Freedom of the Press--Well Not So Much

Tomorrow the Federal Election Commission will hold their bi-weekly open meeting at which they will consider three advisory opinions. Included on the agenda is this advisory opinion for Andy Mayberry for Congress.

It seems Mr. Mayberry is the owner, editor and publisher of a couple of periodicals in Arkansas, where he is running for Congress. He asked the FEC whether he could continue to report news and continuing running his signed editorial columns that may include support for his candidacy.

After a lengthy discussion of the law regarding public communications and coordinated expenditures, the FEC concluded:

...opinion columns in the Periodicals containing a byline with your name and photograph... would meet the "120 Day public communication" content standard. Conversely, opinion columns in the Periodicals that do not bear a byline with your name or photograph and do no contain any other reference to a clearly identified Federal Candidate or to a political party would not meet this content standard.

Essentially, what the FEC is saying is that because Mayberry owns and controls the publications, he cannot use those facilities to promote his candidacy because doing so would be equivalent to a corporate contribution by the newspaper company. But this opinion raises more questions than it answers for the public at large.

First, on a business strucutre level, what if the publishing company was not incorporated as it is in this case? What if Mayberry owned the publishing company as an unincorporated sole proprietorship or even a partnership. Under current law, any candidate for office may use as much of his personal resources on his candidacy as he chooses. If he owns the publishing company and it is not a corporation, would Mayberry be able to publish his opinion columns? By definition this would not be a corporate contribution.

Further on these lines, the law does not provide a media exemption to any publication that is owned or controlled by a political party, committee or candidate. Traditionally, the control test referred to ownership type matters. Thus a shareholder with 50.1% of the voting stock would have control even through there may be many other owners, but those other owners do not have control. So what if Mayberry were a minority shareholder in a corporation or simply an employee with editorial control? Would he still be prohibited from publishing his columns in support of his candidacy? This advisory opinion seems to implicity make that point.

When first reading this opinoin, I came away with the thought, what if Mayberry just didn't sign his name or used a pseudonym (Publius comes to mind), would his editorials then be permitted? But it would seem that he still couldn't mention his candidacy because they would still mention a clearly identified candidate for Federal office. But that left me with a particularly bitter taste in my mouth.

Here is a gentleman attempting to be elected to Congress prohibited from using his employment to achieve those means. If Mayberry signed his name, people would be clearly able to understand his motivations. But if it is anonymous, then the public assumption would be that the editors/publishers wrote the editorial. To find out who they are, one need only turn the page to the masthead to find out who the editor/publisher is. Thus Mayberry can't put his name on a commentary, but if it is anonymous his name appears somewhere else.

Finally, what makes Mayberry's plan to use his publication to promote his candidacy any different than the New York Times, Washington Post or any other newspaper and magazine in the country who make endorsements for candidates? Mayberry would be endorsing his candidacy, and I might add, being much more upfront about it. But the mainstream media routine promotes, attackes, supports or opposes candidacies all the time. Why are their efforts not considered a corporate contribution and Mayberry's activities are?

This advisory opinion results in a bizzre treatment of a candidate when the activities he is proposing would much more clearly aligned with his interest. But the same activities undertaken by another media organziation, whose motives are not necessarily as clear, receive an exemption.

The disparate treatment makes no sense and this advisory opinion makes no sense.

Parked in the OTB Traffic Jam

Current School Choice Models Inadequate

Much has been made over the past several years regarding efforts to provide choices to parents for the education of their children within the public school model. Voucher programs, like those in Milwaukee, Ohio and many other states have been touted as a means by which families whose children attend poor performing schools can move their kids to a better school. Charter schools have been hailed as an effort to provide options for parents. However, both models fail one large class of people--the middle class. Once again, when it comes to important societal benefits, the middle class gets screwed.

People accept as axiomatic that wealthy parents have far more options for the education of their children than anyone else. They can afford to send their kids to private schools, leave them in public schools or take other steps. For the wealthy, school choice is a reality born of their financial success and circumstances.

However, for decades, the lower and middle classes had no school choice options. But with the failure of schools in many areas, usually poor and largely minority areas of the country, educational reformers formulated solid ideas to provide a way out for people trapped by economic circumstance in a school system in which there existed little hope for breaking out of the cycle. Thus was born the voucher experiment. Vouchers gave the poor and minorities with children in bad schools the ability to take their kid to any school in the district with the money granted in the voucher. In city after city with poor performing schools, parents snapped up vouchers like the lifeline they were.

In other areas of the country, charter schools began their increase in popularity, providing a public education without the public bureaucracy to stand in their way. In most states, the charter school movement is just taking root. But the problem with charters is that they are granted by the school board in the locality, a school board that is competing against the charter school for enrollment and control. Hardly a mechanism for unbiased, conflict of interest free provision of educational services by the state or county.

While charter schools are generally open to anyone, the schools have sprung up more in areas already providing choices through vouchers, namely poor, largely minority neighborhoods needing options for education. Not to begrudge these efforts as they are very important, the self-selection of these charters means that most middle class suburbs have little option but to attend their neighborhood school. While many of these suburban and exurban schools do a good job educating kids, the fact remains that the middle class populace does not have the options, beyond the occasional limited enrollment magnet schools, accorded to the wealthy and the poor. They have no choices in education.

The middle class fights over neighborhoods with the best schools, but as the neighborhoods get more crowded, school district lines are redrawn to match the enrollment capacity of schools. New schools get built whose quality is hardly assured. The fact is that most Americans have their school decisions made for by a mere accident of their residence.

For this reason, all of the school choice efforts inadequately serve the majority of Americans. To change this fact, we must drastically alter the method in which schools are governed and managed. I have encouraged the consideration of the New Zealand model of school governance, where each school is governed and managed by a board of trustees elected by the parents of children attending that school. However, simple management changes mean nothing if not coupled with a basic market feature--choice.

Even supposing suburban and exurban schools can be directly managed by a board of trustees, there is still a matter of allowing parents to choose the schooling best for their kids as determined by them alone. School management reform must be couple with an absolute right of the parents to choose the right school for their child, regardless of whether that school is public or private, secular or parochial.

Choices in education do not belong only to the very rich and the very poor, but must belong to every parent, regardless of their location and regardless of their socio-economic status.

This post cross-posted at Watchblog and found in the OTB Traffic Jam

The Divide In Education Expectations

Over the Weekend, Washington Post columnist David Broder had this to say about The Divide In Education between parental expectations and teacher expectations on standards set by NCLB. Referring to a column he wrote in June, Broder noted that in a poll conducted for the
Educational Testing Service

Those polled were asked to choose between the view that all students, teachers and schools should be held to the same standard of performance because it is wrong to have lower expectations for students from disadvantaged backgrounds, and the contrary view that they should not be held to the same standard because we should not expect teachers working with disadvantaged students to have them reach the same level of performance on standardized tests as teachers in more affluent schools.

More than half of the parents favored the single standard, but only one-quarter of the high school teachers agreed.

Broder suggests that this divide is troubling for the Administration since it could lead to more opposition to minimum standards. This weekend, Broder points to two teachers responses to his June piece:

One Pennsylvania educator called the legislation "a wonderful concept, but woefully inadequate when dealing with the realities of public education. Yes, I believe in standards, high standards for my students. I am also realistic enough to know that not all students have the natural ability, the desire or the family structure to succeed at the highest level. While I believe my brightest or hardest-working students can compete with anyone, I also know that I have many students who struggle just to get through life daily. Yet 'educators' expect these students to still excel on a standardized test?"

Another teacher, with 20 years' experience teaching third and fourth grades in Ohio, questioned the notion that parents expect more of the students than teachers do. "I just cannot fathom where or how you obtain data that supports the thesis that parents are more likely than teachers to believe expectations and standards are set too low. I can say that certainly in my suburb of Sylvania, the exact opposite situation exists. Frequently teachers express the opinion that expectations and standards need to be raised, but the parents' complaints would cause the phones to ring off the hook!"

First, standardized tests are designed to ensure that students attain a floor, a minimum performance level. They are not designed to determine if a student can excell or not. Second, why is it so surprising that parents want one standard and believe that the standard is too low. Note that the survey found only about half, which leads me to believe that the issue is split in the minds of parents, leading to an obviously different viewpoint when you move from survey data to anecdotal stories.

Multiple standards are confusing to many people as well as confusing the issue. If there is a single standard, then parents can determine if their kid is meeting the standard in an easy to compare manner. If their child is not meeing the standard, they have the ability to ask why. Is it the school, the curriculum, my child, what? If there are multiple standards, then the parents have no facility for determining whether their child meets the standard.

Additionally, multiple standards provide an out for teachers and schools. It becomes easy for a teacher, a school or a school system to say, "well you kid didn't meet the "standard" for his subgroup, but don't worry about it, his subgroup has a different standard." Then comes the questions of what subgroups and the conversation has devloved into minutiae that does not serve the child's interest in a quality educaiton.

If, as a society, we seriously intend to improve the quality of education for our children, we need to have some method of determining "standard" behavior. I know each child is unique, with their own distinctiveness. In any population, there are always outliers, children who do not meet or drastically exceed the norm, but there is a norm--it is a statistical fact. There is no shame in admitting it, finding it and trying to improve on it. But you have to have a norm or all other measurements are useless.

The Seven Deadly Sins of Government-Funded Schools

Check this op-ed from a Cato Institute Scholar--the title says it all.

The Seven Deadly Sins of Government-Funded Schools

Wash Post Needs History Lesson

The Washington Post needs a little educational hisory lesson. In an editorial from Friday called Needs Improvement the Post takes on the issue of teacher preparation. In what I thought would be a contribution to the idea that Jenny D, Ms. Frizzle, and I have expounded on regarding figuring out what teachers need to learn in school to be effective teachers,

a plethora of think tanks, professional associations and experts of all stripes have recently focused their attention on teachers: who they are, what they studied and how much more effective they could be...The Education Trust, which has studied the extraordinarily weak content of teacher training curriculums, advocates rigorous quality standards that will make the entire teaching "market" more effective by identifying better teachers and allowing them to command higher salaries.

The Post then drops the ball, focusing on things like incentive pay and Teach for America. While there is little doubt that these initiatives have their successes, it does not address the fact that over time, we as a society have done little to discover why some teachers are more effective than others outside of issues of outside incentives, like increased pay or other incentives.

Not bypassing an opportunity to take a little dig at the Bush Administration, the Post drops this little gem into the mix:

Since the president's No Child Left Behind Act -- which mandated the new accountability -- broke the taboo on federal involvement in education.

Here are a few facts:

In 1965 the landmark Elementary and Secondary Education Act drastically increased the role of the federal govenrment in education. Since that time, the federal government has, according to some conservative estimates, spent nearly $2 trillion dollars on education. But since the ESEA was a cornerstone of Democratic President Lyndon Johnson, the Post implies that ESEA is not federal involvement in education.

In 1994, President Clinton and a Democratic Congress passed Goals 2000: Educat America Act, which in addtion to billions of dollars in spending, established a series of bureaucratic offices including National Educaiton Goals Panel, National Education Standards and Improvement Counci,l and National Skill Standards Board among dozens of other agencies designed to increase the federal involvement in education. Of course that was President Clinton, supported by the Post, thus not really federal government involvment.

In fact, the federal government involvement in education, predicated upon the supply of billions of dollars of grants and aid, has a long history predating NCLB. While we can decry and the Post is free to decry, the excessive involvment of the federal govenrment in what is traditionally a state and local concern, let us not mince facts, the federal government is involved and has been for over 40 years.

Hat Tip: Eduwonk

A Frivolous Law Suit by The Wonder Twins

As a kid, I used to watch the Justice League of America which contained all the old-school superheroes like Superman, Wonder Woman, Batman and Aquaman (among others). One of the younger superheroes were the Wonder Twins. The girl could become any living creature and the boy would become some form of water, liquid or solid. They would summon their powers with the saying "Wonder Twins: Activate." Well the Wonder Twins of California education have activated. The teacher's union and the school superintendant, a truly strange bedfellows pairing, have filed a bogus suit against Governor Schwazenegger for alledgely failing to provide some $3.1 billion in school funds.

According to Dan Walters of the Sacremento Bee,:

Politics are saturated with gratuitous, disingenuous, symbolic and intellectually dishonest actions. The lawsuit that the California Teachers Association, state schools Superintendent Jack O'Connell and others filed against Gov. Arnold Schwarzenegger on Tuesday embraces all of those dubious tendencies.

The suit is about money that the Governor does not control. The Democratic state legislature writes the checks drawing on state funds and they should be the real defendants, but that would not have been politically wise for the CTA.

The real impetus behind this suit is nothing more than trying to undermine the Governor's ballot initiatives this fall. Schwarzenegger has shown no remorse in attempting to make political hamburger by slaughtering sacred cows of politics. One of his first victims has been the education establishment. Whether wise or not, many of the governor's initiatives are based on attacking the foundations of the educracy. He is challenging the fundamental stranglehold that the leadership of teachers' unions (which is not elected by teachers in California) have exerted by hook or by crook in the past. The efforts of the Governator will diminish the power of hte unions in education policy and that of course makes them mad.

The courts are innundated with frivolous lawsuits and this type of lawsuit is the worst offender. Because the people who will be paying for this suit are two classes of people who have been routine abused by their leadership. The union is using, of course, union dues to pay for this suit and those funds are routinely abused. The governor is being sued in his official capacity thus the state will be paying for his defense funded by taxpayer money. In a state where taxes are swallowing people whole, the last thing that needs to be done is for the taxpayer to foot the bill for a silly suit. Ironically enough, teachers are funding both sides of this suit so they get screwed on both sides.

Dan Walters concludes:

Whatever its motives, it's especially disheartening that those who purport to educate young minds should engage in a piece of cynical, intellectually dishonest political theater.

I couldn't have said it better.

Sitting in traffic Outside the Beltway

Clueless and now Couch Camping

This from CNN.

Admittedly there have been times when I have not paid attention to my wife, usually to my great detriment, but I have never actually forgotten her.

My question is: How on earth does a person not notice a key member of the family is missing for SIX (6) hours and two hundred (200+) miles?

Can you say, Couch Camping for this guy?

Key figure in DeLay probe is indicted

This just chafes me. The AP and teh San Jose Mercury News just got this wrong!!

Jack Abramoff has his own problems unrelated to his relationship with DeLay. But the AP and hte Mercury News bury that little fact much later in the story:

DeLay, R-Texas, was not mentioned in any lawsuits involved in the SunCruz deal.

It is a deal involving a cruise line for which Abramoff and a colleague were indicted, DeLay has nothing to do with this issue, nor does the probe into DeLay have anything to do with this deal.

AP Wire | 08/12/2005 | Key figure in DeLay probe is indicted

Teachers Union vs. Wal-Mart

In this match-up, my money is on Wal-Mart.

hat Tip: Joanne Jacobs

Yesterday, Teachers Unions in California and across the country started a campaign calling on consumers to boycott Wal-Mart citing the retailing giant:

for allegedly paying low wages, failing to provide affordable health care, discriminating against women, violating child labor laws and shifting more than $2.5 billion a year in health care and welfare costs for its underpaid and underinsured workers to U.S. taxpayers.

But if you read further in the San Jose Mercury story you will find these little tidbits:

Don Dawson, a math teacher at Silver Creek High School in San Jose, said the Walton Family Foundation -- run by the heirs of Sam Walton, the founder of Wal-Mart -- has spent about $250 million in the past six years promoting the school-voucher movement and lobbying for tax credits for parents who send their kids to private schools.

Public education advocates staunchly oppose such changes, saying they will drain funds from public schools that, in California, already rank near the bottom in per-pupil funding.

``You don't solve problems in public education by taking money away,'' Dawson said. ``We can't afford to go backward.''

It is comments like these that you find the real impetus behind the animosity of the teacher's unions against Wal-Mart. Wal-Mart supports education programs and initiatives that will challenge the stranglehold teachers' unions have on education. Wal-Mart has "$250 million in the past six years promoting the school-voucher movement and lobbying for tax credits for parents who send their kids to private schools." Meaning they have spent a quarter of a billion dollars trying to provide parents choices in education, just like the many choices Wal-Mart provides to its customers. Heaven forbid!!

Unions in general object to Wal-Mart because they have proven uniformly unseccessful in organizing Wal-Mart employees. This attack on Wal-Mart is more about the support for charter schools and vouchers, programs that will strip the power away from the unions. So in reality this is just a power play.

joannejacobs.com: Union vs. Wal-Mart

This post in the Beltway Traffic Jam

Balkinization

Daniel Solove over at Balkinization links to an interesting study that discusses the 25 cities who vote the most liberal and the most conservative.

One fault with the study I have right off the bat is that the group conducting the study substitutes liberal for Democratic and conservative for Republican, but that is another matter. But as another matter, the group, the Bay Area Center for Voting Research, makes this earthshattering statement:

BACVR researchers found a direct correlation between a city’s political ideology and its racial makeup. “The great political divide in America today is not red vs. blue, north vs. south, costal vs. interior or even rich vs. poor – it is now clearly black vs. white,” said Phil Reiff, a BACVR director.

Now, I don't have a degree in survey research, only years of experience observing elections and here is my response:

DUHHH!!!!

Racially polarized voting has a long history in America, reaching back to the Civil War, when Blacks voted overwhelmingly Republican and now vote overwhelmingly Democratic. I guess teh BACVR is just now catching up to the rest of the world in this rather simple understanding.

But I don't think the difference between liberal and conservative voting is simply a matter of population make up, but one of population in general. Each of the cities on the Conservative side are generally smaller cities, where as those voting on the liberal side are generally very large cities, including the largest cities in America. While there are large minority populations in those cities, I think that the fact that the "conservative" cities are smaller means a more homogeneous population, leading to a political mindset shared by the majority of the population.

Bewilderment and the Democrats.

Following the 2004 elecitons, Democrats expressed great dismay at why poor people and others who would otherwise vote Democratic would somehow vote counter to their own economic self-interest. The answer lies in the belief that the poor and minorities support the Democrats solely on economic issues. The truth is that many factors influence a person's voting behavior, including cultural and moral issues.

As Democrats are being held hostage more and more by the liberal left, they have ignored core consituencies, such as the minorities and the poor--assuming they will always vote Democratic. The fact is that many blacks and Latinos are quite conservative culturally--particularly those who are deeply religious. Issues such as abortion, gay marriage and the role of the church cut toward the Republicans.

To be sure, the GOP has much ground to make up, but if the Democrats want to stem the tide, they need to look closely as these survey results.

For Democrats, a Troubling Culture Gap.

Politics - FEC finds misreporting by DeLay committee - sacbee.com

The Sacremento Bee is reporting on the FEC audit of the Americans for a Republican Majority, the leadership PAC of House Majority Leader Tom DeLay. While the media is probably going to have a field day with this audit report, it is nothing particularly suprising.

Having now read the audit report by the FEC, many of the misreporting by ARMPAC is nothing particularly new or actually verifiably wrong. PACs often make mistakes when dealing with their finances and reporting them. PACs with a complicate operation structure like ARMPAC make more than most.

There were three issues the FEC Audit staff found. A mistatement of Financial Activity is simply that. Some items were reported incorrectly or not not reported at all. Poor recordkeeping policies and likely a failure to adequately reconcile bank accounts against their FEC reports contributed to this problem. For example, the FEC notes that ARMPAC reported $88,000 in receipts for which there was no deposit. When the PAC received over $3.6 million in the two year cycle, a mistake totaling $88,000 amounts to only 2.4% error.

Reading Audit reports is difficult because the numbers are presented in an aggregate for a two year period. Before jumping off the deep end, the media needs to spend a few minutes understanding what is being reported. This is not to say that DeLay and ARMPAC are not at fault, but the size of hte fault is not all that much.

Melting Pot Meltdown

Multiculturalism, political correctness and the 14th Amendment are killing American society. The segmentation of society caused by multiculturalism and political correctness leads to a competition among groups and against the state for equality, despite the fact that most have equality—as Americans.

Multiculturalism, the concept of celebrating ones heritage, provides outstanding benefits for society. The American melting pot, by its very nature, is multicultural. As our society has grown from the birth of our nation, we have assimilated and incorporated various traits of our mixed cultural heritage. Yet, in an attempt to pander to various groups, to recognize their contributions, we have been forced, under the guise of multiculturalism, to expand our acknowledgement into outright celebration. I have no doubt that blacks have contributed mightily to our nation, but instead of celebrating their contributions regularly, we now do so once a year, for an entire month. Ditto for women and I would imagine soon for Hispanics. Will we soon have an Asian American History month?

Multiculturalism, when taken to an extreme, forces the celebration of individual and group differences to the extent that we have forgotten to celebrate our “Americanness.” The once great melting pot of American society has been replaced by a series of stereotyped “enclaves” made up of various races, ethnicities and nationalities who have become hyphenated Americans. While we still have citizens of states, like New Yorkers or Californians or Floridians, but we now also have African-Americans, Latino-Americans, Asian-Americans and whatever-Americans.

The Political Correctness movement has exacerbated the problems by insisting that we acknowledge, even exalt the differences we have as Americans. When we no longer think of ourselves as Americans first, but some sort of subset, we see first the differences rather than those things that make the United States the greatest nation on Earth. Seeing only differences and acknowledging only the differences between groups leads to the next step in group dynamics—competition for dominance.

Enter the 14th Amendment. The 14th Amendment is designed to guarantee each person equal protection of the laws. Intially, the 14th Amendment ensured that procedurally, each person was treated the same, despite race, socioeconomic status or origin, everyone was the same in the eyes of the law. However, by expanding the meaning of equal protection to include substantive rights such a right to education as opposed to procedural right like right to confront your accuser in court, we have created a competition among groups struggling for recognition of their differences. Instead of struggling for equality or dominiance in the political arena, groups use the 14th Amendment and the courts as a way to shortcut the long slog through the political processes.

A key example is the gay marriage debate. You ask anyone who knows well any gay couple and ask them if that couple should be allowed to wed, you will get a generally positive reaction. But carried to its logical extension for the entire group, you arrive at a different place. Generally, people are just now beginning to accept homosexuality as a subset of America. Overtime, there will come acceptance of gay marriage as a concept, just like interracial marriage was once prohibited. But by seeking immediate relief through the courts and the 14th Amendment, the multicultural, PC crazed insistence on equality now has led to a rending of society over an issue, which in the long run, is generally meaningless.

Our society has proved adaptable to changing circumstances. But multiculturalism and political correctness inevitably leads to immediate, destructive confrontation and forced change. On the other hand, if we allow groups to evolve slowly and steadily through the natural process, the changes sought by the groups are not viewed in such a jarring matter. Allow time to pass, educate people and allow that education to take route and ever single minority group out there will eventually achieve parity. Look to the long view, not a court victory with the 14th Amendment, as your victory.

Cross Posted at WatchBlog

Down on the FEC Farm with the NY Times

The use of a farm analogies by a newspaper in one of the largest cities in the world aside (I doubt if the editors of the NY Times have ever been to a real working farm), what makes these jokers any good at deciding who should serve on the FEC?

Before continuing, my head hurts with all the metaphors used by the editors in this piece. I urge the NY Time editors, one or two metaphors per editorial. No more.

Now to the substance. I don't know about the records of these so-called "professional regulators," but what makes them such likely candidates? I will say this about Illinois campaign finance law--it doesn't look much like federal law. First, the state's regime is based on a full-disclosure model. Sounds good right--but McCain needs to do a little research--there are no limits in Illinois. That's right--no limits on campaign contributions. Sure the candidate has to disclose everything, but they can take as much money from individuals and groups as they can.

Second, professional regulators have never actually run a PAC, campaign or filled out a compliance filing (if they have, they are not professional regulators). See the Skeptic's Eye for her list of qualifications of future commissioners.

by the way, any regulator who gets paid to do their job is a professional regulator--that is the definition of professional--being paid. The current Commissioners are professional regulators. Just being a professional does not guarantee you will do a good job!!

Defoxing the Chicken Coop - New York Times

Learning the Wrong Lessons From Ohio 2nd?

Stuart Rothenberg, who along with Charlie Cook, is probably the best among all the analysts out there looking at OH-2's recent special election. Rothenberg calls the Democrats crowing "Hubris" which it no doubt is.

My hat is office to Paul Hackett, the defeated Democrat in the special election, for running a great campaign from what I have read. But that doesn't mean the Democrats are going to win in 2006.

Hackett’s race may well be an aberration rather than a model for the future.

While bloggers see the race as an indication that dozens of previously ignored districts can be competitive next year, Ohio offered Democrats an unusual opportunity to ambush the Republicans — a situation that isn’t likely to exist in a large number of districts for the rest of the decade.

Check out the rest of Rothenberg's analysis.

Learning the Wrong Lessons From Ohio 2nd?

"Incumbent Protection Racket"

Ryan Sager, over at Tech Central Station calls the Federal Election Commission like it is:

The FEC, you see, is set up -- like all campaign-finance measures -- essentially as a bi-partisan incumbent-protection racket. No one wants "reformers" of any kind on the FEC. Democrats want Democrats on the FEC. And Republicans want Republicans. Therefore, when Congress set up the agency in 1974, it was decreed that no party could control more than three seats on the commission. Four votes are required to take any given action. Therefore, everything the FEC does will be acceptable to both parties. (People "running" for Congress or the presidency aren't so well represented -- they, after all, didn't get to appoint or confirm the FEC's members.)(emphasis added)

But the real incumbent protection racket is not the FEC. All the talk about the FEC and the appointment of new commissioners is simply a smoke screen for the real incumbent protection measures making their way through the Congress. There are two measures making their way through the legislative gauntlet that are even more of a blatant incumbent protection move than the Millionaire's Amendment to BCRA.

In the House is HR 1316, commonly referred to a Pence-Wynn for sponsors Mike Pence(R-IN) and Albert Wynn (D-MD). The bill does a number of good things from a sense of fairness, among other things, the bill :

• indexes for inflaction all contributions made to political committees, including PACs and national party committees,
• brings IRS Section 527 organizations under the umbrella of the FEC, and
• allows state and local political parties to use non-federal funds for voter registration and sample ballot publication (an activity that, because it invovles federal candidates had to be paid more with federal hard dollars--a rather severe side-effect of BCRA).

However, Pence-Wynn does a couple of things that are essentially designed to increase the power of the incumbent over the challenger candidate. Roll Call called the measure the Million Dollar Loophole. Essentially, Pence-Wynn removes the coordinated expenditure limit that parties may spend on candidates. Coordinated expenditures are just that, expenditures in support of a candidate that are coordinated in message, tone and content, with the candidate. In its article, Roll Call noted that by using a growing tool, the joint fundraising committee, a candidate may end up directly hundreds of thousands of dollars to the national party and then getting direct control over those funds to help with their campaign. Thus, in addition to the overwhelming fundraising advantage incumbents already enjoy, they can use the coordinated expenditures, which they would control, to further bolster their campaign.

Pence-Wynn also contains a provision that would allow for unlimited transfers of funds to the national party committees from a leadership PAC. A leadership PAC is a legal fiction to begin with. Under FEC law, a candidate may only have one authorized committee, i.e. one campaign committee dedicated to that person's election to office. (actually that is not entirely accurate, but for all intents and purposes it is close enough). A leadership PAC is another committee, controlled by the candidate that can be used for purposes such as supporting other candidates (which was the intent to begin with) or to fund the controlling member's travels in support of a future campaign for office, among other things. Like all PACs, these leadership PACs are limited in the amount they can give to the National Parties, a limit fo $15,000 per year. by repealing that limit for leadership PACs (which currently have no specific registration designation called leadership PAC but would need one) and having no coordinated expenditure limit, the transfers to the national parties would be again controlled by the incumbent, giving the incumbent more of a funding advantage.

Pence-Wynn is a stand-alone bill, making its chances for passage a little more dicey. But Roll Call reported on Monday that a legislative rider has been attached to the Treasury-Justice Appropriations bill (which also funds the FEC) that would permit the transfers from leadership PACs to that national party committees. Senator McCain has threatened to delay the bill, but because the appropriations bills are must pass bills and the GOP leadership favors the provision, the rider is likely to remain in place.

So to sum up, the incumbent protection measures in campaign finance are structured in such a way as to by-pass controls already in place. The transfers between leadership PACs to the national parties are a way to circumvent the controls in place to prevent incumbents from using a leadership PAC to fund their candidacy. If coupled with a repeal of coordinated expenditures, what you are left with is a system whose very structure is designed to keep incumbents so far in the lead money wise that it will take either death or resignation to create turnover, creating a permanent incumbent class.

While generally not in favor of a great deal of campaign finance regulation, I think that people need to cry foul on this blatant incumbent protection racket. If we are looking for real reform, perhaps my modest proposal may be a starting point.

Carnival of Education is Up

Check it out over at the Ed Wonks. Here are a couple of my favorites from this week's edition, if for no other reason than they reinforce some of my thinking and concerns.

Ms. Frizzle has a great plan for a program of study for teachers--a separate degree program similar to law. I have made similar arguments for the professionalization of teaching here and here.

Coach Brown has a post about the multiculturalism class he must take in California and some of the rediculous over-emphasis placed on acknowledging differences. Coach Brown's responses to the check list demonstrate not only an understanding of how too much sensitivity can get in the way of good teaching, but also how far we as a nation have gone in the political correctness realm.

Finally, Et Tu Bloge discusses the funds that are wasted in public education. California is looking to at least study the problem in a privately funded effort I mentioned here. Et Tu's unabashedly libertarian point of view.

If you are remotely interested in education, the Carnival of Education should be a weekly read for you!!

Punishing Parents for Preventing Drunk Driving

Here is an op-ed from today's Washington Post that calls into questions the stupidity of punishing parents for being responsible. While I attended a couple of parties in high school where alcohol was served, we tended to be responsible and sleep over at the house (which raised lots of sex issues, but that is a story for another time). Of course, one cannot always count on the "responsible nature" of teenagers.

So what is a parent to do to prevent kids from driving around drunk? Host the part themselves and collect car keys from kids coming to the party? Sounds sensible right? Not so fast. Some states are fining and jailing parents for caring about kids and preventing drunk teenagers from driving.

Finally, the story notes a real legal problem, that of no warrant searches of a private home on the mere suspicion of underage drinking. Last time I checked the 4th Amendment still applied in this country. You want to search my house, you better have a warrant and/or justifiable probable cause.

Zero Tolerance Makes Zero Sense

Jammed Outside the Beltway

Revamp School Management

When we think about schools and making changes as schools because, for some reason the schools are not producing results, we as a society have become locked into a group think. Policy makers and pundits offer the same solutions, over and over again--namely three things: more money, charter schools or vouchers. But each of these ideas is predicated upon one thing, that the management of the schools, or at least the model of management, is sound. In a word--hogwash.

In Sunday's Washington Post, Andy Smarick wrote a peice called "Failing Schools, Dragging Feet." (unfortunately, I cannot find a link on the WaPo website, if you do, please send it to me). Smarick is a member of the Maryland Governor's Commission on Quality Education and a member of the KIPP Harbor Academy charter school in Annapolis. Correctly noting that many of the problems schools in the state of Maryland were identified 10 years ago but no substantive changes have occured, Smarick argues for a rewrite of the state's two year old charter school law because in Prince George's County and Balitmore City, the two districts with the most failing schools, the local school boards are outright hostile to charter schools. Smarick argues for an expansion of the law.

At the same time, Smarick argues that the state should undertake an expanded voucher program for low income families wtih children in a chronically failing school.

The annoying thing is that these ideas are not new. What needs to be addressed, particularly in Prince George's County and Balitmore City as well as many school districts across the country is the assumption that the current method of managing schools is effective. Clearly it is not.

In the Outlook Section, a article appeared about Finland society and social democracy. One key section of the article dealt with the emphasis the country places on education. The teachers superbly trained.

The key to reform, Aho and others believed, was teacher training. Teaching had always been a high-status profession in Finland, but now it would become even more prestigious. (Today there are 10 applicants for every place in the universities that train teachers.) Teachers would be required to complete master's degrees, six years of preparation that combined education courses with substantive work in subject areas.

But, in my opinion, the reasons why Finnish schools succeed is not that their teachers are better trained, but that their schools are locally administered. "Teachers and headmasters were given the authority to write curricula, choose textbooks and allocate resources." Thus, the direct providers of education, the teachers and principals are directly accountable to the consumers-- the parents and children.

One of the reasons for the push for charter schools is that the school's management is directly accountable to the parents of their students. There is no middle man, no higher chain of authority. The failure of the charter school model as currently formulated is not in school management, but can be found in the fact that charters are dependent upon the granting of a charter by the school board who is competing against the charter! Talk about a conflict of interest. If a charter is granted, the school board loses that much authority and power--something most bodies are relucatant to cede to anyone.

A logical step would be to remove all local school boards and make the managment of schools directly the responsiblity of principals and a board of directors composed of parents of children in that school. Such a model has proven successful in New Zealand.

We need to re-think not only how we provide education to our children but we also need to rethink the governmental structure in place to manage the education of our children. The system is bloated with administration. Between Congress, the state legislatures, the governors and executive agencies (both federal and state), local governments, local school boards, local school bureaucracy and the actual school administration, there are so many levels of government that it is hard to find anyone who is directly responsible for our children's education after the teacher. Giving control of schools to parents and school administrators draws a straight line of accountiblity and the buck stops somewhere.

America Coming Together Falls Apart

Already, there have been numerous posts about the demise of the 527 organziation, America Coming Together (ACT) and its potential impact on Democratic politics in 2006 and beyond.

This article from the New York Times suggests that apathy and demoralization among Democrats is the reason for the failure of ACT. I would argue that it is more the embracement of a new idea that doomed the Democrats on this matter.

Democrats took to the idea of the 527 organization like ants to sugar, believing it to be the silver bullet to counteract the loss of soft money as a result of BCRA. However, the joy of the 527 was not accompanied by a clear thought of what role the organizations would play in Democratic circles absent some sort of coordination of efforts with the Democratic party.

The rapid embracing of the idea and vapid fundraising meant that mission was left out of the planning. Failing to adhere to a basic principle of politics, that of if it doesn't support a solid plan, any effort is a waste of time and money, the Democrats wasted the funds of the donors to ACT. Like the embracing of technology that does not support basic sound political principles, a 527 is only as good as its mission.

Now ACT had a valid mission, to mobilize Democrats to vote and to register voters. But in doing so, I have heard and witnessed, ACT did not do it in a politically sound way that would lead to victory. Despite their large numbers of offices, and 6,000 paid staff, ACT and Democrats generally failed to recuit at the grassroots. They did not get precinct or neighborhood level operatives from the local area, instead they brought in paid outside staff who created an immediate air of distrust among the very communities they sought to target.

As disillusionment over the failed mission of groups like ACT comes home, Democrats are left without a plan for these large groups. How will they fit into the scheme of attempting to break the GOP hold on government? Groups like ACT, on both sides of hte aisle, need to focus more on organziation than on money. But without solid foot soldiers for their fight, the Democrats have always looked to money as the substitute for organization. ACT was swimming in funds ponied up by people who were Anti-Bush, but not necessarily pro-Democrat. No surprisingly the effort failed.

Wal-Mart In the Cross-Hairs

Last night, CNBC broadcast a special called the Age of Wal-Mart and offered a pretty balance look at the retailing giant. Having worked for Wal-Mart as a college student, I can say that Wal-Mart has its pluses and minuses as an employer. However, as a consumer, I must say that all the "bad" that groups complain about is more than compensated for by the good the company does.

But when you get big, and you are aggressive (and there is no doubt that Wal-Mart is aggressive--they even admit as much), you get enemies. For years, unions have been attempting to organize Wal-Mart workers, with no success. People and Companies have argued that Wal-Mart's tactics and massive bargaining power puts so many companies at a disadvantage that borders on coercion.

Similarly, I have spent a pretty fair amount of time in Washington, DC and have seen all kinds of lobbying organizations and watchdog groups come and usually stay. But this article talks about one of the newest watch dog industries--against Wal-Mart. To my knowledge, this is the first time that a groups explicitly targets one and only one corporation.

Working out of offices that resemble political war rooms, two groups, Wake Up Wal-Mart and Wal-Mart Watch, are running campaigns to pressure the world's largest retailer to be a better employer and corporate citizen.

The fight in Washington comes as Wal-Mart faces increasing legal problems, from child labor violations to charges of gender discrimination. The company recently paid a fine to settle federal charges that underage workers operated dangerous machinery, and agreed to pay $11 million to settle charges that its cleaning contractors hired illegal immigrants. It also faces a class action lawsuit by female employees who charge Wal-Mart with gender discrimination.

Wake Up Wal-Mart and Wal-Mart Watch are fighting the discounter on issues ranging from outsourcing of jobs and gender discrimination to its environmental record. The groups are attacking its wages and health benefits, which they say are driving down pay and benefits for workers in many other companies as Wal-Mart's rivals try to compete.

Not to begrudge these organizations (supported in large part by labor unions like the United Commercial and Food Workers Unions) their say. But it seems to me that we are really talking about envy. The fact is that Wal-Mart does the lower end retail business better than anyone. Their technology, supply chain and suppliers provide a wide range of goods for a low price. That success is indisputable. True, like any large organization, Wal-Mart has faults. But looking at some of the charges, one would be hard pressed to make a strong case.

For example, the charge of gender discrimination is going to be tough to prove (as most such charges are). If you look at the senior leadership of Wal-Mart (senior VPs and above) there are an awful lot of women there. Environmental problems--what large company doesn't have them. Are some of the wages a little low--sure. Wal-Mart keeps its costs down. Those jobs not requiring wages above minimum wage usually don't get them. Keeping wages as low as they legally can is one reason why Wal-Mart's costs are low.

I for one admire Wal-Mart and what they have done to build on Sam Walton's dream and vision.

New breed of critics fight Wal-Mart in nation's capital

FEC: Follow the Law

Every once in a while the supposed paper of record in Washington, DC, the Post, will screw something up so badly that it makes me laugh until it hurts. Yesterday's Editorial on the FEC is one such time. In this editorial, the Post blasts the Commission for failing to follow the law as written by Congress.

ASSIGNED BY Congress to write regulations implementing the McCain-Feingold campaign finance law, the Federal Election Commission has instead spent the past few years writing and defending rules that would undermine it.

The Post has been in business for quite sometime and I will give the benefit of the doubt to the editors about their intelligence and familiarity of the legislative process. However, they should know that Congress rountine punts on definitional issues in the laws it writes.

One of the key features of the McCain-Feingold Monstronsity--sorry--Act is a ban on soft money. In writing the language for the ban, Congress chose the words solicit or direct. The FEC, by simply looking in a dictionary, interpreted solicit to mean "ask." Apparently this common sense defintion was a failure to follow the guidance of Congress according to the Post.

But in writing its regulations, the FEC interpreted "solicit" to mean explicitly "ask" -- rejecting proposals that soliciting include suggesting or recommending soft-money donations. But as the appeals court, in an opinion by Judge David S. Tatel, correctly found, the FEC's cramped definition would "reopen the very loophole" it was supposed to close.

Fine, here is a little Thesaurus search on the word "solicit," resulting in:

accost, apply, approach, ask, beg, beseech, bespeak, bum, cadge, call, canvass, challenge, claim, crave, demand, desire, drum, drum up, entreat, exact, go, hawk, hit on, hit up, hustle, implore, importune, inquire, mooch, panhandle, peddle, petition, plead, postulate, pray, promote, proposition, query, question, refer, request, require, requisition, resort, seduce, seek, sponge, steer, sue for, supplicate, touch, tout, turn, whistle for

I don't see suggest or encourage there. So lets try those two words:

encourage: animate, applaud, boost, brighten, buck up, buoy, cheer, cheer up, comfort, console, embolden, energize, enhearten, enliven, excite, exhilarate, fortify, galvanize, gladden, goad, hearten, incite, inspire, inspirit, instigate, praise, prick, prop up, psych up, push, rally, reassure, refresh, restore, revitalize, revivify, rouse, spur, steel, stimulate, stir, strengthen, sway

Nope--no solicit or ask there.

Suggest: advance, advise, advocate, broach, commend, conjecture, exhort, move, offer, offer suggestion, plug, pose, prefer, propone, propose, proposition, propound, put, put forward, recommend, steer, submit, theorize, tip, tip off, tout

Again--no solicit or ask. One could get close with the work "exhort" but if you search ask, you get this:

angle, appeal, apply, beg, beseech, bite, bum, call for, charge, claim, command, contend for, crave, demand, entreat, file for, hit, hustle, implore, impose, knock, levy, mooch, order, petition, plead, pray, promote, request, requisition, seek, solicit, sue, supplicate, touch, urge.

Hmmm! Looks to me like the FEC got this one right. See if Congress wanted to be more explicit about what they meant, they could have simply added the words suggest, encourage, solicit, or direct soft money. Pretty simple. But the FEC only had the word solicit to work with.

By the way, although complete, my research into the legislative history of this provision does not mention anything about what Congress meant about the term solicit--other than its commonly accepted definition. Congress and the plaintiffs in Shays cannot argue about a definition given by the FEC if they don't provide a little more guidance. To do so after the fact is disingenuous at best and exploitative at worst.

Recess Appointments Unconstitutional?

Marty Lederman has penned an interesting post about the constitutional status of the John Bolton recess appointment. From a purely strict constructionist or originalist point of view, Lederman is quite likely right. The recess appointment power was granted to the President at a time when the Senate was a part time legislative body that met only for short periods of time each year.

The Framers, according to Lederman, gave this power to the President so that he would not have to wait for hte Senate to come back into session during a long hiatus to approve appointments to important posts. Today, with Congress is session pretty much year round, there are very few posts that would classify a so vital that the confirmation process cannot wait a couple of weeks.

That does not of course, excuse the Democrats filibuster of an ambassadorial nominee, the president is entitle to name those people who will carry out his brand of foriegn policy. But Lederman's argument about the use of the recess appointment power in recent administrations, Democratic and Republican, does make some very good sense.

I wonder what will happen if Lederman's case comes before a strict constructionist judge.

Balkinization

Making Teachers Professionals, Part II

I have received several comments to my earlier post on this subject. Some of which I felt should be addressed in a follow up post.

Amerloc wrote:

Unfortunately, all those advanced degrees and rigorous multi-day exams don't guarantee competence in either doctors or lawyers. Where both become either good or get weeded out is in actual practice, under the wing of someone more experienced.I think we have to extend the discussion to include an examination of that same kind of mentoring/tutelage to education.

Amerloc is absolutely correct; simply having an rigorous course of advanced instruction and tough licensing procedures does not, in itself, guarantee competence in either lawyers or doctors and nor will it for individual teachers, but that is an issue of individuals. The problem I am trying to address is a societal problem, namely that society does not view teachers as professionals, which I argue that they should. But to address the perception issue, the profession of teaching needs to look toward its foundations and encourage--no require--tougher standards of education before a teacher steps into a classroom. In medicine and in the law, there are practitioners who are not competent, but the peer pressure placed by the remaining professional either ensures competence or weeds out the incompetent.

Right now I am not encouraging the inclusion of a particular facet of teacher training at an advanced level, although I have ideas. True most doctors have internships after medical school and most lawyers spend several years working under the guidance of an experienced lawyer. Teachers currently do so, but I think there needs to be a standardized set of instructional principals imparted in teacher education and training.

Simeon wrote:

A profession has certain characteristics: it has a clearly defined and accepted knowledge base, is self-restricted and self-regulated. Society cedes control and power to professions in exchange for specialized services which few have the time or inclination to learn and provide for themselves. It is hard to see how teaching can be considered a profession.

Lets take a look at the characteristics of teaching. We as a society have ceded enormous control and power over our children to teachers. Whether that is good or bad is a sociological question of great import, but nevertheless, we have ceded such control. We are asking teachers to provide a specialized service that most Americans are unable or unwilling to perform themselves. Despite the fact that many people could perform the task for their children, the fact is that in modern society, we do not do that.

Granted, there is no clearly defined knowledge base in the way we think of law and medicine, there are those, like Jenny D, who are making an effort to do so. I believe that we as a society must do this in order to address the need for a better education service for our children. Just because one does not exist now, does not mean it can't or shouldn't exist--it merely needs to be found.

Finally, if teachers are to become a true profession with standards and a code of ethics similar to law and medicine, I would encourage self-regulation and self-licensing. Although self-regulation and licensing, while generally handled by the profession, is still subject to state control. Of course, this step would be bitterly fought by teachers' unions, but that is a matter for another time.

Lawyers have a rigorous course of study and entrance exam and regulate themselves through a bar association. ... On the other hand, there is little consensus about the knowledge and skill base necessary to be a teacher. Moreover, the education and certification requirements of teachers are highly regulated by state legislatures and school boards (e.g. people with little teaching experience) Teachers have little control over their occupation, hence their low stature and pay in society.

Simeon is completely correct in his assessment about the current control factor over the profession of teaching. However, it need not remain that way. If teachers were willing to subject themselves to the necessary regualtion, then ceding the direct control from the state to the self-regulated teacher association would likely follow. Teachers themselves need to take on this task of increasing the stature of their profession.

I would vociferously disagree with Simeon's statement "there is little consensus about the knowledge and skill base necessary to be a teacher." I think everyone one of us can judge what makes a good doctor or lawyer. Similarly, we can also identify good teachers. I think there is a fairly good consensus on what makes a good teacher. I firmly believe that many of the educational, training and theoretical bases of these teachers are common and it is those foundational materials that should be taught in teacher school.

Here Simeon gets it, I think:

I think it would take establishing national teacher standards, eliminating undergraduate degrees in education, requiring graduate degrees, intense residency experiences and rigorous entrance exams to make teaching a true profession. If the unions focused on that instead of how many minutes per day teachers can work with students we might get somewhere.

Here, here. For those who are uninitiated, bar exams generally consist of two parts, one day of essay exams based upon state law. These vary from state to state since many aspects of state law also vary. But there is also a standardized Multi-State Bar Exam which test knowledge in six general areas of law common to all states: constitutional law, contracts, criminal law and procedure, evidence, real property and torts.

There will be differences between states in specifics, but a general base of knowledge about teaching and how to teach will be common across all states. In this respect national teacher standards may be appropriate, but the function will still be, and must be, state driven.

I am arguing that to change the societal viewpoint of teachers and the profession of teachers, many changes are necessary to the education of our educators. The importance of education to our society has become too important. Like the importance of sound medical practices in the early 1900's, we need to move beyond the haphazard instruction of future teachers to a more structured, common foundation.

School funds: What's the need, where's the waste? - sacbee.com

The article posted below talks about an issue that has become near and dear to my heart in teh past couple of weeks. The question of how money is spent in education. As readers who scan through my previous posts will see, I have a strongly held belief that public schools need to adopt some fundamental changes, changes based on market theories in order to advance.

I found particularly interesting in this article a public panel being assembled, whose "purpose is not only to determine the needs but also to consider "the efficient use of education funds," meaning to find out where money is being wasted." What is also interesing is that the panel is being funded by four private foundations with a keen interest in education, Hewlett, Irvine, Gates and Stuart Foundations.

For decades, the common response to education problems has been to throw money at the problem, whatever it was, we needed new funding. But as a taxpayer, there is a finite limit to the amount of money I am willing to see spent on programs and bureaucracies that consistently yeild poor results. If I ran a business like localities run schools, I would be out of business.

While it may not have been the intention or at best a secondary intention, the focus of No Child Left Behind on provided quantified, standardized data is more of a link between educational success and funding levels. What many citizens and taxpayer like myself are doing is the simple calculation, if test scores are not improving and more of my money is being allocated to improve scores, am I getting the most out of my hard earned money. The answer is no.

Thus comes this California panel. By examining where money is being WASTED, perhaps the country's biggest state can provide a few answers to the rest of the country. In short, we don't need to spend more money, we need to spend more wisely.

I realize that such a statement is not exactly earth shattering, but NCLB will hopefully force more school officials to begin to understand where money is spent and where it is being wasted and ask themselves, Why?


Opinion - Peter Schrag: School funds: What's the need, where's the waste? - sacbee.com

FEC Closes First 'Millionaire' Cases

The FEC has recently closed the first enforcement cases to arise under the Millionaire's Amendment from the Bipartisan Campaign Reform Act (commonly referred to as McCain-Feingold or BCRA). The fines in these two cases are signficant, $40,000 and $14,000 in civil penalties. I would like to see a challenge by either of these candidates to the constitutionality of the millionaire's amendment.

A challenge to the provisions of BCRA was brought in the McConnell v. FEC case, but the claim was dismissed because no plaintiff had standing to sue on the issue since no one had been penalized by the application of the amendment. These two cases now clearly have plaintiffs who can sue on the issue.

I wrote a short paper on the Millionaire's amendment in law school, making the argument that the Millionaire's amendment is unconstitutional. I think the law is unconstitutional on two grounds, equal protection and the differences in-kind standard from the Shrink Missouri decision.

Due to the necessary page limit of the paper, I focused only the differences in kind. Under certain triggering conditions, a candidate facing someone who contributes enough money from personal funds (the House limit is $350,000 and the Senate limit varies with population), then their opponent may raise funds under increased contributions limits from individuals to achieve partity with the self-funded candidate. In some cases these limits can be six times teh normal contribution limit for individuals. The normal contribution limit for individuals is now $2,100 dollars under the millionaire's amendment, the limit become $12,600. Now the Supreme Court in Shrink Missouri did not define exactly what "differences in kind" meant, but a common sensical approach would say that there is a signficant difference in kind between $2,100 and $12,600.

But the unconstitutionality does not stop there. Buckley established the premise that campaign finance regualtion is constitutional in order to prevent corruption or the appearance of corruption. Under that guise, the Court held that a limit of $1,000 per individual per election was appropriate to prevent corruption of hte candidate receiving hte contribution. BCRA increased the limit to $2,000 per person per election and indexed the limit for inflation. If these limits are considered lawful to prevent corruption, how then does a contribution limit of $12,600 as compared to $2,100 not raise issues of the appearance of corruption. The universe of people able to contribute $12,600 is quite finite and certainly a candidate would be more beholden to someone who ponies up such cash in a pinch than other contributors. While there may not be actual corruption, the appearance of corruption is certainly strongly suggested.

Aside of issues of differences in-kind and the appearance of corruption, a much stronger argument for the unconstitutionality of the Millionaire's Amendment is an equal protection argument. As noted above, if certain triggers are met, the candidates in a given race will be operating under different rules. I say again, the fundraising rules for candidates in the same race would be markedly different. While I may be only a recent graduate of law school, such a fact is prima facie evidence to me of a equal protection claim. Former Senator Fred Thompson raised this issue directly during the Senate debate on BCRA. A major point of the campaign finance rules is to ensure consistent rules for everyone--rules known to everyone in advance. But the invokation of the Millionaire's Amendment provisions by a candidate changes the rules of the game in mid-stream.

Now one can argue about the propriety of money in the system and whether the rules of the game should be changed (as I have argued before). But the Millionaire's Amendment's practical aspects are also troubling, although practical aspects are a poor legal argument. The practical effect of the amendment is an incumbent protection measure since the candidates most likely to self-fund are challengers.

However, regardless of the practical effect, there is a clear legal argument for the invalidation of the Millionaire's Amendment and now there are plaintiffs to bring the suit. If any one of the potential plaintiffs reads this post, although I have not been sworn in teh bar yet, I would love to work on this case. (Shameless plug for employment--sorry).

FEC Closes First 'Millionaire' Cases

McCain, Larry Noble and Delusions of Grandeur

Senator John "Media Maverick" McCain has posited Center for Responsive Politics frontman and former FEC General Counsel Lawrence Noble to be placed on the Federal Election Commission. No doubt Noble meets the qualifications of Allison Hayward, I think he would be a very bad choice for the Commission, but that is not the point of this post.

Since when did John McCain become the self-appointed ruler of all things campaign finance related. I would like to remind the world that McCain was at the heart of the Keating Five scandal which involved improper influence by five senators in exchange for campaign finance contributions by failed savings and loan mogul Charles Keating.

McCain does not get to name people to the FEC, the President does. By tradition, openings in the opposing parties seats on the commission are named by leaders of hte opposing party. Thus President Bush gets to name Republicans and Harry Reid/Nancy Pelosi get to name (again by tradition) Democrats. Nowhere on this list does it say that John McCain gets a voice until the Senate advises and consents on the appointments.

The fact of the matter is that the Commission needs new Commissioners since terms have been expired for a long time and there will be a vacancy.

McCain pushes for FEC critic

This post in a Beltway Traffic Jam

Skepticseye.com by Allison Hayward � Qualifications?

Allison Hayward over at Skepticseye.com postits a list of qualification for the position of FEC commissioner. Looking at Allison's very practical list, I would like to say that my humble self qualifies.

Lets Look at the list in detail:

1. The person should be comfortable with the history and details of the federal statute, the regulations, and, where necessary for a full understanding of the law, the advisory opinions. (Command of these areas should not be left to the career staff - nice people though they are, they are not the ones appointed by the President and thus responsible for policy.)

Having done FEC compliance for the past seven years, and advising clients and actually performing the duties I think that qualifies me. The problem is that I have very definite opinoins about policy which will, I am sure, not endear me to the reform movement. Not that I particularly care, but still why cause a problem for the President.

2. It would be helpful if the person had advised real clients at some point on real political activity (not necessarily as an attorney) — the better to understand the tradeoffs facing politicians and political activists.

See reasoning above. Commissioner Toner I know worked for the RNC (I think) and was an attorney at Wiley, Rein, & Feilding, so I know he has practical experience. I am not sure about the other commissioners though. Retiring Commissioner Smith (for whom Allison once worked) was a law professor, but I don't know the details of the other commissioners.

3. Has the person worked on a campaign? Run for office? Filled out a disclosure form or handled federal reporting? Raised funds for a candidate, or a political committee, or for anything at all?

In order of the questions: Yes, No, more times than I can count, and probably hundres of thousands of dollars.

4. The person should be somewhat familiar with the full array of studies about the role of money in elections, money in legislation, money in advocacy and the charitable sphere, and the motives of donors. There should be something in the person’s background to indicate sensitivity to and curiosity about “big picture” campaign finance questions.

Having researched a number of papers on campaign finance and spent almost all of my professional career working on PACs, campaigns, grassroots and lobbying activies, I think I have a very good grasp of the big picture. I still look at politics from a completely holistic approach.

5. The person should have some understanding of how corporations and unions operate.

I'm a little weak on the union bit, but I have had union clients before. I think I have a pretty good basic idea of how they work. I am pretty strong on the corporate side of things. I wonder how many candidates or people mentioned for this job are willing to admit such a weakness.

6. It would be nice for the person to know something about tax, communications, exempt organizations, or ethics laws and rules, if only to better anticipate instances where rulings from the FEC could have spillover effects.

Now hear, Allison may be reaching a little (sorry Allison). I passed my tax course in law school, but it was more of a survey course than anything detailed. However, if Allison is willing to limit knowledge of the tax code to 501(c) organizations and 527 organizations, I fit the bill here. Communications--I know that the 1996 Telecommunications Act is a piece of junk and needs to be revamped and that campaigns spend an inordinate amount of money on broadcasts ads, but that is my limit. Ehtics laws, I have been a registered lobbyist and had to complete those forms (monstrosities that they are). Certainly, a Commissioner needs to be aware of these areas, but I don't know how much.


Now despite qualifying for the job, I doubt the President is going to reach down to me, merely a recent law school grad to appoint to the FEC. I am not sure I would want the job, although I am pretty sure I would serve if the President asked (can you picture me sitting by my phone right now :) ). I however, am not sure my wife would be so happy.

Still, I think Allison hits the nail right on the head with her qualifications list. At this point, the Commission needs to be filled with people with practical knowledge of campaign finance regulation and the practical impacts of the decisions. In recent years, FEC regulations and campaign finance law have skewed into the realm of esoterica, i.e. what is the meaning of "public communication" and coordinated expenditures, that the players in the system have lost sight of the real purpose of campaign finance regulation--to make sure that political campaigns are funded in a clean, publicly disclosed manner so that the electorate can be sure that candidates are as free of corruption or the appearence of corruption as possible.

Why Republicans are Winning at Tech | Personal Democracy Forum

This column on the Personal Democracy Forum, attempts to explain the reason why Republicans are winning at using technology in campaigns. Perhaps the most insightful comment is that Democrats focused on the "game" aspects (like campaign bloggin), while Republicans focused on technology that allowed them to get people on the ground.

I have previously noted that technology is not a panacea for politics and never will be. Technology is a tool by which the traditional needs of politics can be accomplished at a lower cost or a faster speed, but technology does not obviate the need for adherence to basic political principles. In short if technology helps you mobilize voters or pursuade swing voters to your side, great. Otherwise it is a distraction.

Why Republicans are Winning at Tech Personal Democracy Forum

Reform Campaign Finance Reform--A Critique of a Proposal

This post from Chuck Hanrahan over in the Third Party/ Independent column of Watchblog. (Disclosure: I am a contributing editor at Watchblog in the Conservative Column).

Chuck makes a great case for changing with way we think about campaign finance reform by dredging up the Supreme Court case of Schenk v. U.S. , 294 U.S. 47 (1919). Here is his analysis:

This standard permits a prior restraint against free speech, such as political contributions, when they exhibit a "clear and present danger" to bring about "substantive evils that Congress has a right to prevent". Bribery and improper influence clearly meet this standard. As Justice Holmes observed crucially, however,

"It is always a case of proximity and degree."

Thus, when the proximity of the private donor to the public candidate is high and the degree of the donation is large, corrupting influence is likely to ensue: political favors will be bought and sold. When either the proximity or the degree is reduced so that improper influence is eliminated, political donations become a benign form of free speech.

Campaign finance reformers have focused their efforts upon reducing the degree of political contributions by limiting their size. Rather than restricting improper political influence by limiting the degree of the donation, Congress must reduce the proximity of the donor to the recipient instead. By doing so the size of political contributions may be increased significantly without incurring the de facto bribery of corrupting influence. (emphasis in original)

Granting Justice Holmes' premise that corruption is a function of degree and proximity, Chuck makes a strong argument for removing the issue of proximity from the problem. However, despite an insightful start dealing with issue of freedom of political speech, Chuck forgets that political matters also involved a freedom of association. When later positing suggestions for Congressional action, Chuck comes up with these proposals:

1) A maximum amount of $100,000 per election cycle, either given or received, must be established regardless of the public or private nature of either the recipient or the donor.

2) Candidates for federal office and advocacy organizations must be prohibited from soliciting or accepting contributions of any kind directly or indirectly with a value in excess of $100 from any individual or organization within any thirty-day period.

3) Offering, accepting, soliciting or disclosing political contributions in excess of $100 per month must constitute the felony of bribery, pursuant to Title 18 of the United States Code.

4) Individuals and organizations that wish to contribute between $101 and $100,000 to any candidate for federal office or any political advocacy organization must do so through an independent third party, the Federal Election Commission (FEC), which shall guarantee their anonymity.

5) Donors must be permitted to direct the FEC to disburse their contributions to the specific individuals or organizations of their choice, and the FEC must deposit these donations into a general advocacy account that distributes these assets weekly.

6) The FEC must create and maintain a comprehensive database of donors and recipients, thereby ensuring that the $100,000 maximum limit for political contributions is not exceeded.

7) As the legal advocate for the electorate at large, the FEC must be prevented from releasing any information about the identity of a donor or a recipient or the amount donated for at least twenty years after the death of the individual or dissolution of the organizational recipients or donors. Notwithstanding a specific warrant from a court of appropriate jurisdiction, violating the public's right of attorney/client privilege must constitute a felony commensurate with the disclosure of information that has been classified as secret for national security purposes. (emphasis in original)

The problem with proposal 1 is that while a limit on contributions given by an individual or organization have been upheld under Buckley and McConnell, limits on receipts by candidates have not. Candidates and their supporters have a constitutional right to associate as they see fit. Similar arguments can be made against proposition 2.

Political freedom is not only the freedom of speech but also the freedom to associate with like-minded individuals. The entire premise behind candidate campaign finance committees is the expression of support for a like-minded individual (the candidate) being expressed through the medium of money. While it may be argued that there is too much money in the system, I think the real problem is the distribution of money within the system that is a bigger problem.

Proposal 3 exhibits a lack of understanding of how political contributions actually work. Like most people, Chuck seems to believe that political contributions influence votes made by that politician. In fact, the opposite is true. The votes made by a politician influence the funds they receive. There is a good reason why incumbents raise more money than challenger canddiates, they have a record of votes by which interest groups and individuals can assess their stances. If an incumbent exhibits a streak of labor friendliness, they are likely to receive contributions from labor organziations and not much from business organizations.

Thus if funds are based on past political behavior, bribery cannot occur since bribery by its very nature if forward looking. Additionally, there is little way in which a political contributor with only $100 to give has any hope of actually holding a politician accountable for the outcome being sought by the contributor. Finally, on a technical note, the disclosure of a "bribe" is not bribery but more akin to extortion or blackmail.

Finally, proposals 4 through 7 contemplate a massively expanded role for the FEC in campaigns. For a person who exalts individual freedom (see Chuck's website) this proposal seems decidedly counterintuitive. To start, the FEC regulates the campaign activity of Congress, a body with a decided interest in keeping the FEC as weak as possible--thus the composition of the Commission with a partisan tie (3 Dems and 3 Reps). Similarly, the powers of the FEC are generally limited in that they have only the power to enforce the law in a civil context, criminal charges are brought by the Justice Department.

On another note, one could argue that the FEC has difficulty performing the mission currently assigned to it. Expanding their role would complicate matters and require a much bigger staff they they currently have. I don't think expanding the federal bureaucracy in this arena is such a good idea.

Finally, I don't want the federal government responsible for distributing money I give to candidates. There is simply too much room for error in this regard. On a related matter, if a candidate must rely on teh FEC to get their money, what happens if there are problems?

While Chuck makes a good case for changing how we think about campaign finance regulation, his proposal fails to address real constitutional hurdles to political freedom.

Note: Check out the comments to Chuck's post--some good ideas being thrown around, if they are based solely on Chuck's flawed plan.

Making Teachers Professionals

Jenny D. posited a great thought experiment calling for Solutions for Fixing Education. In her comments, Jenny notes

There is a much greater problem, and one that won't solve itself. We don't know much about teaching. Some teachers do because they've figured it out after years of practice. But most teachers don't know for certain how to teach. And it's not their fault. We in the ed business have not done enough work to learn about teaching, and determine what works, in what order, and what might work best. Yes it might be the same for 80 percent of the kids, and the other 20 percent might need much more tailored instruction.

Jenny implicitly points out a basic assumption made by most people without realizing it. Teaching is a profession but not profession on par in society's mind with other professions such as attorneys or physicians despite their relative importance to society. The latter two professions have a recognized, rigorous course of instruction coupled with fairly stringent licensing requirements. True, teaching requires certification or licensing, ongoing professional development and shares many other attributes with other professions, but there is a clear difference--there is no rigorous course of instruction like law school or medical school.

Law school, contrary to popular belief, is not really about learning the law, but rather learning about how the law works. Thus, law students spend a majority of their time and effort learning the basic principles of the law, how the law is made, works and is applied in society. Medical school is much the same way. Unless I am mistaken, there is not the same type of emphasis in education schools. True, there are classes on pedagogy, classroom management, subject matter expertise, testing and other aspects of teaching, but education school does not carry the same general systematic approach to the methodology of teaching.

To be admitted to law school or medical school, one must have a bachelor's degree. Then, only after completing law or medical school may a person apply to become a lawyer or a doctor. They must sit for a rigorous set of multi-day examinations to ensure minimum competency. Educators may enter the classroom with a bachelor's degree and a promise or contractual provision to obtain a master's degree. However, there is no professional requirement to obtain an advanced degree in teaching. There is no requirement to sit for a rigorous series of multi-day exams to become a licensed teacher. There is not systematic, relatively standardized method of training teachers to TEACH in the same manner in which we educate future lawyers or doctors.

Teaching should be treated as a profession, but in order for society to hold teachers in the same esteem as other professions, the practice of teaching needs to be taught and the only way to do that is as Jenny has pointed out. We need to reduce the practice of teaching to is core principals, require everyone who wants to be a teacher to learn those principles and demonstrate a minimum competency in those principles--before stepping into a classroom.

The practice of law and medicine used to not be a state regulated profession. However, over time the good of society was served by a regulated profession staffed by people trained in a similar, somewhat standardized fashion so that the faith placed in that profession by society was well placed.

Teachers are entrusted with a duty far more fundamental than the law, yet we require more traning of future attorneys (which we turn out in the hundreds of thousands a year) than we do of teachers.

(BTW--if teachers has this same level of professional training in teaching, they could and should demand more salary--after all they trained for it.)

Chris Dodd--Rewriting the Constitution

With a young daughter demanding attention on Sunday's I generally don't get to watch the Sunday news shows. But I generally try to catch replays on CSPAN or read the transcripts. Fox News Sunday had some interesting Constitutiuonal revision going on in a exchange with Senator Chris Dodd (D-CT) from which we get this little gem:

The open-ended question for us clearly is what are his views about some of the basic values, the equal protection clause, the privacy clause of the Constitution.

Now I generally don't expect Senators to be intimately aware of all the ins and outs of constitutional law interpretations and such. However, I do expect them to know what is actually IN the Constitution and know the LANGUAGE used.

I have read the Constitution cover to cover on many occaisions and I still can't find a privacy clause. The Framers must be rolling over in their graves!!!

I might even forgive a freshman senator of this gaff, but Dodd has been in the Senate for 30 years. I would expect him to have read the Constitution a few times.

On another issue, why should we decry the lack of civics and government education in our kids if our Senators apparently need some as well.

The $8.78 Million Maneuver - New York Times

Hat Tip to the Volokh Conspiracy for this one.

The $8.78 Million Maneuver - New York Times

As a law student, there were years when I thought I personally used $75,000 in Lexis/Nexix and Westlaw services. I still do quick searches in Lexis or Westlaw, but I am still the kind of guy who likes to have the case book in my hands. Silly, given the vast technological advantages to Lexis services, but I like it. Although researching from scratch in the stacks truly sucks, at least compared to my peers, being comfortable in the books gives me an advantage in practices where extensive online research is seen as a waste of funds by paying clients.

Ribbon Stickers Have to Go!!!

Warning: High Rant Content Ahead!!!

I have had it with the little ribbon stickers people put on their cars to remind the drivers behind them about some cause. On a recently sited mini-van (and why is it always a mini-van or SUV--don't people in beat up cars like mine have causes?) I saw no fewer than six different colored stickers. In addition to the now standard pink for breast cancer, yellow for the troops and red for aids. I say a black one for POW-MIA, a black and white polka dots or paw prints for some animal rescue organization and a blue one for some cause that I couldn't read since the blue was so dark that the black printing was difficult to read. (not very sound PR efforts if a person sitting 10 feet away can't read it.)

Now before people go chopping my head off, I would like to make clear, I am not attacking the cause itself, merely the means by which the cause is publicized.

It seems to me that this plethora of ribbon showing demonstrates the lack of creativity among the public relations professionals working for non-profit causes. The colored ribbon has become the equivalent of a shorthand for support. The problem is the wide range of colors detracts from the ability of a viewer to understand what the person sporting the ribbon supports. How am I supposed to understand or empathize with your cause symbolized by a ribbon I don't recongnize?

In the absence of a cheat sheet issued to all drivers of the color-coded ribbon stickers, I see a total ban on all stickers that do not conform to the following list. If your cause is not listed here, then come up with a different means of publicizing your cause. Get a little creative talent in a room and come up with something that has nothing to do with a ribbon. The same goes for all the copycat LIVESTRONG yellow bands distributed by the Lance Armstrong foundation. They came up with that idea and now no one else can copy it--period.

Red for AIDS Awareness--the granddaddy of ribbons gets an automatic pass. AIDS activists came up with the idea and like the LIVESTRONG bracelet, they are in.

Pink for Breast Cancer--although not the originator of hte concept, the breast cancer awareness ribbon gets in because they have been the best user of the ribbon idea. On a side note, it also looks better with most outfits as well.

Yellow for Supporting the Troops. Although this is a cop out, yellow ribbons have a long history associated with supporting troops and Americans overseas that denying the use of the ribbon would counteract that history. In the alternative, I will allow a red, white, and blue ribbon for the same purpose. Expressly not permitted is the use of camoflage colors--it just looks silly.

I am a big believer in free speech and will support just about anyone's right to make their case. However, a case is better made if it is made in a creative way. Stop being a copy cat, you are annoying the crap out of me!

Thus endeth the rant.

Ranting in the Traffic Jam