Friday, January 29, 2010

Getting to 'No' you

I was explaining recently, as I offered my sigh filled and grudging congratulations to a euphoric Scott Brown supporter, that in my book there's an important distinction to be made between a skeptic and a cynic: A skeptic is occasionally willing to hope his darkest pessimism is mistaken. It was in that spirit, I explained to my crowing Republican friend, that I offered our new junior senator my deepest heartfelt skepticism.

I would very much like to be proven wrong about Senator Scott Brown. Without going on at length about my past complaints, I would like to find that he has more to offer than just saying no —be it to healthcare reform, to cap and trade environmental legislation, or the better regulation of our financial institutions. Beyond that first 'no' there is the question of —what then?

It would be nice if there was something there.

It was thinking on the subject of 'just saying no' to the President and his agenda that put me on the idea of an early indicator for our new Senator — a place where Scott Brown can show this skeptic he is beyond simple obstructionism. Dawn Johnsen, President Obama's nominee to head up the Office of Legal Counsel, who a full year in is yet to receive her confirmation vote in the Senate, has distinguished herself as someone who believes in a principled 'no' every now and then herself —even when talking to one's president. She has gone on record in critique of past OLC's simply "forward leaning" to the will of their White House keepers. She's on record objecting to the rubber stamp legalizing that enabled and permitted Constitutional evasions on domestic spying and torture in the Bush/Cheney administration. She's on record admonishing the denizens of the past administration OLC that sometimes it is your job to say 'no.'

That plain speaking principle has cost her dearly in the hallowed halls of the Senate. Her appointment has languished in Limbo through the Obama Administration's first year, while Senate leadership worries of the 6O votes it needs to confirm her without being filibustered. (Sound familiar?) There had been some furtive movement towards resolution in recent months, but with Brown's election the immediate speculation is that her goal is now one vote further away.

But maybe there's a bargain to be struck here, Senator Brown. There was that talk during your campaign that you weren't with the Herding to the Right Republicans, that yours was a maverick independent Conservativism —that your stance was toward opening the secreted process, having at the debate. You're not likely to embrace Dawn Johnsen's apparent policies. The demagogued discourse in D.C. is likely to go on circling around her 'pro' position on abortion rights or her seeming disdain for policies of a past administration. But as Johnsen so persuasively points out, the position she seeks to fill isn't about political alignment, issues advocacy or even formulating policy. It is about candid assessment of the the legal standing of the President's decisions. It is a job where, no matter what you might like the answer to be, sometimes you must simply say 'no.'

That's an idea we've been asked to consider in your own campaign rhetoric, Senator Brown —that notion of principled objection. Showing some respect to such a similar stance, even from a position of opposing views —pledging to give Dawn Johnsen the up or down vote she deserves after a long year of empty obstruction and paralytic posturing —that would go a long way towards proving me wrong about you —

In just the way I would hope.

Sunday, January 24, 2010

Trojan Horse and Judas Goat Stew, The Recipe

I suppose no one should be surprised by the Supreme Court's 5-to-4 decision on The Hilary, The Movie Case —or that along with the decision we would be treated to brave pronouncements about the bold stance now being taken by the Court against government censorship and bans upon free political speech. No one should be surprised, but that doesn't make it any less horrifying. The fundamental intellectual dishonesty of the opinion is just plain staggering.

I wrote on this a while back, when it was a case being reheard at the behest of the Court last Fall. I titled my piece "Hairdressers" then, with some sense of irony and anger at the rhapsodic defense of corporate campaign spending Justice Scalia had offered —on behalf of corporate citizens "like the local hairdresser" —this as he was supposedly hearing arguments from the parties to the case.

(Should we discuss 'activist judges' now, folks?)

At the time I tried to argue it was just a bit disingenuous to characterize the restrictions upon corporate campaign spending, being made an issue of in the case by the justices themselves, as somehow equivalent to some abridgment of the rights of 'the regular guy' just down the street—those many "single shareholder corporations. … The local hairdresser, the local auto repair shop, the local new car dealer” as Justice Scalia described them, whom he supposedly so wanted to protect. I pointed out that none of the curbs on corporate campaign spending dragged into court by the court did a damned thing different to abrogate a "single shareholder’s" rights —any inch further than the rights of a single stakeholder citizen. What we were beholding in Scalia's "Hairdresser" was a cross between a Trojan Horse and a Judas Goat.

But what was so ominous then, and what makes the decision so sadly unsurprising now, is that the points of law we were hearing argued (mostly by the judges) were never of substance in the original case. The case was never about banning the movie in question, shutting down public showings or pulling copies of the dvd from the shelves —as some have suggested. The case stemmed from a ruling on an online on demand video distribution network, that the corporate producers of HTM had paid a pretty penny to access. The ruling in appeal was that the paid access was essentially a media buy of the sort regulated by campaign spending law. The plaintiff's themselves first argued the case in the narrow terms of that interpretation and it was only when the Roberts Court suggested it that we heard new arguments on the larger themes —"The censorship we now confront [so] vast in its reach"—as Justice Kennedy ultimately described it in announcing the decision.

So, no —we shouldn't be surprised when the decision comes down vindicating the plaintiff's arguments that the judges instructed them to make. No, we shouldn't be shocked or dismayed at all. Actually we should be dismayed , as so it is that we get treated to Justice Kennedy waxing eleoquent.

"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."

As Dahlia Lithwick of points out, It fell to Justice Stevens, reading the dissent to the decision, to point out that none of Kennedy's rhetoric actually corresponds to facts of the case —or truly founds and establishes "the court's decision to topple decades' worth of legal architecture that had never been questioned in the courts."

President Obama has responded to the announced decision by calling upon Congress to develop a "forceful bipartisan response" and describing the ruling as one that "strikes at our democracy itself "

"This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way - or to punish those who don't. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.

I can't think of anything more devastating to the public interest."

It is worth noting that just one of the campaign spending laws gutted and crippled by the court bears the name of President Obama's opponent in the last presidential election —The McCain-Feingold Act. So, although it might sound crazy these days to suggest that a bipartisan effort could be called upon to correct the errant moves of an arch activist Conservative court, it just might be possible. It's going to require a politically transcendent understanding of the Constitution —and no small measure of Audacity.

Tuesday, January 12, 2010

Bear's song

Bear’s Song

come and lie beside me if only for the rest,
come and lie beside me —place your hand upon my chest
take the rhythm of my heart and bring it to your song
you know and I know you shall sing before too long

I will never see the dancing grass again I know
the earth already darkens deep beneath the snow
your brother’s voices carry, they are singing of the end.
I can taste the taste of ashes carried on the wind.

when first I found you, you were lost, lost into my eyes
lost into their darkness that you feared and that you prized.
for your soul or for your song did you give yourself to me?
was it something that you captured or something I set free?

come and lie beside me and take the things I give
take them to your song and there my soul might live
come and lie beside me you know we don’t have long
tonight I am still flesh, tommorrow I’ll be song

yes something of me lives to see the gold of this turning year
something of the music to a song I’ll never hear
something of your song so much stronger than the words
like the unseen hand beneath the wing that lifts a soaring bird

ashes pool around the stones, morning waits to speak
the words he does not want, the stories other seek
his throat is full with sadness and empty of the breath
it takes to tell the dawning day the legend of my death

come and lie beside me if only for the rest,
come and lie beside me place your hand upon my chest
take the rhythm of my heart and bring it to your song
you know and I know you shall sing before too long

this song is published in

available at

Sunday, January 10, 2010

Free the pimps

Senator Scott Brown sees himself another hot button to politically push —"illegal immigration." So it is we have the news, now in the last days before the special senate election, that he has filed legislation that would bar the protections of our state's wage laws to workers without legal status. Protecting workers' rights to legally limited work days and wages that are humane and livable is one thing, doing that in such a way that we might protect "illegals" —well, that's another in Senator Scott Brown's book.

Brown makes no bones about the political stunt nature of the legislation he has filed. It's not about the problem of illegal immigration. Make no mistake. It's about his political rival. As WBUR reports it:

"... [A]ttorney general, Martha Coakley has aggressively enforced laws protecting workers’ wages. Before the campaign, her office often announced settlements with companies she sued for allegedly violating prevailing wage laws or avoiding payroll taxes. Coakley represented everyone, including illegal immigrants."

Brown sees here an opening. As he understands and explains it all in a telephone interview, the Attorney General's job is to "enforce the laws of the state and to protect citizens here legally and the people who are here with the appropriate immigration status" —the implication being that to enforce the laws of the state one should demur when it comes to protecting citizens without legal presence —that law enforcement really ought to be selective in who it chooses to protect... Really.

I'll just note that at the one criminal trial I ever attended —it was as a juror —the victim was without question of the criminal element sort, but as I recall 'The People' still somehow saw some merit in prosecuting the crime.

And I guess I'm glad Scott Brown is not running for Attorney General.

Honest people can disagree about the best ways to address the illegal immigration problem directly —or even symbolically. There's some honest disagreement about the principles involved —whether certain measures send the right message to lawless behavior. But to write law specifically excluding the protection of the law? Doesn't that just flaunt the whole notion of the immigration debate as being about the principle of... law? Doesn't the supposed debate then descend to nothing more than exploitation of basic bigoted resentment?

If there is a single aspect of illegal immigration that most can agree upon, it is that would-be workers —illegal workers are drawn here by illegal hiring. Illegals become an attractive source of cheap exploitable labor precisely because they live along a dangerous line where seeking recourse could also send them home. Law that would exclude illegal workers the protection of the law from illegal employers—and calling that a move against illegal immigration— I see it as about the same as offering amnesty to pimps and calling it a crack down on prostitution (—thought being they do help keep the gals in line).

But then again Senator Brown didn't file this thinking it was real world legislation. The good senator from Wrentham knows better than that. This is only more prop imagery and nothing more —election season theatrics —reason to once again wonder what kind of world it is Scott Brown lives in. Does he really see the State Senate as only a set stage for his political stunt pseudo-legislation?

Should we assume he would treat the national stage with any more respect?

Monday, January 4, 2010

On the bill to enter into a multistate compact on a presidential popular vote

As I mentioned on an earlier thread, I participated in the Mass Citizens Legislative Seminar this past Spring. And we were given this issue to consider in a mock session of the State Senate.

So if you'll forgive the length of it, I'll recycle the rhetoric:

On the bill to enter into a multistate compact on a presidential popular vote

Madame President, I wish to speak against the proposed legislation before us, while at the same time being very much in support of the spirit behind it. It is not my intention to defend some conservative ideal of the status quo or advocate an unquestioning reverence for the old wisdom of the founders of this commonwealth or this country. I do not mean to advocate or even excuse complacency in the face of current challenges that ache for reform.

But while we should not cling to flawed systems blindly, neither should we abandon logic that is central and meaningful to our history, our electoral practice and our civic culture without a clear understanding of the consequences —intended and unintended.

You will likely hear the legislation we are considering today described as a “One man —one vote” proposal designed to repair what is broken in the way our country selects its president. It is fair to ask who would ever oppose such a notion as one man one vote —what’s more—who could mindfully watch the process by which we choose our presidents and not want to see it at least made “more perfect” —to
borrow a borrowed phrase. I acknowledge that this is the solid spirit behind the matter at hand —as I said it’s a spirit I embrace. But I submit to you that it is our task here to examine the implications of legislation beyond the stated spirit or slogans they travel by.

Just as not every law that calls itself patriotic is in fact and effect patriotic —not every law that purports to protect or improve election law is in fact and effect doing so.

In the final analysis, at it’s core the legislation at hand really does one thing only. It empowers our Secretary Of State to instruct our state’s delegates to the Electoral College to vote in direct contradiction to the statewide popular results of a presidential election.

This is hardly an ideal premise to build upon for legislation that purports to be about reforming our democracy.

Let us examine the proposal further though. The law would bind us into this agreement to potentially contradict the voters of our own state by securing the same agreement from just enough other states to secure a 2 vote margin of victory in the Electoral College. Mind you —no particular other states are identified as involving themselves in our Secretary of State’s license to contradict the voters of our own state. He will simply gather that authority to his office once a sufficient number of pigs have joined us in the poke.

Those who would support this legislation will no doubt point out the faults and flaws in the current system and argue that this seemingly perverse notion of brokering away our Electoral College votes is but a strange means to a nobler end: direct national popular election of the President of The United States. We are told this is the only means of guaranteeing that each vote should have the same weight as any other. That this will remove words like battleground states from our vocabulary and we will stop color coding our maps in ideological tints.

I will admit that this is where the spirit of this legislation is most appealing. The notion that a handful of remote states represent the tipping points to the otherwise foregone conclusions of our electoral contraption is an unsettling one. I’ll admit to my own pain and despair over Florida in 2000. In fairness I’ll also admit to clinging to hope in Ohio in 2004. Thankfully in 2008 we were confronted with neither the reality or the potential of a President elected contrary to popular consensus.

In 2008 we saw perhaps a few foregone conclusions successfully challenged.

And if you will recall, a very central message of the winning campaign was that the election was not about the winning candidate. It was about us. There was that notion about community organizing —that community organizing is the fundamental activity of government in an engaged and vital democracy.

That government should empower communities —as communities should empower government.

This notion of the common purpose of a people arrived at upon the real and human scale of the communities they know and live within —this is one notion —one of a few— I do believe the founders got right. It is the mechanism of community and consensus that informs the design of our Congress and it is the same mechanism by which we should still select our President.

One phenomena of the the current flawed system —at least in the last several presidential elections is that Massachusetts Democrats end up leaving the state to canvas elsewhere—realize that not all of our residents think that is a bad thing. These activists do generally return after the election though. Perhaps if we, like a number of other states chose to award our electoral delegates by the corresponding district more of the energy of that advocacy would remain here, who knows —we might enable and enliven more meaningful debate of the issues that effect our lives —among the candidates for President —and more importantly among ourselves.

That question of how we award the delegates to the Electoral College in consistent keeping with the popular mandate of Massachusetts voters might be worth visiting in this senate chamber, but I’ll grant political realities are such that action on a federal level would probably be necessary to effect a larger balance to the reform.

The measure actually at hand today attempts to change a fundamental aspect of our Constitutional Democracy by means of a clever and perverse construct that evades the deliberately more demanding requirements of amending the Constitution of The United States. I trust everyone in this room to regard The Constitution as something more than a set of cumbersome obstacles to be evaded. I believe we all take a pledge to that effect.

Direct popular election of the President might allow the candidates to direct their attention somewhere beside the battleground states, perhaps that’s true. But mightn’t it also serve to direct our own attention further afield from our own towns and districts and states, from the larger genuine context of our own lives and our own issues. With the measure being proposed today, we might avoid the rare aberration of a President elected contrary to the popular will. But the question remains will we be any more empowered to lend that contest meaning beyond mere popularity?

I submit to you, that the answer is no.

Respectfully submitted

Tom Driscoll

Friday, January 1, 2010

Airbrushing history

I'll admit I find Scott Brown's campaign ad a little creepy. There's something about the conjured screen static taking over and the archival footage of John F. Kennedy giving way to some supposed morphic equivalency between JFK and... Scott Brown. The 30 second spot goes to that dark heart of black and white televised nostalgia mongering in much the same way the full length movie Pleasantville did.

I'll admit Lloyd Bentson's famous advice to Dan Quayle came to mind. Scott Brown, you're no John F. Kennedy.

But to give the Divil his due, Senator Brown does remind us that tax-cuts in and of themselves aren't the property of one political party or one set of economic principles. They are tools in the toolbox to be considered. Tax cuts, why not? There is some dimension to the question, if not to the weird image play at work in Brown's asking of it.

But giving a look to the context of the tax cuts Kennedy proposed (which were finally put into effect well after he was dead) it is worth realizing that the structural concern —as Kennedy conceived of it— underlying a lagging economy as we moved into 1960's was the problematic prospect of a massive and growing federal surplus as we got "the economy moving again."

Herbert Stein writing for the WSJ put it this way: "

In fiscal 1961, when Kennedy came into office, the federal deficit was about 0.6% of gross national product. But the administration believed that the budget would be in surplus, given the existing tax rates and expenditure programs, if the economy were at full employment. It believed that even with lower taxes or higher expenditures the budget would be in balance if the economy were at high employment.

The administration believed that there was a long-term problem of fiscal drag. It thought that in the long run the potential growth of total output was 4% a year, without counting on increased growth from tax reduction or other structural reforms. But this potential growth rate would not be achieved with existing tax and expenditure policies, because they would yield excessive surpluses, which would depress demand. So the long-run growth problem was to get rid of these troublesome budget surpluses.

With some exceptions, the administration did not care much about balancing the budget, except as a useful political slogan. Walter Heller, Kennedy's chief economist, referred to balancing the budget as "the Puritan ethic," at a time when that epithet was considered dismissive.

Cutting taxes was not Kennedy's first choice for getting rid of those troublesome surpluses. He had plans for many expenditure increases - for defense, education, urban renewal, regional economic development, worker training and medical care for the aged."

So, as Steven Greenberg pointed out, writing for back in 2004, there is really some problem "portraying Kennedy as the ideological kin of Reagan and Bush on tax policy." There is just some problem with airbrushing out the context for Kennedy's proposal and pretending he is some spiritual ancestor to the mania for tax-cuts as a cure-all —to what some would describe as Voodoo Economics. Unlike 8 x10 glossy portraits, air brushed centerfolds —or even clever video effects, economies have a three dimensional reality to them that's worth considering on the whole.