SCOTUS Rejects "Political Process" Challenge to Michigan Affirmative Action Ban

By Michael Dorf

My latest Verdict column unpacks yesterday's SCOTUS ruling in Schuette v. Coalition to Defend Affirmative Action. The column speaks for itself. Here I want to add the observation that I find each of the five separate opinions unsatisfactory in one way or another.

Justice Kennedy (for the plurality of himself plus CJ Roberts plus Justice Alito): I agree with the core reasoning of this opinion but it contains an objectionable paean to the positive liberty (in Berlin's sense) of citizens to make their own decisions about race-based affirmative action. That sentiment would be easier to swallow if Justice Kennedy, CJ Roberts, or Justice Alito had ever voted to uphold an affirmative action program. But as none of them has, it's hard to take them seriously when they say that they just want the voters to be able to have their say; they want voters to have their say when they reject race-based affirmative action, but not so much when the voters choose it. The opinion also goes on about how difficult it is to tell what counts as a "racial" matter under the Hunter/Seattle line of cases. This strikes me as silly, at least in the current case, where race is expressly the topic of the Proposition.

Justice Breyer (for himself): Alone among the eight Justices who participated in the case, Justice Breyer appeared to vote contrary to his policy druthers. Props to him for that. But the rationale that Justice Breyer offers--that race-based affirmative action in Michigan was chosen by administrators rather than voters--is contradicted pretty clearly by the information Justice Sotomayor provides in dissent. And even if Justice Breyer is right about that point, he has some responsibility to decide the case on principle. What would he do if the prior regime had been local-voter-approved? The logic of his opinion suggests that he would then be with Justice Sotomayor, but her dissent has some serious problems.

Justice Sotomayor (for herself and Justice Ginsburg): I'll give her the stare decisis point. This case really does seem to follow from the rationale of Hunter/Seattle--a point that Justice Scalia also makes. But Justice Sotomayor fails to provide a good argument for that rationale. In particular, why is the baseline for analysis whatever policy a locality happens to have?  Suppose a state supreme court interpreted its equal protection clause as barring race-based affirmative action. Would that be impermissible? Would the answer depend on whether the state's EP clause pre-dated the federal Fourteenth Amendment? How could it? As I noted in my criticism of the 9th Circuit ruling in the Prop 8 case, there's no sound basis for a constitutional endowment effect. The best explanation for the 9th Circuit ruling there was that, while a state might have a rational basis for not recognizing a right to SSM in the first place, a different reason might be needed to take away the right--or perhaps the taking away manifested animus. But Hunter/Seattle doesn't rely on either of these moves. It says the taking away is problematic in itself. And that's just odd.

Justice Scalia (for himself and Justice Thomas): I agree with a lot of what Justice Scalia says here in criticism of the Hunter/Seattle doctrine but I disagree with his view that those cases were wrong even on their facts. It seems to me that Justice Kennedy has it about right when he recharacterizes those cases as really about hidden animus or invidious purpose. The Scalia opinion also contains a whole lot of unnecessary snark in support of his background view that the EP Clause requires color-blindness. Most inexplicably, Justice Scalia says here, as he has said elsewhere, that "the text" of the EP Clause "plainly requires" color-blindness. Really? The text? The text of the Fifteenth Amendment expressly forbids race discrimination with respect to voting, but the text of the Fourteenth Amendment nowhere mentions race, much less the formalistic understanding of racial equality that Justice Scalia advances. There are respectable policy grounds for thinking that color-blindness is the best understanding of equal protection (although I disagree with them), and perhaps one could make a historical argument that the original understanding of the Fourteenth Amendment requires color-blindness (although there is pretty strong evidence to the contrary), but the text is simply silent on this issue.

CJ Roberts: The Chief Justice mostly writes in response to Justice Sotomayor, apparently offended that she's implying that he's a racist. I could see why he would be offended if that's what her dissent implied, but I don't think she was saying that. She seems committed to the (odd) proposition that it would be perfectly fine for the governing board of the University of Michigan to abandon affirmative action, and that wouldn't make them racists; she just thinks (wrongly in my view) that this is problematic when done by the voters in an initiative.

What Rents May Broadcasters Charge?

By Bob Hockett

When I first moved to Ithaca some years ago, I was relieved by something that some people told me about television in this town – something that I suspect few would have counted as good news.  This was that it is impossible to receive television broadcasts by air in this region, such that one must seek cable or satellite service to see any television at all.

This came as a relief rather as Ulysses' being bound to the mast of his ship on approaching the Sirens is said to have relieved him.  I didn’t want to be tempted by television into wasting time, and feared that I would be thus tempted were I able simply to turn on the television unthinkingly when tired and then receive eye-catching and ultimately addictive broadcasts.  The fact that cable or satellite access would require one’s affirmatively seeking it out and then waiting for weeks before installation, I figured, meant that I wouldn’t end up getting cable or satellite service, hence wouldn’t end up turning on television unthinkingly and then being captivated by bad programs that wasted good time.

As it happens, I have since acquired cable service – just seven months ago, in fact – but happily I don't think it stems from akrasia.  It is, rather, because certain cable network programs, which I had occasion to see while on sabbatical last year when renting an apartment that came with cable, proved to be brilliant.  (I doubt that I am alone in suspecting that much of the world's best creative talent is presently engaged in the writing and producing of, as well as acting in, cable television programs.  A televisual 'golden age' appears to be underway.)  It is likely in part this new status, as one who views (alas, now too much!) cable but seldom views broadcast programs, that has me interested in the lawsuit I’d like to discuss in this post.  But that’s far from the only reason, as I’ll explain in due course.

So here is the suit:  The Supreme Court today hears arguments in a case brought by network broadcasting firms.  The case concerns yet another new communications technology’s implications for intellectual property law.  The technology this time combines cloud computing with ultrasensitive radio antennae.  With these technologies an innovative Brooklyn firm, Aereo, Inc., enables individuals who pay an $8/month fee to ‘receive,’ via antennae assigned to them on a one-person-one-antenna basis, television programs that are broadcast over the airwaves.  Customers then store these programs in ‘the cloud,’ and can download them either much later or immediately after storage, even while the programs are still airing, for viewing over the internet. 

Broadcasting networks including ABC, CBS, NBC, and Fox object to Aereo’s business model, as it appears to threaten to undercut the substantial fees that they charge cable and satellite television providers when the latter offer the broadcasters’ programs in their program packages.  The professed worry is that, if Aereo is legally able to avoid paying royalties to the broadcasters in virtue of the way its technology works, then cable and satellite firms will be emboldened to develop counterpart means of capturing broadcast programs and offering them to their customers, without having any longer to pay royalties to the broadcasters.  (Intriguingly, the leading cable and satellite firms are actually siding with the broadcasters in this suit, perhaps out of fear that some of the channels they bundle will be less compelling to no-longer-captive viewers able to access broadcast programs independently and inexpensively.)

In light of their objections, the broadcasters have brought suit against Aereo under color of the Copyright Code, demanding that Aereo be enjoined from offering its service while programs are still being aired.  As ever under the Code’s relevant language, the key question is whether Aereo is effectively transmitting network-owned ‘performances’ to ‘the public’ without having received prior permission from the owners.  The Southern District of New York effectively found that it is not, and the Second Circuit agreed in a split decision.

Cutting against the broadcaster plaintiffs is, among other things, the Supreme Court’s holding in 1984 that Sony did not transmit ‘performances’ in marketing Betamax video-recorders to customers who might subsequently use those devices to infringe television broadcasters’ copyrights in their programs (by transmitting ‘performances’).  Since Aereo customers decide whether to receive particular programs via the antennae assigned to them and then whether to record and download those programs, Aero can straightforwardly analogize their antennae-renters to Sony’s Betamax-purchasers and invite the Court to hold Aereo non-liable for much the same reasons as led it to find Sony non-liable.

Possibly cutting against Aereo, on the other hand, is the Court’s 2005 decision concerning ‘peer-to-peer’ file-sharing companies’ business model.  In that decision the Court held that, although it was the individual file-sharers who were directly violating the rights of those who held copyrights in the music and films shared as files, the marketers of file-sharing software also partook of those violations as enablers in virtue of their actively encouraging people to acquire the software whose principal purpose was to render their predicate copyright violations possible.

My own provisional view is that the Betamax decision is probably more directly on point than is the file-sharing software decision, precisely because the latter rested the indirect-infringement conclusion on the likely – and indeed encouraged – direct infringements made by purchasers of the software.  In the Aereo case, there is no claim that users of the service will be violating copyright, hence there is nothing illicit for Aereo to be ‘enabling’ by renting out antennae to its customers.  The programs in question are all broadcast gratis already over the public airwaves, and anyone with a sufficiently powerful antenna can access those programs without violating anyone’s copyright.  All Aereo does is to rent out antennae that are sufficiently powerful to do the trick.

In a certain sense, however, my own provisional read on the merits of the two sides’ copyright arguments is neither here nor there for present purposes.  I am no expert on copyright or intellectual property law more broadly, and accordingly leave full evaluation of the merits of the case qua copyright case to people like Mike’s, Sherry’s, and my colleague, Oskar Liivak.  My interest in this case is instead rooted in a distinct policy interest that dovetails with, but is not identical to the copyright interest.

The interest I have in mind has to do with certain rents that we as a public permit certain private parties to extract while using our – public – resources, and with the consequent right that we as a public have to condition extraction of such rents upon their compatibility with the public good.  I am interested in this phenomenon because it seems to me we’re not exercising that public right as we should.  We are failing to do so in a number of distinct contexts that I plan to discuss in a subsequent post, while here I’ll discuss only the broadcasting context.

The Aereo case, as it happens, involves not just one salient rent for my purposes, but two.

There is, on the one hand, that rent which is copyright itself.  Through the institution of copyright we – the public, through our laws – confer a temporary monopoly right in a particular work of art upon someone who either creates that work of art or purchases the monopoly right from the work’s originator.  The primary reason we do this seems to be that we think the work of art in question something whose creation is good, in the long run, for the broader public, but which might be under-produced in the absence of a temporary monopoly right.  The key background question in any copyright case, then, is accordingly whether the temporary monopoly rent is ultimately good not merely for the rentier, but also for us, the public, through its incenting more creating.  (I ignore for present purposes the absolutist, ‘natural right’ or ‘moral right’ justification that some advocates proffer for copyright.)

In addition to copyright rent, the Aereo case also involves what we might call sub-lessors’ rents.  As most of us have heard since our childhoods, it is ‘the public’ that owns broadcast spectrum.  ‘The airwaves’ are ‘ours’ – the general public’s – just as are public lands and waterways, and just as is the full faith and credit of the United States that ultimately backs up the liabilities of many financial institutions.  We lease exclusive rights to use specific intervals of the airwaves to particular broadcasters, in turn, and allow them to extract rents from others – others who wish to advertise – so long as they generally use their rented intervals of the spectrum for the good of the public.  Over time, the ‘good of the public’ in this context has come to be understood as free public access to that which the radio and television networks broadcast, with the broadcasters accordingly left to earn revenues by offering advertising space to other firms rather than by charging the public.

Both of these contingent rent-right conferrals upon broadcast firms, it seems to me, bear policy implications not only for the Aereo case, but also for other issues with which we as a polity have recently been confronted and will continue to be confronted.

To begin with Aereo, as just noted, the rents that we allow broadcasters to extract while using our spectrum resource are to be extracted from advertisers, not from the public.  That suggests that a service, like Aereo’s, which merely enables viewers to view more easily what they are already ‘entitled’ to view per the public’s arrangement with users of the public’s broadcast spectrum, might be expected to enjoy some presumption in its favor when a broadcaster seeks public (in this case, court) recognition of a right to charge rents to the provider of that service (in this case, Aereo).  For any such rent would be, indirectly at least, a rent charged the public – a rent charged by the tenant to the landlord, as it were.

By much the same token, because that rent-right which is copyright is conferred only insofar as it is thought necessary to encourage creative activity that we the public wish to see encouraged, there is at least some reason to presume that broadcasters’ copyrights are not infringed by Aereo.  For pursuant to our American model of broadcasting it is advertising revenue, not viewer subscription fees, which incent the production of materials that are broadcast over the radio-television spectrum.  And there seems no reason to suppose that Aereo’s service will do anything to dampen advertisers’ rental payments to broadcasters.  Indeed, quite the contrary, inasmuch as Aero will facilitate their reaching a broader audience.  (The broadcasters have apparently admitted in proceedings below that at least 90% of their revenues continue to come from advertisers.)

Broadening out from Aereo to other contexts in which publicly conferred rent-rights are salient, it seems to me worth noting an interesting connection between Aereo on the one hand, and the McCutcheon decision that Mike discussed a couple of weeks ago on the other.  It seems to me that that which occasions not only McCutcheon, but indeed all of the Supreme Court’s best-known campaign finance jurisprudence from Buckley through Austin through Citizens United on down, is precisely the fact that we permit our ‘tenants,’ so to speak – the broadcasters – in effect to charge illegitimate rents to us, the ‘landlord,’ for use of what’s properly ours.  For by far the greater part of all campaign expenditures goes to pay broadcasting firms for precious brief moments of airtime, during which insipid and downright mendacious ‘soundbites’ are tiresomely broadcast in the interest of getting candidates elected to office or ballot initiatives passed.

But if the radio-television spectrum is properly ours, the public’s, and if we as a public need frequent and sustained exposure to candidates and issue-advocates in order to form intelligent decisions as to how we should vote, then why do we permit these sub-lessor rents to be charged?  Why not instead condition our leasing out of our spectrum to lessees upon their turning the premises back over to us for specific intervals during campaign seasons, since we need those airwaves in order to function as a deliberatively democratic polity?

We might of course also wish to condition use of that spectrum by candidates and issue-advocates upon their meeting certain voting thresholds, in order to ensure that all candidates and advocates are ‘serious’ and stand reasonable chances of persuading large swathes of the public.  Presumably we also would wish to develop formatting norms to ensure that use of the spectrum by candidates and other advocates be done in an orderly manner that actually facilitates bona fide public deliberation.  But surely all of this could be managed with relative ease.  And the real point for present purposes is at any rate simply to remind us all that the spectrum is ours, that we lease it to broadcasters conditionally, and that there is no reason we could not include among the relevant conditions our right to reclaim it during specific timeslots during political campaign seasons.

It would be lovely, I think, were considerations such as these to figure into the Court’s thinking as it decides what to do with the Aereo case.  It would be lovelier still were the Congress and Court alike to think along such lines in future in a serious effort to salvage our now broken electoral campaign system.  I doubt this will happen, however, unless and until we first revive a robust and rich understanding of what resources are properly the public’s, and what that designation entails where law and policy are concerned.  I’ll offer more suggestions along these lines in a subsequent post that I’m titling ‘Public Resources, Private Rents.’  Please stay tuned (pun intended).

Whom to Punch in the Nose: Bundy, Putin, Both, or Neither?

by Michael Dorf

Popular fiction and conventional wisdom offer the same advice: When faced with a bully, don't give in, for that will only embolden him; better to stand up to the bully because every bully is ultimately a coward. To be sure, not everyone says the bully's victim should punch the bully in the nose, especially if the bully is bigger than his victim or has bully friends. Maybe the victim can enlist others in his defense, or (contrary to the unofficial rules of the schoolyard), go to the authorities.

I don't mean to be flip about a serious subject. In the last decade or so, bullying has been (rightly) recognized as a serious problem, and there is lots of good advice out there. Here I want to briefly explore its application (or non-application) to two ongoing crises: the standoff between the federal Bureau of Land Management (BLM) and rancher Cliven Bundy and his defenders; and the conflict in Ukraine.

In each conflict, each side views (or at least portrays) the other side as the bully. Thus, in Nevada, Bundy's defenders say that the federal government is bullying him. And while Sen. Harry Reid's description of Bundy's private militia as domestic terrorists drew much of the news coverage late last week, other observers worry that by backing down from confrontation, federal officials will embolden right-wing anti-federal-government militias more broadly. In short, they would prefer that the feds stand up to Bundy's bullying.

Meanwhile, in the conflict over Ukraine, Russia portrays the Kiev government as neo-Nazis intent on persecuting Russian-speakers and other minorities, while the Ukraine government and its supporters fear that if the armed men who have seized government buildings in eastern Ukraine are not confronted, they will be further emboldened (even as they also worry that the substantial bloodshed that could result from a major confrontation would serve as precisely the pretext that bully Putin wants to send Russian tanks rolling across the border).

I don't want to get bogged down in a discussion over which side is the "real" bully in these conflicts. Here, as elsewhere, the bully tag may depend on the framing. Consider, for example, the question of whether to regard Tamils in Sri Lanka as a minority, because they constitute only a little more than ten percent of the population, or as the potential hegemon because they are the largest group in the neighboring Indian state of Tamil Nadu, which is considerably larger than Sri Lanka. This question was much mooted during the Tamil insurgency that ended a few years ago, because being the smaller party conferred victim status.

So let's put aside the question of who is the real bully as ill-defined and focus on a different question of how to navigate between two grave risks in international and domestic affairs involving the use or potential use of force: If you have a hair trigger, loss of life can follow, but if you show too much restraint, you embolden bad actors who might have been stopped by a modest show of force. To over-simplify quite a bit, we might think of these competing risks as, respectively, the risk of starting World War I and the risk of appeasing Hitler and, in the bargain, not even preventing World War II.

Seen from the perspective of the federal government, how serious is each risk in each conflict?

Let's start with the Nevada standoff. Bundy and his defenders have no legal justification for their actions. The closest thing I have seen to a cogent argument on their behalf came from Sen. Rand Paul, who appears to think that there are legitimate questions about the constitutionality of the federal Endangered Species Act. He's right about that. Although I think that the ESA is valid under the Commerce Clause, I am not completely confident that five Justices of the Supreme Court would agree, at least not in all circumstances. As a circuit judge, John Roberts indicated that he had doubts about the validity of the ESA as applied to protect a species of toad that lived entirely in one state. And so, perhaps Paul is right that the underlying basis for the government's grazing restrictions are invalid--but if so, that in no way warrants Bundy in simply refusing to pay his fines, much less in taking up arms against the federal government. He could have made his argument in court.

The very fact that Bundy's legal position is so weak heightens both risks. On the one hand, it underscores that he and his followers are extremists. Directly confronting Bundy et al really could result in a bloodbath. At the same time, however, legitimizing armed resistance as a means of protest--what another Nevadan, former GOP Senate nominee Sharron Angle, once called "Second Amendment remedies"--would almost certainly invite additional armed resistance from anti-government types who hold all sorts of unorthodox legal views.

The stakes in Ukraine are ultimately much higher. Secretary of State John Kerry's announcement that the U.S. would use "21st century tools to hold Russia accountable for 19th century behavior" predictably became the instant object of ridicule: How, exactly, would Twitter and Facebook stop Russian tanks? And, joking aside, doesn't the Budapest Memorandum actually require the United States to respond much more forcefully? But of course the Obama Administration's unwillingness to use armed force in defense of Ukraine is driven by the overriding imperative of avoiding a direct shooting war between the U.S. and Russia, which could lead to nuclear armageddon.

In the end, then, the calculations for the Obama Administration look relatively straightforward: If Bundy et al can be made to comply with the law peacefully, great, but if push comes to shove, the federal use of force would be warranted. By contrast, Putin knows that Ukraine is not sufficiently important to the West to justify military conflict, and thus he is emboldened already. Economic sanctions may have some limited effect but the biggest constraint on his conduct is the conduct itself: the Anschluss of eastern Ukraine, if it comes, could be very costly to Russia.

What's a Little Red-Baiting Among Friends?

-- Posted by Neil H. Buchanan

There was an event earlier this week, held at the Urban Institute here in Washington, that captured perfectly what is wrong with "This Town."  The Tax Policy Center (TPC), a policy group jointly supported by the Urban Institute and the Brookings Institution, hosted a discussion on April 15 (announcement with video here) to mark the release of Thomas Piketty's important new book, Capital in the Twenty-First Century.

This was clearly meant to be an Important Event that should be taken seriously in This Town, so it was predictable that the organizers would invite a liberal policy wonk and a conservative policy wonk to chat with Professor Piketty about his book.  TPC Director Len Burman, an economist who is himself a veteran of these dog-and-pony shows, thus hosted Dean Baker of the Center for Economic and Policy Research (The Liberal) and Kevin Hassett of the American Enterprise Institute (The Conservative).  Because Piketty's book is being hailed by liberals, and because Burman has advised Democrats over the years (and TPC is thought to be left of center), one might be forgiven for imagining that Hassett was alone in a hostile environment.

When Hassett spoke, however, he made it clear that this was simply a group of old friends talking shop.  Hassett began by noting that it was Tax Day, suggesting that people at liberal places like the Urban Institute would celebrate that wonderful day by "bringing out the party hats."  Good yucks all around.  We're all pals here.  He even went out of his way to note that Brookings had given him an early break in his career, and he also mentioned that he and his old friend Burman had sometimes thought that they ultimately disagreed merely about a few empirical estimates, rather than anything fundamental about how to approach economics or tax policy.

Sadly, that is essentially true.  As a methodological matter, Hassett and Burman are solidly in the inner circle of orthodox economists who trade places in successive administrations.  The conversation on Tuesday, therefore, was peppered with references to "CES production functions" and various insider references to empirical economics papers, with Hassett accusing Piketty (very politely, of course) of cherry-picking from the statistical literature to support his call for higher wealth taxes.

All of which would have been merely annoying and only too predictable, had it stopped there.  Hassett, however, did not stop there.  He made two further moves that genuinely surprised me, and not in a good way.  First, he made a moral claim in the guise of a technical claim, asserting that the current distribution of consumption in the U.S. is acceptable, given the large amount of government transfer payments that allow after-tax-and-transfer inequality to be less extreme than before-tax-and-transfer inequality.  I should say that I was not surprised that Hassett tried to change the conversation to consumption from income and wealth, because that is a standard move by conservative economists; but I was disappointed that no one called him on it.

The surprising parts of that claim were the blithe assertion that the current distribution is presumptively acceptable, and the idea that we could continue to maintain that distribution with current levels of transfer payments.  No one called him on the former claim, but Piketty effectively (if subtly) responded to the latter claim.  After all, when we talk about the "transfer payments" that supposedly make things acceptable, we are talking mostly about Social Security and Medicare.  Hassett was one of the top economic advisors to the Romney/Ryan campaign in 2012, and he is generally part of the conservative chorus that claims that those transfer programs are unsustainable.  When he said on Tuesday that we can rely on those programs well into the future, so long as they are "funded," he essentially said that the way to keep the current distribution going was to raise taxes to pay for Social Security and Medicare.  When Piketty pointed that out, the audience got the joke.

But it was Hassett's second move that simply blew my mind.  As I have noted before, there is a tendency among too many people on the right to red-bait their opponents, and especially to attack academics as out-of-touch lefties.  This, however, is supposed to the territory of nameless cranks, and the Sarah Palins of the world, not economists at Establishment conservative think-tanks like AEI.  Yet there was Hassett on Tuesday, ending his remarks by invoking the conservative economist Joseph Schumpeter, who, Hassett said, "had great respect for Marx's intellectual accomplishments."  OK, so why are we talking about Marx and Schumpeter?  "So here's the interesting thing, and I found Schumpeter very, very compelling.  Schumpeter and Marx agreed that capitalism was going to destroy itself, but for different reasons."

After a slight digression, Hassett got to the point:

"Schumpeter thought that as we got richer and richer, what was gonna happen would be that all of our kids would go to universities, and when they went to universities, they would be more and more over time, presented with a professoriate that was really anti-capitalist.  ...  He thought that the problem would be that academics would be digging deeper and deeper to try to find flaws in capitalism and would be proselytizing against it all the time."

 At that moment, Hassett's final PowerPoint slide attributed the following to Schumpeter:

"He argued that the academy would become the focal point of opposition to capitalism and would subsequently breed an intellectual elite that would control the media, and ultimately politicians themselves. The academy would reflexively hate capitalism because it is the job of the intellectual to criticize, and because academics detest people who actually accomplish something. Professors would envy the wealthy, and feel themselves more worthy."

Rick Santorum would be proud!  This is the litany of grievances from the extreme right, including all of the claims about "intellectual elites" who "hate capitalism" -- and do so "reflexively" -- because their job is to find fault with people who "actually accomplish something."  There is nothing in Hassett's remarks (and his attributions to Schumpeter) that we have not heard on Fox News or from Limbaugh or Beck.  This is an attack on professors who supposedly think they're better than everyone else, who do nothing but tear things down.  But of course, he said all of this while smiling and being friendly.  So he must be reasonable when he insinuates that Piketty is helping capitalism destroy itself, right?

Hassett was quick to absolve Piketty himself of such insidious intentions, even while red-baiting unnamed people who like Piketty's book:  "I would argue that -- and it's certainly not the case that that is what's going on in this book -- but if you look at some of the discussions of the book, I think that Schumpeter would find that that is an echo of what he thought was going to happen."

So the problem is not Piketty himself, because it is "certainly not the case" that the book under discussion proves that professors accomplish nothing and simply dig deeper and deeper to find flaws in capitalism, or that this an example of proselytizing against capitalism.  Perish the thought!  But "some of the discussions of the book" are eerily similar to what worries Hassett, allowing him to suggest that capitalism will be destroyed by people who take inspiration from Piketty's book.  Piketty might not be anti-capitalist, but he is apparently a fellow traveler or an enabler, aiding and abetting those who are poisoning the minds of our young people.

This was quite a performance.  Inside the walls of a respected Washington think-tank, people sat politely while a supposedly non-extreme conservative policy wonk slandered the professoriate and red-baited those who are engaging in "some of the discussions" of Piketty's book.  Any remaining doubts about whether there is a "reasonable right" in this country dimmed even further on Tuesday.  But in This Town, it is important to smile and applaud, and act like nothing happened.

Political Corruption, Skin In the Game, and Contestability

-- Posted by Neil H. Buchanan

Earlier this week, in a post titled "Government Size and (Non)Corruption," Professor Dorf discussed recent reports that two doctors in Florida: (1) receive the highest Medicare reimbursements in the country, (2) are major contributors to the Democratic Party, and (3) "have turned to the political system in recent years to defend themselves against suspicions that they may have submitted fraudulent or excessive charges to the federal government."

As Professor Dorf suggested, the appearance of a connection between points #2 and #3 would, under a different set of campaign finance laws, actually pose a problem for the doctors.  Looks pretty sleazy, right?  But, in our system, there is simply no need for the doctors to do anything that would rise to a quid pro quo -- which, as Linda Greenhouse recently discussed, is now the only thing that the Supreme Court recognizes as corruption, even in the case of direct political contributions.  (She points out that McCutcheon was another Roberts Special: radically rewriting the law, while pretending that they were merely limiting the reach of precedent.)  Under current law, the Florida doctors can buy as much "access" as they want, gaining sympathetic attention from politicians to deal with their problems.  No bribery is necessary.

Professor Dorf also suggested that a conservative ideologue might try to use the Florida doctors as an example to demonstrate why Big Government is so dangerous: With entitlements like Medicare tossing round so much money, of course people will try to influence government to keep the gravy train rolling.  One implication of this argument, of course, is that such small-government types should fiercely oppose McCutcheon and Citizens United, because the easier it is to prevent money from having any kind of corrupting influence on politics and politicians, the easier it should be to prevent a government of any size from being influenced by people seeking to game the system for their own gain.  In reality, we see no such support from supposed government shrinkers for aggressive campaign finance laws, but logical consistency is hardly their hallmark.

The further issue that Professor Dorf explored, however, is whether there is a connection between the size of the government and the amount of corruption that one sees in the country's political system.  As he notes, the available statistics suggest no such connection.  Countries with large public sectors, especially the welfare states of northern Europe, have low corruption, and countries with small (or essentially no) governments often are open to large amounts of corruption.  Overall, there seems to be no consistent pattern, positive or negative, between government size and corruption.

Moreover, although cultural factors might explain why some countries have low corruption, the suggestion among anti-government conservatives is that government is deeply and inexorably corrupting, so that an expanding government sector tends to sap the moral core of a nation.  But if Denmark and Sweden, for example, can go for more than a half century with very large welfare states and squeaky clean politics, then it becomes much harder to make the "big government destroys society" argument stick.

I would add one further point.  A cousin of the "bigger government leads to more corruption" argument is the claim that "people who do not pay taxes naturally like big government, and people who pay taxes vigilantly prevent government from growing."  If, this argument goes, one does not pay for government, then one would like the government to become bigger, because: (a) even if one is honest, it might be possible to become eligible for a program that a smaller government would not provide, and (b) if one is dishonest, the more government there is, the more possible it is to find something to corrupt.

Of course, if we are talking about "the 47%," that is, the people who do not have net federal income tax liabilities in a given year (although the specific number will vary), then the opportunities to buy politicians are pretty limited.  The point, apparently, is that only people with "skin in the game" will have the proper motivation to diligently prevent the political system from wasting their money.

All the way back in 2008, I argued here on Dorf on Law that the "skin in the game" argument is incoherent, because it ignores the possibility of change.  That is, even if a person really were motivated by nothing other than trying to keep the government from imposing taxes, being currently untaxed does nothing to change that person's motivation.  Even if he is currently paying no taxes at all, and even if he never has paid taxes in the past, he might still be required to do so in the future.  Better to be vigilant!

Similarly, the "bigger government corrupts" argument presumes that the only way to gain advantage from government action is by getting the government to pay taxpayers' money to private interests.  Without favors to be divvied up, there can be no corruption, right?  But this is obviously wrong.  My recent run of posts about the "baseline problem" (see, e.g., here) is built upon the obvious fact that the government sets the rules within which commerce is conducted, and that none of those rules is inherently more "natural" than the others.  If a business (or the would-be founder of a business) can imagine a change in a zoning rule, or a copyright provision, or an environmental remediation requirement, or a labor law, or a tax exemption, or any other legal requirement that stands in the way of more profits, then that business will have reason to try to corrupt the decision makers.

This is, as a logical matter, an application of the idea of "contestability," which is a defense in antitrust cases.  There, the argument is that it does not matter if a business is currently a monopolist, because it might some day find its market contested by a new competitor.  Under this reasoning, the magic of marketplace competition need only happen in the mind of the monopolist, because merely knowing that a misstep could bring on a slew of challengers supposedly keeps the monopolist from exploiting its monopoly position.

There are many well-known (and fatal) weaknesses in the contestability argument in the antitrust context.  In the context of governmment corruption, however, the logic actually works.  No matter how large or small a government, the very nature of setting the rules by which business operates opens up the possibility of gaining advantage by inducing political actors to bestow favors.  Furthermore, because so many possible favors have nothing to do with the size of government, but are simply a matter of choosing one neutral rule that happens to favor Business X over a different neutral rule that happens to favor Business Y, there is no reason to think that motivated corrupters would care about the size of government.  And, as Professor Dorf noted, the data bear out that lack of connection.

Suicide, Speech, and the Constitution

by Sherry F. Colb

My column on Justia's Verdict this week analyzes a Minnesota Supreme Court decision, State v. Melchert-Dinkel, holding that the First Amendment precludes the criminal prosecution of someone for advising or encouraging another person to commit suicide, although the freedom of speech does tolerate a prohibition against someone assisting another in committing suicide, even with words.  The issue arose in a case in which the defendant had reached out to two suicidally depressed people over the Internet by falsifying his identity (as a compassionate female nurse who also planned to commit suicide) and urging the two people to kill themselves by hanging in front of a web-cam, so the defendant/convict could watch.  Ultimately, both of the defendant's targets did kill themselves.

The majority remanded the case to the trial court to clarify whether the conviction of Melchert-Dinkel rested on impermissible grounds (the advising and encouraging of another's suicide) or permissible grounds (the assistance of another's suicide).  A dissent maintained that the statute was necessarily unconstitutional as applied to the defendant, even if he was assisiting a suicide, because his assistance (or encouragement or advising) would have consisted exclusively of speech.

My column takes issue with some of the reasoning in the Minnesota Supreme Court's opinion and ultimately concludes that the majority was wrong.  Towards the end of my discussion, I raise the possibility that the state court might have been wrong not only in striking down the ban on encouraging or advising a suicide but also in upholding the ban on assisting a suicide.  In this post, I would like to say a bit more about that point.

One can potentially assist a person who wishes to commit suicide in a number of ways.  The suicidal individual, for example, might not have access to lethal doses of medications, and the person assisting the suicide (if a medical professional, for instance), could provide those doses to the suicidal individual.  The "assistant" could also explain to the suicidal person who does not know how to commit suicide painlessly that one effective and painless method involves _____ (with the knowledgeable person filling in the blanks).  Yet another manner of assisting could take the form of presence:  someone who very much wanted to commit suicide but was too fearful to do so in isolation might be assisted by a friend or doctor or relative who visits the suicidal person's home and sits with him as he ends his own life.

In each of these cases, the person who "assists" a suicide makes it easier for someone who wants to kill herself or himself to do so, by providing the means, the necessary information, or the comfort of company. I believe that suicide ought in some cases to be a constitutionally protected option, under controlled circumstances, for someone who no longer wishes to live:  such situations might include that of a person who is in tremendous pain that simply cannot be effectively relieved to the patient's satisfaction or that of a person suffering from an illness that will progressively rob him of memory and movement.  In other words, I believe that the U.S. Supreme Court got it wrong in the case of Washington v. Glucksberg, where it upheld a law prohibiting physician assistance in dying.

If one accepts, as I do, the proposition that the law should not categorically bar doctors from helping a person commit suicide in all circumstances, then one necessarily believes that a suicide is not always (as it so often is) a lawless act in which other people necessarily have no legitimate role to play.  It follows from this view that explaining to a person who wishes to commit suicide how one would go about carrying out the plan is, at least sometimes, the sort of speech that should receive constitutional protection.  That is, speaking in order to inform a person who is contemplating the exercise of a constitutional right about how to go about exercising the right ought itself to be a protected form of speech.

Accordingly, at least in some situations, applying a prohibition against "assisting" a suicide to speech could well be thought to violate the First Amendment.  And even if the two people who killed themselves in the Minnesota case were not among those with a constitutional right to commit suicide, it might still be inappropriate to ban speech explaining how someone would go about killing himself or herself, given the possibility of "chilling" the speech of those legitimately providing useful information to those exercising a constitutional right.  The majority in Melchert-Dinkel should therefore perhaps have struck down, instead of upholding, the section of the Minnesota statute prohibiting assistance of suicide, as applied to speech.

Contrast this with speech that "encourages" or "advises" suicide.  Assume that a particular person is feeling extremely depressed and miserable because he has been sick for a long time, is bed-ridden, and is in almost constant pain and emotional distress.  Assume now that instead of informing him of an effective method for painlessly ending his own life, his friend positively advises or encourages him to do so.  She might, for example, say "You have been feeling dreadful for months now, and you keep saying you wish you were dead, so you really should go ahead and end your life.  You said that you want to, so what are you waiting for?  You want to wait and keep suffering?  Just do it already."  That would represent advising or encouraging a suicide.

While explaining how to go about committing suicide can represent a legitimate and protected form of speech, pressuring someone to commit suicide is something quite different.  Such advocacy, rather than providing helpful information, essentially pushes someone who, by hypothesis, is very vulnerable and has yet to make up his mind, to go ahead and make an irreversible decision.  Pressuring a person to commit suicide, either by "advising" it as a good option or by "encouraging" the person who is reluctant, would seem to represent a form of incitement to imminent violence.  Though a person should have the option of ending his life in some circumstances, in other words, the decision is always so significant that no one other than the person himself should be making that choice.

To provide a very different but potentially useful analogy, many people who regard abortion as a constitutionally protected choice (including me) believed that Rust v. Sullivan was wrongly decided.  The Court in Rust upheld a rule that prohibited doctors receiving Title X (medicaid) funding from providing information about abortion to pregnant patients.  At the same time, however, the very same pro-choice advocates would likely have supported a rule that prohibited doctors from pressuring pregnant women to terminate their pregnancies.  Doctors should not be telling their patients that they should terminate a pregnancy (advice that, unfortunately, I know of some doctors readily giving when genetic testing reveals an anomaly in a fetus), as such advice or encouragement is plainly coercive, particularly for a person in trying and stressful circumstances.

The same is true, of course, for a person contemplating suicide.  For such a person, information is valuable and important in helping them make a choice that truly reflects their wishes.  But pressure is entirely unwelcome.  Someone thinking about killing himself or herself is often going to be suffering tremendously, experiencing great fear and loneliness, and hoping for someone else to make the decision for him or her. Whether that person is an unscrupulous voyeur like Melchert-Dinkel or a compassionate doctor, however, the decision -- if it is permissible at all -- should remain squarely with the patient, with no pressure brought to bear from external sources.  What Melchert-Dinkel did was wrong and nearly inexplicable, and what made it so was that he pushed two people in pain to end their lives for his amusement, not the fact that he explained how one could go about hanging oneself.  In my view, the Minnesota Supreme Court therefore got it exactly backwards.

Government Size and (Non)Corruption

By Michael Dorf

Last week brought news that doctors receiving very large Medicare reimbursements made very large campaign contributions to Democratic campaigns and PACs, and that in turn they may have received special consideration to avoid punishment. I haven't checked out the rightwingoverse reaction to the story, but it wouldn't surprise me if it went something like this: Aha! This sort of thing shows that government-funded health insurance is rife with fraud and therefore people (like those left-wing crazies at Dorf on Law) who argue for Medicare for All would simply drive up the price of health care.

Well, okay, they probably aren't mentioning DoL expressly, but I would be surprised if that's not the general reaction. Here I want to take it seriously.

My first reaction is that this is chiefly a corruption problem, rather than a government spending program. Supreme Court decisions like Citizens United, and now McCutcheon, hold that wealthy individuals and corporations have a First Amendment right to use their wealth to influence government policy--including government policy that enables these individuals and corporations to accumulate greater (or to protect existing) wealth. I don't know whether the doctors discussed in the Times article broke any laws, but if they did, that was probably due to ineptitude rather than necessity: Our system of campaign finance permits just about anything short of an express quid pro quo, so that a well-advised donor can purchase just about all of the influence he or it wants to purchase without breaking the law.

But wait. Some small-government conservatives say that the opportunities for corruption are chiefly a product of big government. According to this argument, if we had merely a watchman state, there would be little to be gained in the way of government contracts or regulation avoidance by bribery, legal or illegal.

Although frequently offered as an axiom, that's actually an empirical claim that we can test rather easily by comparing data about social spending and corruption. And when we do so, it turns out that the claim is false.

Consider that Denmark had the second highest social spending per capita as a fraction of GDP and tied for the lowest level of corruption.  In general, high rates of (public) social spending tend to correspond with low corruption, and vice-versa--although the relation is hardly linear. Culture, politics, and other factors appear to be the main determinants of corruption.

So the data confirm my initial reaction. The corruption story (assuming that's what it is) certainly does not indict single-payer health insurance. The Supreme Court is a more likely suspect.