From No to Go—Roger Cohen24 June 2013

Roger Cohen has written an extraordinarily thoughtful piece by this title on the mass protests of the Arab Spring, Turkey and Brazil (nyti.ms/14wIrbs).  All three protests demonstrate that, without leaders, a movement will not move.  Mass movements or protests may have the capacity to bring a government down.  But, building a government requires leadership.  We saw a similar occurrence from Marx to Lenin.  Marx said the proletarians needed to get organized.  Lenin said “No.  I’ll lead them.”

Same applies today.  Social media is a powerful tool of communication. But, it does not yet deliver  leadership.

There is a great and important piece in the WSJ from 6 June entitled "Are Humanities Degrees Doomed? Experts Weigh in."  http://blogs.wsj.com/atwork/2013/06/06/whats-a-college-student-to-study-experts-weigh-in/tab/comments/#comment-134283

Hardly the first piece on the subject. Still, I wonder...

I believe we get distracted when we focus on what to major in. Promoting liberal education is not the same as—nor does it require—promoting particular majors. Majors have been in retreat for some time as colleges and universities have developed interdisciplinary programs.

“Liberal” Education is a model based on the overused term “critical thinking.” Whether we like it or not, engineers, accountants and physicists engage in critical thinking as much as English or Political Science majors. Successful, safe bridge building requires critical thinking as much as does thoughtful literary criticism.

The real issue that educators must face is that there is a difference between justifying the value of a liberal education and justifying the cost. While the former may be enduring, it is clear that the latter has become formidable in the eyes of many students and parents. As well, technology has made it easier for our children to learn how to acquire information and how to critique it at their own and at a younger age. It has democratized access to information regardless of one’s social class or wealth—in this regard, it is indeed, a triumph of liberal values.

So, back to the article: The question is not whether one should major in English, Philosophy, Engineering, Biology, Math…etc. Instead, the question higher ed must answer is: How much of each of those fields (and the many other fields of undergraduate study) necessary to liberally educating our young people? Is the four year, 120 credit, expensive, residential model of university life still absolutely necessary for everyone?

Money in US Politics: Congress Protests Too Much

One of the great sports of American politics is to blame the Supreme Court for just about anything that we don’t like.  Our elected officials seize upon the opportunity to do so because it deflects the focus of public opinion and scrutiny away from the legislators—whose job it is to write the laws—and shifts it onto the judiciary, whose job it is to interpret, apply and sometimes declare laws unconstitutional.  The dirty little secret to the anti-court tirades is that the people who can actually do something about court decisions—the legislators themselves—choose instead to protest...too much.

Case in point: the current litany of complaints about SuperPacs and the role of money in the presidential campaigns.  True, SuperPacs are now flourishing in the wake of the 2007 Supreme Court decision in Citizens United.  There, the Supreme Court declared the Bipartisan Campaign Reform Act unconstitutional.

That should not have ended the debate about the role of money in politics, but, it did.  Pundits excoriated the court for striking down limits on spending by interest groups and corporations. They declared that the integrity of elections was lost.  This was all nonsense.

Buried in the hue and cry about the decision was the pesky fact that the court had said, simply, (granted it took more than 100 pages) that the law was unconstitutional as it was written.  That is, BCRA may have been a noble enterprise, but it was a bad law.

In broad strokes, a key complaint about BCRA was that it was vague.  The court pointed out that, as it was written, the constraints it imposed on corporations also applied to media corporations.  That is, it could apply to journalists and other news outlets.  This raised a serious problem:  how to square the First Amendment’s protection of the press with a law that, while nobly designed to make the political playing field a bit more level, also could be used to suppress press freedom? The court raised other issues with the law.  But, the bottom line was that it was badly written and unclear. 

The solution was for Congress to write a new, better law.  In fact, in the wake of the Citizens United decision, more than a few members of Congress rattled their sabers and said that, indeed, they would work to do so.

We are still waiting.

The fact is that the judiciary still is, as Alexander Hamilton said a long time ago in The Federalist, “the least dangerous branch” of the government. No matter what the judiciary decides, legislatures can respond by rewriting or tailoring laws to address the constitutional issues raised in a particular case.  Perhaps the best example of this is the history of the abortion right. 

Regardless of one’s opinion of abortion, it is generally accepted that the court “created” an abortion right in Roe v. Wade.  In fact, it created the trimester system for dealing with a controversial, complicated and rather new area of law.  In the wake of the decision, state legislatures wrote new laws creating restrictions and freedoms with regard to the exercise of the abortion right.  The result has been some 40 years of dialogue between the judiciary and the elected branches about what the law should be with regard to the scope and definition of the abortion right.

The same pattern has occurred with regard to restrictions on campaign spending. In 1973, the Supreme Court declared parts of the Federal Election Campaign Act unconstitutional in Buckley  v. Valeo.  Since then, numerous cases have gone back to the court as the state and federal government have sought to control the impact of money and interest groups on politics while preserving speech rights.  Citizens United was merely the latest phase in a dialogue about campaign spending that is as old as the dialogue between the courts and elected officials about abortion rights.

Clearly, the nation should lament the fact that powerful political actors are able to skew the political process by spending incredible sums of money.  This undermines the integrity of politics and the ability of the people to make informed decisions.  But, this is not the fault of the Supreme Court.  It is the fault of our elected officials who would rather complain about the Supreme Court than take the time to write a better campaign finance law.

Mark Rush, of Lexington, is Dean of Arts and Sciences at The American University of Sharjah in the U.A.E.

Give the Arab Spring Time to Fully Bloom. USA Today 6 February 2012

USA Today 6 February 2012

A year ago, the Arab Spring was in full bloom. Popular uprisings had toppled or were toppling despots in Egypt and Tunisia. Civil war, which brought an end to the rule of Moammar Gadhafi, broke out in Libya. Ultimately, the uprisings spawned what seemed to be the first stirrings of constitutional democracy. Egypt held a constitutional referendum. Morocco followed suit with elections of its own. Some 4 million Tunisians voted in an election to form a constituent assembly.

Now, a year later, the euphoria and hope that characterized the Arab world have tempered, to put it mildly. The bloodbath in Syria continues. Despite increasing pressure from the Arab League and the rest of the world, President Bashar Assad clings intransigently to his power as the death toll among his people climbs. Libya remains tense as it seeks to purge the lingering influence of Gadhafi supporters. In Egypt, January's commemorative celebrations in Tahrir Square were disrupted as secularists and the Muslim Brotherhood ended up fighting instead of uniting to promote civilian rule and an end to military control over the interim government.

A time for patience

For those eager to write off the historic change across the Middle East as spasms rather than enduring movements, I'd say not so fast. Political change seldom comes easily or quickly, and it is frequently accompanied by violence.

Case in point: American history.

Many of the more pressing issues of religious freedom and civil rights in the United States were not effectively addressed until the judiciary resolved them in the 1960s — more than 180 years after the nation's constitutional founding. This process was slow, no doubt. But it demonstrated that a pillar of the American political experiment and a key to freedom was the independent judiciary, which ensured that a democratic government and a religiously diverse society could co-exist and even thrive.

Managing religion's role in society is perhaps the greatest challenge facing the nascent democracies across the Arab world. When religion and politics can be separated, or at least balanced, peace and freedom — especially religious freedom — are much more likely to flourish. When they can't be separated, controversy and violence are likely to follow.

In the United States, this balance has been managed by the judiciary.

To be sure, the record of U.S. courts in managing church-state conflicts has been imperfect. But, over time, the judiciary has maintained the wall of separation between church and state. Yet even 200 years of case law has not put these issues to bed. (See the sharia law controversy in states such as Oklahoma.) Fortunately and typically, Americans take such conflicts to the judiciary, not the streets or the battlefield.

In the countries swept up in the Arab Spring, there has been no such wall, or even a speed bump, in most cases.

Critics may argue that a judicially managed separation of church and state is a Western phenomenon. But one needs to look only as far as Muslim Indonesia to see how it can work elsewhere. In that Southeast Asian nation, we see proof that an ethnically diverse country with strong religious traditions can — through the rule of law, an independent judiciary and free elections — slowly and successfully reconcile the strains between religion and the state within the context of a fragile, nascent constitutional government.

In the Arab region, Morocco and Tunisia are taking tentative first steps to reconcile their religious traditions with constitutionalism and democracy. Tunisia's moderate Islamist governing party, Ennahda, leads that country's multiparty government in a spirit of religious pluralism and toleration. In Morocco, King Mohammed VI looks to manage the transition to a more democratic system that is led by an Islamist governing party.

Trouble in Egypt

Sadly, the news from Egypt is more sobering. Scores of Coptic Christians have been killed, and Islamist lawmakers disrupted the assembly's opening session as they qualified their oaths of office with religious incantations. Then there are the recent religious tensions in Tahrir Square.

A year later, it is clear that it would have been naive to expect the Arab Spring to smoothly segue into a crop of budding constitutional democracies. As the American experiment in constitutional democracy has shown, the real work begins after the gunfire has ceased. A stable government and judiciary can take decades to take root and mature, so the world should keep that in mind when observing the nations of the Arab Spring.

But without a commitment to some shade of constitutionalism and a separation of church and state, the Arab experiment will remain fragile and imperiled.

Mark Rush is the dean of Arts and Sciences at the American University of Sharjah in the United Arab Emirates. He is originally from Lexington, Va.

The Whiff of Redistricting Politics

Just a brief breach of the silence.  I've thought about emerging from my expat cocoon now and then for many a reason.  But, thought better because, just when I think I have a thoughtful comment on local doings, the sun rises again and the sands have shifted...literally and metaphorically.

One place where nothing has changed is the effluent pool of the decennial redistricting mess in the United States.  When I did my Ph.D research, the study of voting rights, electoral systems and rules, the opportunity posed by a shift from the American system to some alternative along the lines of proportional representation was a vibrant field full of unanswered questions and new frontiers of investigation.

It is no more.  Even over here in the U.A.E., halfway across the world, the whiff of redistricting politics is as awful as it is at home.

What began in earnest as an effort to overcome the heinous discrimination imposed on minority voters has now become a decennial dark comedy played by consultants and incumbents who seek to draw lines to clients’ advantage under the cover either of the voting rights act or the most convenient interpretation of the most relevant and or proximate judicial decision.  Sadly, there is little to show for this.

In this post, I won’t take the time to dig up the data.  Even a cursory perusal of incumbent reelection rates and turnout in congressional and state legislative elections will demonstrate that competitiveness is low, partisanship (in handcrafted districts) is uniform, turnout is low and primaries are where the real action is in any given election.

District still are drawn more along the lines of Rorschach tests or things you scrape off of your windshield than they are along the lines of existing political subdivisions.  To the extent that it is necessary for districts to meander to achieve some semblance of fair representational opportunities for minorities or other groups whose constituents are not conveniently enough located to fit into a geographically compact district, an easy solution is to draw multimember legislative districts.

It’s been done before and it is done now. But, legislators do not aspire to campaign anymore than they need to.  Accordingly, they prefer bizarrely shaped, homogeneously populated districts. Makes their life much easier if they get to pick their own voters.

There is a lot written on this and it is easily available at fairvote.org run by my friend Rob Richie.  I don’t agree with some of Rob’s conclusions.  But his criticisms are spot on.  That’s the subject of another posting.

For now, I leave it to anyone who reads this and who might be interested to ask the following of any legislator or political consultant who has made a living drafting and then defending legislative districting schemes:  what good have their efforts done and how much of the taxpayers money has been funneled into their efforts?  Really, if we begin with the cost of the light bulbs, heat, air conditioning, etc. that goes into the typical special legislative session dedicated to drawing new legislative district lines and then continue on till the last lawyer and consultant are paid, then we look at the good and the bad legislative district maps, can we really conclude that the effort—and the expense—was worth it?  Consultants were paid and incumbents returned to office.  But, has the quality of politics improved?  Is legislation better?  Could the tax dollars diverted to this process not have been put to better use for improving schools, paving roads or, well, anything else?  How much has all this cost?  Has anyone calculated the bill?

Cui bono?

Just asking.

Free Speech and Elections: Back to the Drawing Board

From Richmond Times, Thursday, 28 January 2010. Also picked up at Leagle.com here: http://www.leagle.com/unsecure/news.do?feed=yellowbrix&storyid=140608648


The Supreme Court’s ruling in Citizens United v. FEC was remarkable in several respects. The Court announced the decision in a special session in the middle of January. It also overruled several other recent closely divided campaign spending decisions that addressed whether corporations have speech rights and, if they do, whether they may be restricted.

The decision deals with one of the important and enduring tensions in American politics and around the world. On the one hand we want to protect and maximize freedom of speech. On the other hand, we don’t want that freedom to translate into a loophole that lets special interests (especially corporations and others with lots of money) have an unfair advantage in elections. This battle over how to manage this tension has been fought many times in the courts. The corporations won this round. What is important to note, however, is that freedom of speech won as well. But, this may be a costly victory.

The nuances of campaign spending can be arcane. For example, someone was paid to decide that the limit on individual campaign contributions should now be $2,400 per primary or general election cycle. That’s $2,400—not $2,500 or $1,899 or…On the other hand, the nuances can be cast in truly profound terms.

One vitally important theme has characterized all of the Supreme Court’s campaign spending decisions. Beginning with Buckley v. Valeo in 1974 and continuing through Citizens United, the Supreme Court has had to wrestle with a subtle but profound issue: Is it fair (not to mention constitutional) to allow sitting incumbents to dictate the terms on which they campaign for re-election and by which they can constrain their potential challengers? In other words, do campaign spending laws embody a conflict of interest?

From time to time, members of the Court have addressed this issue directly. Perhaps most notably, Justice Scalia pointed out in McConnell v. FEC that the McCain-Feingold Act was nothing short of an incumbent–protection act because it restricted attack ads in the waning weeks of an election. This is a vitally important issue of political fairness.

Most debate about campaign spending is cast in terms of the need to restrict powerful or wealthy political actors from dominating the campaign process at the expense of individual voters. When cast in terms of wealthy fat-cats or corporate America’s “buying” an election or a candidate, this scenario is rife with corruption and unfairness. But the laws that prevent corporate America from spending and speaking also constrain political challengers and other interest groups. They render incumbents much more secure because they make it harder for competitors to amass and spend the resources necessary to mount an effective political campaign.

In this respect, while campaign spending laws may have been cloaked in the mantles of political reform and good government, they are also, unquestionably, a gerrymander of the political system that favors incumbents and suppress competition. The best example of this is the provision that gives the Democrats and Republicans federal money in advance of election cycles while requiring small parties and independents to cross a particular electoral threshold before they can qualify for a reimbursement of their expenses—after the election is over. Thus, an important part of the campaign spending debate addresses whether we can trust elected officials to rise above the conflict of interest that comes with writing the rules by which they are returned to office.

The campaign spending debate is not over, though. Citizens United declared a few laws unconstitutional but it has not resolved anything. Congress can make more laws concerning the conduct of elections and it surely will. We can only hope that Congress will collectively choose to write better campaign spending laws that do not appear to give incumbents an unfair advantage.

This is because, in the end, it still is necessary and important to manage the quantity and volume of political speech in the marketplace. Critics and pundits are already discussing whether the Citizens United decision will unleash a torrent of spending by corporations, unions and other political entities. There is no question that such spending needs to be controlled in the public interest. If, as some critics argue, money is speech that must be protected from virtually any restraints, political discourse will inevitably come to be dominated by a few powerful voices. Quieter or nascent voices that lack only money—not merit—will be drowned out in the noisy chaos of an unregulated political marketplace of ideas. That’s bad for democracy because it will make it difficult for voters hear meaningful political information amidst the cacophony.

In this respect, the campaign spending debate forces us all to consider how best to strike a balance between the individual and collective aspects of political speech. We still seek a principle on which we can justify restricting the volume of individual (or corporate) political spending and speech in order to ensure that voters have access to a diversity of political opinion. It’s the same principle that limits how fast we each can drive so that the roads are safer for everyone and which prevents our economic marketplaces from being dominated by monopolies. If we can regulate roads and the economic marketplace in the public interest, let’s hope our elected officials can do a better job with the political marketplace.

The Challenge of D.C. Representation

MARK RUSH TIMES-DISPATCH GUEST COLUMNIST
Published: March 23, 2009

LEXINGTON It's hard to find anyone who disagrees in principle with the current efforts to grant the District of Columbia representation in the House of Representatives. The population of the District of Columbia is bigger than that of several states. Yet, those states have representation in the House and Senate and the District does not. This just doesn't seem fair.

Unfortunately, it is completely and unquestionably unconstitutional. The Constitution says that states -- and no other political entity -- may be represented in the Congress. That's it. D.C. can't have representation. Neither can Puerto Rico or Guam. If you want voting representation in the House (and Senate) you need to be admitted to the Union as a state.

Critics might contend that this is as impractical as it is unfair. The process of admitting new states to the union is tedious. To admit a new state to the union requires as little as a simple majority vote in the Congress or as much as an amendment to the Constitution. To give the District of Columbia voting rights in the Electoral College required the passage of the 23rd Amendment. To give it voting rights in the Congress (without granting it statehood) would require a similar amendment.

Such an amendment already failed once. The D.C. Voting Rights Amendment did not get the support of the 38 states necessary for its passage and therefore expired in 1985.

THE CURRENT controversy surrounding the D.C. Voting Rights initiative demonstrates why it is better -- though much more tedious -- to seek statehood or representation via the amendment process. Altering the composition of the Congress (and therefore the federal balance of power) is not a garden variety political matter. It embodies a fundamental and enduring change to the manner in which the federal government will operate. The Framers of the Constitution agreed and therefore said that profound matters such as this should require more effort and deliberation than goes into the passage of ordinary laws. The controversy surrounding the current legislative initiative serves only to endorse the Framers' wisdom.

The process by which legislation is made invites the influence of and interference by special interests. This is in keeping with the vision of politics that informed James Madison's writing in the Federalist. In order to make it difficult for any one group to rise up and dominate our politics, Madison envisioned that the constitutional system -- replete with separated national powers, a division of powers between the federal and state governments, and staggered electoral terms for the president and Congress -- would make it difficult for majorities to govern efficiently or to pass laws quickly. Madison expected that the legislative process would be besieged my many interest groups with conflicting interests. They would check and balance one another in the same way that the three branches of the federal government would.

So, it should come as no surprise that the gun lobby would show up in the midst of the debate about granting the District of Columbia voting representation in the House, and demand that any representation for the District be premised on the repeal of some of its restrictions on firearms.

This is Madisonian politics at its best.

Of course, it seems unfair -- or at least, foul play -- that something as constitutionally fundamental as the representation of the District of Columbia in the House should be predicated on a Faustian bargain regarding gun control. But this is the nature of the legislative process. Since the current proposal to grant D.C. voting rights entails ordinary legislation, it is subject to all of the interest-group politics that afflicts any other piece of legislation.

WERE D.C. to seek and gain statehood (via the amendment process or via a congressional vote), a proposal such as that to repeal D.C. gun laws would be unconstitutional. Since all states have equal status under the constitutional system, it would be unconstitutional to attempt to admit a state with a gun law condition that would render it essentially a "second-class citizen." The state of "New Columbia" would have all of the rights that the other 50 states have.

So, the current proposal to give D.C. voting representation may be doomed. It will either founder on the shoals of interest-group politics or, even if it passes, it will probably be declared unconstitutional.

Nonetheless, it is important to note that the Constitution does provide two ways to grant the District representation and voting power in the Congress. The real question is whether Congress has the political will or desire to use the means required by the Constitution to grant the representation its residents deserve.