Constitution Day Remarks

Last night I had the privilege of giving the introductory remarks at A Conversation with the Constitution, a Constitution Day event at KLRN Studios sponsored by East Central Independent School District, Gemini Ink, and the San Antonio Public Library Foundation.

The text of the remarks:

Our American Constitution set the stage for an ongoing debate about what our democracy should be. There is no better way to honor that spirit than an examination 10666015_10102627616292848_5113669244400168228_nof the recent groundbreaking Supreme Court decision Citizens United v. FEC, which we will be discussing tonight.

The seeds of this case were sowed over a century ago, when the United States faced many problems that might be familiar to some of you. There was unrest throughout Europe and the Middle East. At home, the gap between the richest and poorest was widening. Enormous corporations were exerting their influence over the American political system to protect their monopoly power.

A group of Progressive Era reformers led by President Theodore Roosevelt were able to minimize the political influence of corporations by prohibiting direct corporate contributions to political candidates. While this law has stood the test of time, you still meet people every day who feel that the deck is stacked in favor of corporations and lobbyists and against folks like you and me. A lot of them will cite the Supreme Court’s groundbreaking decision in Citizens United v. FEC as evidence of this.

Just as 100 years ago, folks are beginning to lose faith in the basic American bargain: that if you work hard and play by the rules, you will have a shot at success.But there is reason for optimism and a light at the end of the tunnel because the students in this room will solve our challenges just as the Progressive reformers addressed theirs.

The Citizens United case started with, of all things, a movie. Seven years ago, Senator Hillary Clinton was the front-runner over Senator Barack Obama to become the next President of the United States. In fact, many believed her to be “inevitable.” A small nonprofit group with funding from corporations called Citizens United wanted to release what they called a “documentary” film- one that was very critical of Senator Clinton.

Unfortunately for Citizens United, there was a law on the books that prohibited corporations from engaging in “electioneering communications.” This meant that corporations were not allowed to independently spend money to put an ad on TV or in a newspaper that was meant to endorse or oppose a political candidate.

The Supreme Court was asked to answer a simple question: Was the documentary an electioneering communication? As the court considered this, the issues became deeper and cut to the heart of our First Amendment. We’ve all learned that we are guaranteed free speech, but questions remain about what that actually means:

  • Does the First Amendment guarantee free, unlimited speech in all contexts?
  • Do corporations get the same constitutional protection that you and I do?
  • Should the First Amendment guarantee equal access to free speech?

There are those who believe that the law prohibiting corporate electioneering prevented corporations from exercising free speech rights. There are others who believe that too much corporate influence in our political system will corrupt it- and that this is a compelling reason to prevent corporate expenditures.

The Court decided that corporations can independently spend as much money as they want to support or oppose candidates, as long as it is independent. Corporations still can’t give money directly to the candidates themselves.

There is an old saying- “money in politics is like water on pavement- it will find its way into every crack and crevice.” Think about it, it’s true. Tonight, we will be discussing what role the government should have in regulating the flow of money into our elections.

We will not answer these questions tonight. In fact, we will likely walk out that door with more questions than we had when we walked in. That is the brilliance of the American Constitution. Happy Constitution Day.

Thoughts on Uber

Yesterday, my boss came out in favor of a deregulated vehicle-for-hire industry which would allow companies like Uber to operate in San Antonio. The San Antonio Express-News ran a B1 story on his proposal this morning. This is from his post on D8 Dialogues blog on the subject:

Currently, San Antonio lacks the regulatory flexibility needed to unleash innovation in the transportation industry. Even though City Council recently amended Chapter 33 of the City Code, which regulates vehicle-for-hire services, progress and marketplace disruption demand that we revisit its contents.

To open the doors for innovation in the transportation-for-hire industry, the City Council should adopt policies that: 1) level the playing field; 2) encourage competition; 3) ensure public safety and consumer protection; and 4) provide access for all of our residents.

Two years ago, I wrote an op-ed for a political commentary site outlining my views on the subject:

Uber exists as a mechanism to streamline processes, making urban transportation more convenient for every party involved. Uber has even used market forces to protect the public (a novel concept!) because consumers know more about a driver because of information available about each driver on the app.

Critics of Uber are ostensibly attempting to “protect the public,” but are actually just safeguarding their own…oligopolies of urban transportation. 

My time working for Councilman Nirenberg has changed my perspective slightly, but I wholeheartedly support his proposal.

“Truth Commissions” Chill Free Speech

Should the government be in the business of regulating speech in any manner? If so, to what degree? These are very heady questions that lie at the heart of how we think about our First Amendment. The American political left has long been seen as an advocate for the notion that the truth will emerge in a robust free exchange of ideas. Recent events have poked holes in this reputation.

In 2012 the Supreme Court considered a federal law that made it a crime for someone to falsely claim receipt of a military honor. They found that such a crime “chilled” free speech. At the time, I wrote:

Justice Kennedy claimed “permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.”

This is the crux of the matter…Slippery slope is taught in college as a fallacy, but First Amendment thought is, and ought to be, filled with slippery slope paranoia.

On Tuesday the Court will hear arguments in a case called Susan B. Anthony List v. DriehausMany10056df14792ef2c9260373acd72ca58 states have adopted laws that allow the government to fine or imprison people who make false statements in political campaigns. This seems perfectly reasonable on its face. We are sick and tired of politicians and special interests lying to or misleading us. However, these states have given “truth commissions” (government bureaucrats) the authority to determine what statements are true or false.

The attorneys for Susan B. Anthony List, who sued under threat of punishment from such a law in Ohio, penned an op-ed in today’s Wall Street Journal:

The relevant question is thus not whether there is a constitutional “right to lie,” but rather whether the state may force citizens to defend the “truth” of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.

The premise of the First Amendment is that the people should decide what is “true” and what is “false” in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political “truth.”

Laws that penalize lying in political campaigns are rooted in noble intentions. But they lead to the creation of government “truth commissions” that belong in an Orwell novel. The Court should err on the side of free speech.

Habits and New Year’s Day Links

The gym will be unbearably crowded today. That’s good, though. I hope that some folks make a habit out of their resolution tohabit exercise more. I can personally attest to one of the primary themes of Charles Duhigg’s The Power of Habit, which I started rereading yesterday:

Typically, people who exercise start eating better and becoming more productive at work. They smoke less and show more patience with colleagues and family. They use their credit cards less frequently and say they feel less stressed. It’s not completely clear why. But for many people, exercise is a keystone habit that triggers widespread change.

Some links

Luke O’Neil laments the changing media landscape in Esquire:

This conflation of newsiness with news, share-worthiness with importance, has wreaked havoc on the media’s skepticism immune systems. It didn’t happen out of nowhere, it’s a process that’s been midwifed by the willful blurring of the lines between fact and fiction on the part of a key group of influential sites, that have, unfortunately, established a viable financial model amid the wreckage of traditional media.

Theodore Roosevelt was appointed NYC Police Commissioner at 36.
Theodore Roosevelt was appointed NYC Police Commissioner at 36.

Theodore Roosevelt came up through New York City politics. Roosevelt biographer Edward Kahn gives some advice to Mayor Bill de Blasio:

The new mayor must avoid self-righteousness and be willing to work with political opponents. Liberal or progressive groups in New York…have tended to adopt a shrill tone of moral superiority that played poorly to a wide audience. But Roosevelt was willing to compromise and build alliances beyond his base…Even when he targeted trusts as president, Roosevelt didn’t wage war on American big business. “The captains of industry,” he said in a 1901 address to Congress, “have on the whole done a great good to our people.” Praising your opponents before hauling them before the Supreme Court was classic Roosevelt.

Law professor Glenn Reynolds decries the stupidity of zero-tolerance policies in schools in USA Today:

When your kids attend schools like these, they are under the thumb of Kafkaesque bureaucrats who see no problem blotting your kid’s permanent record for reasons of bureaucratic convenience or political correctness.

But then again, according to Allison Benedikt, you are a bad person if you send your children to private schools:

Whatever you think your children need—deserve—from their school experience, assume that the parents at the nearby public housing complex want the same. No, don’t just assume it. Do something about it. Send your kids to school with their kids.

Ken White’s rebuttal to Benedikt’s limousine liberal manifesto:

I want to minimize the ability of people like Alison Benedikt, who tend to encrust government, to tell me how to raise my family or live my life. I believe in free expression, free worship, free conscience, personal responsibility, the rule of law, strictly limited government (and the strict limitation of people with clipboards and people with guns and badges, thank you very much), and that the best society is one in which free people make free choices, not one in which you allow the Alison Benedikts of the world to make the best interests of your children subservient to the best interests of a collective imagined by a smug self-appointed elite.

There seems to be mass hysteria when it comes to the so-called “student loan bubble.” In the Journal of Economic Perspectives, Christopher Avery and Sarah Turner conclude otherwise:

The claim that student borrowing is “too high” across the board can—with the possible exception of for-profit colleges—clearly be rejected. Indeed, media coverage proclaiming a “student loan bubble” or a “crisis in student borrowing” even runs the risk of inhibiting sound and rational use of credit markets to finance worthwhile investments in collegiate attainment.

The Grinch on Broadway and Links

1526434_353920764750966_1767807648_nWe came across some last-minute tickets to Dr. Seuss’ How The Grinch Stole Christmas! The Musical at The Majestic Theatre last night. I misplaced my Playbill, but the actor who played the Grinch knocked my socks off.

There’s nothing quite like a night at the theatre followed by a self-indulgent Romeo y Julieta with Angel’s Envy on the Hotel Valencia balcony. Some of our fellow patrons thought I was a server, which amused me. A glass with a dab of bourbon in one hand and a half-smoked cigar in the other. If anyone can find a job where that behavior is acceptable or encouraged on the clock, let me know. Here are some links:

Rachel Held Evans examines why many biblical literalists tend to focus on homosexuality rather than other biblically-condemned acts:

Though it affects more of us than we tend to realize, statistically, homosexuality affects far fewer of us than gluttony, materialism, or divorce. And as Jesus pointed out so often in his ministry, we like to focus on the biblical violations (real or perceived) of the minority rather than our own.

Johns Hopkins professor David Lampton examines a shift in China’s governance in Foreign Affairs:

According to the German sociologist Max Weber, governments can derive their authority from three sources: tradition, the qualities and charisma of an individual leader, and constitutional and legal norms.

China…has gone from being ruled by strongmen with personal credibility to leaders who are constrained by collective decision-making, term limits and other norms, public opinion, and their own technocratic characters. As one senior Chinese diplomat put it…”Mao and Deng could decide; Jiang and the current leaders must consult.”

So I’m a huge fan of The Great Gatsby, The Wolf of Wall Street, and Leonard DiCaprio. Rachel Syme compares the two 2013 films in the New Yorker:

In Fitzgerald’s narrative, Gatsby dies for our sins, for the sins of the men and women floating about like moths through his blue gardens who can hit and run in cold blood and live to play polo another day. In Belfort’s, it is Belfort causing the car accidents (and the helicopter accidents, and the yacht accidents), and he walks away without so much as a scratch. Scorsese leaves it up to the audience to be Carraway, to recoil in horror at the debauched behavior of the rich and run away from the theatre with a nauseous feeling and a raging hangover. And, of course, this is where the whole thing runs into trouble.

robin_hoodUniversity of Arizona professor Lane Kenworthy argues in Foreign Affairs that the political future of the United States is inevitably socially democratic:

There is surely a level beyond which public social spending hurts economic growth. But the evidence indicates that the United States has not yet reached that level. In fact, the country is still probably well below it.

[C]lear thinkers on the right will eventually realize that given Americans’ desire for economic security and fairness, the question is not whether the government should intervene but how it should do so. An expansion of social programs would not necessarily mean more government interference in markets and weaker competition.

George Mason economist Don Boudreaux worries about redistribution, but not because he is greedy:

Do you [proponents of ‘redistribution’] not worry that creating government power today to take from Smith and give to Jones — simply because Smith has more material wealth than Jones — might eventually be abused so that tomorrow, government takes from Jones and gives to Smith simply because Smith is more politically influential than Jones?

I once read a passage in my Constitutional Criminal Procedure seminar that satirized the Court’s interpretation of privacy and the Fourth Amendment. I can’t find it for the life of me. But Rebecca Rosen discusses the gist, albeit far more solemnly, in The Atlantic:

We daily convey our information to third parties — Google, our cell-service provider, Facebook. For most people in America today, eschewing disclosures of this kind would leave them unable to go about their daily business. Can it really be that participating in life, the economy, and society require a forking over of one’s claim to a ‘reasonable’ expectation of privacy?