What is Conservatism?

November 12, 2008

I’ve been hearing a lot about where this country is politically and I have to confess that I do not understand much of what is being said. Yesterday I heard a Republican say that “America is right of center.” I sincerely do not understand what that means. I presume that it was intended to mean that Americans support the Republican agenda, but the election offered little to support that position and polls uniformly show that the majority of us support the political issues advanced by so called “liberals” such as opposition to the Iraq war, health care revision, regulation of financial institutions, and establishing a trade balance.

It seems to me that the notions of conservative and liberal are indistinct to say the least with conservatives proposing dramatic changes to the society at least over the last eight years (I’m thinking tax reduction during a war, the “Bush Doctrine” which permits attacking other countries that might be a threat in the future, domestic warrantless surveillance, rendition, Guantanamo and the related human rights issues, abdication of federal oversight of financial institutions, stuff like that) and liberals advocating a return to a balanced budget and trade balance, and rolling back many of the recent changes implemented by the administration.

Another instance of this confusion about what is conservative and what is liberal is the recent Supreme Court case, argued Tuesday, in which the Court heard arguments about the FCC’s right to penalize “fleeting profanity.” The FCC for example fined PBS for airing interviews with old blues men who sometimes used the “s” word.

During oral argument it appeared that the “conservative” judges favored upholding the FCC’s right to control the use of any bad words, while the liberals seemed to disfavor this relatively mild form of censorship. In the courts conservatism is not marked by a philosophical opposition to governmental intrusion into our lives, as conservative judges tend to favor this type of censorship, to favor expansion of the police power and generally to disfavor using civil rights to limit the powers of government. At least in cases involving these competing interests the conservatives are more likely to be on the side of the government. On the other hand when government interferes with business, they are more likely to be on the side of business and the limitation of government.

This reminds me that when the constitution was adopted there was no bill of rights, to Thomas Jefferson’s great disappointment. The conservatives, who generally had opposed the inclusion of a bill of rights, coalesced into the Federalist Party which favored a strong federal government. Federalists were also much more pacifist than Jefferson’s following. I guess the conservatives on the bench take inspiration from John Adams and the Federalists at least in part. The conservatives of that era were for radical changes in the government to centralize and strengthen the power of the federal government.

The just finished presidential election illustrates the blur between conservative and liberal, as these terms are commonly used. McCain could not effectively distinguish his policies from those of Bush. McCain could not identify any bright lines that distinguished his policies from Obama and appealed to the voters. Eventually he seemed to stake his campaign on “character” issues, which to some degree is a euphemism for personal attacks. He did this is substantial part because he could not find the “right of center” where Republicans say most of us reside.


McKenna’s Suits Against the Republican Party and BIAW

October 7, 2008

Yesterday’s entry about the lawsuit against the Republican Party drew a comment that warrants notice. James Tierney of Columbia Law School’s National State Attorney General Program saluted Rob McKenna’s decision to bring the lawsuit against the Republican Party. I perhaps did not call attention to my recognition of this decision as a commendable action. Earlier I praised McKenna for suing the B.I.A.W., a major Republican contributor.

Mr. Tierney says that it was appropriate for the Attorney General’s office to bring the action instead of having an independent law firm pursue it. This is certainly something beyond my expertise, but the decision does at least raise a question of a conflict of interest. Given the wide ranging responsibility of the Attorney General’s Office, I am sure that this comes up with some frequency and that it has been adequately resolved in terms of professional responsibility.

My question is that given the appearance of what might commonly, not professionally, be viewed as a conflict of interest, the A.G.’s decision not to pursue immediate action, as is sought in the lawsuit by the two former state supreme court justices, is politically questionable. The citizen suit makes it appear that the A.G.’s office might be going lightly on the case by not seeking immediate remedies.

I should emphasize that there probably is a perfectly sound basis for not seeking the relief sought in the citizen’s suit. In fact the citizen’s suit asks the court for emergency permission to gather evidence so the matter can be decided shortly. The A.G.’s office may very well have determined that there was no such evidence or that the search for such evidence was inappropriate in light of the immanence of the election.

Much of this speculation, however, might have been avoided by hiring outside counsel to pursue the lawsuit. There is certainly nothing impermissible about the Attorney General’s office handling the case, but in the emotional charged context of this election, it may have been prudent to avoid the faintest question about the role of politics in the decisions regarding the litigation.


Washington Republicans in Legal Quagmire

October 6, 2008

The plot thickens. Last week I discussed the Public Disclosure Commission’s decision that the Washington State Republican Party was illegally financing attack ads against Christine Gregoire. The P.I. last week reported that there was evidence that Dino Rossi was complicit in this endeavor. The finding about the Republican Party was handed by the Public Disclosure Commission to the Republican State Attorney General for enforcement procedures. At the end of the week nothing had been done, at least as far a I could tell.

I also reported earlier last month that the Attorney General had refused requests that he recuse himself, and had filed a lawsuit against B.I.A.W., the notorious Republican attack machine, for violating campaign financing laws. I provided a copy of the Attorney General’s complaint which by its terms would not even require a hearing until long after the election.

Apparently a couple of citizens had had enough of political games involving illegal campaign practices. These two citizens happened to be retired state Supreme Court justices, Utter and Ireland. They filed a lawsuit against the B.I.A.W. that required immediate action instead of waiting until after the election.

The lawsuit calls for an immediate temporary restraining order prohibiting B.I.A.W. from further campaign activity and mandates court hearings in a couple of weeks. The complaint alleges that, counting all the illegal campaign funds, the B.I.A.W. has already exceeded lawful financing limits.

The lawsuit filed today is an extraordinary move, apparently necessitated by the Attorney General’s refusal to take any immediate action. The suit is actually filed by citizens on the Attorney General’s behalf, something that is rarely done and ordinarily would not be done unless the Attorney General refused to, or could not, perform a duty of his office, i.e. the enforcement of campaign financing laws.

But the story does not end there. Today the Attorney General announced that on Friday he had sued the Republican Party for campaign violations. The complaint, which was rather brief, by its terms sought no pre-election relief with the trial set in 2010.

This whole series of events reflects poorly on the Attorney General’s Office and if it turns out that the citizen suit is meritorious, the Attorney General’s Office will look very bad indeed. The fact of the suit suggests a lack of confidence in Republican Rob McKenna’s nonpartisanship.


Selling Short: What You Need to Know

September 10, 2008

A “short sale” in Washington State real estate agent parlance is selling during the pendency of a foreclosure. It involves convincing the foreclosing lender to accept less than the full amount owed.

One of the things to watch out for here is a fairly subtle manipulation by the real estate agent to profit by the situation. The case I’m familiar with involved a home owned by a very unsophisticated woman. The real estate agent disclosed that a relation was the buyer and that the sale was “a short sale.” The owner did not understand what this meant and signed the papers offered to her, again relying on her agent and not understanding the terminology of the contract.

She was next told to come down to sign the papers for closing and that there would be no money for her. When she objected, the agent gave her verbal promises that she would receive three thousand dollars after closing but declined to put it in writing.

It turns out that she would have received over ten thousand dollars except that the addenda to the contract provided that she would pay all the buyers’ costs of the loan and settlement charges. It also provided that almost $6000 would go to the Nehemiah Down Payment Assistance Program, which according to the closing agent is a program to refund the buyer’s down payment.

This lady had no understanding that, while she got the price she wanted, over ten thousand dollars of the money was going directly for the buyer’s benefit.

In this way the buyer gets the home for absolutely no money out of pocket and the owner gets nothing. The real estate agent gets the commission. The buyer though is left in the same position as if there had been a foreclosure, except that her credit report will contain reference to a “short sale” rather than foreclosure. What the seller has lost is time that might have been spent trying to make a sale that would give the buyer some money to at least move.


Walls

July 16, 2008

I just read that a group out of the University of Texas recently petitioned the Organizatin of American States to condemn the wall between the U.S. and Mexico. It of course has already been condemned by Mexico and most of Latin America. While the wall can’t help but deter immigration, it’s overall utility is debatable. No one believes that the petition to the OAS will affect the building of the wall. Human rights considerations, and international law and opinion have not played a significant role in determining U.S. policy recently.

Our wall is to be 2000 miles long, as long as the low estimates of the length of the Great Wall of China. (Some estimate the other wall to be three times this length.)

Whatever your position is with respect to the wall, people agree that it is certainly symbolic of our era. It is a metaphor, a symbol, which for many replaces the Statue of Liberty. The welcoming beacon of freedom is replaced in the minds of many people with the blank expanse of the wall, like an extended palm signaling “halt.” For many people outside the United States our country is seen, not as a sanctuary, and champion, for the oppressed, but as a garrison, walled like a Medieval city-state.

Looking back, Bill Clinton’s euphoric descriptions of globalization (one of his favorite terms) seem naive and distant. The purpose of bridging cultures and identifying common interest has been replaced by phrases like “If you are not for us, you are against us,” “bring ’em on,” “we are on a crusade,” and the like. We have turned a blind eye to international opinion, like the balnk stare of the wall.

We have not just invested in walling our country, but in creating a honeycomb of walls within it. Political forces have converted the world’s melting pot into a fragmented society in which cultural identity is preserved in part for defensive purposes. We are becoming a society of gated communities which look out at others with distrust and fear.

Our government has a growing list of citizens identified a suspected terrorists. The number of people on the list has apparently passed one million. That’s about 5 for each thousand adults. If you go to BellSquare on a busy day, there should be maybe ten or twenty “suspected terrorists” among your fellow shoppers. We have built walls around airports, public buildings and public gathering places, access permitted by guards only after inspection.

These walls of course are not just metaphorical. We have by far the biggest prison population in the world. More people are in prison than there are in Phoenix, Arizona. A staggering number of our fellow citizens have been through the criminal justice system in one way or another.  Prison construction and management has been privatized to a large degree and has become a booming industry. It could become a college major in some schools like hotel and motel management.

These are the costs of security, as we see it. The cry of “security!” seems to be in the ascendancy. It’s good though to keep it in context.


Merit System in Washington Chopped Off

July 16, 2008

As you know, if you’ve been reading this a while, there was a bill last session of Washington’s legislature to adopt the merit system for the selection of judges to the Court of Appeals and the State Supreme Court. This is the system advocated diligently by Sandra Day O’Connor to eliminate the influence of deep pockets on judges’ decisions and to assure that the most qualified people are appointed to the bench.

The bill was sponsored by Jay Rodue, a Republican from the 5th District, Sherry Appleton, a Democrat from the 23rd District, Helen Sommers, from the 36th District. Here is a copy of the final form of the bill. The house report explained generally how it would work.

The bill made it to Frank Chopp’s Rules Committee, a death chamber for bills that do not advance the interests of the most powerful lobbies. He predictably killed the bill.

The people who sponsored the bill deserve accolades for wanting to improve our judicial system for the sake of the people here and not any special interest. The members of the House Rules Committee are listed here.

Our legislators need to know that we care about having the best court system that we can muster. I’ll write more when the legislature is in session.


FISA, Immunity, Pardons, and Luthor Collins

July 11, 2008

The recent discussions about immunity in the context of the FISA bill have stirred up a great deal of frustration among people who have been shocked or disapproving of the Bush administration’s apparent cavalier attitude to complying with the law. This resentment no doubt provides some of the fuel for the populist movement that seems to be carrying Obama along. Both Republicans and Democrats have expressed to me frustration that there is not even any meaningful investigation of the charges. The administration does not have immunity but it does seem to operate with impunity.

Part of the public’s outrage about FISA relates to the appearance of hypocrisy. The same law-and-order people who advocate strong criminal sentencing standards advocate immunity for the corporate officials whose conduct apparently involved violation of constitutional rights on a massive scale. The sense of hypocrisy is heightened by the color and class distinctions between the criminal justice defendants and the corporate miscreants.

This frustration is very deep and involves what appears to be a failure of our system of checks and balances. The Republican Congress during the first six years of the Bush administration is widely seen as having allegiance to party over country or over the citizens of the country. During this time effort seemed to be directed to covering up the regularly occurring scandals. The two years of Democratic control of Congress have not been signifiantly different in terms of rendering people in the executive branch accountable for their transgressions. The FISA bill in granting immunity for illegal domestic surveillance was profoundly disillusioning for many. It went beyond disregarding disreputable behavior to condoning it.

FISA’s defender’s chant “national security” and to my knowledge there is nothing more than this rather empty slogan to support the position, a slogan that I had thought was used so much by the Nixon administration that it would not be heard again in connection with domestic activity. This slogan has also been used to justify the treatment of detainees and has been gradually rejected by the courts. Without anything to back it up it is just a slogan famously used around the world throughout the twentieth century. People need more substance to the claim for it to have traction outside of Congress.

The defenders of FISA point out that the guilty can still be prosecuted for crimes that were committed but few doubt that Bush will pardon everyone before leaving office. He, however, can only pardon for federal crimes and at least in theory any enterprising attorney general could investigate and prosecute under state law for crimes committed against its citizens. I doubt that anyone believes this will happen.

Bush is likely to pardon everyone in his administration, making the investigations promised by Obama unlikely. If McCain is elected he would not conduct investigations at all, at least as far as I know. The only way the Bush could be prevented from pardoning everyone would be for him to be impeached. If he were impeached, he could not grant pardons during the process. There appears to be no chance that this might happen.

Thus it appears that this itch to see criminal conduct exposed, or at least investigated, and punished will go unscratched regardless of the party favored in the next election. This rather sorry state of affairs is not without local precedent.

Civilization came to the Seattle area in the middle of the nineteenth century. Settlers first arrives on Alki, then some came to what is now the downtown area. A few located near the mouth of the Duwamish River between the two camps. Civilization, as everyone knows, requires government and the settlers were quick to elect a commissioner: Luthor Collins, our first governmental official. Two years after his arrival he was arrested for lynching a Native American. His civic leadership may have contributed to the dismissal of the charge. Later, having rooted himself in the administration of local affairs, he lynched two Native Americans and presumably it was his his august stature that prevented charges from being made.


Rob McKenna; I think I figured it out (Part 2)

June 26, 2008

I puzzled overnight how Rob McKenna could within a very short period of time issue apparently wildly contradictory statements. He says the courts are out of control with damages and the legislature needs to step in and impose limits. He also argues that courts should be able to disregard legislative limits on damages and he supports enormous punitive damages.

My problem in trying to figure this out was that I presumed that there was an over arching doctrine that somehow melded these two opposing positions.

No, the answer lies in the reason for espousing them. Tort reform, however unsupported by actual evidence, is a Republican campaign cornerstone. As a Republican candidate for Attorney General, Rob McKenna embraced the issue. The issue still has currency and Mr. McKenna uses the issue to gain publicity.

The Exxon Valdez case is internationally known and public sentiment lies almost entirely on the side of the victims of this environmental disaster. Mr. McKenna claims to have inserted himself into this case to rally other states into participating as advocates of the victims.

He took the politically popular position of advocating for exactly the opposite result from the one he had campaigned on. Governor Gregoire’s signature, high profile case was the suit against the tobacco companies. The tide of approval for this effort washed her up on the shores of the governor’s office. The Exxon Valdez case has the same sort of <i>cache</i> as the tobacco cases and could perhaps advance McKenna’s career in the same way.

McKenna, trying to have it both ways, publicly continued to speak out for tort reform while while using his office to seek the opposite result in the Exxon Valdez case.

He is trying to appear to be a big business tort reformer (the only real benefactors of this position are insurance companies and big businesses) and at the same time appear to be a hero to tort victims. The the notoriety of the Exxon Valdez case promised enough political advantage to compensate for whatever losses their might be from his big business base.

That’s the only coherent answer I could find. The principle that one derives from this is that Rob McKenna will say and do anything to advance his career.


Environmentalism and the Nazis

June 22, 2008

In the 1950’s communists were said to be infiltrating the government and the entertainment industry, as well as operating under several fronts. The McCarthy era ended when the demagoguery was challenged and the true charlatans were identified. While it lasted, though, it was a ticket to political prominence.

In the last few years some people have taken to identifying environmentalists as Nazis. This is actually done on national television and similar venues; we have almost grown to expect it in political campaigns. Such fear and hate mongering seems to be efficacious. You would think that it would backfire, but there must be more people swayed by it than repulsed.

On national media in 2006 Al Gore was compared to Nazi propagandist Goebbels and to Hitler for his success in publicising global warming. (It is a bit ironic that the people who diminish the Holocaust in this way tend to be Israel’s most zealous supporters.) On CNN Senator Inhofe actually described Gore’s testimony to the Senate Committee on the Environment and Public Utilities in that manner with the concurrence of Glenn Beck, the host.

In 2007 Fox News Radio continued the Gore/Hitler diatribe. CNN continued to transmit unbelievable comparisons to Hitler and Nazis. Glenn Beck recently said that Gore’s global warming campaign is like Hitler’s use of eugenics to justify exterminating 6 million European Jews.

With the new report on global warming just out, a report subscribed to about a dozen scientific groups associated with our government, doesn’t this treatment of science remind you of earlier, more primitive, periods of history?  Imagine: A world wide scientific conspiracy.  Really?

The hate and fear mongering diatribes are uniformly nothing more than name calling. There is no real rebuttal. Scientists picked “An Inconvenient Truth” apart pretty thoroughly finding some questionable facts and theatrics that suggested an unsupported conclusion. A UK judge found nine factual errors in the film.

But scientists and the British judiciary (one member anyway) agree that the film is rooted in good science and its overall message is supported by sound scientific theory and belief. This was known in 2007 and then Gore got a Nobel Peace Prize along with a U.N. panel of scientists investigating global warming. This, if anything, seemed to fan the flames of hate mongers.

This very odd discourse about environmentalism is probably the progeny of a pseudo-intellectual eddy in revisionist history. People are actually positing that environmentalism is a Nazi program, sort of like “Boys from Brazil.” This theory has been debunked by legitimate historians and even the people who are credited with originating this view disclaim any association with it.

A couple of years ago Jonah Goldberg’s book “Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning” appeared. This book seemed to revitalize the “environmentalism is fascism” diatribe, although Goldberg claimed to have written nothing that was intended to suggest such a thing. The book sold well to mixed reviews. It was celebrated by conservative reviewers and panned by others.

The book’s thesis, behind all the pseudo-intellectual blather, is essentially Libertarian: Fascism means governmental regulation and liberalism means governmental regulation; therefore liberalism is fascist. Environmentalists want governmental regulation therefore they are fascists too. For proof just look at Nazi Germany where environmentalism was born. Nazis called themselves the national socialist party therefore socialists are fascists. Socialists are liberals. Very simple-minded stuff hiding in a lot of jargon.

This silly word parsing though unhinges people like those at the Building Industry Association of Washington who have made a habit of labeling anyone opposing their views as Nazis. In March their newsletter, in addition to more conventional name calling, called the Washington State Department of Ecology Nazis and lumped all environmentalists under that moniker.

This set off a local firestorm culminating in and Anti Defamation League demand for a retraction or apology. The B.I.A.W. of course refuses claiming the article (written by its storm drain columnist) is academically grounded. The B.I.A.W. is widely regarded as the Washington State Republican Party’s attack dog and neither the party nor any of its candidates has attempted to separate from this absurd propaganda machine.


Illegals In Washington

March 4, 2008

Some folks feel that people who reside in the U.S. without immigration papers should not have the rights and privileges of enjoyed by citizens. That seems easy enough.Here’s a little background. The Christian Science Monitor reported two years ago that there are between 7 million and 20 million, or more, illegal immigrants here. These people typically take up the bottom strata of jobs, filling the least desirable jobs, often for wages lower than would be acceptable for citizens. In the 1990’s this supply of cheap labor was viewed as a key component in avoiding inflation. For that reason and because many key businesses (and industries) relied on this cheap labor supply, the nation turned it’s back on this “problem.”

Paul Krugman, the liberal economist who writes for the New York Times, wrote some time ago that this situation was not a partisan issue. His analysis suggested that illegal immigration was a net economic loss for the country. While many businesses were profiting off this labor source, the country as a whole was paying a significant amount of money for public education, and health care. While many illegal immigrants were paying taxes, often through false social security numbers, many others were not paying taxes. These people accepted cash under the table from employers who were able to pay substandard wages and on top of that avoid paying withholding taxes. As we know, many politicians were found to have employed illegals this way as domestic help.

I don’t think that anyone disagrees that the deportation of illegals in mass would have a substantially disruptive effect on business here and a sharply inflationary effect. This seems to be the main reason that the “law and order” arm of the Republican Party cannot get anything done about the influx of undocumented immigrants, even with a Republican dominated legislative branch (until a couple of years ago), a Republican president and a Republican-heavy judicial branch. Our economy is rather delicately balanced in a presently mild recession and the disruption caused by massive deportation could have a strong negative effect.

Because we have only made largely token efforts to enforce our immigration laws and at least certain sectors of the economy have profited by the exploitation of illegals as cheap labor, you could very well say that the illegals are here at our sufferance — with a nod and a wink from business.

The economy has always played a role in attitudes toward immigrants, both legal and illegal. Chinese people were shipped here in mass to provide labor for the construction of the railroads in the nineteenth century. The transcontinental line reached Tacoma mid-century, then lines were built to Seattle from the south and from the east and between Seattle and Newcastle where there were extensive mining interests. When this was done hundreds of Chinese were left in the Seattle area. They found jobs in town and what would now be called a Chinese ghetto developed here. There was a regional economic downturn here in the 1860’s and vigilantes rounded up almost all the Chinese in town and marched them to the end of a pier where they waited for several days for a ship bound for San Francisco. Some were put on the first ship to arrive and the remainder went on the next one. The impetus for this was the view that the Chinese were taking jobs that whites should have in hard times.

In the 1880’s “exclusion laws” were passed by the federal government which rendered it illegal for anyone to come here from China. A federal law passed in 1882 limited U.S. citizenship “to aliens being free white persons and to aliens of African nativity and to persons of African descent.” The Chinese who were already here were undocumented, denied any hope of citizenship and the subject of a great deal of abuse.

The Alaska gold rush and a disastrous fire in Tokyo created a local lumber boom which led to the importation of large numbers of Japanese laborers at the end of the nineteenth century. Many lived in company towns in Eastern King County, such as Sellick. The Japanese suffered much the same fate as the Chinese who were left stranded here. In fact the first graduating class from the University of Washington Law School (the class of 1902) included an immigrant from Japan, Takuji Yamashita. He was denied citizenship and denied admission to the bar after graduation. He was forced to work in restaurants until his internment forty years later. It wasn’t until 1968 that immigration laws that banned Asians or barred them from citizenship were entirely eliminated. Washington’s Senator Warren Magnuson led this fight on the national level.

Other controversial immigration policies include our refusal to allow Jews admission from Germany in the 1930’s and early 1940’s. Many of those who came here were illegals. Our current refusal to admit displaced people from Iraq has caused mild controversy.

The division between people on the question of illegal immigrants is many faceted, but some people have a more sympathetic attitude because they see the illegal immigrants in a light something like the Chinese in the mid-nineteenth century and the Japanese in the late nineteenth century as being admitted here for the purpose of performing labor, then rebuked because of their status. For these sympathizers the purposefully lax enforcement of immigration laws and eager employment of people coming here without papers is a form of admission that carries with it responsibility.