Tipping away from tyranny

17 Dec

images-2   Holy cow! The system may be working.

Democracy subsists on a series of trade-offs, a balancing of competing values. When our founders set up our three-branch government and wrote a Constitution and Bill of Rights, they fashioned an infrastructure they hoped would keep those competing values in balance.

When Federal District Court Judge Richard Leon ruled yesterday that the NSA’s power-vacuuming of citizens’ phone data is likely contrary to the Fourth Amendment’s prohibition against unreasonable search and seizure, our system took a step toward rebalancing two competing values: our right to keep the government out of our private business versus our right to our government’s protection from our enemies.

This is only the beginning of what will undoubtedly be a long trip through the judicial process. But it gives me hope.

This particular clash of values may be the most difficult one we have to deal with. Of course, we all want to be safe – from terrorists and from criminals. But we also need to be safe from our own government.

The current administration and the agencies it controls like the NSA and its brethren may be motivated purely by a desire to keep us safe and not by any nefarious wish to know what we’re thinking so that they can use it against us.

But what about the next government and the one after it? That’s what the founders were trying to protect us from: a future government that could decide not to bother with civil liberties in the name of some alleged larger good, a good likely to serve the needs of the majority and ignore those of any minorities.

At the extreme, think George Orwell and “1984.” Everyone was safe, right? Because no one had a right or access to any individual liberties that might threaten the system. Hardly the way we want to live.

About 200 years before Orwell’s iconic date, back in 1792, the founders thought keeping the government out of our homes and possessions was so important that they wrote it into the Bill of Rights. And they did not say, “But the government’s intrusion into your home and privacy is perfectly OK if you have nothing to hide.” They knew that what is orthodox and acceptable today may be suspect and punishable tomorrow.

That’s the danger of giving authorities free rein to know whom we call and email. Just think of what Joe McCarthy could have done with the kind of info the NSA has been gathering. Both the Fourth Amendment’s prohibition against invasion of our privacy and the First Amendment’s protection for freedom of association are being breached when the government knows whom we contact and with whom we “associate.” It would be so easy to take a few more steps and tell us whom we may contact and with whom it is OK to associate, which is what McCarthy tried to do.

Using the judicial system, Judge Leon has taken us a step back from that precipice and toward restoring the balance between privacy and freedom on the one hand and safety and security on the other. So much better that we face this and deal with it now – through the system set up to do that – than to slide so far toward the security side that we tip into tyranny.


Changing the rules

22 Nov


In the quintessential dramatic move yesterday, the Senate voted 52-48 to change its rules so that a simple majority is all that’s needed to approve presidential appointments to executive and judicial positions.

Questions: Will the Democrats who gave this measure their support live to regret it? Could the Republicans use this rule to approve their own party’s appointments with simple majorities in the future? Should the Dems have resorted to this “nuclear option” at all?

Answers: Maybe. Of course. They didn’t really have much choice.

The current situation was bad and getting worse.  Every Senate in the past 60 years has taken its time approving presidential appointments, but the current bunch is breaking all the records. Because the rules required at least 60 votes for approval, the minority could easily delay consideration of appointments for weeks or even months. And the Republicans had been doing that in spades.

Fifty-one of President Obama’s judicial nominations were pending as of this week. NPR’s Nina Totenberg said that compares to 18 at the same point in George W. Bush’s administration, 26 in George H.W. Bush’s presidency and 20 in Reagan’s. It’s taken an average of 204 days for one of Obama’s judicial nominations to come to a vote compared to an average of 59 days in the other administrations. If any progress were to be made, the Senate had little choice but to change the rules and speed things up.

Some of those unhappy with yesterday’s move say this enables the president to advance his agenda on things like climate change, financial regulations, economic stimulus and so forth, and they are shocked. Shocked!

Well, duh! That’s exactly why any president of either party gets to choose the folks who will run the cabinet-level departments and other executive agencies. The voters chose the general direction of the presidential agenda when they chose the president. It should surprise no one that the president will appoint people who will move us in that very direction.

And simple majority votes will also enable the courts to keep functioning efficiently. We can hardly live up to our nation’s promise of a (relatively) speedy judicial process if we have multiple vacancies on the federal courts.

Furthermore, judicial appointees are different from executive appointees. The president deliberately selects people to lead the executive branch who will support and promote his agenda. But, while he is likely to appoint judges he thinks will also be in sync with his ideas, judges are, by oath, beholden to the constitution far more than to whoever appoints them.

Senate Majority Leader Mitch McConnell says President Obama just wants to get his lackeys in those judicial seats, especially in the Court of Appeals for the D.C. Circuit, which plays a major role in upholding or rejecting federal regulations. McConnell implies that Obama appointees will automatically approve whatever the president’s administration comes up with.

I’m sure Obama hopes that’s true, but I have at least a little more faith in justices to make decisions based on their best judgment of the law and constitution, not just their political inclinations.

Of course, once the current Democratic majority in the Senate changes the rules on this matter, those rules will also apply if and when the Republicans again have a majority in the Senate.

But there’s no reason that either party should be able to obstruct the approval process just because it wants to. The Senate has plenty of ways to actually vet a nominee, including a hearing before the Senate Judiciary Committee. The Senate is supposed to examine a nominee’s qualifications and fitness for the position; it is not supposed to delay and block and delay some more simply because it wants to make life tough for the other party. We all suffer when that happens.

Institutional rules do matter, not only to procedure but also to policy. And they have consequences, only some of which can be foreseen when the rules are made. But an institution has to make the best rules it can to meet its goals and obligations. We should commend the Senate for facing reality yesterday.

Sliding along the slippery continuum

7 Jun

images-1I’ve ranted here before about the fallacy of the slippery slope, offering, instead, a metaphor about finding the balancing point on a continuum between values that sometimes conflict.

But the revelations this week about the NSA and FBI collecting masses of phone and Internet records – and, in the case of the Internet, at least, probably actual data, too – is almost enough to drive me over the edge of the slippery slope. Security and privacy are shoving each other back and forth on the continuum, and it’s frightening.

Sen. Lindsey Graham says those of us who are not breaking laws have nothing to worry about. Who cares if the government knows or can easily find out that I’m Skyping with my family or calling my barber or my friends or the local pizza parlor? On a practical level, the senator is probably right. Unless you’re the victim of mistaken identity – and that can occasionally happen – this isn’t a problem.

But what’s the next step on the continuum between security and liberty? Do we let the government slide a little farther to the security end of the scale and start watching for who’s calling or emailing or hitting the website for a tea party organization?  Or the ACLU? Or the NRA? Or Americans for Peace?

Even if we assume that today’s executive and legislative branches, in all their dysfunctional glory, truly do intend to use all the data they are collecting only to protect us from terrorist attacks, it would be easy for the gigantic government apparatus to get used to this kind of thing and just keep following it to the next step and the next.

Take the recent example of lower-level IRS employees letting politics enter into their regulatory work. It was not an official policy, but the bureaucracy is so big that the policy-makers and enforcers never even knew it was happening. To the rank-and-file employees, it just seemed like a logical extension of the work they were already doing.

And government intrusion on the basis of political viewpoints has happened before, notably when Nixon targeted his enemies during the Watergate scandal and when the FBI bugged Martin Luther King’s hotel rooms during the civil rights movement. But the amount of data available today and the ease with which it can be accessed is exponentially greater than it was in the 1960s and ‘70s.

The ease with which this so-called metadata can be analyzed is also so simple as to make the notion of privacy almost laughable.

Then add to that the secrecy the FISA court is allowed to use. A person being investigated is not even allowed to know it’s happening, can’t even claim in the courts that he is being harmed by some government action because, legally, he doesn’t know the government has taken any action.

I admit I was consciously relieved when the year 1984 came and went without George Orwell’s horrific vision coming true. Now I’m beginning to think it may just have taken an extra 40 years to get us closer to that terrifying Orwellian dystopia.

Media need to keep watching and publicizing these kinds of threats to privacy.  The government needs to rein in the bureaucracy. The Congress needs to rethink FISA. Bottom line: We need to find a new balancing point between security and privacy/freedom on a continuum that is actually beginning to look a little bit slippery itself.

Of course, I don’t want to die in a terrorist attack. But it’s equally horrifying to think about living in fear of my own government. And you and I are only safe from abusive tyranny if everyone is safe, protected by the Constitution and laws.

The revenuers and the First Amendment

13 May

capitolRepublicans are screaming, and so are a lot of Democrats. We all should join them.

Stories in the past week have revealed that the IRS office whose job it is to evaluate prospective non-profits’ requests for tax-exempt status has apparently given extra scrutiny to groups affiliated with the Tea Party and to other groups that appear to criticize the way the government is run or whose purpose is to educate people about how to make America better. While that encompasses many conservative groups, it also gathers in some liberal ones.

Not a good idea, IRS! Down right unconstitutional, actually. Groups from every part of the political spectrum have a right to “educate” the public in whatever direction the group thinks would make America better. It’s part of the First Amendment protection for free expression.

As the story has progressed, it’s become clear that the IRS has a legitimate reason to question all applications for tax-exempt status. The law says such status applies to groups engaged primarily in social welfare work, but a lot of groups seeking that status these days are concerned primarily with trying to influence elections and politicians. Sure, they have every right to make their political voices heard, but that doesn’t make them social welfare organizations and doesn’t excuse them from paying taxes.

Some IRS officials said the lower-level workers doing the extensive checks on groups they thought might not qualify for tax exempt status were using the words “tea party” as a sort of shortcut to help them decide where to dig deeper. But then we also hear that they were looking at any groups critical of government or trying to spread the word about how they think it should be made better.

Not good either way. I have few sympathies with the Tea Party and its views. But its supporters have every right to spread those views without government interference.

It’s worth remembering that the Bush administration created the IRS office that’s examining tax-exemption requests, so conspiracy theories blaming the current mess on President Obama have no legs to stand on. On the other hand, Mr. Obama is in charge now and needs to be sure this gets straightened out.

It may be that some of the groups applying for tax exempt status don’t quality for it. But in the process of reaching that conclusion, the IRS dare not do anything that even looks as if it’s singling out particular political points of view.

As the guys who wrote the Constitution recognized, we can’t let whichever group is in power make it hard for the bunch out of power to make its voice heard. That idea appeals to our principles but also to our self-interest because it’s not only possible but likely that I may be part of today’s “ins” but tomorrow’s “outs.” And I’d like my right to free expression either way, thank you very much.

Unfortunately, this is going to take up a lot of time the Congress could be spending on urgent policy decisions. If the Obama administration will take the lead and fix the mess, we might be able to get on to the rest of the federal agenda sooner rather than later. But the issue in question is of such fundamental importance that we can’t just let it go.

The relative value of debt

12 Mar

Columnists and  commentators and students and parents have been wringing their hands and wailing painfully lately about college debt. Recent studies show that many college students finish with an average of $26,000 worth of education-related debt.

Not good — especially because many grads are having trouble finding work or are taking entry-level jobs that pay maybe $30,000 a year or sometime less.

But a story in today’s Omaha World-Herald says the average cost of a wedding in the U.S. today is $31,000 and that 60 percent of couples age 25-34 pay for their own weddings. If they don’t pay for it, their parents do. Same would be true of college debt. And I’m guessing many young couples getting married do not have the cash to just pay for that wedding on the spot, so at least most of the $31,000 becomes a debt that must be paid.

So which is relatively worse: paying off $26,000 for a four-year (at least) college degree that ought to have made you a more educated person and broadened not only your job opportunities but also, and just as importantly, made your world bigger OR paying off $31,000 for a one-night stand, so to speak?

Yes, I know the $31,000 goes for more than the wedding ceremony itself. It’s amazing and appalling how the wedding industry has expanded and raised expectations so that even families and couples of modest means now expect to throw a week’s worth of parties, buy a contemptuously expensive dress to be worn ONCE, pile on the booze, the flowers, the candies, the dinner, the gift-for-everyone-who attends, the limousine, the 600-photo album and the honeymoon to a dream destination.

Don’t get me wrong. I love weddings. I love seeing a couple pledge their lives to each other, surrounded by dozens or even hundreds of people they love. And I love celebrating with a (modest) party afterward. But $31,000? Give me a break.

I wonder if we’ve reached the point that, for some or perhaps many, having a wedding is more important  than having a marriage. After the excitement of the parties and the dancing and the honeymoon, could it be a bit difficult to settle into a life where you need to get up and go to work every day? Where you see each other cranky, bored or depressed and have to deal with it? Where you have to work — hard — at building a life together, not just planning an event together?

Which debt holds more value: the one incurred through years of studying and learning or the one incurred through a couple of weeks of partying? Hmmm. Not a hard decision for me.

If you think it’s worth spending $31,000 on a wedding, go for it. But I don’t want to hear any more whining about college debt. Wedding debt is an indulgence; education debt is an investment.

Just CONFIRM the president’s nominee, for heaven’s sake

14 Feb

ImageSince the president nominated Chuck Hagel to be our next Secretary of Defense, Hagel’s fellow Republicans have been in a  monumental snit about it. Enough already! The Senate should go ahead and just confirm him for these reasons:

1. Chuck Hagel is a patriot who loves his country deeply — deeply enough to criticize and try to change it when he believes it’s off track. I spent many hours with him when I wrote his biography, and I am convinced that one of the things that makes him most appealing to many is that very fact: He says what he thinks even when it’s not popular. That also makes him most UNappealing to his fellow Republicans who have mostly become lockstep idealogues with little tolerance for those who won’t take every step with them.

2. While Hagel is a man of principle, he is willing to change the way he applies those principles as circumstances change. To apply EXACTLY what he believed about foreign policy and defense when he was elected to the Senate in 1996 to the world of 2013 would strike him as foolish. And he’d be right about that. We need someone who sees the world as it is, not as it used to be or as he wishes it would be.

3. Much of the opposition to Hagel is simply opposition to President Obama. The most obvious manifestation of that is Sen. Lindsey Graham’s threat to filibuster Hagel’s confirmation unless the Senate hears more from the Administration about what happened in the attack on the U.S. Embassy in Libya in 2012. It’s pure political maneuvering that has little to do with Chuck Hagel. Whi

4. A president of either party should be able to choose his Cabinet members. Period. The only reasons the Senate should block a nomination is if the nominee is demonstrably incompetent or corrupt. Chuck Hagel is neither of those.

From all I know of Sen. Hagel, he would be a fine Secretary of Defense, reporting to the president exactly what he thinks, not just what he thinks the president would want him to say. He is smart, he is global and we can trust him.

Too bad the Senate is so tied in political knots that logical, appropriate procedure is being threatened with extinction.

The simplistic slippery slope

16 Jan

I am soooo tired of hearing people say, in any context, that if the government passes a law to do such and such, we will start down a slippery slope that will ultimately lead to a complete government take-over of (pick one) the media, guns, privacy, the Internet, etcetera.

Right now, it’s guns we’re hearing about as the administration proposes to put some controls on firearms in the wake of the December school shootings in Connecticut. Opponents say we can’t allow any kind of ban on any kind of gun or ammunition and certainly can’t ask gun owners to be licensed because any of those steps will take us down the slippery slope until the Second Amendment means nothing and “only the government will have guns.”

So is this slippery slope real — regarding firearms or any other issue? Is it something we should be afraid even to stick our toe onto?

Yes, I think it is real. I also think we’re on it ALL. THE. TIME. in relation to a multitude of issues: free press, guns, privacy, the Internet, free speech and on and on.

The trouble with the metaphor is that it implies a stark choice between the top and the bottom, between all and none, between good and bad, and that’s just not the way life works.

Our freedoms lie on a continuum with anarchy at one end and tyranny at the other but LOTS of room to maneuver in between. What we’re looking for is the balance point between liberty (to the right of anarchy) and security (to the left of tyranny).  And that balance point slides back and forth depending on the times and the circumstances and the needs of both individuals and society.

Citing the slippery slope as a reason not to work toward the balance point is lazy thinking — way too simplistic to reflect the reality of life. I’d like to ban that phrase from our culture.

If we can’t do that, then let’s at least face the fact that we’re on the slope all the time, sliding down a bit and then dragging ourselves back up a bit and then doing it again. And again.

We have yet to hit bottom and it’s not likely we ever will as long as we are thoughtful enough and willing to work hard enough to find the balance that will satisfy as many of our needs as possible. The slippery slope is a fact of life; it need not do us in.