Political MoJo

Court Rules Against Whistle-Blowers

| Tue May 30, 2006 2:59 PM EDT

I can't say I quite understand the Supreme Court's 5-4 decision today to limit whistleblower protections. Basically, you have a Los Angeles deputy prosecutor, Richard Ceballos, who complained to his bosses that the county sheriff's deputy had lied in a search warrant affidavit (a trial court later threw out the challenge). After complaining, Ceballos claimed he was reassigned and then denied a promotion—acts that certainly seem like retaliation for whistleblowing.

Now the Supreme Court has long afforded whistleblowers some amount of protection from retaliation, but, in the decision today, refused to extend that protection to Ceballos, on the grounds that he was speaking out in his capacity as a public employee, rather than as a private citizen. This appears to mean that if he had simply called up a newspaper and told them about the problems with the search warrant, he'd be protected from retaliation. But because he wrote up an official memo to his bosses, he wasn't. Huh? Here's what John Paul Stevens had to say in his dissent:

[I]t is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.
One would think so. Jack Balkin says this is a "very significant" development—employees acting in their official capacity may be disciplined for speaking out "without any First Amendment scrutiny":
So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis [i.e., protecting whistleblowers] still applies. A somewhat odd result, at least on first glance.
Samuel Alito, perhaps needless to say, voted with the majority and broke the tie. Seems to be an early sign of those pro-government tendencies many of his critics were worried about.

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A Competent Bush Nominee?

| Tue May 30, 2006 1:58 PM EDT

Ezra Klein notes that Bush's nomination for Treasury Secretary, Goldman Sachs CEO Henry Paulson, is a "serious, competent guy" who—shockingly—supported the Kyoto Protocol. (More to the point, he has stated that unless the United States puts emissions limits in place, "U.S. companies will lose ground to their competitors.")

That sounds nice (insofar as a pro-Wall Street Treasury Secretary can sound "nice"), but it also sounds a lot like a description of Bush's first Treasury Secretary, Paul O'Neill, who, despite helping Ron Suskind produce a very nice book exposing the sheer mendacity and close-mindedness of the current administration, didn't really affect much in the way of policy.

Court of Appeals upholds unconstitutionality of Patriot Act's National Security Letter provision

| Fri May 26, 2006 8:48 PM EDT

A federal appeals court ruled Wednesday on two challenges to the National Security Letter provision of the USA Patriot Act filed by the American Civil Liberties Uniion. Two different lower courts found the provision to be unconstitutional, and the ACLU argued that recent amendments to the law have made it even less democratic.

Using the NSL provision of the USA Patriot Act, the FBI can demand a range of personal records--email messages, visited websites, library records--without seeking court approval. In addition, the law puts an automatic gag on anyone whose records are gathered by the FBI.

One of the cases brought to the Second Circuit Court of Appeals is from New York, and concerns an anonymous Internet Service Provider who challenged the NSL provision after the FBI demanded records. The other case was from Connecticut, where librarians challenged the provision for not permitting them to disclose their identities.

In 2004, Judge Victor Marrero struck down the NSL statute, and the Court of Appeals upheld his decision. Wrote Judge Richard Cardamone:

A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens.... Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.
Judge Cardamone added that national security concerns "should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution."

The court also lifted the gag that was put on the Connecticut librarians.

Explaining Inaction on Global Warming

| Fri May 26, 2006 7:25 PM EDT

Here's a thought as to why Congress does—and will continue to do—nothing about trying to avert catastrophic global warming:

Cass Sunstein, a law professor and political scientist at the University of Chicago, raises the provocative question of why America has responded in such diametrically different fashion to terrorism (panic) and global warming (postponement).

In a paper released this month by the AEI-Brookings Joint Center for Regulatory Studies, Sunstein notes that presidents and legislators are willing to squander money to avoid being blamed for something.

"Every politician has a strong incentive to take steps to prevent terrorist attacks," Sunstein writes. "If such an attack occurs 'on his watch,' the likelihood of political reprisal is high ... By contrast, it is far less likely that there will be a climate change 'incident' on the watch of, or easily attributable to, any current politician." Except… except… politicians in other countries, particularly in Europe, face the same dilemma and they all take global warming fairly seriously. Why is that? Perhaps it's true that the structure of our political system is a reason why Congress does absolutely nothing about climate change, but the more immediate problem is the particular politicians in charge right now—namely, conservative ideologues bought and paid for by business groups that are allergic to any and all environmental regulations. Not that Democrats are much better, mind you. It's just silly to overlook the foremost obstacle to any sort of sensible climate change policy.

At any rate, Paul Krugman had an interesting column today noting that the amount of sacrifice involved in averting global warming wouldn't be huge, according to the "broad consensus" among economists. At worst, reducing carbon emissions to sustainable levels would reduce GDP growth by two-tenths of a percentage point over the next twenty years. That's a lot of money, but hardly crippling, and there would still be a lot of economic growth to spare. And my hunch is that the actual "pain" involved would be much less severe. Anti-regulatory types have always predicted that this or that environmental law would destroy industries and lead to mass unemployment and make everyone poorer and unhappier. They've usually, if not always, been wrong.

Why Not Metric?

| Fri May 26, 2006 5:29 PM EDT

Via Rob Farley, "Dean Dad" wonders why the United States never adopted the metric system (although you see weird exceptions crop up all the time, like with 2-liter Coke bottles). Indeed, it's a real problem. I doubt it has a large economic impact on the country—a calculator will convert back and forth between the two systems, so I doubt manufacturers and engineers care very much—but it's certainly absurd to force everyone to remember that there are 1,760 yards in a mile and so forth. But apparently inches and yards are "manly" units of measurement, and that's why we have them:

Looking back, I sorta remember the backlash against metric occurring as part of the backlash against an inchoate sense that America was in decline. In the late 70's, there was a weird, curdled-populist anger that manifested itself in CB radios and Proposition 13 and Ronald Reagan…. Anyway, the metric system at that time came off as a sort of effete, Euro-Modernist import, shoved down the throats of Real Americans by the same smug coastal elites who got all self-righteous about banning smoking and conserving energy.
Two of Ronald Reagan's early acts as president, as it turned out, were to overturn a law encouraging schools to teach kids the metric system, and to disband and defund the U.S. Metric Board. But then in 1988, apparently, there was a change of heart and Congress decided to require all federal agencies to go metric. The military, meanwhile, has long relied solely on the metric system, because when lives are on the line no one wants to be racking their brains wondering how many quarts to a gallon. But no one wants to force the rest of the country to follow suit. We'd have to throw out all our measuring cups, after all.

Those facts, by the way, all come from this handy metric timeline. I also was going to point out that when I lived in Ireland, all the speed limits were oddly designated in miles, but apparently that's no longer true as of 2005. Right now the only other countries that haven't officially adopted the system are Burma and Liberia, so the United States is in good company I guess.

Don't Forget "Kenny Boy"

| Thu May 25, 2006 3:08 PM EDT

Enron's Ken Lay and Jeffrey Skilling were both found guilty today on multiple counts of fraud and conspiracy. What a pity. Since this is ostensibly a political blog, I guess it's worth bringing up the political angle here—via Digby—namely, Lay's close ties with the president:

[T]he reality, as established by a wealth of historical record and recent disclosures, is that Lay and Enron were instrumental in Bush's rise to power – and Bush played an important behind-the-scenes role in advancing Enron's aggressive deregulation agenda, which helped the energy trader ascend to its lofty perch as the seventh-biggest U.S. company.

The Bush-Lay coziness earned the Enron chief a nickname from Bush as "Kenny Boy." But more importantly for Enron, Bush pitched in as governor and president whenever the energy trader wanted easier regulations within the U.S. or to have U.S. taxpayers foot the bill for loan guarantees or risk insurance for Enron's overseas ventures.But for some reason, major media outlets were never much interested in this story. Can't imagine why it didn't get David Broder all hot and bothered...

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Press Corps Salivates Over Hillary's Marriage

| Thu May 25, 2006 2:37 PM EDT

At the risk of being redundant, it's probably worth emphasizing something in Atrios' post here. The other day—maybe it was Monday or Tuesday—the New York Times decided that the best use of its resources and space would be to send a reporter out to interview fifty people in order to find out if the Clintons were still having sex or not. And now David Broder, the so-called "Dean of the Washington Press Corps" has this to say:

But for all the delicacy of the treatment, the very fact that the Times had sent a reporter out to interview 50 people about the state of the Clintons' marriage and placed the story on the top of Page One was a clear signal -- if any was needed -- that the drama of the Clintons' personal life would be a hot topic if she runs for president.
Ah, so Broder can tut-tut the article and distance himself from it by simply pointing out that this sort of thing is "bound to" come up and "the drama of the Clinton's personal life would be a hot topic if she runs for president." Note the passive construction, as if to say it's not his fault. Maybe it's Clinton's fault. But look, who's going to make it a hot topic here? Why, Broder and his fellow Washington journalists. If Broder thought Hillary Clinton's sex life was out of bounds or entirely irrelevant, he could just say so. But no. Instead he declares it inevitable. Nothing Broder can do. It's a cute racket.

And speaking of cute, it's simply adorable how Broder starts his piece by noting that when Hillary Clinton spoke at the National Press Club, he and his cohorts were more interested in salivating over "the state of her marriage" than listening to the boring details of her (quite decent, if a bit conservative) energy policy. Clinton actually had to apologize for making the speech too, as Broder calls it, "wonkish." Yeah, heaven forbid she hurt their little heads with details about stuff that actually matters.

UPDATE: Garance Franke-Ruta's take on this is very much worth reading.

Raiding Jefferson's Office

| Thu May 25, 2006 2:20 PM EDT

I've been trying to figure out whether there was actually a problem or not with the FBI raid on William Jefferson's offices. Certainly the raid on a member of Congress' office was unprecedented. And certainly Republican leaders such as Denny Hastert and John Boehner are up in arms about it, calling it a separation of powers issue. But does that make it illegal? Or, for that matter, wrong?

On the legal front, Orin Kerr says that, seeing as how the FBI got a warrant from a judge, and seeing as how Jefferson had refused to comply with Justice Department subpoenas for documents relating to the bribery investigation, the raid was probably constitutional, despite the Constitution's Speech and Debate clause declaring that members of Congress be exempt from arrest and questioning while in session. (The clause seems to be there precisely to prevent the executive branch from harassing legislators, the sort of thing you see dictatorships around the world doing all the time.)

On the other hand, Mark Kleiman says we really shouldn't be looking forward to a time when the FBI starts policing members of Congress and regulating corruption, especially since the Justice Department seems to be going after things that are nominally legal. Now granted, if Congress has no interest in policing itself, then someone has to do it, but it's not clear that law enforcement organization with a "deserved reputation for playing dirty" is the agency to do it. After all, these sorts of raids are certainly prone to abuse:

In particular, now that the precedent has been established, what's to keep the Bureau from raiding the offices of Congressional Democrats in leak investigations? Finding a judge to sign a search warrant is trivial, especially in any case with the "national security" label.
Maybe that's a pretty outlandish concern, but it's not impossible. And more realistically, what's to stop a vindictive administration from getting the FBI to investigate bribery charges on various Senators and members of Congress for political gain? After all, corruption is a pretty strong accusation, and can certainly damage or weaken a sitting member of Congress, even if it's totally false. That's not to say that Jefferson's innocent or that the FBI is simply being vindictive in this case, but there are definitely issues to worry about.

Baghdad described as lacking fundamental services and utilities

| Thu May 25, 2006 2:18 PM EDT

Three years after the United States invaded Iraq, Baghdad is still lacking basic services for its citizens. Water treatment plants that were to have been repaired after the war meet 60% of the city's needs, and the sewerage pipes are clogged with garbage. During the past six months, more than 300 garbage collectors have been killed, and people are tossing their garbage into the streets.

A well-off Iraqi man who live in Karrada told the San Francisco Chronicle that he gets power four hours a day, and that running water is available for one hour, between 1:00 and 2:00 in the morning. He says he stays up late and collects as much water as he can in plastic jugs.

In the poor part of Baghdad, the resident live in shelters made of corrugated metal, concrete, and rusted oil containers.

Lobbyist Donations As High As Ever

| Wed May 24, 2006 3:30 PM EDT

The midterm elections this fall will supposedly be all about the "culture of corruption" in Washington, wherein noble-minded reformers—most of them Democrats, presumably—will rail against lobbyists who are perverting and distorting government. So far, though, lobbyists are just carrying on as usual. Public Citizen released a report today looking at donations by lobbyists and their PACs—in 2006, lobbyist donations to members of Congress are on pace to be about 10 percent higher than they were in 2004 (totaling $34 million), which were in turn 90 percent higher than they were in 2000 (totaling $18 million).

Interestingly, Jack Abramoff is only the 30th-ranked lobbyist donor. And not surprisingly, most of the money goes to members of the Senate and House appropriations committees, which ultimately decides how federal money gets spent. Supposedly this is different from the actual bribery that took place when Duke Cunningham was sitting on the House appropriations committee, but the dividing line here seems pretty hazy.