Friday, August 29, 2014

Defining Corruption (Or How Tim Wu Could Become Governor of New York)

by Michael Dorf

A recent New Yorker article by Jill Lepore uses the Democratic primary challenge by Fordham law professor Zephyr Teachout to NY Governor Andrew Cuomo as an occasion to problematize the concept of political corruption. I generally think highly of Lepore but this article strikes me as misguided, for reasons I shall explain below. But first, some context.

Teachout and (my former colleague) Columbia law professor Tim Wu are challenging, respectively, Cuomo and his running mate Kathy Hochul. The Teachout/Wu campaign makes what is essentially a two-pronged pitch: (1) Cuomo and Hochul are too conservative for the Democratic Party nomination; and (2) there are serious concerns about Cuomo's integrity.

Given Cuomo's name recognition and generally favorabile (albeit slipping) ratings, Teachout is a long-shot for the gubernatorial nomination but Wu has a better chance at the second spot on the ballot. Hochul is not much better known than Wu and her record as a (former) member of Congress really is quite conservative for a NY Democrat (as argued in a "dossier" released by Teachout and Wu earlier this week). For that reason, yesterday the New York Times endorsed Wu's candidacy. On Wednesday, the Times declined to endorse either Cuomo or Teachout for Governor. Although critical of Cuomo's failure to address corruption in state government and laudatory of Teachout, the Times editorial board thought Teachout too green to merit the gubernatorial endorsement; Wu also lacks political experience, but the Times was willing to overlook that fact because the Lieutenant Governor's job carries substantially fewer responsibilities. Because primary voters vote for Governor and Lieutenant Governor on separate lines, there is thus a real chance that Cuomo will get the top spot and Wu the second spot.

And then, in the event that the simmering scandal involving Cuomo's disbanding of the Moreland Commission reaches a full boil (more about that below), it is possible to imagine Cuomo resigning or being removed from office, leaving Wu as Governor. Even absent such scenarios, the Teachout/Wu campaign has already exceeded expectations in challenging a governor who, but for the prospect of a Hillary Clinton candidacy, would probably be running for President. Both Teachout and Wu have been picking up endorsements from liberal groups, and of course, they have very strong backing among the all-important constituency of law professors.

Now, about that scandal. About a year ago, Governor Cuomo appointed the Moreland Commission to investigate public corruption. Then, when the commission started investigating people with ties to Cuomo, he killed the commission. It's possible the timing was coincidental. Cuomo says the commission's purpose was to generate support for a package of reform legislation, so that once the legislation was enacted (albeit minus strong public finance provisions), the commission was no longer needed. It's also possible that Cuomo's actions were perfectly legal--just as it's possible that Texas Governor Rick Perry's zeroing out of a budget for the office investigating his alleged corruption was perfectly legal. But in both instances the actions create at least some suspicion. And even if both Cuomo and Perry acted lawfully, that doesn't mean they can't be criticized for acting sleazily. Both actions call to mind President Nixon's firing (via Robert Bork) of Archibald Cox when Cox tried to do his job as special prosecutor. Nixon had the power to do it, but he rightly paid a steep political price.

The concerns about Cuomo's integrity are a good fit for Teachout's insurgent candidacy because her academic specialty is campaign finance and she has a forthcoming book about political corruption. In a nutshell, Teachout argues that the modern Supreme Court case law--which only allows restrictions on campaign finance that target quid pro quo corruption--uses a too-narrow definition of corruption. She points to the historical record of the Founding to argue that our political tradition once deployed a broader conception of corruption.

Lepore says that Teachout's historical case is of limited value. Just as Tea Party invocations of the Founding Fathers lack relevance today, she says, so does Teachout's mining of history for more progressive ends. I think that's a fair criticism, although one might understand Teachout to be making a point about hypocrisy: It's the Court's self-styled originalists who most strongly insist on what she argues is a conception of corruption that conflicts with the view held at the Founding.

Beyond the historical point, Lepore cites scholars like Yale Law School dean Robert Post and my Cornell Law School colleague Laura Underkuffler for the proposition that "corruption" is too mushy a concept to form the basis of a political program and to (more or less) defend the constitutional status quo given to us by the SCOTUS. I haven't yet read the Post book but I have read Underkuffler's and it does not make the sweeping claims that Lepore attributes to it. Underkuffler points to the troubled past of the concept of corruption not for the purpose of abandoning it but to show that it needs to be clarified. Perhaps Post does propose abandoning efforts to get at corruption, but if he does, then so much the worse for him.

Corruption is, in fact, a relatively straightforward idea. To corrupt an institution or practice is to damage it, to divert it from its purpose. To be sure, that requires some sense of what the purpose of the practice or institution is, but with respect to many circumstances, that is not difficult to say. For example, the purpose of a municipal police force is to protect the community as a whole, so a police officer who takes private money to provide special protection (while on duty) or worse, to turn a blind eye to crime, is corrupt.

The issue is likewise simple with respect to democracy, at least so far as the big picture is concerned. We may disagree about subtleties like when a representative should vote her conscience as against the wishes of her constituencies, but we generally agree that representative government in a system of one-person-one-vote is fundamentally about giving each person an equal say in decisions that affect him or her. In practice, we tolerate various deviations from the ideal. Political communities are represented in ways that diverge from one-person-one-vote (as in the U.S. Senate); people who care more about politics speak up and thus have their voices heard more; etc.

But no one can seriously argue that it is consistent with the purpose of 21st century democracy for elected officials to give a great deal of extra weight to the interests and wishes of wealthy people who support their election simply because of that support. That is a corruption of democracy, and a harmful corruption at that. A billionaire casino owner may be an expert in running profitable casinos but is not, in virtue of his casino experience or anything else, an expert in the Middle East. Inheriting and successfully operating a multi-billion dollar multinational industrial corporation does not make people into experts on climate science. And so when such people bend government policy to their will in virtue of their campaign contributions or independent expenditures, they corrupt politics in an obvious sense. Teachout and Wu have it right.

Thursday, August 28, 2014

The Same Answer for Every Problem: Idees Fixes in Sports, Teaching, and Social Security

-- Posted by Neil H. Buchanan

[Note to Readers: My new Verdict column was published this morning: "One Wrong Answer to Some Very Important Questions: Understanding Why Cash Payments to College Athletes is a Bad Idea."  I discuss that column in the latter part of the post below.]

According to an old adage, when all you have is a hammer, everything starts to look like a nail.  There are actually two ways to understand that adage, one innocent and one cynical.  The innocent interpretation simply says that a well-meaning person would make the best use of whatever tools are currently available.  Although there might exist more appropriate tools for a particular job, sometimes a hammer is the only tool at hand.  Therefore, if you have to drive a screw into a block of wood, you look at the screw as if it were a nail, and make the best of a bad situation.

In the cynical view, a person with a hammer starts to think the hammer is the only useful tool on earth.  Therefore, even when there really is no good way to put the hammer to use on the problem at hand, the person convinces himself that the problem will be solved by hammering everything in sight.  Every problem becomes an excuse to use the hammer.

But the cynical view can have a quasi-innocent twist.  During the Cold War, some journalists interviewed scientists at one or more U.S. nuclear weapons facilities (Los Alamos, I think, and maybe others).  Some of the scientists were asked to react to news items that suggested that the Soviet threat was receding (rumors of arms agreements, reports that Soviet technology was not as advanced as had been assumed, and so on), while other scientists were given bits of information that made things look more threatening.  In every case, both groups of scientists responded to the information by saying, in essence, "This proves that what we do here is more important than ever."

Unlike the purely innocent view, this line of thinking really does require imagining that one tool solves all problems, and to think of even apparent non-problems as even more serious problems.  However, one could easily imagine good-hearted people falling into this "innocent-cynical" mode of thinking.  In addition to being self-validating, it is simply a matter of thinking about problems through the most familiar lens: "How can I help?  By doing what I do best."  It is ultimately self-serving, but it can be unconscious

And then there is the cynical-cynical version, which we see in Republican politics all the time (and sometimes elsewhere).  One of the most damaging idees fixes of the past generation was the thought that the answer to our foreign policy problems was to invade Iraq.  Some Republicans started to think about every issue as an excuse to "take out Saddam," and it did not matter what the excuse was, nor did it matter when those excuses were debunked.  The world is still seeing the disastrous effects of that obsession.

More generally, Republicans believe that every economic problem will be solved by cutting taxes, especially the taxes that rich people and businesses pay.  The economy is strong?  Tax cuts.  The economy is weak?  Tax cuts.  There might be a bubble?  Tax cuts.  The bubble might have burst?  Tax cuts.  Combining these two obsessions, one former Republican House leader once said that the most important thing to do after we invaded Iraq was to cut capital gains taxes.

I have been mulling over this phenomenon recently because I began to notice that three of the issues on which I have written most recently -- college sports, public school teaching, and Social Security -- all show signs of being dominated by cynical-cynical solutions, perhaps with some assistance from innocent-cynical people.

Put simply, I have begun to notice how many times I have recently written something along the following lines: "But if that is really the problem, how is this a solution?"  The most recent example is in discussing the problems facing big-time college sports.  The "hammer" -- that is, the all-purpose answer to every question -- is to pay cash salaries to college athletes.  Coaches are being overpaid?  Give cash to the players.  Universities are not properly controlling athletic departments?  Give cash to the players.  Universities should arguably be paying the Unrelated Business Income Tax?  Give cash to the players.  The players are not really receiving college educations?  Cash!

I acknowledge that there are people who feel, at a deep level, that college sports should simply be treated as a for-profit business, and thus that universities should be subject to all of the rules that would apply to any other industry.  In that case, any agreement among competitors is collusive.  I fundamentally disagree with that view, because I believe that college sports can and should be used to support the educational mission of nonprofit institutions, for the benefit of the athletes and other students.  And as I explain in today's Verdict column, that can only be accomplished by cooperation that, like plenty of other nonprofit activity, is properly exempted from certain laws (antitrust in particular) that would apply to profit-seeking businesses.

But I do think that the "let 'em compete by the normal rules of capitalism" view at least has the virtue of being clear in its principles.  Although it is an idee fixe of a different sort, it is not a view that requires anyone to use every other complaint about college sports as a justification for the preferred solution.  One can quite easily think that colleges are providing a fine education to their athletes, that injuries are simply part of the game (and an assumed risk on the part of players), that coaches are not too powerful, and so on, yet still simply think that this is not nonprofit activity.  I disagree, but I appreciate the non-opportunistic nature of that argument.

Even so, most of the so-called debate about college athletics leaves one asking the question that I noted above: "But if that is really the problem, how is this a solution?"  Similarly, when I recently dug into the debates about schoolteachers (Dorf on Law posts here and here), it was amazing to see how a very well-funded, bipartisan consensus has emerged in which tenure for teachers is thought to be the root of all evil.

Teachers do not volunteer to teach in poor schools?  End tenure!  Student test scores have gone down, even while tenure has been eroded?  End tenure!  We have a hard time keeping good teachers in the profession?  End tenure!  It is all more than a bit bizarre, but it continues because advocates are too often allowed to simply invoke a problem and then sell their all-purpose snake oil.

Finally, in all of my writing about Social Security (most recent Dorf on Law post here), the "moderate" view (as opposed to the radical effort to privatize the system) is to cut benefits a few decades from now.  It does not seem to matter that Social Security is not necessarily in trouble, because we have an answer: Cut benefits in a few decades.  It does not matter that, if Social Security does ultimately face some financing difficulties, it will be because of wage stagnation during people's working lives.  People earned too little while they worked?  Cut their benefits after they retire!

Most importantly, consider the loudest complaint, that Social Security is supposedly coddling current retirees and cheating current younger workers.  The solution?  Cut Social Security benefits when those younger workers retire!  "Hey, young people.  Because our long-term forecasts indicate that there might not be adequate funding to pay 100% of statutory benefits when you get older, we are going to put cuts in place now, so that you will definitely be entitled to smaller payments when you retire.  Generational justice!"

As I noted, some innocent-cynical thinking surely supports all of these misunderstandings.  But it is mostly, I think, cynical-cynical thinking, an opportunistic hijacking of various debates to achieve goals that have little or nothing to do with the purported problems.  Is it really too much to ask that proposed solutions actually solve the problem at hand?  That is not what is really going on.

Wednesday, August 27, 2014

Ferguson, Broken Windows, and de Blasio's Dilemma

by Michael Dorf

In my new Verdict column I endorse the proposal for police to be equipped with wearable cameras to record police-citizen interactions. I note the legitimate concerns raised by these proposals but conclude that they can be accommodated through careful implementation. On the whole, I agree with the view that recording is win-win: It will protect citizens against abusive policing and protect honest police against bogus allegations of abuse. Nonetheless, I explain why recording police is no panacea. There will still be disputes over what the recordings show (as in the aftermath of the Rodney King beating) and the dangers inherent in all police-citizen conflicts will mean that, even when police know they are being recorded, they will sometimes use deadly force with tragic consequences. Thus, I argue that policy makers should take steps to reduce the frequency of police-citizen interactions with the potential for violence. I suggest that the increased risk of events like the shooting of Michael Brown is one of the costs of over-criminalization.

Here I want to ask whether there are implications of my analysis for "broken windows" policing. As most readers probably know, the term "broken windows" was coined in the early 1980s by James Q. Wilson and George Kelling to refer to signs of low-level social disorder: broken windows; graffiti; litter; etc. In their theory, neighborhoods with such evidence of minor disorder embolden criminals to commit more serious crimes. Conversely, aggressive policing to attack minor crime creates liveable environments and a virtuous cycle of law-abiding behavior.

The most well-known attempt to implement broken-windows policing occurred during the NYC Mayoral administration of Rudy Giuliani. He cracked down on "squeegee men"--who "cleaned" windshields of motorists stopped at traffic lights, sometimes with an implicit threat of damage to the car or worse if drivers did not agree to pay for this ostensible service; he went after graffiti artists; he targeted subway fare-beating. And--according to the proponents of the broken windows theory--it worked. The nation as a whole experienced a substantial drop in violent crime from the peaks of the late 1980s and early 1990s, but the drop in crime in New York City was substantially larger.

How much of the drop in crime was really due to broken windows policing? That is a hotly debated topic among criminologists. The causes of the decline in crime nationally and in particular locales remain unclear. Various factors to which different scholars point in varying degrees include: more police on the street; targeted policing using big data (as in "Compstat"); more arrests; longer prison sentences; the economic boom of the 1990s through early 2000s; the "big brother" phenomenon in which young people saw the devastation wrought by crack cocaine on the generation ahead of them and were scared straight; legalized abortion; the remission of violence as a "contagion"; and more.

According to one account, broken windows policing was important but not for the reasons originally identified by Wilson and Kelling. In this alternative view, the key was New York's mandatory minimum sentence of imprisonment for carrying an unlicensed firearm (in combination with very restrictive gun licensing policies). Prior to broken windows policing, a young man living in a dangerous neighborhood in NYC might typically go out armed, even if he was not a serious criminal. But knowing that the odds of an arrest for some minor offense (like fare-beating) went up under the new policing policy, he would leave his gun at home, for fear that a minor ticket would turn into a substantial prison sentence following the stop-and-frisk. Thus, with fewer guns on the street, there was less violence.

With real disagreement and puzzlement persisting among professional criminologists, I am not going to venture a guess as to how much weight should be given to each of the factors mentioned above (or others) in reducing crime. Here is a 2002 paper arguing that broken windows policing in NYC accounted for about half of the decline in robberies and motor vehicle thefts. Here is a 2006 paper arguing that there is no good evidence for the efficacy of broken windows policing.

Suppose that you are a policy maker who does not have the luxury of waiting another 20 years (or longer) for a consensus to emerge among criminologists. Suppose further that, after consulting the best experts you can find, you think that broken windows policing does play an important role in suppressing crime. (Again, I don't take a position on whether this is true; I'm just asking readers to imagine that they think it's true.) Does that mean that your administration should implement a broken windows policing strategy?

I think that, even assuming some efficacy for broken windows policing, the answer is unclear. That's because broken windows policing may reduce or suppress crime, while at the same time causing or exacerbating other problems, like friction between the community and the police, and creating more opportunities for violent police-citizen conflicts.

What I have just described is far from hypothetical. It appears to be the predicament in which NYC Mayor Bill deBlasio now finds himself. His successful mayoral campaign rested in no small part on his opposition to the stop-and-frisk policies of the prior Bloomberg and Giuliani administrations, which were very unpopular among the city's minority population. Mayor de Blasio has taken steps to revise those policies, including in the litigation still ongoing in federal court. But at the same time, de Blasio handed over the job of NYC Police Chief to Bill Bratton, who is a believer in and practitioner of broken windows policing.

As a political matter, de Blasio's choice of Bratton was shrewd. Bratton is the closest thing one can find to a rock star among major metropolitan police chiefs. He has credibility with police based on his successful prior stint as chief in NYC and his successes elsewhere. He also has credibility with the progressive and minority constituencies who supported de Blasio's election because Bratton believes in a diverse police force and at least some version of community policing. Bratton also has credibility with these constituencies because of his falling out with Giuliani, although their feuding may have had more to do with who should get credit for reducing crime than policy differences.

But at the end of the day, these considerations will only go so far. So long as Bratton's NYPD pursue broken windows policing, arrest rates will be high, and police-citizen conflicts will occur with some frequency. That may be an acceptable price to pay for keeping the violent crime rate low, but it will inevitably trade off one set of goods for another, and for that tradeoff de Blasio is likely to pay a political price. Indeed, it appears that he already is paying that price.

Tuesday, August 26, 2014

Squeezing Extra Profits From the Knuckle-Draggers: The Millions Just Waiting to Be Made From a New Name for Washington's Football Team

-- Posted by Neil H. Buchanan

Last Friday, the editors of The Washington Post announced that they will no longer refer to the city of Washington's NFL team by its official name, the Redskins.  "[W]hile we wait for the National Football League to catch up with thoughtful opinion and common decency, we have decided that, except when it is essential for clarity or effect, we will no longer use the slur ourselves."  Here, I will not engage with whatever remains of the debate over whether the team name should be changed, since that would simply be piling on.  (Sorry, but a post like this has to include at least one sports pun.)  Instead, I am interested in why the owner of the Redskins, Daniel Snyder, is missing out on a way to play both sides of the ball and profit from a name change.  (Last pun.  I promise.)

Along with TV money, merchandising revenues fuel modern sports, at both the professional and college levels.  Selling team jerseys and other logo-ed items to obsessed fans is a huge business.  It was not always thus.  If you watch clips from games in the Sixties and Seventies, and keep an eye on the stands, you will see something that looks strange: People wearing overcoats, parkas, fedoras, plaid scarves, and other everyday wear.  As an adolescent, I was a big fan of the great Minnesota Vikings teams that went to four Super Bowls.  (Yes, they lost all four times, but not consecutively.  I'm looking at you, Bills fans!)  I really, really wanted to buy a Vikings team jersey, but it was nearly impossible to find them; and those that were available had been priced prohibitively.

By 1999, however, when my brother and I attended a Kansas City Chiefs game, we were almost the only people in the stands who were not wearing licensed logo gear from the home team.  If a crime had been committed there (and surely there were many), a witness would have had an impossible time with a line-up: "Um, officer, I think it was one of the 80,000 people wearing a Chiefs home jersey, number 88."  (Let us leave aside the racist elements of the Chiefs' name and logo.)

From a revenue standpoint, the problem is that fan bases are finite, and even when the fans have a seemingly insatiable desire to own team merchandise, their willingness to own multiple copies of the same gear does have limits.  Even the most obsessed current fan of the Vikings that I know owns "only" one home and one away jersey for each day of the week.  This was very profitable for the Vikings while it lasted, but not a long-term revenue source.

The solution that NFL teams first tried was to change teams' uniforms every few years.  Suddenly, the kid who cherished his official Giants jersey discovered that the team had changed the uniforms, just as Patriots fans had discovered the year before, and nearly every team in the league soon followed suit.  The helmet lamps were suddenly the wrong color, and had the wrong logos or letters.  (Many Giants fans, I'm sure, felt compelled to replace helmet lamps bearing the "Giants" swooshy logo with the classic NY logo.)

When that strategy had been pushed as far as possible, the teams discovered "throwback" uniforms, where they would have players wear the uniform styles from earlier eras.  In some cases, this meant bringing out incredibly ugly, long-forgotten jerseys like the Pittsburgh Steelers 1933 uniforms.  In others, it simply meant having the team wear the same uniforms that had been superseded a few years earlier.  In each case, the "new" uniforms were a new must-own for fans.  At the college level, this reached its absurd nadir a few years ago, when both Michigan and Notre Dame agreed to play their annual game in stylized throwback uniforms.

None of these revenues are safe without trademark protection.  Uniforms are easy to copy, and cheap to produce, and the NFL and its teams thus aggressively protect their trademarks by policing sales of knock-off merchandise.  It was thus big news earlier this summer, when the U.S. Patent and Trademark Office (PTO) canceled the Washington team's trademark protection, because the team's name and logo meet the legal definition of "disparaging," making them ineligible for legal protection.  However, according to The Washington Post's article describing the decision: "The ruling cannot stop the team from selling T-shirts, beer glasses and license-plate holders with the moniker. ... And the trademark registrations will remain effective during any appeal process."

Snyder, the team's owner, "has steadfastly refused to consider a name change, saying the name and logo honor Native Americans."  The question is, why is he still doing so?  One possibility is that he is simply a jerk, a theory that many of the teams' fans (and any sentient observer) would strongly support.  Certainly, one can see why he would want to fight the PTO's decision.  But Snyder is not one of those early owners of NFL teams who made all of his money by buying a team for $25,000 in the Sixties and then seeing it become a billion-dollar asset.  Snyder was a private equity billionaire, and he bought the Redskins in the late 1990's essentially as a toy.  (See also Cuban, Mark.)

Which means that Snyder is not a romantic or a man of principle, and he is not someone who would make a stand for anything other than money.  So why is he missing out on a clear opportunity to make a jujitsu move with the team name controversy, and double his profits?

We know that there would be a backlash against a name change.  About two decades ago, there was a protest by a Native American group outside the Washington stadium, which was interrupted by Washington fans dressed in cowboy outfits, who surrounded and lassoed the protesters.  It was ugly.  Even short of that, however, there are still plenty of people who would shout "political correctness" and suddenly become deeply devoted to keeping the "Redskins tradition" alive, if Snyder were to change the team's name.  There are still diehard groups complaining about colleges that changed their racist names or logos decades ago, and it would be even more intense with the Washington team (because everything is more intense with that fan base).

But that merely means that Snyder could make a profit from both groups of fans.  He could announce that he felt "bullied" into changing the name, citing efforts in Congress to force his hand.  Inciting the public's sense that he had been wronged, he could then grimly say that he had no choice, and parade his star quarterback in front of the cameras, wearing a spanking new uniform for the Washington Swamprats.  (OK, that would be a bit too accurate re DC's climate and geography.)  The website for buying the new merchandise could flash across the bottom of the screen while Snyder shook his fist about the injustice of it all.

What of the PTO's ruling?  If he were ultimately to lose the appeal, Snyder could still make whatever diminished profits that he could earn in an open market.  Even if that turned out to be zero, he would still have been given a silver-platter opportunity to sell his fan base gajillions of dollars of new branded crap.  But if he won on appeal, or more intriguingly, if he could negotiate with his opponents to drop the claim in return for his agreement to choreograph an oh-so-reluctant name change, then he would be able to gain extra profits from the electrified racist ... er. traditionalist ... base of fans who will be chanting "Redskins forever" for years to come.

The interesting thing about this strategy is that Snyder does not need to say different things to different audiences.  He could go to his grave claiming that the name was not disgusting, and the people who disagree with him would still be satisfied.  He would merely count on the enraged diehards to double his profits (or more).

I doubt that I am the only person who has thought of this strategy.  What surprises me is that Snyder has not thought of it himself.  How often does a completely unprincipled person have a chance to profit by doing the right thing, all the while playing to the ugliest elements of his customer base?

Monday, August 25, 2014

Separation of Powers Does Not (Necessarily) Immunize the Veto Power -- Wherein I Respond to Eugene Volokh's Reply to My Analysis of the Rick Perry Indictment

by Michael Dorf

In my post last week on the indictment of Rick Perry, I criticized the argument by the Perry camp that the use or threatened use of the governor's veto power for nefarious purposes cannot be the basis for a criminal charge because the state constitution assigns to the governor the power of vetoing legislation. I said that this argument was weak, "at least if not further qualified." I then explained both why the maximalist argument made by Perry is weak and how a more nuanced version of the claim could be stronger. Later in the week, Professor Volokh defended the maximalist view. Some of what he wrote addresses other issues raised by the Perry indictment, but to the extent that Volokh has offered a response to my prior post (which he quotes at length), I am not persuaded.

Volokh argues that the legislature cannot, through ordinary legislation, impose limits on the executive's constitutionally conferred veto power. Before explaining where I think Volokh goes wrong, I should note that although each of us has referred to Texas law, the argument is mostly interesting only insofar as it raises general questions of how executives interact with legislatures. Neither of us is an expert in Texas law, and so it's possible that there are peculiarities of Texas law that support or undermine general arguments that he or I have made. And, as I said in my original post, I don't have a view about whether the case against Perry is weak or strong, all things considered. I understood Professor Volokh to be answering my post in the same spirit -- i.e., discussing how these issues work in general in constitutional systems with separation of powers and in which the head of the executive has veto authority. I shall continue the discussion in the same spirit, making general rather than Texas-specific points, except where otherwise noted.

Volokh offers two related grounds for his conclusion that a governor's exercise of the veto power may not be the basis for a prosecution under the particular statutes he is charged with violating: 1) Ordinary legislation cannot override a constitutional provision, so insofar as the state constitution confers on the governor unfettered discretion to exercise the veto power, that constitutional grant of power takes precedence over any legislation; and 2) A governor's veto acts as a check on the legislature, so it would also violate separation of powers for the legislature to place limits on the governor's exercise of the veto power.

These propositions strike me as sound, so far as they go, but I don't think they go as far as Volokh assumes. So, where do we disagree? The core of our disagreement is over proposition 1, which strikes me as an overstatement. A governor or president has complete discretion to exercise the veto power for good or bad policy reasons, or as part of a log-rolling or horse-trading deal, but that does not mean that he or she can never be held criminally liable--at least absent something more than the constitutional assignment of a veto power--for using that power in other, corrupt ways.

Some constitutions have particular provisions providing partial or even total immunity for acts taken in various official capacities. For example, the Speech or Debate Clause of Article I, Sec. 6 of the U.S. Constitution confers such an immunity on members of Congress. The U.S. Constitution contains no such express immunity for executive actions of the President, although in Nixon v. Fitzgerald the SCOTUS relied (partly) on principles of separation of powers to fashion a judge-made doctrine giving the President absolute immunity against civil suits for acts taken in his official capacity; there may be some similar immunity against criminal charges under the federal Constitution, while the person remains in office; however, the impeachment clause makes clear that after a president is out of office he may be subject to criminal sanctions ("but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law").

Does the Texas Constitution provide the Governor with immunity against criminal prosecution either during his tenure in office or permanently? As I've said, I'm not an expert in Texas law, so it's possible, but I doubt it.  If there were some such express or judicially implied immunity, wouldn't Perry or his defenders have invoked it? In any event, the key point in my last post and this one is that the argument made thus far-- the one I'm critiquing--doesn't rest on any special immunity from prosecution. The argument asserts that the power to veto--in itself--necessarily entails immunity from criminal prosecution under an ordinary law because such a prosecution would be inconsistent with the constitutional assignment of the veto power to the governor. That's the claim that strikes me as overstated.

To see why, consider an analogous question involving rights. It is conventional to say that there is a First Amendment right to burn a flag, per Texas v. Johnson. But it does not follow that someone exercising that right is immune from prosecution for other crimes he commits while happening to burn a flag. If Shmonson used a burning American flag to deliberately set fire to his neighbor's house, he could be prosecuted for arson. If Gronson used a burning American flag to torch his own failing candy store to collect the insurance money, he could be prosecuted for fraud.

Professor Volokh attempts to show that a governor is immune from prosecution for exercising the veto power by giving a number of examples in which the legislature specifically outlaws particular uses of the veto power. Yet his examples are plainly irrelevant to the question of whether the governor can be prosecuted under a general statute when the governor happens to violate that general statute by exercising the veto power. They are like the Texas law that specifically targeted flag desecreation in Texas v. Johnson, not like the arson law or the fraud law.

Volokh does give one hypothetical example in which a governor is prosecuted under a general statute, but it's a peculiar one.  Here's his best example:
Say that a governor vetoes a bill appropriating money for some public health measure. Someone dies, allegedly because of the veto (i.e., the person wouldn’t have died had the measure been funded). A prosecutor then charges the governor with “depraved heart” murder, meaning (roughly) that the governor acted despite his knowledge that there was a very grave and unjustified risk that his veto would cause death. Or perhaps the prosecutor charges the governor with negligent manslaughter, meaning (roughly) that the governor was grossly negligent in vetoing the law.
I agree with Volokh's intuition that charging the governor with murder or manslaughter in this example would violate the best conception of separation of powers, but not with his conclusion. For one thing, given the libertarian cast of American criminal law, in this context the veto looks like a non-culpable failure to rescue rather than an affirmative act. Moreover, the particular consequences here are inextricably tied up in the governor's policy judgment about whether the public health measure is wise. Presumably the proponents of the health measure argue that absent the measure, people would die, whereas opponents argue either that they wouldn't or that if they do, that's unfortunate but that funding the measure would have other harmful consequences, such as raising taxes, increasing the deficit, etc. Volokh's example really only shows that under the best conception of separation of powers, a governor cannot be prosecuted for the foreseeable consequences of a questionable or even bad policy decision.

But that is not enough. My claim, and presumably the claim of the prosecutor in the Perry case, is not that every time a governor vetoes a law he can be prosecuted for doing so. I am simply denying the Perry camp's equally sweeping contrary claim, namely that a governor can never be prosecuted for exercising the veto power.  Even one example of a circumstance in which separation of powers is not offended by prosecuting a governor for his exercise of the veto power would suffice to rebut the maximalist view of Perry's defenders. And we already have one: bribery. As I noted in the earlier post, a governor who vetoes a bill as part of a quid pro quo for a a bribe can be prosecuted for bribery, notwithstanding the fact that the governor has unfettered discretion to make a good or bad policy choice in deciding whether to sign or veto a law.

Volokh does not deny that a governor could be prosecuted for bribery in connection with the veto power, but instead argues that bribery is somehow unique--an exception that proves the supposed rule that a governor cannot be prosecuted for the exercise of the veto power. He attempts to distinguish bribery from all other crimes in three ways. Let's consider them in turn.

1) Volokh cites the 1972 SCOTUS decision in United States v. Brewster, which said that the federal statutory crime of bribery consists in taking the bribe, regardless of "performance of the illegal promise." That's true. It's even possible to read Brewster as relying on a principle of constitutional avoidance for that reading of the statute--although it would be very odd for the Court to apply constitutional avoidance to make it easier to convict a criminal defendant. But let's suppose that we read Brewster for all it is worth. It would mean that the federal Constitution requires that, as applied to members of Congress, the crime of bribery must refer only to the acceptance of a bribe, not the performance of the act for which the bribe is paid. But only for members of Congress, because the constitutional question in Brewster was whether the crime of bribery violated the Speech & Debate Clause, which, as I noted above, is a special immunity for legislators. It is not a general entailment of separation of powers, so it does not apply to the federal executive, much less to executives in all governments with separation of powers.

2) Volokh next says that "there is a special provision of the Texas Constitution that expressly forbids accepting a bribe by an official (including the governor), and authorizes criminal punishment for such behavior." I think Volokh means by this to suggest that, in the absence of this special provision, separation of powers would forbid bribery prosecutions of the Texas governor for the exercise of the veto power. Yet (other than the addition of a line-item veto), the veto provision of the Texas Constitution is very similar to its federal counterpart, which does not need a "special provision" to authorize bribery prosecutions. How do I know the federal veto clause does not create the need for such a special provision? Because the impeachment clause recognizes that the President and other officials may be impeached (and later prosecuted) for "Treason, Bribery, or other High Crimes or Misdemeanors" without specially enumerating what those sundry other crimes are.

As for the Texas Constitution, I'm not sure what "special provision" Volokh is referring to, but the portion of the Texas Constitution setting out the executive powers contains no reference to bribery. There is a general provision of the Texas Constitution that forbids someone who obtained his office via bribery from continuing in office, but that's not at issue with respect to Governor Perry. His case would appear to be governed by another provision in the same Article of the state Constitution obligating the legislature to enact laws that "exclude from office persons who have been convicted of bribery, perjury, forgery, or other high crimes." The reference to unspecified other crimes strongly implies that the background assumption is that gubernatorial misconduct--whether in the use of the veto or some other way--is subject to prosecution, regardless of whether it takes the form of taking bribes or something else. Far from showing the uniqueness of bribery, this "special provision" shows that bribery is merely one of a large class of crimes for which governors can be prosecuted as a consequence of their abuse of power.

3) Volokh then adds that "the risk of prosecution for bribery is far less of a deterrent to a veto (assuming the governor hasn’t been bribed) than the risk of prosecution for violating [other laws], precisely because a prosecution for bribery has to show an agreement to take a bribe — not just a supposedly improper intent behind the veto." This seems to me both wrong and irrelevant.

It's wrong because sophisticated corrupt government officials have ways of taking bribes that are proved in much the same way as other kinds of corruption charges. Unless they are idiots, corrupt government officials do not receive checks with "bribe" written in the memo section; they do not even usually receive bags of small unmarked bills; they typically take otherwise legal campaign contributions in exchange for otherwise legal conduct; or they funnel money through intermediaries. Thus, prosecuting such an official for accepting bribery involves the same sort of evidence as is needed when prosecuting an official for other forms of corruption in which intent is critical. The current corruption prosecution of former Virginia Governor Bob McDonnell makes this point pretty clearly: it is not disputed that McDonnell and his wife took gifts from Johnnie R. Williams; the sticking point is why, just as it would be if the question were improper use of the veto power.

Moreover, even if Volokh were right that proof that a governor illegally took a bribe in exchange for a veto would be more concrete than proof that a governor committed some other crime by exercising his veto power, so what? That would simply mean that, other things being equal, it would be easier for governors to get away with committing one kind of crime than another. It would not mean that the exercise of the veto power is immune to prosecution for all crimes other than bribery.

Accordingly, I think Volokh's efforts to distinguish bribery are wholly unavailing. Still, it is worth considering why he tries so hard to distinguish bribery. He apparently shares my strong intuition that a governor who took a bribe to veto (or to sign) legislation should be subject to criminal punishment for that offense, and that to preserve his separation-of-powers theory he therefore needs some way to show that bribery is unique--that no other offenses may be committed in the exercise of the veto power. That the effort is unavailing is important, but the fact that he makes the effort at all is revealing.

I'll offer one more example of a crime at the federal level that undermines the strong separation-of-powers claim. Consider treason. (Spoiler alert!): Imagine a scenario based on The Manchurian Candidate or Homeland if Brody had become president and remained loyal to his former captors: U.S. intelligence learns of a foreign terrorist plot that would exploit a key vulnerability in domestic defenses; Congress acts swiftly to pass a bill appropriating funds for an emergency fix; but the President, secretly acting on behalf of the terrorists, allows the bill to sit on his desk for nine days, and then vetoes it, during which time the devastating terrorist attack occurs. Isn't this a pretty clear case of Presidential treason via the veto power?

Note that the two examples I've given--treason and bribery--are the two expressly enumerated grounds for impeachment of the President, and both are crimes that can be committed through the exercise of the veto power. There is nothing in the text or structure of the Constitution that would lead to a different result for the other, unnamed high crimes and misdemeanors for which a president can be impeached and subsequently prosecuted. Nor is there anything in the general principle of separation of powers that would lead to the conclusion that treason and bribery are unique in this regard.

Is it possible that a court might nonetheless construe the veto power of the Texas governor in the maximalist fashion I have criticized? Sure. And it's also possible that one or more of the Texas charges will be held inapplicable to Perry's alleged conduct on purely statutory grounds, or that he might be acquitted on the facts. But nothing I've seen thus far from Professor Volokh or anyone else supports the broad claim that a purely discretionary power to veto on policy grounds implies immunity from criminal prosecution for the exercise of the veto power on corrupt grounds.

Friday, August 22, 2014

Teacher Tenure Is Necessary, and It Helps Everyone

-- Posted by Neil H. Buchanan

My Dorf on Law post earlier this week discussed two recent entrants in the teacher-bashing sweepstakes: a billionaire-backed group that is bringing suit in New York State to end tenure for schoolteachers, and an op-ed by New York Times columnist Frank Bruni.  Bruni endorsed a Colorado law that can end even experienced teachers' careers, if student test scores do not increase for two consecutive years. Bruni's op-ed was almost endearing in its inanity, uncritically buying into the idea that the only way to improve the educational system is to give heroic administrators the ability to inspire their troops (and to sack those who are not willing to "walk through fire together").

The broader story being spun by the anti-tenure groups is that schools are bad because teachers have too much job security. Falsely claiming that tenure makes it impossible (or nearly impossible) to fire ineffective teachers, this crowd makes it seem as if public school teachers have such cushy, safe jobs that they do not bother actually to teach their students. Combining that falsehood with anti-union bias, the attack on tenure has become another opportunity for nominal liberals like Bruni to "hippie punch" one of the key elements of the Democratic base. (Bruni's colleague Nicholas Kristof has also gotten into the anti-educator game, both at the college level and in attacking tenured schoolteachers.)

This story is then wrapped in a nonsensical tale about how some brave Democrats have dared to "defy" the teachers' unions, which are supposedly the real barrier to reform. Needless to say, Barack Obama's triangulators gleefully join in the attacks on tenure, making it a bit difficult to see what the Brave Union Defiers are actually risking by attacking tenure.

Every aspect of the anti-tenure story is wrong. Here, I want to discuss what tenure really means, the incentives that it creates, and the choice between abolition, reform, and standing pat.

The central lie of the anti-tenure campaign is that tenure "guarantees lifetime employment," or similarly extreme claims. The reality is that tenure is a system that requires for-cause firing, rather than at-will employment. That is, the collective bargaining agreement between the school district and its teachers requires due process and clearly articulated reasons for firing a supposedly ineffective teacher. "She isn't walking through fire with us" is not good enough. There are internal procedures that allow the district and the teacher to resolve issues outside of courts of law, and the teachers are allowed to defend themselves.

There are, of course, a million possible variations on a tenure system. Changes to such systems can be negotiated, and there is no single right way to protect teachers from arbitrary firing.   Suggested changes, including some thoughtful comments on my post this last Tuesday, can run the gamut, and nothing I say here should be taken to mean that I reject any and all changes to how tenure is defined or administered. But two central points must be acknowledged: (1) Teachers can be, and are, dismissed for ineffectiveness under current tenure systems, and (2) The anti-tenure forces are not talking about reforming tenure, but ending it. The actual reformers, in other words, have been the teachers' unions, who have responded to the attacks on tenure by making adjustments on an ongoing basis.

Even so, it remains true that a teacher with tenure is harder to fire than a teacher without tenure. That is the point of tenure. Tenure exists for a number of reasons, only one of which I mentioned in my Tuesday post. In addition to that essential point -- that tenure protects teachers from being arbitrarily fired for making politically unpopular statements (e.g., saying the Karl Marx was not wrong about everything) -- teachers also need to be protected when they blow the whistle on misconduct in their own schools.

Most importantly, teachers need to be able to say no to parents. When I was an untenured economics professor, I received an angry phone call from the parent of a student who "doesn't get C's," but who had earned a C+ on one of my exams. Fortunately for me, when the parent took her complaint to the department chair, he refused to put pressure on me to change the grade; but if he had not liked me, he could have used that moment to drop me from the department. At the K-12 level no less than in college, there are all kinds of situations in which a teacher without job protection will be pressured to do something inappropriate, in order to save her job. To tie this issue to my recent post on college athletics, consider the consequence for an untenured teacher or professor who flunks a popular sports star and thus keeps him off the playing field.

The objection to all of this, however, is that tenure is over-inclusive, protecting not just teachers who need and deserve protection but also those who are free-riding on a system that allows them to do next to nothing and thus harm their students. This idea, which has more than a whiff of rational-actor theorizing common among orthodox economists, assumes that people are work-minimizers who are looking for every possible way to get away with shirking on the job. One need not believe that every teacher is a selfless saint to see that the reality is far from what the anti-tenure people describe. Teachers are well-educated and, at best, paid a middle-class salary, and they deal with the results of family and social dysfunction, along with all of the standard behavioral issues that children present.  That more of them do not quit outright is a miracle.

Moreover, if we insist on seeing teachers as fallible humans who might succumb to the temptations to abuse the system, why would we assume that administrators, parents, school boards, politicians, and the kids themselves are not similarly afflicted with imperfect moral codes? It is bad enough that we allow people to be fired from most jobs (office worker, nurse's aide, fast-food employee) at the whim of supervisors. But if there is any area of the economy where we can have somewhat more trust in the workers, along with good reason to think that the supervisors are going to bend to stronger political and personal pressures, it is in the schools.

In short, if we stop pretending that one or both sides of the teacher/administrator divide is perfect, we find that teaching is a profession in which extra job protections are uniquely necessary. Like any imperfect system, teacher tenure will have imperfect results. In reality, therefore, a healthy political environment would expect and allow tenure standards to evolve over time. In the context of our unhealthy political environment, by contrast, we have to take sides.

And it is easy to know which side to take. The spokeswoman for the anti-tenure group in NYS (whom I discussed in Tuesday's post) led off her appearance on The Colbert Report by saying: "91 percent of teachers around the state of New York are rated either effective or highly effective, and yet 31 percent of our kids are reading, writing or doing math at grade level." (And 100% of baseball Hall of Famers are deemed worthy of the Hall of Fame, yet the best of them failed at the plate two-thirds of the time.) This kind of simplistic nonsense should scare anyone who thinks that the anti-tenure crusaders are not ultimately blaming the teachers.

The fact is that, even looking at the inevitably imperfect tenure systems that are possible in real life, there is simply no established connection between teacher tenure and student outcomes. Wealthy suburbs around the country rely on tenured teachers to prepare their kids for elite colleges. Public school systems in poor areas that have experimented with non-tenured faculty have not shown improvements in any measurable student outcomes.  So if the choice, because of political polarization, ends up being either to abolish tenure or to keep it as is, we should keep it.

Thursday, August 21, 2014

Ferguson, Gladwell's Crooked Ladder, and the Social Effects of Organized Crime

by Michael Dorf

A recent New Yorker essay by Malcolm Gladwell provides a potentially interesting way to think about the events in Ferguson. Gladwell's essay was published just before the eruption in Ferguson, so he does not discuss it. A Washington Post op-ed by Allyssa Rosenberg applies the lessons Gladwell draws in his essay to Ferguson and the larger problem of the racialization of poverty and violence, but mostly by accepting Gladwell's claims. Here, after briefly describing Gladwell's claims, I want to raise some questions about his analysis.

Gladwell's essay centers around a 1972 non-fiction book by Francis Ianni, A Family Business: Kinship and Social Control in Organized Crime, that was the basis for The Godfather and many subsequent popular fictional portrayals of organized crime in general and the Italian mafia in particular.

The Godfather films suggest that mafia life is a trap: "Just when I thought I was out," laments Al Pacino as Michael Corleone in Godfather III, "they pull me back in." But the lesson of Ianni's study, says Gladwell, is more nearly the opposite. People who turn to organized crime do not reject the bourgeois values of the surrounding society. They embrace those values but, seeing few if any opportunities to achieve a good life for themselves and their families legitimately, they turn to crime. Over time, however, the wealth accumulated through organized crime enables crime families to go legit. Thus the grandsons and granddaughters of a mafia don end up as wholly respectable doctors, lawyers, and accountants. Organized crime, Gladwell says, quoting sociologist James O'Kane, is a "crooked ladder" to prosperity and respectability.

Gladwell also notes that by the early 1970s, the empires built by Italian-American crime families were increasingly reliant on African American and Latino foot soldiers. Based on Ianni's study, one would expect that, just as organized crime had served as a crooked ladder to respectability for earlier generations of Irish, then Jewish, then Italian mobsters, so it should work the same way for African Americans. (Gladwell does not discuss Latinos beyond his initial observation.) And yet, it obviously has not.

Why not? Curiously, Gladwell does not even mention racism, but let's put that rather glaring omission aside. Gladwell discusses modern urban life for African American criminals by reference to Alice Goffman’s new book, On the Run: Fugitive Life in an American City, juxtaposing the portrait Goffman paints with the one Ianni painted. Gladwell argues that in earlier times, organized crime worked as a gateway to legitimate business because corrupt police and generally lax enforcement of the criminal law enabled the accumulation of capital and the development of a business ethic within organized crime circles. By contrast, African Americans had the bad luck to move into the organized crime niche just as police corruption was being dramatically reduced and criminal law enforcement was being ramped up.

There is something that's clearly right about this narrative. Young African American men are arrested and incarcerated at alarmingly high rates; and the increasingly for-profit criminal justice system can convert even the most minor brush with the law (such as a traffic offense) into a source of insurmountable debt. So yes, the second half of Gladwell's hypothesis has much to be said for it, and that something dovetails with the expressions of outrage we see on the streets of Ferguson. The early discussion of Ferguson focused on the militarization of police, which is a problem, but a relatively small one in comparison to the core issue: Over-criminalization and excessive punishment in general, and their disproportionate impact on the African American community in particular, are extremely serious problems.

But that has little to do with organized crime. Does Gladwell really mean to imply that the best solution to the problems that ail urban America is for the police to back off and allow the Bloods, Crips, MS-13s, and other gangs to run rampant, in the expectation that, within a couple of generations, middle-class respectability will take hold? If one considers the sorts of places in which this approach has been more or less unintentionally applied--e.g., Sicily and Central America--one finds not respectability but disorder and despair.

Both in this recent essay and more generally, Gladwell is such a good writer that he makes it easy for the reader to get caught up in the arc of his narrative and end up at his counterintuitive conclusion. But there is a reason why counterintuitive conclusions are counterintuitive: often they're wrong.

One of Gladwell's key anecdotes is instructive. He describes the practices of Salvatore Avellino, who oversaw the Long Island garbage disposal cartel in the 1970s and 1980s. Gladwell praises Avellino's business ethics. Instead of keeping the 50% premium in rents that the cartel was able to extract from its customers, or giving most of that money to the Lucchese and Gambino crime families, Avellino ensured that most of the profits went to the cartel members, the family-owned trash disposal businesses that operated in the respective territories allocated to them. Gladwell writes that although Avellino would use violence and intimidation against those who did not play by his rules, "when it came to his [cartel] members, Avellino acted not as a predator but as a benefactor."

And there you have the non sequitur that is at the heart of Gladwell's analysis. Organized crime may indeed be a crooked ladder to respectability for the participants in organized crime or their descendants. But for the rest of the people in the community--those who are already trying to live and work by the rules of the larger society--organized crime is an impediment to achieving a comfortable existence. To the businesses and individuals who paid a 50% premium above what they would have paid for trash disposal in a competitive market, Avellino's violence-backed cartel most certainly was a predator. Likewise, the small business owners trying to make an honest living hardly benefit from having to pay protection money to the mob, even though the profits are shared fairly among the mobsters.

Here, it seems to me, popular fiction gets it about right. Tony Soprano's extraction of resources from the communities his minions oversaw paid for Meadow's tuition at Columbia, but it also prevented some of the sons and daughters of the business owners from whom he stole from being able to afford to go to Rutgers.

Wednesday, August 20, 2014

SCOTUS Virginia SSM Stay Makes Merits Ruling By June 2015 All But Inevitable

by Michael Dorf

The Supreme Court order granting a stay of the ruling of the 4th Circuit regarding Virginia's same-sex marriage ban makes it nearly certain that the Court will grant cert to decide the constitutionality of laws banning same-sex marriage in time to be decided during the upcoming (October 2014) Term.

No one can be surprised by this order, given the similar SCOTUS disposition in the Utah case back in January. But the Utah case was different in an important respect: The underlying merits decision was a ruling of the district court; thus, one could understand the SCOTUS grant of a stay there as merely based on the view that the status quo ante ought to be preserved so that the appeals court could hear the case without risking putting marriages in limbo. (Of course, there was enough of a delay between the district court ruling and the time when the Supreme Court stay was granted, that limbo wasn't avoided anyway, but that's a different point.) By contrast, the SCOTUS order in the Virginia case comes after an appeals court disposition, and is in effect "pending the timely filing and disposition of" a cert petition. If the Court denies cert, that will mean the stay is dissolved and same-sex marriage will be legal in Virginia (and the other states in the 4th Circuit). But I can't see the Court doing that unless the Justices are certain that they will eventually affirm a right to same-sex marriage. And if they were certain of that, then they wouldn't have granted the stays in either the Utah or Virginia cases, because the limbo problem only arises if there is a serious prospect that marriages will be found legal and then later made illegal.

So I think the likely--indeed the overwhelmingly likely--outcome of a cert petition in either the Virginia case or some other case to reach the Court soon will be a grant of cert. And notwithstanding my analysis above, I think it quite likely that the Court will then find a right to SSM. That's because the likelihood of a 5-4 vote in the Court is enough to support the conclusion that the issue is close in one sense, but I have a very hard time counting beyond four votes against a right to SSM on this Court.

Abortion, Animal Rights, and Theoretical Arguments

by Sherry F. Colb

In my Verdict column for this week, I discuss a decision by the U.S. Court of Appeals for the Fifth Circuit holding a Mississippi abortion law unconstitutional, as applied.  The law at issue, like an increasing number of state laws, requires that doctors who provide abortions must have admitting privileges at a local hospital.  The doctors at the one existing abortion clinic in Mississippi attempted to acquire admitting privileges at seven local hospitals, but all requests were denied, expressly because of the doctors' participation in abortion services. 

The Fifth Circuit held that the law in question, given the circumstances, effectively eliminated abortion services from the state of Mississippi and thereby imposed an undue burden on the right to terminate a pregnancy.  My column analyzes the unusually fact-specific nature of the ruling and why it needed to be that way.

In this post, I want to turn from the subject of abortion to the subject of animal rights.  What is the connection, you ask?  One connection is that Mike Dorf and I are currently working on a book -- tentatively titled Beating Hearts -- about the animal rights and anti-abortion movements.  The book addresses substantive arguments that find expression in both pro-animal-rights and pro-fetal-rights camps as well as some of the philosophical and strategic challenges that similarly confront the two movements.  One strategic challenge is whether to embrace legislative reforms that regulate the targeted behavior (whether animal exploitation or abortion) and thereby potentially imply that the activity is not itself inherently objectionable, if proposed guidelines are merely followed.

In the context of animal rights, an example of such legislative reform would be a law that provided that laying hens must be kept in a barn rather than in a cage.  A proponent of animal rights -- one who believes that breeding birds who produce  more than fifteen times the normal number of eggs annually (250-300 versus 10-15 in a closely related non-domesticated bird) in order to take their eggs away and ultimately to kill them when they stop laying those eggs (while killing all of the male "layers" because they produce no eggs) amounts to unjustified violence and cruelty to animals.

When someone who believes in animal rights advocates for a different sort of "housing" for such birds, the advocate could be misunderstood by the public as condoning the farming of birds, so long as they are kept in a barn while they are being exploited and prior to being slaughtered, rather than in cages. The advocate might respond that less torture is better than more torture and that the difference is what motivates the advocacy.  Opponents, in turn, could reply that the public responds to such "reforms" by believing (without foundation) that buying eggs is now justified and that "even the animal rights people" at [name your organization] think so."  Furthermore, as investigations of "cage free" facilities and other "high welfare" operations reveal, the realities of "humane" farming are routinely no better than the "factory" alternative.

In the abortion context, a regulation might say that "abortion is legal if the doctor performing the procedure has admitting privileges at a local hospital."  Such a regulation does not prohibit abortion and might therefore lead an observer to conclude that abortion is fine so long as the providers have some level of access to local hospitals.  A supporter of this regulation might respond that such regulations are quite effective at reducing the number of abortions women have, because many hospitals refuse to grant admitting privileges to doctors who perform the procedure, and fetal lives are therefore spared.  As a matter of messaging, moreover, pro-life organizations can and do dispel any doubts about their bottom-line position on abortion by saying such things as "we oppose all abortion and believe that abortion is murder from the moment of conception."

The realities on the ground are quite different for people who oppose animal exploitation from what they are for people who oppose abortion, as Mike and I explore in our book, so one might believe that strategies should properly differ for the two movements.

Another sort of issue that arises in both the animal rights and pro-life movements is what sorts of arguments are appropriate and convincing.  In the case of abortion, some of the arguments made about late-term abortions might undermine the case for prohibiting early abortion.  Emphasizing the horror that accompanies the dismemberment of a 26-week-old fetus that already appears to be sentient may, by negative implication, reduce moral discomfort around earlier abortions of plainly insensate embryos and fetuses. For this reason, some people in the pro-life movement find partial-birth abortion legislation pointless and counterproductive to their mission.

In the animal rights movement, one of the points we make in favor of veganism is that by consuming the products of animal exploitation and slaughter, we solicit additional acts of violence against animals, thereby bringing about physical and emotional agony to innocent sentient beings.  Animal rights advocates typically object both to the infliction of suffering on animals (for the purpose of using those animals) and to the killing of animals (for the same purpose -- or because keeping them alive for further exploitation is no longer economically sound).  

Some people outside the animal rights movement agree that inflicting suffering on animals is wrong but challenge the notion that killing animals in order to exploit them is necessarily morally objectionable. Their premise is that if one could kill an animal for consumption without inflicting any distress or pain upon that animal, then the killing would not violate the interests of the animal. This is actually a position held by Peter Singer, the Princeton philosopher who authored Animal Liberation.  Singer rejects the view that killing farmed animals is wrong, provided that the killing is truly painless.

In an opinion piece in the New York Times, one writer suggests, in line with this thinking, that consuming animals is morally distinct from atrocities against humans, because animals could -- at least in theory -- be raised and slaughtered without suffering any pain or distress.  The writer, Rhys Southan, acknowledges that in the real world of animal farming -- even the "high welfare" sector -- animals actually suffer a great deal, in part because babies are taken from their mothers (as is inherent in the dairy industry) and in part because animals are mutilated (branded, castrated, etc.) without anasthesia as part of "raising" them for slaughter. There is far more suffering implicated in creating (and therefore in consuming) animal products than Southan articulates, but even he effectively concedes that "pain free" animal exploitation (and therefore consumption) is, for the moment, a fantasy.

In his column, Southan cites Epicurus for the proposition that death is not a harm to the one who dies, because once someone is dead, that individual no longer exists to experience the putative harm.  As Southan undoubtedly knows, though, Epicurus makes this point about humans.  Mike and I address the argument that death is not a harm and that painless killing is therefore morally permissible in our book, and I discuss it as well in one of the chapters of Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, a chapter entitled "What About Plants?".  For purposes of the Times opinion piece, however, suffice it to say that if Southan embraces Epicurus's view and infers permission to "painlessly" slaughter animals, then he should -- by his own logic -- infer permission to "painlessly" slaughter humans as well.

For now, however, let me leave this point behind.  I will, for purposes of argument, assume a premise that  I in fact reject -- that painlessly killing (an animal or a human) is morally unobjectionable. If this is true, what follows from it?  It follows from this premise (one that I, just to be clear, find offensive and utterly reject) that if one were to consume the corpse of a slaughtered animal (for example, a puppy or a calf) who had been killed without experiencing any anxiety or pain, one would be doing nothing wrong.  Likewise, as Southan implies at the end of his piece, one could also consume (or create gloves out of) the remains of a slaughtered human without committing any moral wrong, so long as the human never saw it coming and suffered no pain or anxiety.

Southan asserts that in theory, one could raise and slaughter animals for food without causing the animals pain or distress.  This is true, just as it is equally true that one, in theory, could raise and slaughter humans for food without causing the humans pain or distress.  This would especially be true in the case of a human who is either too young to understand complex human communication (through which she might learn of her fate) or a human who suffers from intellectual disabilities that prevent such understanding in adulthood.  Under Southan's argument, then, there would be nothing wrong with murdering a happy, intellectually disabled human being, so long as one made sure to sneak up on the person in the middle of the night and cause no suffering in the process.

After accepting this (dubious) premise, what follows?  Though Southan does not say so explicitly, he strongly implies (in part by identifying himself as a "former vegan" in his byline) that what follows is that it is morally unobjectionable to consume animal products.  Why does that follow?  Because even though animals who are raised and slaughtered for consumption in fact suffer tremendous pain, anxiety, and loss during their short lives, as Southan concedes, one could imagine an animal being slaughtered for consumption without the corresponding suffering.  In other words, the fact that one can imagine painless exploitation and slaughter is -- on Southan's theory -- enough to make it acceptable to consume the products of painful exploitation and slaughter.  Got that?

I would not spend so much time on this rather bizarre argument if this were the first time I encountered it. I would then conclude that Southan is simply confused and move on to other, better thought out, writings. The problem is that I have heard this line of argument before.  

In one context, a woman who calls herself an "ethical vegetarian" and is otherwise extremely intelligent insisted to me that consuming eggs is morally acceptable (and totally different from consuming flesh) because the production of eggs need not involve any killing.  (By contrast to Rhys Southan, this woman does not appear to regard killing as harmless).  I expressed disagreement with her claim, because in the actual world we inhabit, the production of eggs always involves killing.  The male layer-breed chicks are, in fact, killed shortly after hatching, because they do not serve the purpose of an egg-laying operation, since they cannot lay eggs.  

The woman responded that one could, in theory, take care of all of the male "layers" and permit them to live out their lives rather than killing them.  I pointed out that such a practice would be economically ruinous for anyone hoping to earn rather than to lose money selling eggs and that, given the number of male layer chicks killed every year (260 million in the U.S. alone), there would not be enough space on planet earth to allow them to live out their lives other than in horrendously crowded conditions.  This might be why, I suggested, there are exactly zero egg-laying operations in which the males are permitted to live out their lives.  

When people purchase "back yard" hens, the curiously absent males will have all been thrown into a meat grinder or other such device to make fertilizer the day on which they hatched.  Buying eggs (or egg-laying hens for one's backyard) is inextricably tied to that practice.

What I said did not seem to phase the "ethical vegetarian," however, because in theory, one could imagine consuming eggs without killing any male layers.  That is apparently enough, from her perspective, to justify consuming eggs in the real world, where male layers are always killed as part of the process.  

Ordinarily, as I said, I would not feel the need to respond to such an argument, any more than I would feel the need to respond to the argument "but I had a dream in which an angel said that I should eat eggs."  However, because I have now heard the argument twice, I will make an attempt to say something in response, in the hope that people who believe it has some plausibility to it might think twice the next time they encounter it.

Let us take a context outside of the animal rights (and abortion) areas, where controversy is less likely.  Say I learn that all chairs coming from the Sandusky Chair Company were made by child slaves who were beaten and forced to work for twenty hour stretches.  I happen to like Sandusky chairs, though, because they are very comfortable.  

It is undoubtedly true that chairs could, in theory, be made without violently abusing enslaved children.  In fact, not only could they be made that way but some chairs actually are made without such violence.  Does this fact mean that I can go ahead and buy Sandusky chairs with a clear conscience?  In other words, does the fact that one could in theory create a chair without beating child slaves translate into moral permission for me to go ahead and pay the Sandusky Chair Company for chairs that they do create by beating child slaves?

Some purchasers of Sandusky chairs might be ignorant about what is involved in creating those chairs and might therefore be innocent of the violence and cruelty that they are paying for.  This is true, but once the reality is brought to their attention, they are no longer ignorant.  And in the case of animal agriculture, it is becoming increasingly difficult to remain completely ignorant about the profound violence involved in creating every type of animal product, including (especially) products like chickens' eggs and cows' milk, which visit a special level of hell on the females of those species.  And the "ethical vegetarian" of whom I spoke earlier is herself quite knowledgeable about the real world of eggs and dairy, even those that supply supposedly "humane and sustainable" farmers' markets.

Ultimately, then, I must conclude that the "it could be done ethically in theory" argument is not really an argument at all but simply a (rather transparent) rationalization.  And I say this as someone who takes seriously the many common objections to veganism in Mind If Order the Cheeseburger? And Other Questions People Ask Vegans.  I would say that if something could be ethical in theory but is in fact unethical in practice, then that means that one is under an obligation, absent some truly compelling need, to avoid supporting that something unless and until the fantasy/theory becomes a reality.  Though imagination can yield many wonderful things, it cannot justify behavior that is, in reality, unjustifiable.

Tuesday, August 19, 2014

More Gratuitious Attacks on School Teachers

-- Posted by Neil H. Buchanan

A few weeks ago, Stephen Colbert interviewed someone named Campbell Brown.  I had never heard of Brown, but it turns out that she was formerly one of the interchangeable talking heads on those network morning shows, before moving on briefly to host her own low-rated show on CNN (which airs nothing but low-rated shows).  Brown appeared on Colbert to promote her new union-busting group (the funders of which she insistently refuses to name), putting a happy face on an anti-teacher-tenure lawsuit that her group has filed in New York State.

Brown probably assumed that she would get an easy ride on Colbert, expecting him to play the clown while she recited her talking points and smiled demurely.  Instead, Colbert proved that he has actually become an excellent interviewer, asking pointed questions and making trenchant comments that left Brown flat-footed.  (For example, when she tried to hide behind feel-good assertions that everything she is doing is "for the children," and some people in the audience applauded, Colbert said, "They’re going to clap because you’re playing the 'good for child' card.")

In some ways, the most amazing thing about the interview was the end, when Brown said, "I respect that," in describing her funders' refusal to be named publicly.   Colbert visibly stopped himself from attacking Brown directly, and instead said, "Well, I respect … you. I was trying to figure out who I will respect at this table, and there was no one left but you."  Ouch.  He then smiled and ended the interview. It was fascinating TV, available here.

Of course, Brown is merely one cog in a machine that is trying to end tenure for school teachers.  The latest output from that machine was an op-ed in today's New York Times by Frank Bruni, "The Trouble With Tenure."  Bruni completely buys into the idea that teacher tenure's only role is to prevent teachers from being fired for incompetence, not even bothering to give lip service to the idea that tenure might have some positive effects, like, say, protecting teachers from being fired for expressing unpopular political views. (By contrast, here is Colbert: "What if there’s someplace where the parents don’t want certain things taught to the kids? ‘Cause I’d love my kids not to be taught evolution.")

Bruni builds his story around a Democrat who helped pass a "2010 law that essentially abolished tenure in Colorado."  Making the story about a Democrat is important strategic choice for Bruni, who assures his readers that there are now "many Democrats defying teachers unions and joining the movement." Yes, jumping on a heavily-funded gravy train that attacks the beleaguered teachers union is now an act of grit and defiance!

On the substance, Bruni also accepts without question that principals and administrators are the heroes who could save the day, but that "traditional tenure deprived principals of the team-building discretion they needed."  Quoting the politician who sponsored the anti-tenure law in Colorado, Bruni writes: " 'Do you have people who all share the same vision and are willing to walk through the fire together?' he said. Principals with control over that coax better outcomes from students, he said."  This is beyond preposterous.  We knew that the Times op-ed page was filled with people who have no known expertise, but I thought that at least these guys were capable of committing journalism.  Maybe just a little bit of skepticism would have been in order.

Bruni allows that "[t]here are perils to the current tenure talk: that it fails to address the intense strains on many teachers; that it lays too much fault on their doorsteps, distracting people from other necessary reforms." But this stipulation only arrives after he allows his subject to re-frame the debate: "[I]t’s not the kids who are the problem! It’s the system."  So, when someone says that teachers are wrongly blamed for the effects of poverty, family breakdown, and so on, that apparently amounts to saying that "the kids are the problem."  And teachers thus do not deserve "job protections that most Americans can only fantasize about."  Right.  Why protect one of the few (and most important) job protections remaining in the U.S., given that we have allowed too many other people to become easy to fire?

Perhaps the most notable aspect of the column, however, is Bruni's description of the actual Colorado law that he admires so much: "To earn what is now called 'non-probationary status,' a new teacher must demonstrate student progress three years in a row, and any teacher whose students show no progress for two consecutive years loses his or her job protection."  This means that a brand-new teacher's (minimal) job protection is determined by "student progress" (presumably meaning increasing scores on standardized tests), and even experienced teachers can be canned if their students' scores are unchanged for two years in a row.  Even if one thinks that there is some broad statistical connection between teacher "quality" and student "progress," that connection cannot possibly be so tight that even the best teachers could be confident that they would not be dealt a bad hand for two years in a row.

Yet Bruni wraps himself in the flag: "We need to pay good teachers much more. We need to wrap the great ones in the highest esteem. But we also need to separate the good and the great from the bad."  Great.  How are we going to do that?  Once everyone is "defying" the teachers unions, where is the pressure to increase teachers' salaries going to come from?  Are the superman-principals who are getting people to "walk through fire together" never going to make decisions on illegitimate bases?

If we want to have a warts-and-all discussion about tenure, then we have to make the comparison meaningful, and think about the many imperfections in a system where teachers can be fired at will.  It is easy to describe an Eden in which enlightened administrators gallantly lead their properly motivated troops into battle.  But if people were that virtuous, then they would not succumb to the supposed evils of tenure in the first place.  Bruni is essentially saying, "Real-life tenure leads to less than perfect results, but fantasy-world non-tenure can be wonderful."

No one has yet designed an alternative to tenure (and unionized teachers) that actually makes matters better, for teachers and students, in a way that could be applied generally.  Until then, all of this noise from people like Bruni is an excuse to sound concerned about children, while taking the easy way out and blaming the only group of people who are actually trying to deal with kids as they exist.  Teachers are not perfect, but continually attacking them only makes matters worse.

Monday, August 18, 2014

Rick Perry's Indictment

by Michael Dorf

I begin with a disclaimer: My judgment regarding Rick Perry is questionable. When he first announced his candidacy for the 2012 Republican Presidential nomination, I thought he was a lock to get it. But in my defense, that was before I had any real exposure to Perry, as opposed to seeing his paper credentials. By early January 2012 I did recognize that Perry's main obstacle to obtaining the GOP nomination was what I called his "difficulty sounding like an adult human with the capacity for speech and thought." Until Friday, it looked as though Perry and his advisors had concluded that he had overcome that obstacle for 2016, probably counting on some combination of popular amnesia, the magical smarts-conferring power of glasses, and the revelation that Perry's dreadful performance in the 2012 campaign may have been a product of health and medication issues. But now this.

Governor Perry's defense team is at least initially taking the position that Perry has done nothing wrong because he was simply exercising one of the powers that the Texas Constitution vests in him as governor, namely vetoing legislation, in this instance the entire budget of the public corruption unit overseen by the Travis County District Attorney. This strikes me as a very weak argument, at least if not further qualified.

In numerous ways and circumstances, the law confers power on people but restricts--sometimes with criminal penalties--the means by, and purposes for which, they may permissibly exercise that power. Governors and other state officials have the power to make personnel decisions. Some of these decisions are considered discretionary, in the sense that they are not subject to review by others who think that they reflect a poor policy or personal judgment. Nonetheless, such decisions are not wholly unconstrained by law. For example, a public official who fired or refused to hire someone based on race would thereby violate the Constitution. A public official who made a personnel decision based on a bribe would thereby commit a crime.

All of this seems perfectly routine and must be obvious to special prosecutor Michael McCrum. He is not charging Perry with making a poor or even foolish decision by vetoing the public corruption unit's budget. The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: "But I have a license to operate a motor vehicle."

None of the foregoing is to say that Perry might not be able to mount a more successful defense. If I were working on his defense team (a job for which I am not volunteering!), I would make an argument that goes something like this:

Governor Perry concluded that Rosemary Lehmberg's disgraceful and criminal conduct leading to her conviction for DWI, which included an attempt to abuse her office by claiming to be above the law, rendered her completely unfit to continue to serve as Travis County DA for any period of time, especially given that office's role in ensuring the rectitude of other government officials. She therefore had an obligation to the people of Travis County and of Texas to resign. When she failed to do so, Governor Perry used all of his lawful means to induce her to step down.

Whether that is a successful defense seems to me to depend on a question of Texas law and some pretty murky questions of fact. The question of Texas law is whether one can be guilty of abusing one's official capacity and/or attempting to coerce a public servant (the charges in the indictment) even if one is trying to coerce someone to do something that is in the public interest. I don't know the answer to that question under Texas law but I suspect that the answer is yes. Otherwise, one opens up an enormous loophole for people to violate the law based on their claimed subjectively pure intentions. Consider, e.g., Oliver North's no-doubt sincere view that he was serving the public interest in defeating communism in central America.

Even if ultimately good intentions are a defense, there remain questions about Rick Perry's intentions, which will be difficult to prove one way or the other. Viewed from a distance, it looks like Perry saw an opportunity to replace an unfit Democratic DA whose office was investigating his conduct with a compliant crony who would kill or slow-walk the investigation into Perry's dealings with the Cancer Prevention and Research Institute of Texas. Are those bad intentions? Does the answer depend on whether Perry would have tried to force Lehmberg out even if she were perfectly qualified to continue? If it does, then Perry would seem to have a good defense, because he did not attempt to force out Lehmberg before her DWI incident.

My analysis thus contains a silver lining for Perry. It probably counts as an improvement in his general standing that the public is now wondering what was going on in his mind, rather than whether anything was.