-Finance Filing as Performance Art

Performance_art_in_harvard_square_bigima

There’s been a fun turn of events in the Washington state free-speech case.

The gas-tax opponents who were slapped for not reporting radio commentaries as “in-kind” contributions to their ballot-initiative campaign have fired back.

In complying with the judge’s order, they’ve made new campaign-finance filings listing every single radio broadcast and newspaper article about the initiative as “contributions,” since all of the news coverage fueled signature gathering and fundraising.

Of course, these disclosures are every bit as absurd as reporting the commentaries of two talk-radio jocks who support the I-912 campaign — Kirby Wilbur and John Carlson — but that’s just the point.

You can click to see the filing itself…

The Wrong McWilliams

Andrew Sullivan asks if Steven McWilliams is the first medical-marijuana martyr.

Certainly not.

While there have been plenty of others, quiet, in the shadows, another McWilliams, Peter McWilliams, was the first high-profile martyr to the federal government’s insane war on a life-saving treatment.

I wrote about him here.

Much more can be found here.

’er jibs!

Matt Welch, at Hit & Run, posts this delightfully preposterous e-mail from Jim Gilchrist of the Minuteman Project:

Dear Americans,

I am searching for any American-Mexicans or Latinos/Latinas, American-Africans, American-Asians, etc. who will volunteer their time to appear on TV with me from time to time. Also, any severely physically disabled person is wanted.

The percentage of non-whites in the pro immigration law enforcement movement appears to be only about 10%. I want to encourage more non-whites to join our ranks and at the same time resolve once and for all that the pro immigration law enforcement movement is not about “a bunch of brawny white guys”. We have plenty of women in our groups, but we are still a bit lacking in non-white participation.

As Welch said, I can’t imagine why?

Now, of course, any implication that the anti-immigration crowd is the least bit racist is always met by howls and angry e-mails. But there’s a reason the movement is mostly made up of white guys with beer guts yammering on about immigrants takin’ ’er jibs.

And the close-the-borders crowd might want to think about whether or not they want to hold the White House in 2008. One of the smartest things Bush has done, since the beginning, is refuse to attack racial minority groups, despite pressure from his base. (Now, he’s also tried to win back the “party of bigotry” title with his anti-gay-marriage BS. But it’s clear that was just election-year pap. He’s abandoned all that now.)

Regardless, I suppose I wish Gilchrist luck in his search for a severely physically disabled person to go on TV with him.

Should make for some gripping talk-show appearances.

Shameless Weasels on Parade

Weaselparade

Allison Hayward joins the shameless weasels parade.

Now, that’s a parade I’d like to see!

(Lost? Try shameless weasels.)

Willy and Morgy

I have nothing but respect for the chief justice. But holding onto his office at this point, in his health, is a tad arrogant.

No man should believe himself indispensable.

Such beliefs are afforded to justices, of course. Life appointment exists for a reason — an extremely sound reason — but its existence doesn’t have to be taken quite so literally. “Life appointment” doesn’t mean you have to hold onto the office until your life leaves you.

An aside: New Yorkers may look at Rehnquist and see Robert Morgenthau. Makes Fred Thompson look like a spring chicken.

Shameless Weasels

Also, Stefan Sharkansky seems to have done some good work digging through just who the shameless weasels behind the Keep Washington Rolling, pro-gas tax campaign are.

That’s: shameless weasels.

Lonely and Centrist

Who is The Lonely Centrist? He claims to be moderately famous.

All I care about, though, is that he is writing about the Washington radio story.

AND WE MEAN IT!!!

Finally, my proposed 28th Amendment gets some attention (OK, I initially proposed it as an addendum to the First Amendment, but this freestanding version is better). My most recent column in Tech Central Station:

For some years now, I’ve been pondering a little amendment to the Constitution. Nothing too grand, mind you. Just a little something that could fit on a cocktail napkin, yet at the same time provide more legal clarity than 100 Sandra Day O’Connor opinions.

And, so, without further ado, here it is, my 28th Amendment:

Amendment XXVIII.

AND WE MEAN IT!!!

Granted, it would be the first amendment written in all caps. And I’m pretty sure it would be the first use of an exclamation point, let alone three consecutive, in any of our nation’s foundational documents (”We mutually pledge to each other our Lives, our Fortunes and our sacred Honor!!!”).

But that all seems like a small price to pay when one contemplates just how invaluable the guidance of this simple — if enthusiastic — amendment could prove to the High Court.

Now, all we need is supermajorities in both houses of Congress and majorities in three-quarters of the state legislatures.

Let’s go…




 

Ryan Sager's Email List

Name:
Email:
Subscribe  Unsubscribe