“That’s the way to go,” said Feingold, who has been highly critical of the long confinement, without trial, of the suspects at the military prison in Guantanamo Bay, Cuba.

At the same time, US Attorney General Eric Holder Jr. announced that several other suspected terrorists will be tried in military courts. That group includes Ad Al-Rahim al-Nashiri, who allegedly planned another major attack, the bombing of the Navy destroyer Cole in 2000 in Yemen.

The decisions to go the two different routes in the cases will provide an interesting opportunity to compare civil and military handling of cases of this kind, Feingold told Mike Gousha, who moderated the session and who is a distinguished fellow in law and public policy at the Law School.

Feingold said bringing the Sept. 11 suspects, including Khalid Shaikh Muhammed, who has claimed he masterminded the attacks, into civil courts and allowing the justice system to proceed to a verdict on their cases is the appropriate course, said Feingold, a member of the Senate’s Judiciary Committee. “This advances not only our legal system, but our credibility in the world,” he said.

Feingold said that he is an opponent of the death penalty, but, “If there is a place where the death penalty should be administered, it is probably this case.” The bombings of the World Trade Center and the Pentagon and lethal crash of a commercial flight in Pennsylvania killed almost 3,000 people.

Feingold praised President Barack Obama for the way he is handling decisions about the future of military involvement in Afghanistan. Feingold said Obama was right to take his time and to consider all options, including a plan for phased withdrawal that Feingold has advocated. Several months ago, Feingold became the first senator to back such a plan. But he said Obama appears to be taking the possibility seriously.

“Why is it we are continuing this huge land war in Afghanistan?” he asked. “It doesn’t add up.” He said al-Qaeda has moved its bases out of Afghanistan and he does not think an end to American military involvement would mean a return of al-Qaeda power in the country.

Addressing other subjects, Feingold said:

• He hopes a health care plan can be passed by Congress by the end of January, but it is “impossible” that action will be completed this year. He emphasized his support for a “public option” in a health care plan, a system in which a government-run plan would provide insurance to some people. He said, “It would be very hard for me” to support a bill that did not include such an option.
• If Chief Justice John Roberts comes down strongly in favor of overturning a 1990 decision (Austin v. Michigan Chamber of Commerce), “it will be one of the greatest lawless acts by a chief justice in the past 100 years.” A decision is expected soon in a case (Citizens United v. Federal Election Commission) that has become a broad review by the court of federal election laws, including the Austin decision, in which the court ruled 6-3 that it was constitutional to prevent corporations from spending their own money on political campaigns. Feingold said that during confirmation hearings in 2005, Roberts said he would be an umpire calling balls and strikes and would not make law himself. Feingold voted to confirm Roberts, drawing the ire of many liberals. Asked after his talk whether he would regret supporting Roberts if Roberts votes to overturn Austin, Feingold said such a step might give him “a moment of significant regret.” But he said that would depend not only how Roberts votes, but what he writes in support of his vote.
• A two-year program of tax credits to companies who create jobs or increase employees’ hours could create several million jobs and help the economy nationwide. Feingold said he saw a major part of his role in dealing with economic issues as advocating for such a plan.
• Immigration reform is an urgent issue, but he does not see federal action coming until “maybe late next year.”
• Development of a five- to seven-year plan to bring down the federal deficit is both responsible and necessary for economic recovery. Feingold said the deficit “is almost an obsession of mine in the Senate,” and he sometimes finds himself voting with the most conservative Republicans because of the need to exercise more restraint on federal spending.

Feingold ducked commenting on one major Wisconsin issue. Asked whether he had a position on a proposed transfer of power over Milwaukee Public Schools to Milwaukee’s mayor, he said that it isn’t a federal issue and he isn’t going to get involved.

He also said he wasn’t making an endorsement in a potential Democratic primary for governor in 2010, but “I think the world of Tom” Barrett. Milwaukee’s mayor is expected to announce whether he is running for governor in the next several days. “I would have no hesitation supporting Mayor Barrett for any office he wants to run for, other than running against me in a primary,” Feingold said.

Feingold’s visit to the Law School was part of the “On the Issues” series led by Gousha. About 150 people attended the session.

David Ingram of the National Law Journal reports:

Ashcroft v. Iqbal, the 5-month-old U.S. Supreme Court decision that has become a thorn in the side of the plaintiffs bar, will get a Capitol Hill airing on Tuesday.

The House Judiciary Committee is scheduled to hold the first congressional hearing on the far-reaching May ruling, which raised the pleading standard for most civil complaints, making it more difficult to keep cases from being thrown out.

The hearing isn’t likely to be the last time Congress weighs in on the matter. Sen. Arlen Specter, D-Pa., has sponsored legislation to return to an earlier pleading standard, and he wields the gavel in a Senate Judiciary subcommittee.

Because so much is at stake for both trial lawyers and the business community, I would not be surprised if this is the first many salvos on what exactly must be proven to survive a Rule 12(b)(6) motion.  Additionally, because many of the lawsuits involved concern employment discrimination plaintiffs, this goes right to the heart of whether those complaining of discrimination, harassment, or retaliation in the workplace can get their case heard of the merits.

A trio of top Democrats from both chambers plan legislation aimed at rolling back a Supreme Court ruling they say makes it harder for plaintiffs to win age discrimination suits.

Tom Harkin , D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee, and Patrick J. Leahy , D-Vt., chairman of the Senate Judiciary Committee, said Tuesday they will introduce a bill to restore a less-demanding burden of proof for plaintiffs in age discrimination suits. Rep. George Miller , D-Calif., chairman of the House Education and Labor Committee, said he intends to introduce a similar measure.

The proposed legislation is a response to the Supreme Court’s June 2009 ruling in Gross v. FBL Financial Services that plaintiffs claiming disparate treatment under the Age Discrimination in Employment Act must show that age was the determining factor in the alleged discrimination, rather than just one of several factors . . . .

Under the proposed legislation, the burden would be on the employer to show it complied with the law once a plaintiff shows age discrimination was a “motivating factor” behind an employment decision.

What I particularly like about the Congressional response is that in announcing the legislation, Sen. Leahy quite rightly referred to the Supreme Court’s decision as an activist decision by conservative justices.

Of courses when I say that “Gross Goes Ledbetter,” I refer to the fact that President Obama signed into law the Lilly Ledbetter Fair Pay Act making it easier for workers to challenge wage discrimination, responding to the restrictive 2007 Supreme Court ruling in Ledbetter.

Although there are many interesting provisions in the Baucus Bill, including a requirement that individuals have health insurance coverage, the establishment of a health care exchange, proposed reforms for the private insurance system including not allowing exclusions for preexisting coverage, and expansion of the Medicaid program for the poor, I want to focus on three parts that trouble me that directly deal with current employee benefits law. 

First, the plan does not adopt a public option for health care.  Instead, it establishes state-based cooperatives to compete with private health plans.  I think this a huge mistake and such coops will be a failure from the start.  For the best explanation as to why, here is former Labor Secretary Robert Reich explaining why the public option is so superior to co-ops.

Perhaps even more disappointing from my perspective is that the Baucus Bill does not require employers to provide coverage to workers, like some of the House counterpart bills.  Instead, employers with more than 50 workers who do not offer coverage will have to reimburse the government for each full-time employee receiving a health care affordability tax credit in the exchange starting in 2013.

Two thoughts on this one. One, there is no reason to limit this to employers with 50 employers with more. That is the cutoff currently for the Family and Medical Leave Act, and it has left a huge number of workers without leave protection.  Similarly, this arbitrary cut-off will continue to leave millions of workers at smaller employers without health coverage. As long as we are going to stick with our unique employer-provided coverage, we should make sure all employees can get coverage through their employers.  The only other options is for these people to qualify through some other government program like Medicare, Medicaid, or Social Security.  Yet, those programs do not provide the necessary and timely health treatment that many employees need.

Second, why does this not start until 2013?  Assuming the bill passes in 2010, why should a vast number of workers suffer at these larger companies without healthcare?  Or put at little more forcefully, how many employees will die in those three years from that delay in providing coverage.

Needless to say, I sure hope that these two provisions are not in the health care reform bill that President Obama eventually signs into law.

The text of the bill, America’s Healthy Future Act of 2009, is available here.

Low-wage workers are routinely denied proper overtime pay and are often paid less than the minimum wage, according to a new study based on a survey of workers in New York, Los Angeles and Chicago.

The study, the most comprehensive examination of wage-law violations in a decade, also found that 68 percent of the workers interviewed had experienced at least one pay-related violation in the previous work week.

“We were all surprised by the high prevalence rate,” said Ruth Milkman, one of the study’s authors and a sociology professor at the University of California, Los Angeles, and the City University of New York. The study, to be released on Wednesday, was financed by the Ford, Joyce, Haynes and Russell Sage Foundations.

In surveying 4,387 workers in various low-wage industries, including apparel manufacturing, child care and discount retailing, the researchers found that the typical worker had lost $51 the previous week through wage violations, out of average weekly earnings of $339. That translates into a 15 percent loss in pay.

Part of the study’s findings were that employers of low-income workers were successful in intimidating them not to bring workplace claims, including worker compensation claims.

I actually think this study resonates with the current fight between unions and companies over the Employee Free Choice Act and the need for voluntary recognition of unions versus the need to keep secret ballot elections.

Really what this argument is all about is whether you are more concerned about union intimidation or management intimidation in the workplace.  I think, at least in the low income world, this study is further proof that employer intimidation is much more prevalent and impactful.  As someone recently put it to me: there is just something about an employer having the ultimate power of hiring and firing workers.

Here’s a taste:

TWO burning questions are at the center of America’s health care debate. First, should employers be required to pay for their employees’ health insurance? And second, should there be a “public option” that competes with private insurance?

Answers might be found in San Francisco, where ambitious health care legislation went into effect early last year. San Francisco and Massachusetts now offer the only near-universal health care programs in the United States . . . .

[W]e have seen how concern over employer costs can be a sticking point in the health care debate, even in the absence of persuasive evidence that increased costs would seriously harm businesses. San Francisco’s example should put some of those fears to rest. Many businesses there had to raise their health spending substantially to meet the new requirements, but so far the plan has not hurt jobs . . . .

So how have employers adjusted to the higher costs, if not by cutting jobs? More than 25 percent of restaurants, for example, have instituted a “surcharge” — about 4 percent of the bill for most establishments — to pay for the additional costs. Local service businesses can add this surcharge (or raise prices) without risking their competitive position, since their competitors will be required to take similar measures. Furthermore, some of the costs may be passed on to employees in the form of smaller pay raises, which could help ward off the possibility of job losses. Over the longer term, if more widespread coverage allows people to choose jobs based on their skills and not out of fear of losing health insurance from one specific employer, increased productivity will help pay for some of the costs of the mandate.

In case you think this is all a bunch of liberal, Democratic mishigosh, one of the authors of this op-ed happens to be non-other than William Dow, a senior economist who worked for President George W. Bush’s Council of Economic Advisers.

In other words, increasing evidence is out there that health care reform with a public option and an employer pay or play mandate might be just what our system needs to rein in health care costs while at the same time providing health insurance to a much larger segment of American society.

[Cross-posted on Workplace Prof Blog]

  We are very far removed from the time when the residents of a small New England town could gather together on an occasional basis and make communal decisions that governed their daily lives.  Today, members of congress are expected to use these forums to report back to their constituents, to answer questions and solicit concerns, and then to return to Washington, D.C. with a greater sense of the priorities of the voters.  This is not exactly direct democracy in action, along the classic New England model, but it is the closest that most of us can claim to actually participating in the machinery of our own government.

 At many of these town hall meetings, ostensibly intended to address the topic of health care reform, the proceedings have been anything but an exemplar of participatory democracy.  I am not referring to the “exaggerations and extrapolations” of the pending health care reform legislation that some attendees and some Republican opponents of the bill have espoused.  Trying to prove that something is a lie is like chasing your tail.  The task of separating truth from fiction is simply a never ending part of the human condition.  Nor am I particularly concerned over the shouting and the ill manners of many attendees.  I cannot think of any period in our nation’s history when politeness was the norm in political debate.

 Instead, my concern is with the future of democracy itself.  In 1922, in his book Public Opinion, Walter Lippmann presented a pessimistic view of the public’s ability to govern itself through our nation’s democratic process.  Three years later, he followed up his critique in the book The Phantom Public.  If anything, the sequel held out even less hope for the meaningful participation of the general public in the shaping of the government policies that have such a dramatic impact on their lives.

 Ideologically, Walter Lippmann was a difficult person to pigeonhole.  He began his journalistic career as an avowed liberal, and over his long life he supported and advised presidents of both political parties.  After his death, his books were reprinted by the “Library of Conservative Thought.”  He was Jewish, but he embraced the concept of natural law and wrote admiringly of the moral authority of Catholicism.  Ronald Steel, in his magisterial biography Walter Lippmann and the American Century, points out the “deep vein of conservatism running through [Lippmann’s] brand of liberalism.” (Steel, p. 233).

 Here is how Steel summarizes Lippmann’s central critique of the modern political process:

 Political science [had previously] focused on how decisions were made – by political parties, voting, the branches of government.  In Public Opinion, Lippmann went behind such mechanics to scrutinize the centerpiece of democratic theory: the ‘omnicompetent citizen.’  That theory assumed that the average citizen, being rational, could make intelligent judgments on public issues if presented with the facts. . . .

  Now, however, [Lippmann] had to abandon that faith. . . .  People see what they are looking for and what their education and experience have trained them to see. ‘We do not first see, and then define, we define first and then see,’ Lippmann wrote.  Since no man can see everything, each creates for himself a reality that fits his experience, in effect a ‘pseudo environment’ that helps impose order on an otherwise chaotic world.  . . . 

 Steel goes on to explain the connection that Lippmann made between his insights about human nature and the mechanical operation of the political process:

 . . . For most people, the world had become literally ‘out of reach, out of sight, out of mind.’  This posed no serious problem in a small community where the decisions each citizen had to make rarely went beyond what he could directly experience.  This was the world that the eighteenth-century fathers of democratic theory had written about.  But modern man did not live in that world.  He was being asked to make judgments about issues he could not possibly experience firsthand: the tariff, the military budget, questions of war and peace.  What was reasonable in a Greek city-state was impossible in a modern technological society.  The outside world had grown too big for the ‘self-centered man’ to grasp.  This posed a political dilemma, for classic democracy ‘never seriously faced the problem which arises because the pictures inside people’s heads do not automatically correspond with the world outside.’  They did not correspond for a number of reasons—stereotyping, prejudice, propaganda.  The result was to erode the whole foundation of popular government. . . .

 . . .  The Enlightenment conception of democracy—based on the assumption that every man had direct experience and understanding of the world around him—was totally inadequate to a mass society where men had contact with only a tiny part of the world on which they were being asked to make decisions.  What was possible in an eighteenth-century rural community was unworkable in great cities.  

Steel, pp. 180-182.

 Lippmann concluded, therefore, that the general public was incapable of directing the course of events on any rational basis and that it was folly to attempt this.  At best, the public had the ability to identify those persons or groups who were capable of making important decisions by either voting them in or out of power.  It is not so much that the members of the general public lack competence, it is that the general public lacks sufficient information with which to exercise any sort of rational thought process.

 Lippmann’s theories gave rise to the entire industry of public relations, they revolutionized the concept of advertising, and they greatly influenced every interest group who has since sought to influence the public’s desires and beliefs by “putting pictures in our heads.”  All of these forces in our society eschew rational argument in favor of molding opinion through the use of the symbols and the stereotypes that they believe the general public uses to understand reality.

By and large, the Republican Party has embraced Lippmann’s theories of political science more than the Democrats.  When Gary Wills wrote that Ronald Reagan asked the public to “reject historical record for historical fantasy” (Innocents at Home p. 387), or Henry Fairlie charged that Reagan offered voters an “escape from the present to the idyllic past” (Bite the Hand That Feeds You, p. 190), they were both marveling at Reagan’s ability to glide above the facts and connect with voters on a symbolic level.  One can interpret the political rise of Sarah Palin as a similar achievement.

 The Administration of George W. Bush unabashedly employed Lippmann’s theories of politics.  When reporter Ron Suskind quoted a senior advisor to President Bush speaking dismissively of the “reality-based community,” which embraced the illusion that solutions to problems arise from a study of discernible reality, the advisor was channeling Lippmann.  ”That’s not the way the world really works anymore,” the advisor told Suskind. “[W]hen we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.”  The main political sin of George W. Bush was not his attempt to manipulate reality, but his failure to successfully hide what he was doing.  

 While Lippmann’s genius has been universally recognized, there has always been a large contingent of liberals and progressives who have rejected his pessimistic conclusions.  For decades, they chose to focus instead on the expansion of the coalition of democratic interest groups– through the addition of women, minorities and the gay and lesbian community– as the key to enacting liberal legislative reforms.  More recently, liberal elements within the Democratic Party have seized upon technology, and the internet, as the key to building broader support for their agenda.  The “Great Health Care Debate” may finally convince these doubters that Lippmann was right all along.

 The town hall meeting experience demonstrates that many liberals continue to cling to the idea of an objective reality.  The Obama Administration approached the issue of health care reform as a process of rational decision-making, where a variety of interest groups would reach an accommodation based upon mutual self-interest.  While President Obama did not initially plan on using town hall meetings in order to promote health care reform, no one in his Administration seemed overly concerned over the prospect of the general public weighing in during the congressional recess.  Lo and behold, when the views of many of the attendees at the town hall meetings were solicited, these views revolved around death panels and the fact that any form of government sponsored health care is inherently evil (unless it is offered by Medicare or the Veterans Administration, both of which are sacrosanct).

Health care reform is too complicated an issue for any lay person to understand.  As a result, the general public falls back on the pictures in our heads to make sense of it all.  This facet of human nature makes us all vulnerable to powerful groups who gain and hold on to their power precisely because they are exceedingly good at creating those pictures.  Lippmann also recognized that when government policy gets too complicated for the average person to understand, it risks letting loose “all the submerged antagonisms within the state.” (Steel, p. 227). 

Corporate America, in contrast to the general public, participates in the legislative process quite successfully via the lobbying process.  It can afford to hire specialists with the knowledge and experience to direct legislative priorities and to influence the votes of legislators.  Without any real competition from a general public seeking to advance its own interests, it is clear that the legislative process has been captured by corporate interests.  Reform measures intended to address this imbalance, either by decreasing corporate influence through limits on campaign contributions or by increasing lawmaker independence through redistricting efforts, are too complicated themselves for the general public to understand.  If the general public cannot think rationally on the question of health care reform, what hope is there that it can rationally address a reform of the political process itself?

The fundamental question is whether we still have the capability to govern ourselves or whether we the people are destined to have our fates determined by elite interest groups.  Lippmann thought that the modern world was too complex for the former alternative.  He placed his hope in the education and morality of the elite, confident that they would act for the common good and not selfishly.  If that is where our nation’s best hope lies, then I am truly depressed.

Here’s an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the Fourteenth Amendment: 

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well . . .

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court’s analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform — as I said, I’ve hesitant of prejudging and saying they will or won’t because that will be what the parties are going to be arguing in the litigation. But it is . . .

FEINGOLD: Well . . .

SOTOMAYOR: I’m sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court’s more recent jurisprudence in incorporation with respect to other amendments has taken — has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court’s decision how it looks at a new challenge to a state regulation.

“What is the test” is a question that she could and should answer. Her response is “well, there’ll be one” and the recent jurisprudence is “more recent.”

Here is another response to a Feingold question.

FEINGOLD:

…

So, I’d like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court’s decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It’s looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

Her understanding of the cases is that they were cases.

When Sarah Palin responded to questions by playing a game of Scrabble, folks wondered whether she knew what she was talking about. Here we assume – correctly, I suspect - that Judge Sotomayor is just taking the traditional evasion of Supreme Court nominees to a new level. When you have a 60 vote majority, it is how you play not to lose.

But does this vitiate the Senate’s “advise and consent” function? It may if we believe the hearings should be a vehicle through which it exercises that function. There is no way that anyone, based on these hearings, could know whether Judge Sotomayor is of Supreme Court or, for that matter, district court caliber. It’s an exaggeration, but only a bit of one, to say that, based only on the hearing, I don’t even know if I’d hire her as an associate.

Of course, her answers at the hearings are not all we know. She has a career to point to. She graduated from a top law school and worked as a prosecutor and at an excellent law firm She has functioned as a competent federal judge for many years.

Nor is it evident that hearings will lead to better consideration of a nominee. While all of the Senators’ questions are not incomprehensible or ill conceived, many are both. After all, hearings including interrogation of the nominee have not always been thought to be part of the confirmation process. Justice William O. Douglas, during his hearing in 1939, waited outside the hearing room and sent in a message asking if there were any questions. There weren’t. (There should have been.)

But this was during a time when people really did seem to believe that judging was a mechanical function and that the measure of a judge was pretty much limited to his objective qualifications. Justice Douglas, ironically, did more than most to step on that belief.

Given the fondness of the Congress (and the Senate in particular) for its prerogatives, I can imagine a desire for pushback. Professor Wasserman worries that it may take the form of impeachment when someone like Judge Sotomayor rules in a way that is inconsistent with what was said at the hearings. He says that such an effort is unlikely to get out of the House but that it would be an awful development. I agree.

The only real way for the Senate to pushback is to refuse to confirm someone who is insufficiently forthcoming at his or her hearing. But, in our current circumstance of relatively high political and legal division, its hard to imagine that either the Democrats or Republicans would place, depending on your view, institutional privilege or constitutional function, above a vote on the Court.

And that’s the real story behind this hearing. Quite apart from the affirmations to just “apply the law” or to embrace the lessons of one’s experience and in spite of the characterizations of Judge Sotomayor as a technician or an activist, everyone knows — or thinks they know — how she will vote on a variety of issues. Like Chief Justice Roberts and Justice Alito before her, that is why she was nominated. It is why she will be confirmed. Whether everyone was right will remain to be seen.

Cross posted at Shark and Shepherd.

My summer project was to seek an answer to this mystery.  I chose three books to read that I thought would provide some insight into the ideological fault lines that seem to run through every facet of our daily lives (and indeed seem to run through this very blog).  What follows are the lessons that I have learned.  I suppose other readers might draw different lessons.  My recommendation is that you read these books for yourself.

My first goal was to understand why the “big government” charge persistently leveled by Republicans against the Obama Administration seems to resonate with some people, but not with others.  Some clues are provided by Gary Wills in A Necessary Evil: A History of American Distrust of Government.  Writing some ten years ago, Wills documents the origin and growth of the arguments against “big government” and in favor of individualism and local control over the course of our nation’s history.  Over time, he argues, these disparate strands of thought have coalesced into a more general anti-government creed.  The specifics of this creed – the belief that amateur, local and voluntary conduct creates greater public well being than professional, centralized, and mandatory regulation — resembles the political philosophy currently espoused by many of President Obama’s critics.

Wills locates the roots of the anti-government attitude in some of the myths surrounding our nation’s founding (i.e., that the Revolutionary War was won by amateur minutemen rather than by the more regimented Continental Army).  He also makes the observation that anti-Federalist rhetoric on the meaning of the Constitution is often accepted unquestioningly as an accurate statement of the meaning of the text.  In addition, Wills identifies several disparate strands of American thought that combine with both myth and an ambiguous constitutional text in order to form a more comprehensive anti-government philosophy.  He identifies these strands as being comprised of nullifiers, seceders, insurrectionists, vigilantes, withdrawers and disobeyers.  Wills points to examples of these types on both the left and right side of the political spectrum (including, for example, Vietnam-era student protesters).

While all of these aspects of anti-government ideology have deep roots in our nation’s history, they are nonetheless inconsistent with what I consider to be the two central characteristics of modern America.  A nation governed upon these principles cannot enjoy either a truly nationwide market in goods and services or a global military presence.  Both of these characteristics are dependent upon the existence of a centralized and effective federal government.  In fact, this was the main premise of the Federalist Papers.  A small federal government, or one that is purposefully rendered inefficient or weak, can be attained only at the expense of these characteristics.

Within recent memory, many Republican leaders embraced the ideal of a centralized, specialized and efficient federal government as necessary in the realm of foreign affairs in order to confront a) the menace of Communism and b) the threat of extremist Islam.  Is it any surprise that the voting public would go one step further and accept the idea that a centralized, specialized and efficient federal government is also useful to confront the potential collapse of the nation’s economic system, or the dysfunctional health care system?

In fact, the anti-government posture is a dubious choice as the defining ethos of the Republican Party in the Age of Obama.  In every circumstance, from the anti-Federalists, to the Confederacy, to the Vietnam protesters, the anti-government position has ultimately lost the debate for the hearts and minds of the broader population.  This is not a roadmap for electoral success.  Moreover, when the Republican Party does succeed in recapturing control of the federal government (as it inevitably will), the Party may find it difficult to govern whilst riding the tiger of anti-government fervor that it currently embraces.

Future electoral success may require the leadership of the Republican Party to confront and reject at least one segment of this anti-government ideology: explicitly repudiating vigilantism in favor of strict law and order, for example, or repudiating any and all secessionist movements as unconstitutional.  I am not suggesting that Republican leaders explicitly support either of these two branches of anti-government activity, but merely that they have failed to definitively distance the ideology of the Party from them.  Only by selectively pruning the underpinnings of the overall anti-government movement will the Republican Party be able to grow back to its former levels of support.    

I would like to believe that the ideological chasm between the two major political parties can be bridged.  World War II, the Communist threat, and the Civil Rights movement managed to unite conservative Democrats and liberal Republicans for decades, and led to many bi-partisan legislative achievements during the Sixties and Seventies.  Yet over the last 20 years our nation has become increasingly divided along partisan lines.  What happened?  The easy answer is that conservative Democrats and liberal Republicans don’t get elected in meaningful numbers anymore.

Ronald Brownstein tells the story in a book that has obviously spent some time on Barack Obama’s nightstand: The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America.  To those who view partisanship as the natural state of American politics, Brownstein offers a rebuke.  We did not get where we are by accident.

“Good government” reforms, such as the elimination of the congressional seniority system, actually served to diminish the influence of moderates by directing committee assignments to loyalists.  The public also began to hunger for more sharply defined differences between the political parties.  After a “stay the course” consensus in Congress that persisted through the middle of the Twentieth Century — maintaining but not radically expanding the federal bureaucracy instituted by the New Deal — voters lost the ability to differentiate between Democrats and Republicans.  This restlessness played to the advantage of candidates that drew stark ideological distinctions with their opponents.  Finally, the eroding legacy of the Civil War had an impact, as a new generation of Southern voters chose to identify with the Republican Party rather than to follow their parents in rejecting the Party of Lincoln in favor of conservative Democrats.

Today, an elected representative who consistently toes a partisan party line is guaranteed important committee chairmanships, the lack of a primary opponent (and therefore virtually assured re-election from a gerrymandered district), and a fountain of campaign contributions from outside groups with narrowly defined special interests.  In contrast, an elected representative who votes their mind, with the result that their votes cross party lines on more than a modicum of occasions, gets none of these advantages.  Is it any wonder that independent thought is in such short supply in Washington?

None of these trends are new, but Brownstein charts their growth and development so clearly that it is impossible to conclude that our nation currently enjoys a healthy democracy.  It is therefore encouraging that President Obama began his Administration with a demonstrable effort at bipartisanship.  The President has also thus far turned a deaf ear towards the extreme liberal wing of his party, which daily calls on him to use the Democratic majority to ram their priorities through Congress.  For example, I am personally disappointed at his cautious expansion of federal support of stem cell research, while the gay and lesbian community is expressing its own increasing frustration with the Administration.

President Obama’s long-term success is tied to his ability to resist satisfying his own supporters.  However, lest we be too optimistic, Brownstein’s book documents how previous presidents (for example, Franklin Roosevelt) also began their presidencies with a good faith effort at bi-partisanship only to abandon that policy over time.

The most depressing explanation for why Democrats and Republicans disagree is that it is all in our minds.  In his book The Political Mind, George Lakoff argues that human minds are wired differently.  Progressives exalt empathy as the highest moral value: caring for others and acting on that care.  Conservatives exalt obedience to authority as the highest moral value: personal responsibility and discipline allow us to obey the rules that lead to happiness.  It is the battle between competing moral systems, rather than an attention to rational arguments or logical reasoning, that determines the political choices we make.  Rather than remain locked in a fight to the death, where we refuse to recognize the legitimacy of our opponents’ definition of morality, Lakoff urges all of us to call a truce and explicitly include both of these moral frameworks as equally valid aspects of the policy debate.  If we do so, he believes that the public might choose to pursue empathy as the highest value in some policies while simultaneously choosing to pursue obedience as the highest value in others.  Lakoff thinks that the public will eventually recognize the futility in seeking to impose one value system in all cases to the exclusion of the other.

Would this work?  I believe that Lakoff underestimates another essential characteristic of the human mind: our competiveness.  The will to win is a strong one, even if the cost of victory is our own destruction.  Ultimately, we fight because it is in our nature.  

Senator Schumer’s bill is best understood as embodying the principle that, when it comes to corporate governance, more democracy is always better.  The assumption is that corporate governance will improve in tandem with increased shareholder voting power.  I question that assumption.

First, more democracy might actually lead to worse directors. 

The transformation of director elections into real voting battles, with the attendant risk that a management-backed candidate might face serious opposition and possible defeat, could very well deter desirable candidates from subjecting themselves to the process.  A director position already entails a risk of legal liability, and the days of “figure-head” directors who have modest demands placed on their time are long gone.  The risk of an embarrassing election defeat only adds to the long list of reasons that well qualified candidates already have for declining a nomination to the board.

Second, contested board elections assume that shareholders can cast an informed vote.  In the past, the cost of gathering and disseminating information to the voters deterred all but the largest shareholder activists from mounting a challenge to board nominees put forth by management.  This ensured that the voters heard only the pro-management side of the story prior to an election, unless activist shareholders succeeded in a time-consuming and expensive effort to include their views in the company’s proxy materials.  The Internet has changed this equation by making information-gathering and communication on behalf of opposition candidates more cost-effective.  But it is not clear that an explosion of information both in favor and against a particular board candidate will result in a better-informed shareholder electorate.  Our experience under the political model suggests that multiple sources of contradictory information can lead to voter confusion or even apathy.

Finally, and most significantly, the time when reforms to the shareholder voting process could make a meaningful difference to corporate governance has already passed.  The direct ownership of stock by American households has declined from 91 percent in 1950 to just 32 percent in 2007.  In contrast, in 1950, financial institutions such as mutual funds and retirement plans owned only nine percent of all stock, while in 2007 that figure was 68 percent.

Today, the majority of votes in a corporate election are cast not by millions of individual shareholders, but rather by a small class of professional money mangers.  These managers of large financial institutions do not behave like the prototypical private individual shareholders.  In particular, the short investment horizon of these money managers makes them less motivated than private individuals to use their voting rights to demand improved corporate governance. 

My colleague Nadelle Grossman has recently written about the problem of “short-termism” among institutional investors and its impact on the structure of corporate governance.  I recommend her piece, which can be found here.  I merely would add a couple of points.

As mutual fund pioneer John Bogle has pointed out, money managers have little or no incentive to support board candidates put forth by activist shareholders against candidates backed by management.  From 1950 until 1965 the average portfolio turnover rate at a mutual fund was 17 percent per year.  From 1990 through 2005, the turnover rate averaged 91 percent per year.  When you replace virtually your entire investment portfolio each year, aggressive participation in proxy contests and director elections concerning the individual companies in your portfolio is a pointless exercise.  What good does it do to improve the machinery of shareholder democracy if fewer shareholders see any connection between their own long-term interest and the outcome of a particular board election?

Moreover, so long as they generate acceptable investment returns for the beneficiaries of their pension funds and mutual funds, the managers of these financial institutions are free to ignore the interests of the broader universe of shareholders.  Financial institutions can and often do contact management directly when they have concerns about the governance of a particular company in their portfolio, bypassing other shareholders, and they may negotiate side deals with management that address the financial institution’s interests without considering the interests of other shareholders. The law leaves largely undefined the legal duties that mangers of financial institutions might owe to their fellow shareholders.         

Given the dominance of institutional investors among today’s electorate, and the ability of institutional investors to bypass the electoral process in favor of other means of influencing corporate policy, Senator Schumer’s bill may be arriving about six decades too late.

In recent testimony before the Senate Judiciary Committee, Subcommittee on Crime and Drugs, Assistant Attorney General Lanny Breuer indicated that the Administration “believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” It is too soon to tell whether Congress will completely eliminate the disparity, as the Justice Department appears to advocate, or merely narrow it to, say, 10:1 or 20:1, as the Commission and some legislators have previously recommended. Whatever it elects to do, Congress should consider retroactive application of the statutory change. Experience under the Commission’s recent crack guideline amendment shows that courts are well-equipped to apply the change to existing sentences.

Federal law contains a provision, 18 U.S.C. § 3582(c)(2), permitting courts to reduce prison terms based on sentencing guideline ranges subsequently reduced by the Sentencing Commission. Generally, such motions are easy for a federal district court to decide. The judge calculates the guideline range based on the amendment, then determines whether a reduction is warranted given the nature of the offense, the character of the defendant (including his post-sentencing conduct), and public safety considerations. The court does not conduct an entirely new sentencing procedure; it simply determines whether a reduction consistent with the amendment is warranted. In the Eastern District of Wisconsin, many, if not most, such motions came to the court based on stipulations between the parties that a reduction was warranted. To their credit, the United States Attorney’s Office and the defense bar worked together to ensure a smooth flow of motions. It appears that, despite doomsday warnings from certain quarters, most courts handled the retroactive amendment with relatively little difficulty.

Congress could ensure that a statutory change in the 100:1 ratio applies retroactively by directing the Commission to amend the guidelines consistently with the new ratio — whatever it might be — and to list that amendment among those applicable retroactively. Courts could then reduce sentences consistently with the new ratio. Through this process, Congress could provide a measure of sentencing fairness far too long denied

His post takes off from the recent ERISA preemption case of Golden Gate Restaurant Association, in which the Ninth Circuit recently held that a San Francisco ordinance demanding employers provide health benefits is not preempted by ERISA.  This holding is contrary to many of the cases in this area (and critiqued by ERISA luminaries like Ed Zelinsky) and the case is currently being considered for en banc review.

Here’s a taste of Rick’s insights:

San Francisco is now locked in a struggle with business over whether subnational governments can mandate that employers provide their employees with health care benefits. The employers are claiming that ERISA preempts the mandate, and their argument illustrates the insidiously anti-democratic nature of preemption arguments. As a matter of policy, I tend to agree that funding public benefits like health care through mandates on employers is foolish. Such a finance mechanism interferes with the mobility of labor and discourages job creation. Far better, it seems to me, to provide health benefits through general taxes not incident on employment.

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber.

Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the ‘burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one’s local branch complies with the local complying health care law is close to zero . . . .

For those who care about ERISA, why do I claim that preempting San Francisco’s ordinance is madness? The Restaurant Association is essentially making an effects-based preemption argument, asserting that SF’s ordinance effectively requires employers to change their ERISA benefits plans to comply with San Francisco law. The folly of this argument, however, is that it proves too much: Lots of local laws might have effects on employers’ incentives to provide contractual benefits. Medical malpractice lawsuits under state tort law might drive up the cost of insurance, leading the marginal employer to reduce employees’ health care benefits. Local zoning law could — indeed, does — increase housing costs, which increases the relative attractiveness of housing benefits to employers. But no lawyer in their right mind would argue that these state and local laws “relate to” ERISA benefits plan, because these laws’ obligations are not triggered by the existence of ERISA-covered employment benefits . . . .

Any other theory will draw the courts into a theory of preemption that could suck every state and local regulation of business into the maw of ERISA preemption — an outcome utterly unintended by anyone in Congress in the 1970s, when ERISA was enacted. For courts to create such centralization without Congress’ assent is, as I noted above, an outrage against common sense and subnational democracy. As I have argued elsewhere (Against Preemption: How Federalism Can Improve the Federal Legislative Process, 82 N.Y.U. L. Rev. 1 (2007)), ERISA preemption has also absolved Congress of the duty to confront the problem of how health care benefits relate to employment. Preemption, in short, destroys both subnational and national democracy . . . .

Although I have not agreed with Rick on other topics like the manner in which public pensions have contributed to NYC’s fiscal crisis, I think he is right on here.  From a more technical ERISA standpoint, I wrote on the Ninth Circuit opinion back in October:

I am now persuaded that the 9th Circuit’s ruling [in Golden Gate] is consistent with the Travelers precedent from 1995 that unless a law is historically a matter of local concern, there should be a presumption against finding ERISA preemption. It seems to me that courts have read ERISA incorrectly in this regard in past cases.

My epiphany came in writing my new paper on the intersectionality of ERISA preemption and remedial provisions.  In order for many plaintiffs not to be deprived of the remedy that they deserve, the preemption provision must be strictly construed according to the language in Travelers.  This reading will ensure that defendant employers are not able to inappropriately use ERISA as a shield against meaningful health care reform or appropriate types of relief in ERISA cases.

Rick argues for a more limited ERISA preemption doctrine based on federalism principles, and I argue for the same limited doctrine based on the employee-oriented, remedial nature of the statute, but we come out in the same place.  I am with Rick in that I hope the en banc Ninth Circuit understands the compelling arguments that abound to allow local municipalities to democratically decide what responsibilities employers in their jurisdictions have for providing their employees with health care benefits.

My thought is that if we allow federalism to flourish in this context, many jurisdictions will force Congress’s hands to reconsider how to protect benefits for employees under ERISA.

This is a transcript [from] the Al Sharpton Radio program earlier [yesterday].

Al Sharpton: Yeah, well, what I don’t understand about it which is why I’m in the campaign is why wouldn’t those of us who support workers being protected, why would we not want their privacy protected.  I mean why would we want them opened up to this kind of possible coercion?

Sylvester [Smith]: Well, and that’s the 50 million dollar question, Rev. Sharpton, it’s a question we’ve been trying to answer but we think that the heart of this issue is not about protecting workers, the heart of this issue is about the decline of union membership that’s been going on in this country for the past thirty years.  The unions at this point are in a death spiral and much of it’s tied to the exportation of production jobs from this country to other countries and the unions…

Al Sharpton: Yeah, the outsourcing, well I’m all for, and as well for those who don’t believe in the right to organizing, clearly I’m for any legislation to give any state the right to organize, but I’m talking about specifically where workers are not protected from coercion, in terms of these card-checks that you talk about, and as arbitration because explain, Charlie King, to me the whole question that you raised, if you have a federal arbitrator who says that this is the deal, even when the union only established out of card-check, is the deal for two years, and there’s nothing you can do about it, I mean, a lot of the business that we afford for the African American community to get contracts and sub contracts and all.  They could face some very serious problems here.

Sharpton appears to worry that the EFCA could circumscribe employee’s privacy rights and also first contracts being hoisted upon minority-owned businesses by outside arbitrators.

There is a lot to say in response, and I hope that Rev. Sharpton will listen to the other side’s explanation about where the real coercion and lack of privacy takes place — in the workplace from the employer. I also hope someone explains to him how interest arbitration works and that arbitrators do not just force employers to agree to onerous collective bargaining agreements. Interest arbitration takes materials and evidence from both sides and then comes up with a compromise that both sides can live with.

My fear is that if Rev. Sharpton is confused about the benefits of EFCA, then unions and their allies have some hard work ahead explaining to legislators — especially Democratic ones — how this law will work and what abuses it will prevent.

Cross posted at Workplace Prof Blog.

Here’s a taste:

The EFCA . . . would provide employees with an alternate method of creating a recognized union — the “card check.” When a majority of employees signs a card supporting self-organization, a union is formed that the employer is required to recognize. (Card check is allowed under current law, but employers are free to ignore it).

[Joseph] Gagnon’s[, who previously against the EFCA in the same paper] critique of the EFCA is a familiar one, and it goes something like this: By permitting card check, the EFCA would undermine the “truly free” choice that secret-ballot elections provide.

Without the secret ballot, union organizers would allegedly be free to coerce their fellow employees.

In fact, this critique featured prominently in a recent (and absurd) employer-sponsored ad campaign featuring a Sopranos actor posing as a mob boss pressuring employees. Fortunately for us all, the New Jersey crime families have yet to make significant inroads into our nation’s service industries. Sleep tight America.

In all seriousness, Gagnon’s bleak portrait is as imaginary as the Sopranos commercial. The EFCA will not lead to coercion — it will end it.

The most critical point is that current elections are anything but free and fair. They are one-sided affairs dominated by the employer.

Indeed, to call them “elections” is a bit generous given the various forms of coercion that employers can and do apply to influence the vote . . . .

There is also little reason to worry that the EFCA would lead to coercion by fellow employees. Most obviously, unions have strong incentives not to intimidate or alienate employees. If unions lose employees’ loyalty, they can be disbanded in a year. In any event, the reality is that employees have far more to fear from employers who control both their paychecks and working conditions than from their fellow employees.

The broader policy debate about the benefits of unions is, of course, a different question. Personally, I believe that strong unions are the best way to lift wages and to restore a vibrant American middle class that enjoys real benefits. Others disagree, and people can have good faith arguments about these issues. But regardless of one’s position on unions generally, we should not pretend that the modern election system is free and fair. At the very least, the EFCA deserves an honest debate based on the facts.

I and other supporters of the EFCA have made similar points and I have highlighted the degree of coercion employers have over employees in the workplace in advocating for state passage of Worker Freedom Act legislation, which would prohibit employer captive audience meetings.

I similarly don’t see WFA laws as against First Amendment values, as the prohbition does not limit speech, but only the conduct of forcing employees to listen to anti-union invective at pain of losing their jobs.

Cross posted at Workplace Prof Blog.

Does the government have an interest in discouraging the formation and spread of such beliefs? If so, what can it do to further that interest?