How Democracy Works, Or Doesn’t

The Difference Between Free Market Conservatives and Worshippers of the Gods of the Marketplace.

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As regular readers know, I frequently deride those who continue to put their faith in a creed of deregulation despite empirical evidence that this is not suitable to all occasions as worshipers of of the “gods of the marketplace,” after the Rudyard Kipling Poem The Gods of the Copybook Heading (with a fine sense of irony that Kipling would be closer ideologically to the folks I criticize). This leads some to imagine that I am “anti-market” or “pro-regulation” or some other ideology that places process over outcome, rather than a pragmatic sort who believes that the job of public policy is to use all available tools to achieve the goals of prmoting the general welfare, securing domestic tranquility, etc., etc.

I recently came across an illustration of the difference in, of all cases, a collection of Darwin Award Winners (Darwin Awards Iv: Intelligent Design for anyone that cares). The book contains the tale of a “winner” who was a passionate anti-government type who refused to wear a seat belt in protest against mandatory seat belt laws. A car he was in in skidded and flipped over. The the driver and one passenger who were wearing seat belts survived. Our protesting friend was thrown from the car and died.

It occurred to me that this story nicely illustrates the difference between those who favor a free market approach and worshipers of the Gods of the Marketplace. A smart Libertarian may believe that the government has no right to order people to wear seat belts. But, evaluating all the evidence of how seat belts save lives, will voluntarily wear a seat belt even if not required. After all, it would be foolish to put one’s life at risk simply because the government wrongly orders people to do what you think makes good sense.

But an ideological driven soul, indifferent to empirical evidence and elevating process over substance, refuses to wear a seat belt because the government says you should, and therefore wearing a seat belt must be the wrong or inefficient result and believes it the positive duty of all anti-government believers to refuse to wear seat belts.

Now go read the dissenting statements of McDowell and Tate in the Comcast decision, the McCain Tech Policy, or any of a dozen or so speeches by elected representatives or pundits who get their economic education from reciting bumper stickers about free market economics they don’t understand. Then ask yourself, are these guys actually evaluating the evidence and accepting the result? Or are they driving with their seat belts off?

Stay tuned . . . .

The McCain Tech Policy Part II: Why McCain Can’t Fix The “Mercedes Divide?”

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O.K., jokes aside about the lameness and lateness of McCain’s tech policy and associated privacy policy. How does this all really stack up as a substantive plan?

Two quotes from former FCC Chair and McCain tech adviser Michael Powell nicely illustrate the fundamental thrust of the plan. Not so coincidentally, both come from Powell’s first press conference as Chair of the FCC.

Quote 1.

“I don’t believe deregulation is like the dessert that you serve after people have fed on their vegetables, like a reward for competition,” Powell said. “I believe deregulation is instead a critical ingredient to facilitating competition, not something to be handed out after there is a substantial number of players and competitors in the market.”

Quote 2:

“I think the term [digital divide] sometimes is dangerous in the sense that it suggests that the minute a new and innovative technology is introduced in the market, there is a divide unless it is equitably distributed among every part of the society, and that is just an unreal understanding of an American capitalistic system. I think there is a Mercedes divide. I would like to have one, but I can’t afford one. I’m not meaning to be completely flip about this. I think it’s an important social issue, but it shouldn’t be used to justify the notion of, essentially, the socialization of deployment of the infrastructure.”

Once you accept the “Mercedes Divide” frame, you have run out of tools to deal with the issues because, by definition, whatever the market provides is what result you should get. McCain, obviously, does not wish to accept this rather obvious consequence, and therefore falls back on the usual platitudes and reliance on the gods of the marketplace, the competition fairy, and the delightful myth that — Adam Smith to the contrary — getting a collection of companies with similar interests together to regulate themselves will somehow work.

Surprisingly, as David Isenberg noted on his blog, what is amazing is that the plan leaves out the few bright stars of Michael Powell’s tenure at the FCC — notably Powell’s commitment to spectrum reform. While I certainly opposed Powell’s efforts to make spectrum licenses a species of property I enthusiastically applauded his equal willingness to engage seriously on opening more spectrum for non-exclusive unlicensed use (you can see a very old primer of mine from the dawn of the spectrum reform debates here). Perhaps spectrum reform proved too complicated or controversial an issue for McCain to address, even buried at the bottom of a tech policy.

But having ruled out open spectrum, McCain has left himself very few tools to actually provide all the benefits he promises. Rather like the current administration, which will tell you that Bush achieved his 2004 promise of universal broadband by 2007 so shut the heck up about those stupid international rankings, McCain’s tech platform will work swimmingly for true believers unconcerned with the impact on actual reality. Below, I draw out the substantive problems with the McCain tech & privacy plans in greater detail, and explain why the Obama plan actually looks like it would make real improvements in people’s lives because Obama recognizes that there is a real difference between “the government needs to build roads rather than wait for car companies to build them” and mandating that “everyone must have a Mercedes.”

More below . . . .

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McCain Tech Policy — A First Reaction

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When you show up as the butt of a joke on the Colbert Report, you should know you’re in trouble. And when, by merry coincidence, Stephen Colbert does a piece on your self-professed computer illiteracy the night before you release your long awaited technology policy, you are in real trouble. Especially after your campaign gets repeatedly nailed in debates in tech policy fora (such as my employer’s Innovation ’08) for not even having a tech policy, when Barak Obama had a fully developed tech policy and functioning advisory team way back in the beginning of the primary, and after former FCC Chairman and campaign surrogate Michael Powell goes into virtual seclusion for a month to develop your tech plan, you know it had better be Goddamn Frickin’ Awesome. Even if you have already signaled it is going to be an extension of the same “the market solves all our problems and even thinking about regulation angers the terrible market gods, scares away the happy competition fairies, and brings a plague of liberal command and control locust ‘oer the land” nonsense that marked Powell’s FCC tenure and has plunged our telecommunications sector — nay, our entire economy — into the crapper, it should at least be a well written and engaging song of praise to the gods of the market place.

No such luck. It reads like some crotchety technophobe knocked over the bumper sticker rack at an Ayn Rand Reading Revival and tried to rearrange them so it made a policy. Half of it isn’t even particularly tech specific. For example, I don’t find it a coincidence that the first six bullet points are just variations on McCain’s standard “I hate taxes” theme. They could have easily have applied to his agriculture policy, if you substituted “no new taxes on wireless services” for “no new taxes on sorghum.” Nor am I aware of a serious mass movement to tax wireless services (or sorghum).

As for the rest, well, see below. . . .

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FISA Reflections: FISA and The FCC

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Well, the foul FISA Amendments Act is signed. I shall have more refections as time permits. But I did have one thought here. FISA and the FCC.

The Title II of the FISA Amendment Act of 2008, the “Protection for Electronic Communications Service Providers,” provides for protection from any “covered civil law suit.” As John Dean first observed, the bill does not refer to criminal immunity. Personally, however, I think that is a bit of a red herring, although I am curious as to whether the pardon power really runs to corporations and other artificial person that exist solely as a function of law. But lets assume it does. So let us assume that on his last day, Bush pardons anyone and everyone involved in the whole sorry affair. Where does that leave us?

The Federal Communications Commission.

The FCC is not a “court” of the United State as defined by the act. A complaint brought to the FCC under the Customer Premise Network Information (CPNI) rules, or even the broader provisions of Section 202 “just and reasonable practices,” does not fall within the purview of a “covered civil action.” In the event that a pardon is considered to cover possible administrative sanction, I would observe that a Petition for Declaratory Ruling that the conduct disclosed violated the CPNI rules is not a criminal action or civil liability, but would still entitle the Commission under its broad powers pursuant to Section 4(i) and Section 403 to investigate. Indeed, under Section 403, the Commission is free to conduct an investigation into the matter on its own motion — if it so desires. The Commission is not limited by the Article III “cases or controversies” requirement. It can investigate anything pertinent to its regulation of all communications by wire or radio, particularly when related to administration of any provision of the Act.

The upside is that, short of a statute specifically prohibiting the FCC from investigating anything related to the domestic spying program, it is damn hard to take this broad investigative authority away. As noted above, even the absence of any criminal or civil liability cannot divest the FCC of its authority to investigate communications carriers — particularly those regulated as common carriers under Title II. Given that the Chair of the FCC cannot be removed by the President, and I would need to check about the applicability of an executive order to the FCC, nothing short of a direct Act of Congress again could deprive the FCC of its ability to investigate. (I imagine we will need to watch the appropriations bills very carefully to see if some clever person sneaks it in under the radar.)

The downside, of course, is that this lies entirely within the discretion of the agency. Even a filed complaint or Petition for Declaratory ruling cannot compel the agency to action.

So we shall just have to see what happens after the election. If we have an FCC interested in letting the American people know how their government spied on them, what actual benefit accrued, if any, and what the FCC might do under existing law to keep that from happening again in the future (all, of course, consistent with national security, blah, blah), we can at least find out what went on and shame these companies into being more careful the next time around. OTOH, if we have an FCC that believes that “national security” means giving the telcos a free ride if the Administration asks nicely, then we can’t find out jack.

Stay tuned . . . .

The Final FISA Sellout and My One Last Desperate Push for Sanity

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The capacity of the Democratic Leadership to destroy the party will never cease to amaze me. In 2006 the Dems ran to take over Congress on a platform that included, among other things, ending illegal wiretaps on Americans. Now, the same Democrats propose to grant immunity to the telcos who cooperated with the Administration on a theory that — and I kid you not — if we don’t immunize the telcos for breaking the law this time, they might not break the law for us next time. Alternatively, some argue we should not “punish” companies whose only crime was that they cared so deeply about the safety and security of the United States that they “stepped up to the plate” when the President asked them to break the law and spy on people for their own good. Of course, these same selfless, patriotic, noble companies refused to implement judicially authorized wiretaps because the DoJ neglected to pay the fees. But it appears that Republicans, and now a sufficient number of Democrats, understand that we cannot expect patriotism to extend to things that actually cost megacorporations money. You can read this shameful betrayal of everything the Democrats pledged in ’06 here, with EFF’s analysis here.

What makes this more astounding is that there is not a single, rational reason for the Democrats to do this, and every reason not to do it. The Republicans tried to scare monger and make this an issue for them. That tactic failed miserably. You may recall how back last winter when the Republicans pulled out all the usual stops about how this was about national security and blah blah blah. No one bought it. The magic deadlines lapsed and nothing happened.

So either the Democratic Leadership continues to suffer from a pre-11/06 mentality, or they think they can continue to abuse their active base and collect corporate contributions as well. After all, the thinking goes, it’s not like the mainstream electorate cares about this and its not like the netroots are going to vote Republican. So why not treat them the way we’ve treated unions, African Americans, and unions over the years? i.e., talk tough, but cave when it counts because we know there are no consequences for it.

I’ve already made my impassioned plea based on the ideal of the Rule of Law. Now, in a last desperate effort, I shall make my plea based on practicality and — in what is apprently the universal language of party leadership — cash.

Democrats, meet me below . . . .

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Tell Me Again How Professional Journalists Have Higher Standards Than Us Mere Bloggers.

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I generally don’t consider myself a “citizen journalist.” While I believe strongly that bloggers can be journalists, I don’t believe that bloggers are journalists simply by being bloggers and imitating their favorite left-wing or right-wing pundit. For me, the importance of blogging is that it creates genuine conversation and give and take, a willingness to rediscover once taboo subjects like politics and public policy. You know, the stuff it became no longer polite to discuss because none of us fragile souls could handle disagreement, so we had to leave it to the experts.

But occasionally, one sees a pompous soul defending “traditional journalism” and arguing that it is positively dangerous and unsafe to let the mob of “citizen journalists” loose upon an unsuspecting world. And next time I encounter such a poor misguided soul, I intend to ask him or her about Scott Glover and his hack job on Chief Judge Alexander Kozinski, as published in the LA Times.

As documented in several posts at Patterico’s Pontifications, it would appear that Scott Glover was “played” by one Cyrus Sanai, although perhaps “played” is the wrong word. Sanai appears to have pursued a relentless vendetta against Kozinski, and found a willing ally in Glover. As Kozinski’s wife explains in this rebuttal, Glover’s descriptions of the items on the website are at best misleading and at worst outright efforts to sensationalize things circulated all over the internet (typically with the “not work safe” heading). For example, what Glover describes as “video of a half-dressed man cavorting with a sexually aroused farm animal” turns out to be a a fairly popular Youtube video of a man who had gone to relieve himself in a pasture fending off an aroused donkey. (The San Francisco Chronicle, apparently wishing to demonstrate the further virtues of trained journalists over bloggers, characterized the video as images of bestiality.

As a result of this rather shoddy bit of professional journalism, a well respected judge has been made an object of ridicule and disgust, Kozinski declared a mistrial and initiated an ethics investigation of himself — costing taxpayers tens of thousands of dollars for no good purpose, and a lawyer with a reputation for vindictiveness is boasting how — with the help of such skilled professional journalism — he brought down a federal judge who dared defy him. Nice.

And the response of the LA Times? Kozinski should have just ignored the story. Boy, says the Times Editorial Board, that would have sure shown those blue noses who still read newspapers! I rather agree with Patterico, however, who notes that the real question is why did the LA Times put this story on its front page? Not since Bob Balaban manipulated Sally Field to go after Paul Newman in Absence of Malice has a reporter so willingly served as the tool of another to report something so accurately and yet untruthfully. It is merely the crowning insult that the LA Times should editorialize that Kozinski is somehow at fault for not telling them to bugger off — preferably in front of a camera for the amusement of the masses and future storage at alex.kozinski.com.

To repeat, I make no claims to being a “citizen journalist” simply because I blog. And I respect the work of real journalists no matter what medium they use. But after incidents like this, professional journalists should hardly wonder why so many bloggers feel they can replace them.

Stay tuned . . . .

For the Clueless Among Us: Why Comcast Paying Folks to Attend FCC Hearing Is Wrong.

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I can’t believe I actually need to explain this.

Suppose Comcast made the following offer: If you vote “yes” on a ballot initiative we like (and agree to take a pocket recording device into the voting booth with you so we can have proof), we will pay you $50.

Most of us would not only say that this is wrong, we would have no problem understanding why that’s a crime. We would not be persuaded by Comcast defending itself by saying “well, Free Press and other organizations have campaigned in support of the bill and are calling people to ask them to go out and vote — they even provide free rides to people likely to vote for the initiative. That’s just like paying people directly to vote the way we want.” In general, we recognize a difference between organizing ad trying to persuade people to vote the way you want and actually paying people for their vote (and wanting a receipt).

Which brings us to Comcast’s exercise in seat packing at Monday’s FCC Hearing in Boston.

More below . . . .

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A Black Day For The Rule of Law

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The Senate has voted to give retroactive immunity to the phone companies for spying on Americans without a warrant.

As I have written elsewhere, this does violence to the Rule of Law. As usual, the defendants of this measure make the best case against it. As Senator Orin Hatch explained:

“And frankly, if we do not give retroactive immunity, there is not a general counsel of any of these companies that would [again] expose their company to the … litigation that has come since.”

Which is precisely the point. It should not be possible, let alone easy, for the Executive Branch to provide an end run to the Constitution and the law. That a majority of the Senate will retroactively concur in this law breaking — even applaud it and encourage it! — makes mock of the very notion that we are a free people in the land of the free governed by laws, not men, safe from the tyranny of Kings because their power is restrained.

As a Republic, we will recover. We have suffered such stains and indignities on the law in the past. Korematsu and the internment of Japanese Americans, the warrantless surveillance of civil rights leaders, The Espionage Act in World War I, which made it illegal to criticize the government’s military recruitment efforts. The list goes on. Then the pendulum swings back. We stand ashamed, offering compensation and apologies, shaking our heads at what people do and wondering how a previous generation could have erred so dramatically.

What is appalling here is that this is not done in the first rush of panic, pain and fear following the attacks. It is not prompted by “false intelligence.” There are no excuses for those Democrats who have ONCE AGAIN given President Bush everything he asks for, after promising us in 2006 that “the blank check is over” and that the Democratic landslide signaled a return to a government of checks and balances, accountability and oversight? And these Democratic Senators will come to us again in 2008, and expect the party faithful to once again fall in line?

I still have hopes for the House Democrats. Recently, Representatives Dingell, Markey and Stupak reminded their Senate colleagues of their duty to exercise oversight of the Executive to protect the rights of all Americans. Perhaps these champions of freedom will convince their House colleagues to stand firm in the face of White House pressure, telco PAC contributions, and the craven example of their colleagues in the Senate.

But it is a black day for the Rule of Law, and a black day for the Democratic party. Let every Democrat that has dared adopt a haughty attitude to Republicans for supporting domestic spying, torture, and the assault on our consititution hang his head in shame. Let our tongues be stilled. For our leaders have proven no better than theirs. And will not we, like the sheep we have accused them of being, quietly return them again to office?

Stay tuned . . . .

Have The Senate Democrats Finally Learned?

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With the Protect America Act (aka FISA on ‘roids) set to expire at 12:01 a.m. Friday, and the Senate deadlocked on the question of immunity for telcos, the Administration once again tried to employ its favorite strategy. Rather than support any kind of extension the Bush Administration is demanding that the Senate pass telco immunity or risk a veto. The conservative chorus brays how the Democrats are outing national security at risk. And why not play chicken with a vital issue of national security? This strategy has worked for Bush time and again, with no real consequences.

Still, the script did not go quite to schedule this time. When it became clear that the President could not force through the Senate Bill he wanted and get the needed changes in the House (the House Bill does not contain immunity for telcos), the President backed down and grudgingly agreed to a 15-day extension of the existing “Protect America Act.”

The question here is whether or not the Senate Democrats have learned that the temper of the country has changed. We all care about national security. But increasingly, the American people have grown disgusted with the way this Administration plays politics with national security and whittles away at civil liberties. But many Democratic leaders remain traumatized by the 2002 elections, when voters caught up in the post-9/11 scare and the hype in preparation for the invasion of Iraq decided to overlook things like the Enron and Worldcom scandals and voted out war heroes like Max Clealand who expressed even the slightest doubt about supporting our Commander in Chief in “this time of war.” And so, despite the election of anti-war Democrats in 2006, despite the President’s abysmal approval ratings, despite the fact that the majority of Americans now consider the Iraq War an enormous mistake and want to see it ended, Senate Minority Leader Mitch McConnell and the President’s media cheer leading squad continue to use the same rhetoric as if it were still 2002, and too many Democrats still tremble.

Let us be perfectly clear. The one issue delaying this bill is the question of retroactive immunity for Bush’s telco pals. While I understand why Bush would go to the wire for his buddies, why any Democrat would voluntarily so undermine the rule of law baffles me. The one conclusion I can reach is that too many of them remain mired in the belief that if the Democrats are seen as “playing politics with national security” then they will lose in ’08.

But as Chris Dodd and some other Senate Democrats understand, and as the House Democrats understood when they passed a bill without the telco immunity provision, the universe has changed since 2002. Even if political exigencies justified such an abandonment of principle as granting telcos retroactive immunity, too many Senate Democrats have the political calculation wrong. With the Democrats chosing among candidates determined to end the war and both of whom have promised to fight telco immunity, and with Republicans poised to nominate the man who has consistently defied the Administration on torture and other issues where the Administration has played the “national security” card, the message from the people should be clear: The free ride for the Administration to savage our civil liberties is over! The panic is past, and our natural distrust of a government granted unlimited power to “protect us” has returned.

I hope that the members of the Senate, particularly the Democratic members who have supported telco immunity, will take these two weeks to learn this valuable lesson. Because if you act as if it were still 2002, and give the President everything he asks for, you may indeed succeed in setting back the clock. In 2006, the American people proved we had enough of wireless wire tapping, and that enough of us were finally willing to vote out a party that supported an assault on our civil liberties. Must we prove that lesson again in 2008, by once again voting out a party that, to praphrase Benjamin Franklin, seeks to trade liberty for security only to discover it has neither?

All the rights they promise — all the wrongs they bring
Stewards of the Judgment, suffer not this king!

Stay tuned . . . .