How Democracy Works, Or Doesn’t

So Much For All That “We Are A Nation of Laws” Stuff . . . .

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This past month saw, practically unmarked, the anniversary of the Saturday Night Massacre, in which Richard Nixon’s refusal to turn over the secret tapes sought by Special Prosecutor Archibald Cox for information relevant to the Watergate break-in. Nixon offered instead to turn the tapes over to a trusted Senator, who would provide the Special Prosecutor and interested members of Congress with summaries. The “massacre” involved firing the Attorney General and the Deputy Attorney General before Nixon found someone (Robert Bork) willing to fire Cox, because Cox refused to drop his subpoena for the tapes and accept Nixon’s compromise after D.C. district court Judge John Sirica denied Nixon’s claims of executive privilege.

Congress then had a choice. Whether to back down and accept the Nixon compromise on a theory that it would avoid a Constitutional crisis while maintaining a fig-leaf of Congressional oversight, or to appoint a new special prosecutor who would continue to demand the President honor the Congressional demand for the tapes. Congress chose the later, and the case went all the way to the Supreme Court, which ordered the President to respect the subpoena and turn over the tapes. A week later, Nixon resigned. At the time, many commentators and scholars saw it as a signature moment in the triumph of the rule of law and a vindication of the principle that the United States is a country of “laws, not men.”

Sadly, we now face another such signature moment. President demands not merely approval of his domestic surveillance program, but wants retroactive immunity for the phone companies that provided the Administration with customer information, lest a court determine that the telcos thereby violated Section 222 of the Communications Act and other provisions of law. Again, scholars and civil rights activists raise grave concerns about how allowing the President to defy the law creates serious concerns about maintaining the Rule of Law and respect for the Rule of Law. Again, we the people look to our elected representatives in Congress to stand firm and protect the rule of law against the encroachment of a Chief Executive convinced that he should have the freedom to act for the greater good. Unfortunately, this time, it looks like the Democratic leadership may prove a weak reed upon which civil liberties cannot trust to lean. Unless, of course, the people rise up clearly in one voice to say, in the words of Rudyard Kipling:

All the right they promise -— all the wrong they bring.
Stewards of the Judgment, suffer not this King!

More below . . . .

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The Value of Diversity, Or, Lessons of a Canadian Folksinger to the US Supreme Court.

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The Surpreme Court has now ruled by 5-4 that school districts cannot use race as a means of determining placement to maintain integrated class rooms. Unsurprisingly, the four of the Court’s “Conservative” wing (Scalia, Thomas, Roberts, and Alito) believe that any race conscious consideration by government is intrinsically harmful and would overturn the 2003 decision in Grutter v. Bollinger that upheld the use of race as one of several factors to promote diversity in higher education. (Technically, Roberts only goes so far as narrowing Grutter‘s holding to higher education, but it amounts to the same thing.) Kennedy, the eternal swing vote, still affirms that diversity (including racial and gender diversity) is an important value that the government can support, without really indicating how the school systems can do so.

Reflections on the fallacy of “color blindness,” and how a completely unrelated folksong by the Canadian folksinger Heather Dale makes the point about the need for diversity and role models more eloquently than I ever could, below…

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I rarely post “me too” postings . . .

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But I feel it is important to circulate this well written piece from Alpie.net. Of course, regular readers will recognize it as one of my favorite tropes, although I usually phrase it differently. Being a citizen rather than a “consumer” means making the jump from bitching about reality to trying to change it. Yes, God knows we’re all busy, trying to make ends meet, raise families, etc. etc. But, like getting enough exercise, making sure the kids do their homework, eating a balanced diet, etc., it’s something that you either make time for because you think it’s important or suffer the consequences.

Stay tuned . . .

Open Mouth, Insert Foot, and Hopefully Learn Lesson.

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Generally, I try to limit myself to talking about things I know about and recognize what I don’t know about. But, like most of us, I occassionally think I know more than I do. Such is the case of my recent comment in ComputerWorld about the muni deployment situation in San Francisco. In the last few days, I’ve received a barrage of angry letters and calls from friends of mine on the ground in SF wanting to know what the Hell I was thinking when I said: “”They’ve created a mess in San Francisco where the city seems to be negotiating with Google or Earthlink and not the community.”

Sadly, I cannot even say I was misquoted or taken out of context. Matt Hamblen got my quote exactly right. It turns out, however, that I had it exactly wrong. As my angry SF friends have let me know in no uncertain terms, the City of San Francisco, Google and Earthlink have been conducting neighborhood surveys, meeting with local community leaders, and responding to this input with substantive changes.

So how did I screw up so badly? And what did I learn from all this? See below . . . .

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VA Tech Aftermath: The Usual Panic Repression With A Racist Undertone

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It seem sadly inevitable. Whenever we have a national tragedy, a pattern of repression — often flavored with a racist or at least anti-nonconformist undertone — breaks out. After the Columbine tragedy, schools rushed in to expell any kid that looked like a Goth and put “zero tolerance” policies in place that did little for safety but lots to satisfy panic. After 9/11, we got to see anyone who looked even vaguely middle eastern subject to extra searches, police stops, and occassionally getting dragged away on suspicion of something or other.

Now, sadly, it’s happening again. First, lets pump up the gullible with a non-stop media orgy of “How did we miss the signs?” “Kids these days are so violent, and exposed to so many violent influences.” “Who knows where or when the next mad student will strike?” “It could be anyone! It could be the (Asian) kid next door!” etc., etc., etc. And lets keep flashing the same pictures of the VA Tech murderer over and over and over — in case anyone missed he’s Asian.

All set, than lets zoom ahead to where our latest outbreak of post-trauma panic is taking place. According to this story in the Chicago Tribune, it would appear that the police have arrested Allen Lee for “disturbing the peace.” His criminal conduct? An essay he wrote in his creative writing class disturbed his teacher, who took it to the department head, who took it to the principal, who called the police, who had young Allen Lee arrested. His father subsequently paid the $75 bail, so they obviously do not consider him an imminent threat of some undefined terrible thing.

Until last week, Allen Lee was a straight A student with a contract to enter the Marine Corps after graduation. Other than being Asian, he does not appear to share much in common with VA Tech murdered Sueng Hui Cho. Lee wrote his essay for a creative writing class, in which the teacher urged Lee and the other students to “express their emotions through writing.”

More below . . . .

UPDATE: Here is a link to the essay in question and some author commentary. I am ungenerous enough to wonder if the teacher would have found it so “disturbing” if she had not been personally insulted as a bad teacher delluding herself.

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How The Conservative/Big Business Alliance Bankrupted Air America

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Few things raised joyfull cackles among Republicans in the waning days of 2006. Many, however regarded the bankruptcy of Air America as a bright spot in an otherwise dismal fall. Talk radio, it appeared, remained part of the conservative “heartland” where such liberal voices as Al Franken meet a resounding silence.

However, as reported by the New York Times, the story may have a lot more to it then a tale of silly liberals who can’t run a business and have nothing interesting to say. It appears that 90 major national advertisers engaged in a boycott of Air America programming, to the extent that they wanted their advertising stripped out of syndicated material from other sources (here, ABC Radio Network). The interesting question, of course, is why would supposedly dissinterested companies with no motivation to interefere with domestic politics want to drive Air America out of business?

Hahahahaha…..I love it when I ask silly rhetorical questions like that. For a further specualtion on what apparently went on and why I think the new, Democratic Congress might want to do a little investigatin’ into the Case of Secret Boycott, see below….

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I Co-Author Paper On Why “Free Market” BS Work So Well In Policy

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I found this item on Techdirt interesting. The article links to several techno-libertarians finding themselves in the uncomfortable position of evaluating the reality that (a) countries such as South Korea, Japan, Estonia, France (and more!) are now zooming ahead of us in just about every measure in broadband deployment and adoption; (b) these countries rocketed past us after they adopted intrusive regulatory regimes and market-warping government incentives; and, (c) our supposedly superior, libertarian, deregulatory approach has not produced the competitive and productive nirvana the theoretical literature promised.

So why do “free market” arguments keep working, so much so that just about every piece of state or federal telecom reform legislation introduced right now assumes that competition happens as a result of deregulation? Why, despite all evidence to the contrary, do Democrats and Republicans alike still rush to deregulate with the religious zeal usually associated with someone who just spotted a burning bush in their back yard? As the Techdirt piece shows, this can’t be explained by the usual cynical response that Congress and the FCC are wholly owned subsidiaries of the Bells or cable cos.

So my buddy Greg Rose and I have written a paper explaining why the same arguments keep working time and again for the 34th Telecommunications Policy Research Conference (you can see a rough draft here). As an aside (in the final version, not yet posted), I explain why Lakoff and his buddies should perhaps spend a little less time on the linguistics of framing and a little more time worrying about the structure of media. To paraphrase McCluen, “whoever owns the media frames the message.” In a world where the mass media can trigger riots by showing a picture of the Pope and pulling a single line out of an academic speech delivered to an academic audience, it’s optomistic to the point of delusional to believe you can frame a message just by picking the right words.

Basic summary below . . .

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COPE-ing nicely, thank you

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Throughout the public interest community, one can find much wailing an gnashing of teeth over today’s Commerce Committee mark up of the Communications Opportunity Enhancement Act of 2006 (COPE). “A Bad Day for Media Democracy” reads the headline at Save Access.

Well, I’m not happy with COPE so far, but I think it turned into a good day for democracy, with better days to come. Because if you thought today was grim, you weren’t here for the absolute spanking net neutrality got in subcommittee in the beginning of April. In the week since the SavetheInternet campaign got underway, four democrats switched their votes on Net Neutrality from “anti” to “pro.” The day before mark up, the Republican chair of the House Subcommittee on Antitrust in the Judiciary Committee and their new task force on telecom declared all out war against the Commerce Committee effort to eliminate a free and open internet. The telcos, who earlier this month boasted they could get the bill past both houses and signed into law before the election recess, don’t sound nearly as confident despite today’s win.

What changed? Until the Subcommittee Spanking, folks let the tech companies do the heavy lifting and fought by the standard lobbying play book. Hill meetings, inside the beltway briefings, insider baseball, blah blah blah. Google v. Verizon, people said, and tuned out. And while the tech lobbyist worked with us public interest folks, one could not help but detect a certain — how shall I put it? — condescension and cluelessness as to how this “public interest” stuff really works. It kinda felt like posing for photo ops, while the “real” decisions about spending money on messaging and what strategies to persue and the ever-important smoke filled room meetings never involved anything as messy as the public.

And, as usual, the tech folks got spanked. Spanked real good. The kinda spanking you usually have to pay good money for if you fancy that kind of thing. Because despite having more money than the telcos and cable cos combined, the tech cos can never win using telco and cable co rules. Because the telcos and cable cos wrote the goddam rules and have played this game by this rulebook for a longer than most tech CEOs have been alive. As a result, the telcos and cable cos are very, very good at it. Meanwhile, as my friend and fellow traveller Jeff Chester at CDD observed the tech companies still can’t figure out how to play this game, or what they want to get out of it if they could figure it out. Or maybe they just like getting spanked, and miss the days when the intellectual property mafia would toast their little bottoms for them with legislation like the Digital Millenium Copyright Act.

So, while still working with the tech lobbyists etc., the folks in the public interest community finally said “Screw this. You guys may be into getting spanked, but we prefer winning. And the way you win in democracy is by busting open the process, getting people to see what’s at stake, and reminding elected officials that their job is to do what’s best for their constituents not to referee industry food fights.” And thus, through the work of Free Press, Common Cause, Moveon and a host of others, was the SavetheInternet campaign born. And when the mainstream media refused to cover the story as too technical or boring or against the interest of their parent mega-companies, 500 bloggers took up the cry. And all this free speech stuff, that the telcos and the cable cos and the memebrs of Congress ignored because it doesn’t have a trade group and you can’t quantify it in dollar terms, really worked. And more and more people are writing letters and calling members and reminding them that there’s an election this fall.

There’s a lesson here; one backed up by the utter triumph of the pro-munibroadband forces against proposed amendments to outlaw munibroadband, or even to grandfather existing state-level bans. YOU CAN’T OUTSOURCE CITIZENSHIP. You can’t let “the tech companies” or even “the consumer advocates” or anyone speak for you. Citizenship carries responsibilities that go beyond the ritual of voting every two years. But when citizens wake up and speak up, and speak to each other, they find — to their surprise — they are strong. They find they have power. And they find that being a citizen may take hard work, but it is so, so, SO much better and more satisfying than being a couch potato. As the great Jewish sage Hillel said: “If I am not for myself, who will be for me? If I am only for myself, who am I? If not me then who? If not now, when?”

Don’t get me wrong. I’m glad the tech companies are on our side. They have a lot to offer, lots of resources, and, if they decide they are tired of of playing by the old rules and getting spanked, can really help push this effort over the top. But if we as citizens let this degenerate to a fight with Google, Microsoft and Silicon Valley venture capitalists who like tech start ups on one side v. AT&T, Comcast and Wall Street analysts who like monopolies on the other, with Congress brokering a deal between the two, then we citizens lose no matter which side wins. We can, we must, speak for ourselves.

When Ben Franklin left the Constitutional Convention someone shouted to him from the crowd “Mr. Franklin, what have you given us?” He answered “A republic — IF YOU CAN KEEP IT.” The Sausage Factory of democracy is a messy business, but it’s worth it. We can either let other folks make the sausage and eat whatever shit they put in, or we can wade in and make sure it comes out alright. We lost today’s battle. But we are turning the tide in the war. And if we keep growing and going like we have in the last week, we will win.

Stay tuned . . . .

Outsourcing Big Brother

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I gave this speech last July at the ACLU Biennial Conference in New Orleans. At the time, the news that major telcos and search engine companies were cooperating with the government by providing all kinds of personal infomration had not yet hit the press. I was just applying logic.

It seems useful to me to publish here as a reminder that the recent headlines are not an aberration or the work of a few evil or gready or misguided men. It is the inevitable result of a system that concentrates power and information in the hands of a few large coorprations with every interest keep those in government happy.

We don’t ask chain saws to distinguish between human beings and trees. They are inanimate tools. If you turn it on, it cuts through things. If you want to make it safer, you need to put on safety locks and other devices, or someone is likely to cut his or her own leg off by accident some day.

Similarly, it is ridiculous to depend on corporations to defend private information. They are designed to maximize revenue for shareholders. This does not make them good or bad, greedy or virtuous. It makes the corporation a tool. If we, as citizens of democracies, care about our civil liberties, then we need to install some safeties.

Stay tuned . . .

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TotSF: Industry Mobilizes to Stop Philly WiFi

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Surprise! Surprise! Surprise! As recorded in this article about last night’s community meeting in Philly, Verizon has mobilized to squash municipal wifi in Pennsylvania. This little gem, called House Bill 30, is a classic: it provides huge new public subsidies for Verizon while squeezing out competitors. My analysis below.

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