Arbitration clauses in the fine print

August 29, 2016

Nan Aron of Alliance for Justice has an excellent critique of those arbitration clauses in the fine print we are constantly being forced to sign and a new rule that will address one of the problems with those clauses: http://www.usnews.com/opinion/articles/2016-08-19/cfpb-takes-one-step-to-fix-rigged-forced-arbitration. It’s well worth reading.


The US-Mexican border

August 25, 2016

I have just read the clearest, most trenchant and evocative explanation of what is happening on the border between Mexico and the U.S.  And “one of the greatest “secrets” of the 2016 election campaign (though it should be common knowledge) is that the border wall already exists.  It has for years and the fingerprints all over it aren’t Donald Trump’s but the Clintons’, both Bill’s and Hillary’s.”  The full story is truly heartbreaking.  I suspect that the real villain is a national unwillingness to deal with it in a better way.


Public matching funding of election campaigns is crucial

July 26, 2016

This is the fourth in a series on Money in Politics. We’ve looked at the way that our present system of campaign finance results in our being fleeced by businesses that use laws and regulations to protect them from competition and from lawsuits. Think about the repeal of legislation that regulated the financial services industry, or the NRA which got legislation to prevent funding for studies of gun violence, the companies that blocked state laws defining duties in their industries, the loosening of federal antitrust law, or a plethora of tax breaks. All of that was facilitated by grateful lawmakers, grateful for campaign help, contributions or expenditures, which made their elections or reelections possible.

We’ve also looked at restoring limitations or prohibitions on those injections of money into politics, and the complexity of reinstating limitations without spilling over and damaging what should be protected speech, press and association.

There is another approach that doesn’t threaten the press or public interest associations and doesn’t hand judges or anyone else malleable discretion to decide who can and cannot speak and how much. The alternative is to provide the funds, either by matching small donations as is done in New York City or allocating public funds for campaigns to those candidates who agree not to raise their own funds.

Public funds relieve candidates from dependence on large donors. Matching small donations reconnects candidates to small donors gathered in house parties, barbeques and similar events. Instead of spending their time courting major donors, candidates seeking matching funds would have to spend time with their constituents – what a quaint concept!

There are many programs using matching funds in place now in states like Arizona, Connecticut, Delaware, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Vermont, and West Virginia and cities like New York and Los Angeles.[1] Some states matched large expenditures by opponents before the Court rejected that.[2] New York City provides $6 for each $1 contributed in small amounts, resulting in the vast majority of funds deriving from small donations. The match makes each small donor that much more valuable to the candidate. And the formula can be designed to match inflation so that the majority of candidates keep choosing the public matching system.

The research so far reveals that matching programs increase candidate efforts to reach out to constituents, and minimize the role of large donations, although plan details create significant differences in effectiveness.

The Court long ago agreed that public funds can come with strings – if a candidate takes public funds, the candidate may have to agree to an expenditure limit or a restriction on the donations it can accept.

The public funding approach doesn’t create the major problems, distinctions and discretion that prohibitions do. Savings to the public can be huge. The cost of American political campaigning is much less than the largesse which politicians can make available to contributors and supporters. That means that we could fully fund American political campaigns for much less than those campaigns cost us in legislation and regulations that bilk us of vast amounts of money. It should be a no-brainer.

Next week, why it hasn’t been.

— This commentary was broadcast on WAMC Northeast Report, July 26, 2016.

[1] See generally the Brennan Center for material on public financing.

[2] Arizona Free Enterprise Fund v. Bennett (2011) and McComish v. Bennett (2011).


This Republican campaign could use both humility and perspective

July 19, 2016

Juan Cole’s post putting the contributions of Europeans and European-Americans in historical and worldwide perspective is well worth reading, http://www.juancole.com/2016/07/stephen-people-civilization.html. I always thought humility was supposed to be a value in our culture, and with regard to race and ancestral origins, Cole certainly and appropriately gets it. There is another issue – the belief in American exceptionalism, at least to the extent that it is racialized, may be our undoing, leading too many to assume that great things are automatic and need no investment and care. The American Founders, for all their errors, would never have made that mistake. But those who wrap themselves in the Founders’ reflected glow miss both the humility and the perspective our Founders had and prove themselves unworthy.


A Better Response to Nice

July 17, 2016

Here’s a post from Juan Cole that explains why many of the politicians are not being smart in their reactions to the carnage in Nice, http://www.juancole.com/2016/07/france-gandhian-response.html


On Ginsburg’s remarks about Trump

July 14, 2016

The commentary about Ginsburg’s comments on Trump make a fetish on form while missing the substance. See my post on the NYU Press blog.


Media Coverage of the Presidential Campaign

June 7, 2016

During this pledge drive, amid disputes about media coverage of the presidential campaign, it’s a good time to review how we got here.

The 19th century press was partisan; every party had their papers. Around the dawn of the 20th century, publishers and advertisers who wanted to reach people on all sides, shaped the era of the penny press and just-the-facts news, with opinion segregated onto separate editorial pages. News was supposed to be nonpartisan. It worked very well when the media put the cruel responses to the Civil Rights Movement into every home in America.

Nevertheless, even while Civil Rights and Vietnam glued Americans to the media, the press was still reeling from self-criticism about how it had allowed the infamous Senator Joe McCarthy to make unsubstantiated charges of treason and communist sympathies without appropriate debunking. And so was born the era of checking with targets for their response.

In broadcasting the FCC enforced the fairness doctrine, requiring balanced presentation of controversial issues of public importance. That sounds better than it was. I learned first-hand when the now defunct St. Louis morning paper blasted the Legal Aid Society there and we met with the editorial board of the afternoon Post-Dispatch. They told us that denials wouldn’t help, and would actually remind the public of the charges. Instead they would – and did – run stories about the good things we were doing.

He said-she said journalism or the more oblique but effective good-story-bad-story journalism could help to inform people on issues they follow closely with open minds. Otherwise it could be more confusing than helpful.

In this era, I believe Irving Kristol, himself a conservative, wrote an article saying the New York Times was both America’s best newspaper and not very good. His point was that reporters weren’t experts in the areas they were covering. Taking a man-in-the-street approach to stories helped reporters write for and speak to ordinary Americans but often at the cost of misunderstanding issues that experts could have untangled.

Sociologist Herb Gans wrote a book explaining that media bias rarely resulted from partisanship but from the ease of newsgathering from a few sources, like the White House, which gave those sources disproportionate access to the press.

By the time their work came out, Woodward and Bernstein had blown Watergate open and everyone tried to copy what we now call investigative reporting. That goes much deeper but involves the reporter or news outlet in examining controversial issues, laying themselves open to charges of bias by anyone who disagrees.

But legal rules changed and cable soon splintered the marketplace for news, now further splintered by digital media. As in the 19th century, Americans can choose what they’d like to hear, see or read and ignore the rest. Everyone can speak to their own choir with thunderous applause. More discerning and complex stories are often ignored or reduced to sound bites.

Donald Trump takes advantage of that by simply announcing his views in outrageous ways sure to catch everyone’s attention. While Joe McCarthy could make unsubstantiated charges without fear of press criticism, Donald Trump uses inflammatory rhetoric to get everyone’s attention above the din of press criticism.

I’m not convinced there is a perfect answer. Every campaign reflects the efforts of a new crop of politicians to game the media approach of their era. And in an effort to be fair, the press tries not to make candidate-specific judgments about how to cover campaigns – including Trump’s – but tries to cover them in standard ways.

If you listen closely on this station you will hear the residue of every method of journalism practiced in America for the last century. There are straight facts, he-said-she-said journalism, commentary, investigative reporting and a plethora of polling and analysis from every direction. This certainly is the thinking person’s station. Thank you WAMC.

— This commentary was broadcast on WAMC Northeast Report, June 7, 2016.


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