Every year in California, out of a barrage of propositions, only a few enter the general consciousness. Some of these deal with hot button issues, including the legalization of marijuana in Prop 19 and the denial of gay marriage through Prop 8. Others dominate the dinnertime airwaves, through unrelenting special-interests funded commercials that denounce a range of proposals, from cigarette tax increases to air-quality standard reduction.

Proposition 14, by comparison, did not attract nearly the same amount of attention. This proposition, which was approved by voters, creates a “top-two” primary system for all state offices and congressional races. As such, it replaces separate party primaries with an “open” primary that all candidates are allowed to enter and all voters are allowed to vote in, with the caveat that candidates only express their party “preference.” From this primary, the top two vote getters would go on to the general election in November.

Despite its goal to decrease the influence of parties in California and bring about less partisanship, given its complexity and lack of significant financial backers, it was overshadowed on even its own ballot by Proposition 16, which saw roughly ten times more total spending than Proposition 14. However, despite an appeal that only seems to attract electoral system junkies, Prop 14 has far greater ramifications than the majority of proposals that pass through California ballot boxes. While Prop 14 was sold as the answer to partisan politics, there currently exists only one certain truth—the long-standing dynamics of California politics have been quietly shattered.

The Politics of Risk Aversion

Much of the drive for Proposition 14 was borne out of more than a decade of electoral stagnancy in California, the product of heavily gerrymandered districts and an admitted desire to maintain the status quo. The extent of California’s intractability is simply unparalleled. While California holds one of every eight House seats in the country, it also has the dubious mark of holding 17 of the 50 least competitive seats. As a result of districts drawn to protect incumbents in 2000, since 2002 there has only been a single instance of a seat changing parties. Even in 2010, a “wave election” that witnessed 60 seats change hands nationally, not a single seat switched parties in California.

It is fitting that two major attacks on this system were made in 2010, an election when voters across the country were characterized as “fed up” with traditional systems and organizations. While Prop 14 created a new primary system, Proposition 20, approved later that year, created a new citizen-led redistricting commission.

The California 26th

California’s 26^th congressional district, covering the eastern edge of Los Angeles County and the majority of Ventura County, is both a microcosm of the last decade of Californian politics as well as a potential battleground for the “new look” of California after the changes made in 2010. Held by Republican Congressman Elton Gallegly since 2002, when the current incarnation was drawn, the district was viewed as an artificially “safe” district, his smallest margin of victory over 13 points. However, due to redistricting, his new district contains only two-thirds of his old district, no longer includes his residence, and has swung from a heavily Republican area to a more contested area. Facing these impediments to re-election, Gallegly has chosen to retire, leaving behind a competitive seat and a number of interested candidates, including State Senator Tony Strickland on the Republican side and State Assemblywoman Julia Brownley, businessman David Cruz Thayne, and Harbor Commissioner Jess Herrera on the Democratic side.

Yet what is making this race unique is the presence of a competitive No Party Preference candidate in Ventura County Supervisor Linda Parks. Despite winning a number of elections as a Republican, Parks has been at odds with the Republican leadership, which unsuccessfully financed a Republican challenger to Parks in a City Council election. A self-identified moderate, Parks has made a career promoting the protection of open space against development and sees the 2010 election as a game changer. In an interview with the HPR, she stated directly, “I would not be running if not for Proposition 14.”

While Proposition 14 fuels the Parks campaign by providing non-aligned candidates with increased access to the general election, it is not the only factor in play. In contrast to past elections, when parties would have primaries to find one representative, the new open primary allows the Democratic vote to be split in the 26^th congressional district between a number of candidates, all of whom currently possess limited name recognition in the district, potentially turning the general election into one between Strickland and Parks despite the Democratic recruitment advantage.

The centrality of centrism and Prop 14 to this race, one Parks notes is “the one being watched as the bellwether as to whether prop 14 will actually allow independents and moderates to get elected,” is furthered by Parks’ platform, which she describes as “very specific to getting Republicans and Democrats working together.” While this approach taps into historic low approval ratings of Congress and party politics, many are skeptical. Speaking with the HPR, former Congressman George Nethercutt mused: “I just think that it’s a tactic, a campaign tactic, to say I don’t like either one of the parties, just to get elected,” elaborating that moderates “can’t just say I’m against Democrats, I’m against Republicans.”

This is a viewpoint expressed by a number of competing campaigns in the district, with Democratic Congressional Campaign Committee spokeswoman Amber Moon labeling her a “political opportunist,” the Strickland campaign calling her “the Democrat’s problem,” and the Brownley campaign noting her Republican past. While Parks affirms her identity as a “social moderate and fiscal conservative,” pointing to an “Issues” page on her campaign website that describes her positions, these views are often drowned out by a focus on attacking partisan politics. Her refusal to declare whether she would support Boehner or Pelosi as speaker only cements this narrative, becoming a Rorschach test between those who view it as bipartisanship and those who view it as pandering, reflective of the No Party Preference label as a whole.

The heightened interest in this race is made clear by fundraising numbers. The $988,000 raised for the 2010 election has already been far overtaken by the $1.3 million raised in the current cycle, more than 7 months out from the general election. In fact, the Strickland campaign has raised $781,804 itself, the third highest amount among current non-incumbents in House races, behind only self-financed Joseph Carvin and Joe Kennedy.

Golden Opportunity

Proposition 14 turns a game of majority into a game of plurality, with consequences that could potentially supersede the objective of increased centrism.

The opportunity is there without a doubt. The number of Californians registered as Independent has risen to 21 percent, an unprecedented level. Party allegiance is falling. Independents point to Assemblyman Nathan Fletcher, a candidate for mayor in San Diego, whose poll numbers doubled from 13 percent to 26 percent in a week when he switched from the GOP to No Party Preference, a number that objectors chalk up to increased publicity.

However, there are threats. Elections could become hijacked by personalities. Third party candidacies could lose their voice. Yet Prop 14 proponents’ biggest fear is that it won’t have an effect. Nethercutt, whose home state of Washington approved a similar measure in 2004, predicted that it would simply select “the strongest Republican candidate and the strongest Democratic candidate.”

Critics cite the limited effect that the Prop 14 scheme has had in promoting moderates in Louisiana and Washington, claiming that Proposition 14 has created an atmosphere favoring incumbents. However, this forecast has not subdued the number of No Party Preference campaigns in California, where Chad Condit, son of former Representative Gary Condit, and GOP Assemblyman Anthony Adams are also running No Party Preference bids for Congress, two of the 36 total NPP bids for state and national office in the state. It is the fate of their bids, along with the result in the California 26^th congressional district, that will determine the trajectory of this Proposition.

Linda Parks is optimistic about her chances. According to a recent internal poll, she is projected to be a solid second place finisher in the primary and a clear victor in the general election.  It is still very early in the game, but should Democratic divisions persist in the district, Prop 14 could very well have created an unprecedented path to office. Ultimately, though, it is not propositions or redistricting that decide California’s fate, but the ballot box. In fact, it is this vote, a precedent for future independent campaigns, that will determine the future of Proposition 14.

Photo Credit: Wikimedia Commons

The Politics of Food Stamps

According to former U.S. Representative from Alabama Arthur Davis in an interview with the HPR, “If you are a member of congress, [or] a policymaker, you deal with [the issue of food stamps] in surprisingly narrow terms.” Davis explained that in Congress today, food stamps are typically debated only in the context of whether to increase or decrease funding to the program, and not in terms of reforming the program itself. With budget concerns increasingly stealing the focus of lawmakers, the fiscal implications of the SNAP program have often obscured discussions of the actual success of the program’s policies at meeting the goals of nutrition and poverty alleviation.

Davis recounts that it is difficult to find “any genuine debate in Congress about how we get more organic, healthier food into low-income communities.” In handling the SNAP program in narrow scope, Davis says lawmakers fail to address the issues “in a way that someone who is concerned about these issues in our society would be satisfied with.” As such, it seems that in order to reform SNAP, and ensure that it adequately provides nutrition to low-income Americans, the debate about SNAP must first shift away from fiscal concerns and instead focus more intently on the program’s outcomes.

SNAP Program History

The first food stamp program began in 1939 as part of Depression-era policies designed to aid the poor while simultaneously unloading surplus wheat, bought by the government, as a means to support farmers. The program was revived in the late 1950s due to momentum from Democratic legislatures. After President Kennedy authorized a short-term trail, the Food Stamp Act was finally made permanent in 1964. In 1966, one million Americans were receiving food stamp benefits. Today, more than 45 million Americans make use of the program.

In recent years, the number of people on food stamps has risen steadily, due in part to the economic recession. In 2008, about 28.2 million people used food stamps compared with 40.3 million in 2010. With more people in need of food stamp assistance, evaluating the quality of the program and moving past polarized rhetoric has become increasingly necessary, yet increasingly difficult, given the program’s enormity. However, as Mark Marion, Executive Director of Health Leads Boston described it, this is unfortunate because the food stamp program has become a “political lightening rod” in recent years, which has complicated efforts at its reform.

Bloomberg and the Need for Reform

In recent years, many experts have argued that the ballooning SNAP program, when placed against the background of rising obesity and diabetes rates in the U.S., clearly shows need for reform. According to Tiziana Dearing, Founder and CEO of Boston Rising, in an interview with the HPR, while SNAP allows recipients to spend a smaller percentage of their budgets of food, it does not address access issues. In her view, the program fails to target the systemic issues of food insecurity or prevent recipients from needing to return to the program in the future. Instead, she says, “If you’ve ever fallen into a net, you get tangled” she says, as happens to thousands of SNAP recipients throughout the country.

Though Bloomberg’s proposal was met with strong votes of support and sharp criticism, Dr. Ludwig, childhood obesity expert and Director of New Balance Foundation Obesity Prevention Center at Children’s Hospital Boston, noted in an interview with the HPR that a major reason SNAP reforms were dropped had to deal with “the perceived difficulty of identifying [sugar-sweetened] products [and the] the logistical difficulties of enacting that regulation” and not with conflicting evidence as to whether or not it would be effective. Indeed, when considering the magnitude of the health consequences for SNAP recipients, Dr. Ludwig asserts that Bloomberg’s plan was an innovation first step towards addressing the SNAP program’s often-unfavorable health outcomes.

However, Dearing disagrees, and insists that such a ban would put an enormous burden on recipient families, particularly the large percentage of SNAP recipients who live in “food desert” areas where access to the foods not prohibited from purchase by the SNAP program (under the proposed reforms) is very limited. Instead, she says, access to food, particularly in these low-income areas lacking proper grocery stores, is key to solving the problem.

Still, Ludwig believes that more should be done now to limit purchases of what health experts already know are such unhealthy products. Furthermore, he says, while the cost and convenience barriers to healthy food access remain issues, some institutional factors may be to blame for the inability of SNAP to provide nutritional assistance, including the USDA, which represents many actors whose interests conflict in such reform.

Bloomberg’s Proposal: A Success Story after All?

Mayor Bloomberg may not have received federal approval for a pilot restriction on the use of SNAP benefits for sugar sweetened drinks, but he certainly opened the floodgates for a discourse on Food Stamps that goes beyond fiscal considerations and usual polarizing political rhetoric. He helped sharpen the SNAP program’s focus on providing nutritional food security in a fiscally responsible manner and on preventing problems before they start.

Photo Credit: Reuters

The US Supreme Court this week has heard one of the most important appeals to reach it in more than a decade. The nine justices heard six hours of oral arguments over three days concerning the constitutionality of the Affordable Care Act, giving more time to this case than any other in the last forty-five years. As they did so, the message wars heated up reached heights reminiscent of the original 2009 debate in Congress.  And there is some indication that the ruling of the Court could have huge implications for the 2012 election, given that health care reform is President Obama’s signature achievement.

Law professors and journalists around the country have now begun to speculate about the various ways the Court could rule on the four key arguments of the case: 1) the constitutionality of the individual mandate, 2) whether the mandate is a tax, 3) whether the individual mandate is severable from the act or whether the entire legislation must be struck down, and 4) the federal vs. state conflict over the expansion of the cooperative Medicaid program. Nonetheless, there are many who argue that we just don’t know what the Court will do until they make their ruling.

The Most Important Number is Five

Obama’s Affordable Care Act needs five votes on the Supreme Court for a victory, since neither Justice Clarence Thomas nor Justice Elena Kagan have recused themselves from the case. Given the ideological divide on the Court, with five conservative justices and four liberal justices, getting to that magic number of five is easier said than done.

It is widely believed that Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor will all reach the conclusion that the ACA is constitutional. Two justices, Clarence Thomas and Samuel Alito, based on their observed understanding of the Commerce Clause, will almost certainly vote that the ACA is unconstitutional. That leaves Justices Antonin Scalia, Anthony Kennedy, and John Roberts in play.

To make things even more complicated, because arguments were made on day three of the case regarding the severability of the individual mandate from the rest of the bill, it is possible that the justices could vote to uphold the parts of the law that are not considered, as some on the Court put it, “tied at the hip.” And because it may be considered highly unnecessary  to strike down the whole 1,700  page bill filled with all kinds of reauthorizations of old bills, funding schemes, regulations, etc., a ruling which strikes down the individual mandate without striking down the rest of the law is a plausible, and perhaps likely, outcome.

Obama Not on Good Terms with the Court

But if anything complicates the math the most, it is perhaps that President Obama is not on the best terms with some of the members of the Supreme Court. On day one, President Obama was embarrassed after he and Chief Justice Roberts misspoke the words of the presidential oath of office at his inauguration, which resulted in a repeat swearing in the next day. Then, some members of the Court, particularly Roberts and Alito, were not happy with the President’s attacks on the Citizen’s United ruling during his State of the Union Address two years ago. And to top it all off, then-Senator Obama actually voted against the nominations of Roberts and Alito. All of this is in addition to the fact that Obama is an ideological liberal and a majority of the Court is ideologically conservative.

Clearly, the five conservative justices of the Court do not owe Obama any favors. But that does not mean that the ACA has no hope of survival.

The Brief of the Federal Government

The Federal Government will be arguing before the Court that the ACA is a proper exercise of the commerce powers of Congress. These powers stem from Article 1, Section 8 of the Constitution which says that Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The crux of the argument made by Federal Government is that the law was enacted for the purpose of protecting those who do have insurance from the cost shifting that occurs when uninsured individuals get care. The government’s brief to the Court states, “As a class, the uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually. That cost shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”

The brief then quotes United States v. Darby (1941) saying that the Court has “many times held that the power of Congress to regulate interstate commerce extends to the regulation through legislative action of activities intrastate which have a substantial effect on the commerce or the exercise of the Congressional power over it.”

In response to the argument that Congress does not have the authority to regulate the actions of individuals who have not entered the market for health care, the government cites Wickard v. Filburn (1942). In this case, the Supreme Court ruled that Congress had the power under the Commerce Clause to regulate how much wheat a man could harvest, even if that person was not selling their wheat in the marketplace. Furthermore, the argument being advanced is that even persons claiming to be outside of the marketplace can be regulated because of the aggregate effect they have on commerce.

This leads to the conclusion that Congress has the authority under the Commerce Clause to regulate the health insurance market such that it mandates health coverage for all individuals, for as it states in United States v. Wrightwood Dairy Co. (1942), where Congress has the authority to regulate interstate commerce, “it possesses every power needed to make that regulation effective.”

The Brief of the 26 States

Naturally, the twenty-six states that have taken this issue to Court have viewed the individual mandate of the ACA as a violation of the Constitution on two grounds both related to liberty.

The first has to do with the sovereignty of the states and issues of federalism. It is the contention of the states that the federalism structure exists such that there are two different governments that rule in different spheres. The idea is that this system of federalism protects the people and their liberty because it prevents the tyranny of any one government. Insomuch as the federal government is encroaching on the boundary of state authority, the federal government is also threatening the liberty of the American people.

The second claim of liberty relates to the following excerpt from the brief of the states to the Supreme Court: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.” The argument being made in this case by the states is that the federal government has no right to force individuals to buy goods or services in the marketplace, and that any such mandate is a violation of one’s liberty. The brief of the states goes on to say, “If Congress really had this remarkable authority, it would not have waited 220 years to exercise it.”

The conclusion that the states reach is that “The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse.  It is a revolution in the relationship between the central government and the governed.” Thus, unlike the federal government, which is trying to argue that such actions by Congress are normal and have been upheld by the Court in the past, the states are arguing that this is completely unprecedented and unrelated to the broad interpretations of the Commerce power in the Court’s past.

The Road to Five Justices

Given these arguments, the federal government will have the burden of convincing at least one of the conservative justices to vote with Breyer, Ginsburg, Sotomayor, and Kagan. To accomplish this goal, they have tailored their arguments in an attempt to convince Kennedy, Roberts, and Scalia.

Earning Kennedy’s Vote

Most legal scholars tend to agree that Justice Kennedy is the primary swing vote in this case, as in many other cases. In fact, in the past five terms, Kennedy has been in the majority in more than eighty percent of the Supreme Court’s five to four decisions, more so than any other justice. Indeed, it has been mentioned by some that they would have even put a picture of Justice Kennedy on the cover of the brief if they could.

Where they think they can get Kennedy is by reminding the Court of his prior statements on the Commerce power of Congress. For instance, in United States v. Lopez (1995), Kennedy stated in his concurring opinion that, “Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.” Clearly, the federal government will try to make the argument that the goal of the ACA is to build a stable national economy by regulating the market for health care.

Where they might lose Kennedy is on the issue of federalism, something that Kennedy is known to take very seriously. As Kennedy stated in Alden v. Maine (1999), “Congress must treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation.” Kennedy later argued in Bond v. United States (2011) that “State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

What we do know is that Justice Kennedy has not written many opinions for the Court as of late. There is some speculation that he may be holding out to write one of the most important opinions the Court will have in a while on the constitutionality of the ACA.

Earning Robert’s Vote

Another potential swing vote on the Court is that of Chief Justice Roberts. Some believe that Roberts may chose to vote with the liberal justices in this case so that he can write the opinion, particularly one that is narrow, leaving open the door to further cases to come before the Court challenging Congress’ commerce authority.

Another reason why it is believed that Roberts may vote to uphold the ACA is because he is particularly sensitive as the chief justice to the perception that the Court’s decisions are politically motivated and the toll that this has on the Court’s reputation. Surely, a five to four ruling along liberal and conservative lines will only reinforce the ideological divide and the idea that the members of the Court are making political, rather than constitutional, decisions.

Thomas Goldstein of scotusblog.com has also shed some light on this concern saying, “We’re in a little bit of a political death spiral for the Supreme Court, as ideologues on the left and the right attack justices with whom they disagree, maybe decreasing the public’s confidence in the Supreme Court.”

Finally, while Roberts has not had to make any commerce power decisions during his time on the Court, there is some evidence that he would support Congress’ commerce power claims given his vote in United States v. Comstock (2010) in which he voted to grant Congress authority not explicitly delegated to it in the Constitution.

Given these possibilities, however, it is unlikely that he would be the fifth vote to save health care reform if Kennedy decides with states.

Earning Scalia’s Vote

Of the three, Scalia is definitely the most difficult to convince, mainly because he defines himself as an originalist and often finds himself in agreement with Justice Clarence Thomas concerning the roles of federal government. Having said that, Scalia’s opinion in Gonzalez v. Raich (2005) has certainly given the federal government a chance at winning him over.

Specifically, Scalia wrote in Gonzalez that Congress may “regulate activities that substantially affect interstate commerce.” Scalia argued that “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market,” making it subject to federal regulation. Therefore, the brief of the federal government cleverly adopted his language stating, “Because of human susceptibility to disease and accident, we are all potentially never more than an instant from the ‘point of consumption’ of health care.”

In the end, while the Gonzalez case is mentioned ten times in the federal government’s brief, it is unclear whether Scalia will view these cases as substantially similar such that he will view his opinion in Gonzalez as binding on him in some way.

Invoking the Name of Judge Sutton

The final trick up the sleeve of the federal government is to invoke the name of Judge Jeffrey Sutton of the 6^th Circuit Court of Appeals. Judge Sutton may be a very well-known conservative judge, a possible candidate for the Supreme Court in the future, and a former clerk for Justice Scalia. But he also ruled in favor of upholding the individual mandate on constitutional grounds. It’s no wonder why the federal government’s brief mentions Sutton more than twenty times.

In fact, the brief argues that, “As Judge Sutton recognized, ‘[n]o one must pile “inference upon inference” (Lopez, 1995) to recognize that the national regulation of a $2.5 trillion industry, much of which is financed through health insurance…sold by national or regional insurance companies is economic in nature.” It then continues to cite United States v. Morrison (2000) saying that “‘Where,’ as is clearly the case here, such ‘economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.’”

In the end, it is clear that Judge Sutton’s decision could be the saving grace that makes at least one of the conservative justices more comfortable with making an otherwise uncomfortable decision affirming a broad understanding of Congress’ commerce power.

Conclusions

The Louis, Pradas, and Guccis at the meeting demonstrate China’s ever-widening wealth gap. Despite an unprecedented pace of economic growth, the wealth gap is steadily rising. Shockingly, the wealthiest 70 delegates are worth $89 billion—11 times the combined net worth of the United States president, his cabinet, Supreme Court justices, and all of Congress. Considering the U.S.’ massive advantage in development, the edge that China’s legislative elite has in terms of private wealth is nothing short of ridiculous.

The chief executive of the China Power International Development, Li Xiaolin, was snapped in a $2,000 Emilio Pucci suit. One Internet commentator pointed out that for the price of her suit, hundreds of children could buy warm winter clothes. In fact, each item of clothing was valued at well over the average annual income of the average Chinese citizen—thus legitimizing the harsh criticism of the Chinese public. In theory, the legislative assembly is meant to address the issues of the people, but how can designer-clad delegates in a developing country claim to be representative at all? As a Shenzhen based political activist said, “They [members of parliament] don’t represent the interests of the people, but the interests of high officialdom and big business. He explains that the delegates use the meetings “to network and build contacts, exchange ideas, and make deals. The delegates who supposedly represent peasants or workers have never once tabled a motion on behalf of such groups.”

By parading their wealth with items worth tens of thousands of yuan, the delegates are making a clear statement to the Chinese people and to the rest of the world: ultimately, they are more interested in showing off their wealth than working for the masses of a country in which tens of millions live on less than $1 a day.  Furthermore, the ostentatious style of the legislative body hints at a more insidious economic danger. The same attitude that motivates flagrant spending on designer clothes translates into exuberant spending on trophy infrastructure projects with low returns. Instead of practical investments, China heavily invests in high-speed rail lines that only benefit those who are already rich enough to afford them. These trophy projects, like the designer clothes, are appealing to politicians who wish to proclaim their wealth. For all its glamour, Beijing’s legislative fashion week is indicative of flagrant spending, flawed representation, and not least, a massive disconnect between government and the governed.

However, is this impersonal method of killing immoral? While drone warfare is no more damaging than conventional warfare, the psychological effects it could have on drone pilots and the virtually unchecked power the President has to conduct military strikes without Congressional approval are extremely worrying.

Human Costs

Among the most significant criticisms of drone warfare is the claim that the unmanned aircrafts minimize the full emotional impact of death, turning killing into something akin to a video game. During missile-fire, soldiers take their cues from computers, shooting at targets that might be hundreds of miles away. While military generals have frequently made orders outside of warzones throughout history, the lack of an actual human being directly executing attacks contributes to a new level of impersonality in war.

However, the very dispassion that drones are criticized for also provides one of the strongest arguments in their favor. Drone strikes allow for cooler calculations, mitigating the effect of human emotions that can compromise decision-making capabilities. Drones permit precise, calculated strikes, theoretically minimizing the toll on civilian lives and shielding soldiers from direct combat.

There is some disagreement as to the actual benefits of impersonal warfare. As Harvard preceptor Paul Sludds explained to the HPR, “Many philosophers think that emotion is a key factor in our moral compass.” While dispassion might yield the most effective course of action, emotion can allow individuals to experience, “more acutely what is going on and to make the most moral decision possible.” Impersonality in drone warfare, therefore, could be a double-edged sword.

The Men Behind the Machines

While drones represent a sizeable improvement over conventional methods in precision and minimizing casualties, the effects on pilots are unclear. Sludds notes that in all other forms of battle, the soldier is imperiled. It is precisely this risk that conveys the full impact of war onto a soldier and affects the decisions he makes on the battlefield.

But, a less obvious distinction with traditional combat is the lack of clear separation between military and civilian life. Soldiers on the ground do not immediately return home after missions, but instead stay on base close to the battlefield. This separation allows soldiers a chance to reflect and decompress before their return home.

This lack of separation for drone pilots is potentially troublesome, given that they can remotely complete a mission, often involving the death of numerous individuals, and return home immediately after. As Sludds explained, “The danger with these people, is that we would have some guy in Nevada going to work in the morning, killing a few people, then coming back home to hug his wife and watch the Super Bowl.” The effects are largely unstudied, but the blurring line between the warfront and home front underscores the potential problems of a highly impersonal form of warfare.

Silent Killers of American Democracy

The greatest questions surrounding drone warfare, however, are more legal than ethical, and drone usage may undermine the democratic process. When the United States invaded Iraq, it was heavily criticized for not putting the decision up to a true democratic vote. However, the issue was at least debated and contested by Congress because it involved risking the lives of the American soldiers.

Drones in contrast remove the human element, making the decision of going to war much less contentious. American drone strikes in Pakistan, Africa, the Middle East, and elsewhere are on a scale that would have received more political scrutiny from the public had they been manned missions. Peter Singer of the Brookings Institute explained in a recent article that lack of men on the ground significantly reduces the financial and mental cost of war. Singer asserted that without military casualties to influence voters, politicians “no longer treat the previously weighty matters of war and peace the same way.”

American Apathy

There is some question, however, as to the legitimacy of these concerns. The war decision-making process has long excluded average Americans, and since the Civil War, the United States has not fought a major battle on American soil, shielding civilians from the true costs of war.

But drone use may further reduce the citizenry’s ability to control when the United States wages war. Harvard Professor Shawn Ramirez tells the HPR that drone warfare allows the President, “to bypass Congress and essentially conduct strikes that nobody else knows about.” Because the drone program is controlled by the CIA and not the military, the President has exclusive authority to reveal statistics about the engagements conducted and resulting casualties. Congress has limited capacity to investigate these matters, and even groups like the American Civil Liberties Union cannot discuss the matter meaningfully because drone programs are not officially recognized. The lack of oversight from groups outside of the executive branch marks a significant shift in power.

Nevertheless, Professor Patrick Lin of the California Polytechnic State Institute disagrees with this notion that new military technology is a threat to democracy. He explained to the HPR that although this may appear to create an imbalance of power between the branches, the “balance of powers is already off kilter since the War Powers Resolution has been routinely ignored by our presidents for decades.” Instead, the power of shared information through the Internet and the media has replaced the importance of shared power among the three branches. Demonstrations of public disapproval are immediate and effective, leading Lin to contend that power focused on the executive allows citizens to “focus [their] disapproval on a single person” rather than creating general discontent with “hundreds of elected officials.” While the initial decision to carry out strikes may rest with one individual, the choice to continue falls upon the many.

Promoting Terrorism

A more subtle concern with drone strikes shifts the focus from domestic effects to their global impact. Ramirez argues that the United States’ main hesitation when it comes to drone warfare should be the political instability it often breeds. Ironically, the very tool intended to fight terrorists may actually undercut American efforts.

Initially, drone warfare offered a diplomatic loophole whereby the United States could conduct anti-terror strikes without Pakistan and other countries perceiving a violation of sovereignty. Instead, drone strikes are now widely regarded on par with any manned craft in terms of intrusiveness. Policymakers fear that citizens of targeted countries will no longer support their governments if the United States is allowed to conduct drone strikes. This uncertainty may fuel more instability in the already shaky Arab world, and in the turmoil terrorist groups could gain a greater foothold.

Tom Barry, director of the TransBorder Project at the Center for International Policy, told the HPR that he sees no end to drone warfare in the near future. Barry said, “The U.S. public, the U.S. Congress and most of the media support these clandestine operations for two main reasons: support for counterterrorism wars and intervention, and the relative lack of risk to U.S. lives.”

Indeed, there may even be a time when, “drone operations at home become more common, whether for homeland security, military training, or law enforcement and public safety.” Only then perhaps will the public begin raising real questions about their use. Until that time though, as the United States continues to modernize its military, drones have become an integral part of the military’s repertoire.

Thinking through the farm bill more carefully.

Every five years, Capitol Hill authorizes funding for American agricultural policy through a concoction of tax credits, regulation, and developmental programs. Most recently, in 2008 Congress passed a 700 page farm bill, whose contents impacted food prices paid by American consumers and global commodities markets. Though originally narrow in scope, the bill evolved into a monolith encompassing everything from food stamps and school lunches to direct subsidies and conservation initiatives. While contentious, farm bills have historically benefited many American farmers and stabilized food prices. Nevertheless, the farm bill has potentially negative international consequences, something the United States must consider as changing global demographics strain our agricultural system.

The 2008 Farm Bill

The modern farm bill dates back to 1933, when Congress passed the Agricultural Adjustment Act amidst the Great Depression and Dust Bowl. Corn prices plummeted and demand became almost non-existent, leading President Franklin Roosevelt to implement farm assistance “to rescue American agriculture.” The bill reduced crop surpluses by paying farmers to leave their fields fallow and destroy crops and livestock to raise prices. Since then, the Farm Bill has evolved into a complex legislative item and provides the basis for America’s agricultural dominance.

Its most recent edition, the Food, Conservation, and Energy Act of 2008, allocated $288 billion over a five-year period. Over 70 percent of funding was directed towards nutritional programs like food stamps and school lunches, and more than half of remaining funds were subsidies for commodities.

Yet, because farmers have high amounts of capital invested in every growing season, crop insurance has become the most vital program of the farm bill. Before the advent of federally subsidized crop insurance, farmers’ livelihoods were subject to the whims of nature. Fluctuating weather patterns could render a farmer’s entire yearlong effort useless. According to Food Fight: The Citizen’s Guide to a Food and Farm Bill, many farmers “can’t buy enough insurance” because private insurers are often unwilling to take on such risk, leading the federal government last year to spend $5.2 billion on crop insurance.

However, the future of federal spending on agriculture programs is far from certain in the midst of deficit reduction efforts. The new Republican majority in the House has sought to cut government spending across many programs. The current farm bill will expire this September and some farm interest groups are even worried Congress will not renew the bill and that programs will see automatic funding cuts. According to a statement given exclusively to the HPR, Congressman Collin Peterson (D-Minn.), the ranking member of the House Agriculture Committee, said “it’s going to be a tough year” to pass the farm bill. Peterson and other committee leaders already proposed $23 billion in farm bill cuts to the failed debt Super Committee, but there is still a lingering concern that election year politics will prevent renewal. Peterson acknowledges, “we’ve passed a farm bill in an election before, but it is difficult.”

The Modern Farmer

Tracing the evolution of the American farmer reveals much about the parallel development of American agricultural policy. In 1950, there were 5.38 million farms in the United States, and the average farm was 213 acres. Since then, the number of farms has been slashed to around two million, while the average size has doubled. Today, truly profitable farms are generally larger than 2,000 acres, capital which most Americans cannot afford.

According to the Department of Agriculture, “fewer than two percent of Americans farm for a living today, and only 17 percent of Americans live in rural areas.” This statistic is indeed a far cry from Jefferson’s ideal of a republic where the yeoman farmer constituted the bedrock of American society. Many economists attribute this trend to technological growth and increased productivity with scale.

Some denounce this trend. Hilde Steffey, program director for Farm Aid, a group dedicated to supporting family farms, tells the HPR that Farm Aid’s mission is to, “keep every farmer we can.” Farm Aid issued a report to Congress stating that, “far from Wall Street, family farms are creating real wealth, producing real value, [and] growing from seeds and sunlight a product that nourishes us both psychically and economically.” They argue that supporting decentralized family farms is essential to vibrant rural communities.

However, the modern agricultural system has transformed the perspective farmers take on their livelihood. To compete in an increasingly complex domestic and global market, the contemporary farmer has become a technocratic businessman that stays abreast of recent advances in farming technologies. Jonathan Piekarski runs a 1,600 acre family farm in Fergus Falls, Minnesota, and his encyclopedic knowledge of global commodity prices and agricultural news underscores this development. For example, Piekarski observes how the current drought in Argentina, a large corn producer, has raised the global price of his crop.

He explained to the HPR how agricultural policies from Washington affect his daily life. When Piekarski was involved with Future Farmers of America during high school, the farm bill’s programs were touted as keeping, “rural America vital.” Since then, the farm bill has done little but slow the consolidation of America’s family farms. Yet he remains an advocate for a strong farm bill, acknowledging the stabilizing effect on prices and supply, and highlighting the benefits of the crop insurance program. He notes, “U.S. farmers feed the world… [and] the goal is global food security.”

The International Take

However, farmers from other countries rarely commend U.S. agricultural policy, viewing subsidies as anti-competitive. Indeed, some argue that subsidies have allowed American farmers to pursue dumping policies where they flood developing countries with cheap crops in a monopolistic fashion. In 2002, some of these issues came to the forefront when Brazil charged the United States with violating World Trade Organization guidelines and other multilateral trade agreements with its cotton subsidies.

A recent rise in global commodity prices has tempered these disputes, but also created problems of another kind. Randy Schnepf, an economist and specialist in agricultural policy for the Congressional Research Service, told the HPR that, “third world countries are facing high prices because a lot of them are importers of food.” Moreover, he added that many governments “don’t allow global prices in rural areas, so farmers can’t benefit from the high prices.” This mismatching of supply and demand creates an imperfect pricing system, and even slight changes in prices are calamitous for people living on mere dollars per day.

Possible Reforms: A Food Bill?

Many different proposals have arisen to reform the farm bill. Subsidies have generally declined over recent years, but the government still protects niche industries like sugar and rice. Furthermore, because some food policy items may violate international trade agreements, policymakers have additional incentive to make reforms. Direct payments, sums of money paid to farms regardless of the year’s profits, are among the most controversial programs in the farm bill, and cost the federal government $4.9 billion last year. According to Congressman Peterson, “Direct payments are tough to defend, especially now when the agricultural economy is doing so well…[they] will be gone” in the next farm bill.

Some have argued for progressive subsidies, which would involve subsidizing poorer and smaller farmers instead of agribusiness. This aligns more closely with the goals of the original farm bill, but would also face challenges. Overall, many agriculture policymakers and farmers agree that an adequate safety net must exist for farmers, which stabilizes agricultural supply for the American public.

Policy recommendations put forth by Farm Aid emphasize, “Family Farm-Centered Food Systems,” postulating that food should be grown and consumed locally. Steffey claims that beef cattle are often transported from Maine to Colorado for slaughter and processing before being sent back to Maine for consumption. By enforcing stricter anti-trust laws against large meat-packers and providing funds to rebuild local granaries and processing facilities, the farm bill could help communities eat more of what they grow. Another step in the right direction would be amending federal farm loan programs that prevent organic farmers from accessing credit because they are classified as “risky.” These reforms would perhaps enable large-scale and local agricultural production to successfully coexist.

Domestically, the farm bill has many positive consequences, providing a safety net for America’s farm communities, nutritional programs for the hungry, and a steady food supply for consumers. However, the farm bill hearkens back to what we eat, and writer Daniel Imhoff argues, the farm bill is really a “food bill.” America’s farmers are the most productive, innovative agricultural specialists in the world. We place our food orders to them through the farm bill, which will shape the future of farming, and the food and prices we find at local grocers.

HR 2306:

HR 2306 is a rare example of bipartisan collaboration in a particularly divided Congress. Congressmen Ron Paul (R-Texas) and Barney Frank (D-Mass.), both prominent members of their respective parties, are cosponsors.  But the fact that the bill tackles a seemingly untouchable issue, federal marijuana regulation, is even more interesting.

During the previous two Congresses, Frank introduced legislation curbing federal enforcement of marijuana usage laws.  Both times, the bills had bipartisan support, but never made it beyond committee, and its latest incarnation will likely meet that same fate.  Since its introduction last June, HR 2306 has been recommended to both the House Judiciary and the Energy and Commerce Committees, but neither has acted.

Regardless, the topic is certain to galvanize groups seeking drug law reform, and the two prominent cosponsors add greater legitimacy to the marijuana legalization movement. Indeed, there are already proposed ballot initiatives in California, Colorado, and Washington state to decriminalize marijuana. Victories there could encourage the federal government to seriously examine the issue, as supporters of legalization are increasingly encouraged to advocate on both the state and federal level.

Currently, little discussion exists regarding this legislation, but as November approaches, accompanied by the aforementioned ballot initiatives and a Presidential campaign, HR 2306 will likely gain additional attention.  ¶

HR 3806: “One Subject at a Time Act”

While pundits are criticizing Congress for its inaction, Congressman Tom Marino (R-Pa.) is claiming legislators are doing too much simultaneously.  HR 3806 states, “Each bill or joint resolution shall embrace no more than one subject,” but this seemingly simple bill could have serious repercussions if signed into law.

The practice of attaching riders, or typically irrelevant legislative items attached to popularly supported bills, would be prohibited.  Indeed, many controversial bills have been attached as riders in recent years, and the most famous one was the Patient Protection and Affordable Care Act.  In reality, the Democrats introduced it as an amendment to the “Service Members Home Ownership Tax Act of 2009”.

HR 3806 has yet to pass the House Subcommittee on the Constitution, and has only received five cosponsors.  However, the importance of this bill lies not in its potential passage, but in its implications. Assisted in its drafting by the Williamsport, Pa. Tea Party, the bill’s focus is very appealing to small government conservatives and libertarians.  While HR 3806 may not become law, any discussion indicates sincere thoughts about restructuring the way Congress conducts its business. ¶

HR 1981: “Protecting Children from Internet Pornographers Act of 2011”

The Stop Online Piracy Act (SOPA) stole the legislative spotlight for January, but the bill’s sponsor, Rep. Lamar Smith (R-Tex.), has another bill, the “Protecting Children From Internet Pornographers Act of 2011” under discussion.  While the title suggests possible bipartisan support, HR 1981 would significantly change the federal government’s role in monitoring the Internet.

Among the new punishments for possessing or creating child pornography are mandates for Internet service providers to maintain databases tracking convicted perpetrators’ IP addresses for one year at minimum. The goal is to locate individuals exchanging child pornography, but the implications extend well beyond that.  Essentially, information the government previously required a warrant for, Internet service providers would have to submit to authorities upon request.

The online community has remained silent, however, and because this legislation affects users rather than major service providers, few are protesting the bill.  Service providers have expressed disagreement with the expansion of federal authority, but the lack of outrage is most likely a product of minimal opposition from major online organizations. HR 1981 has passed the House Judiciary Committee, and is awaiting discussion by the full chamber. Expect for this bill to dominate discussion about civil liberties in the upcoming months.

House Budget Committee Chairman Paul Ryan jousted with Secretary of the Treasury Timothy Geithner and forced him to admit, “We’re not coming before you to say we have a definitive solution to our long-term problem.  What we do know is we don’t like yours.”  This is a ridiculous thing for a Secretary of the Treasury to say.  It is his job to come up with a definitive solution.

Geithner further admitted that Obama’s budget, while stabilizing the debt to GDP ratio over the next 10 years, will actually cause the ratio to double within the ensuing 50 years, to the point where the debt equals over 200% of GDP.  Aside from being insanely fiscally irresponsible, the budget was proposed for purely political purposes.  Obama needs to paint the GOP as obstructionist in order to win reelection Harry Truman-style–by running against a do-nothing congress.  And he can only do so if no budget passes, an event virtually guaranteed as the Democratic Senate will never approve a GOP-written House budget.  (Obama has not signed a regular budget in over 1000 days.)  For a president who seemed so eager to stay above the political fray, Obama has had no compunction playing politics with the nation’s budget.

Obama’s sheer audacity is why so many, on both sides of the political spectrum, are frustrated.  Granted, the economy is weak, and recessions are not the time to tighten the fiscal belt.  Nevertheless, by 2013, Obama will have overseen a larger increase in the federal debt than any other president in history.  The debt has just recently exceeded annual GDP, which is somewhere near $15 trillion.  His latest proposal will add another $1.3 trillion.  And yet, the OMB Acting Director Jeffrey Zients had the nerve to claim that “The president has put forward today a balanced budget” with a straight face on MSNBC.

Why, many wonder, is a large deficit such a bad thing?  Running up large, continued budget deficits will ultimately lead bond buyers to demand a higher interest payment from the government, which could significantly derail the economy.  The ultimate worry, of course, is that lenders lose faith in the credit of the United States, an event which would lead to skyrocketing interest rates and global financial turmoil.

Many Democrats, however, are still committed to the notion that deficit spending is necessary now to help the poor in our times of economic turmoil.  They fail to acknowledge that, in fact, a smaller and smaller fraction of federal expenditures goes to the poorest quintile of Americans.  Most of the budget is now comprised of transfer payments which have increasingly gone to middle-income and wealthy Americans.  The practice is sure to come under increased scrutiny as it becomes increasingly obvious that the government simply cannot afford such payments anymore.

The time has come and gone to blame our fiscal woes on the previous administration.  Yes, they created a massive deficit problem.  No, Obama has not had the will, or ability, or political finesse to address the issue.  And nobody can blame Republican stonewalling for the deficits of the past few years- Obama has proposed a budget with a $1.3 trillion shortfall.  The proposed deficit is before Republicans take a hatchet to the budget.

$1,300,000,000,000 is a lot of money.

Photo Credit: REUTERS

Source: wkzo.com

The judicial opinion issued Tuesday by the Ninth Circuit Court of Appeals, which struck down Proposition 8 as unconstitutional, has charted a new path forward for advocates of marriage equality. Relying heavily on the Supreme Court’s decision in Romer v. Evans, the Appeals Court ruled that Proposition 8 does not satisfy the Constitution’s guarantee of equal protection of the laws because it irrationally takes away a right that gays and lesbians had previously enjoyed in the state of California: the right to marry. Tuesday’s narrow ruling, however, skirts the issue of whether the Constitution guarantees a right to same-sex marriage as a matter either of Due Process or Equal Protection. Although the invalidation of Proposition 8 is welcome news, gay rights activists should not settle for this narrow ruling; rather, they should press the judiciary for a constitutional right to same-sex marriage.

An Explanation of the Ruling

Bracketing the issue of whether the Constitution requires all states to allow for same-sex marriages, the Ninth Circuit Court of Appeals instead chose to answer whether voters in California may,

“…single out same-sex couples for unequal treatment by taking away from them alone the right to marry, and [whether] this action amounts to a distinct constitutional violation [since] the Equal Protection Clause [under Romer v. Evans] protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”

Backers of Proposition 8 resisted this framing of the issue, insisting that the fact that gays and lesbians enjoyed the right to marry in California for a brief “143-day hiatus,” prior to the passage of Proposition 8, was an irrelevant fact. The Appeals Court disagreed:

“Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend the designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

The Court then proceeded to scrutinize the purpose and constitutionality of Proposition 8 under an extremely differential standard known as rational basis review, wherein the judges merely ask whether the law under consideration furthers any legitimate state interest. Proponents listed several “ legitimate interests” advanced by Prop 8; the Court struck down every purported interest as irrational. At one point, backers of Prop 8 argued that the purpose of marriage is to reduce the “threat of unintended pregnancies out of wedlock” and so foster “responsible procreation.” Because same-sex couples are not at risk of accidental pregnancies, the argument continued, there is no need to offer them access to the institution of marriage. Further still, proponents also contended that prohibiting same-sex marriage would strengthen “traditional” families. The Court’s response to this claim bordered mockery:

“It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman. While deferential, the rational basis standard is not a toothless one. Even the standard of rationality must find some footing in reality.”

Exhausting the list of interests offered by proponents, the Appeals Court concluded that Prop 8 was merely the product of animus and served only to “lessen the status and human dignity” of LGBT people.

What The Ruling Means Moving Forward

Because of the operating structure of the Ninth Circuit, Tuesday’s opinion merely reflects the view of a panel of three judges who sit on the Appeals Court (the vote tally was 2-1, with Judges Reinhardt and Hawkins siding with marriage equality advocates while Judge Smith wrote in dissent). Prop 8 backers will almost certainly appeal their loss, though they have the choice of appealing either to a larger panel of the Ninth Circuit Court (on which sit 11 judges) or of proceeding straight to the Supreme Court. Commentators have speculated that proponents will most likely appeal to the larger panel before requesting review by the High Court.

Once the case reaches the Supreme Court – something that is now almost a certainty – the Justices will have three choices available to them: 1) they can reverse the ruling of the lower Appeals Court and uphold Prop 8 as constitutional, something that is very unlikely given the current makeup of the Court; 2) they can employ the same narrow argument used by the Appeals Court to strike down Proposition 8; or 3) they can strike down Prop 8 with a broad ruling that simultaneously finds a constitutional right to same-sex marriage. The choice of path will undoubtedly fall on the shoulders of the Court’s swing vote, Justice Anthony Kennedy, who has written passionately in favor of LGBT people in the two landmark gay rights cases the Court has considered (Romer v. Evans 1996 and Lawrence v. Texas 2003). Although Kennedy showed restraint in Romer, his ruling in Lawrence was exceptionally broad, overturning the 1986 case of Bowers v. Hardwick and striking down anti-sodomy statues in 13 states.

A broad ruling in the Prop 8 case by the Supreme Court, along the lines of Lawrence, could legalize same-sex marriage across the country, sticking down anti-gay marriage laws in 37 states and potentially invalidating the federal Defense of Marriage Act in one fell swoop. A narrow ruling along the lines of Tuesday’s Ninth Circuit opinion, by contrast, would only strike down Proposition 8 in California and, presumably, Amendment 1 in Maine – both of which stripped gay people of their right to marry after they had enjoyed the right for a brief interim period.

Several factors will work to determine which path the Supreme Court will take. Perhaps the most significant, however, will be the amicus briefs submitted to the Court by marriage equality advocates. Such briefs assist the Court in reaching an opinion and are typically submitted by advocacy groups or prominent legal scholars. Concerned with a serious public backlash if the Court rules broadly in favor of same-sex marriage, gay activists may purposefully submit briefs that push the Court to issue a narrow ruling. In the wake of the broadly reasoned Lawrence case, for example, state legislatures across the country moved with great speed to pass constitutional amendments and statutory enactments prohibiting same-sex marriage. For this reason, there is worry that another broadly reasoned ruling may do more harm than good and may lead the 37 states that currently reserve the designation of marriage for heterosexual couples to push for a federal constitutional amendment barring gay marriage across the country.

Personally, I am hoping for a broadly reasoned ruling. The threat of amendment to the Federal Constitution is one that should not be taken seriously. Although the number of states that have already prohibited same-sex marriage,37, is perilously close to meeting the threshold required for ratification of a constitutional amendment,38, these are not the only votes that matter. Before such an amendment could be sent to the states, it would require the approval of two thirds of both chambers of Congress. The likelihood of securing such a large swath of votes in both chambers of Congress is, in my view, a near impossibility. Moreover, the other track available for constitutional amendment, which bypasses Congress and instead calls for state constitutional conventions, has never been used in this nation’s 230-year history. There is no reason to suppose a federal marriage amendment would prove the exception.

What is more, the idea that a state-by-state push for gay marriage represents a long-term strategy for equality is absolute nonsense. In a couple of years, campaigners for marriage equality will exhaust the list of states that have not amended their constitutions to prohibit same-sex marriage. Once this happens, the only option left to activists will be to propose constitutional amendments that nullify the previously enacted anti-gay amendments (since courts and legislatures in states constitutionally prohibiting same-sex marriage are barred from taking up the issue). This cumbersome process will take decades, if not a generation. The reality is that, at some point, the Supreme Court will have to wield its power to strike down these state constitutional amendments if marriage equality is to be a reality across this nation in our lifetime. The question is whether that moment is now, or a couple of years from now.

Waiting for a future case is risky business. There are essentially five votes on the Court right now sympathetic to marriage equality. These votes, however, are not the votes of young justices. In particular, gay activists may soon lose the vote of Ruth Bader Ginsburg who is quickly approaching retirement. If a more conservative justice is appointed as her replacement, the opportunity to legalize same-sex marriage nationally will be lost for quite some time. Marriage equality is an issue that should be resolved now. To this end, lawyers in the Prop 8 case, as well as groups submitting amicus briefs, should press the Supreme Court for a broadly reasoned opinion. Suggesting we wait a few more decades before fully pressing the Court on this matter is a luxury only the young have. For the generation of gays and lesbians who rioted in front of Stonewall in 1969 and who have purchased progress with their blood and sweat, there is no more time. If marriage equality is to be a national reality in their lifetime, the Supreme Court must decide on the matter sooner rather than later. And if that means an intense public reaction, so be it.

Photo Credit: Episcopal Digital Network

Let me be clear, I sympathize with the pro-piracy crowd (or are they anti-stopping-piracy? Or anti-“censorship”? Is this the reverse of the anti-life vs. anti-choice conundrum?) I find the prospect of having to pay for content that could be free intensely annoying. To think, the only thing standing between me and watching the new Katherine Heigl movie for free is the greed of some multinational corporation! I’ll try not to consider the possibility that my desire to avoid parting with my own hard-earned cash is fundamentally similar to the desire of an artist to be paid for their work.

Leaving aside the individual moral implications of internet piracy, let’s take a look at some of the blogosphere’s arguments on the economic and policy implications.

Our own Tom Leberg runs down the ways that SOPA and PIPA were hopelessly flawed and would have negatively impacted sites that don’t help people pirate. These problems make the proposed legislation unpalatable. The idea of enforcing intellectual property protections online in general, though, deserves a more realistic discussion than the one it is currently receiving.

Matt Yglesias, in his infinite trendiness, is against stopping internet piracy and in favor of “illegal competition [as] a valuable consumer pressure on the industry.” ¡Viva la revolucion!

Yglesias argues that the deadweight loss created when a producer charges money for an extra copy of a TV show episode that was essentially free to produce is mitigated by illegal downloading. This blatantly ignores the fact that while the copy of the episode was free to produce, the episode itself was not. Yglesias, perhaps, would prefer if producers covered their costs from the ticket fees of live studio audiences only.

Caleb Crain, also of Slate, does a fairly good job of taking apart Yglesias’s argument that piracy is OK because the money not spent on a pirated item enters the economy in other ways:

If I were to visit the Slate cafeteria, sit in Yglesias’ chair, and eat his lunch, it’s not as if the money that I failed to spend on a lunch of my own would vanish into a black hole. No! The economy will not suffer! Yglesias, after all, will have paid for the lunch I ate, and the money that I didn’t spend would still be in my pocket or my checking account or whatever. So I could take that money and spend it on, say, the new Shins album. Now I can afford vinyl! Flourish, Keynesian multipliers, flourish!

Still, I think he misses the point as much as his colleague. Poking holes in a flimsy Yglesias argument is a far cry from suggesting a better intellectual framework for the discussion.

Yglesias takes a stab at using deadweight loss to justify his position, and Crain somehow manages to take apart this justification despite the fact that he clearly doesn’t know what deadweight loss is. I think it makes sense, then, for me to take a stab at explaining the reality of internet copyright laws with another topic from introductory economics: the excludability of goods.

As defined by Harvard Economist, Mitt Romney’s continually ignored economic advisor, and prolific textbook author N. Gregory Mankiw, a good is excludable if “someone can be prevented from using it.”

Congress can't stop you from looking at these fireworks. Can they stop you from downloading songs?

So, for example, a private party with N. Gregory Mankiw is excludable because I can station bouncers at the door to prevent you from entering unless you’ve paid the cover charge. Conversely, a fireworks show in celebration of N. Gregory Mankiw’s birthday is not excludable, because I can’t realistically prevent you from standing 100 yards away from where I’m launching the fireworks and enjoying all of the pretty colors.

What isn’t immediately obvious, but is immensely important to this analogy, is the government’s role, or lack of role, in these two scenarios. In the case of the private party, if you somehow manage to overpower my bouncer and get into the party, the government will intervene by sending a police car and arresting you for trespassing.

In the case of the fireworks, the government isn’t going to help much. But they could. If Congress decided that you “stealing” my fireworks show was a grave concern worthy of sparing no expense to solve it, they could build really high walls around my fireworks display, or put together a special anti-fireworks-stealing-task-force to hunt you down and shield your eyes. The reason they don’t do these things is because they’re impractical. The cost of government enforcement of my profit-earning-potential outweighs the benefit.

This same logic holds for things like music and movies. If the government can cheaply and easily prevent you from pirating stuff (and if our elected officials want to), they should. If, on the other hand, the costs—which might include, I don’t know, the internet shutting down in protest—outweigh the benefits, they shouldn’t. This issue isn’t so much one of morality, or even of government incompetence (although it is that too). It’s an issue of practicality. If a law isn’t worth enforcing, it shouldn’t be enforced.

The other interesting wrinkles to this are the international implications. Whereas Yglesias’s argument about the health of the market might hold to a certain degree within the US—that is to say, the US economy probably isn’t hurt a great deal by something like an American pirating a song owned by an American record label, assuming they spend the money they’re saving from pirating on American products, a big caveat—it’s a whole other ballgame when we go global.

At the risk of generalizing, the US has a competitive advantage over the rest of the world in creating things (designs for iPhones, pharmaceuticals, and even media), and a competitive disadvantage over the rest of the world in making things (assembling those same iPhones). Because of this, the US government is right to be preoccupied with international intellectual property law. It’s why you see it near the top of the agenda for every trade negotiation with a foreign country. The relationship to copyrighted material on the internet is this: even if it isn’t worth the government’s time and resources to prevent Americans from pirating, it certainly is worth at least some resources to prevent foreigners from pirating.

Unfortunately, this is where practicality rears its ugly head once again. The internet has no borders, and there’s a good chance that any site that assists Russian kids in pirating music helps American kids do the same. From there, things are complicated further by the fact that the Russian kid might spend that surplus income on an American product, and the American kid might spend his surplus on a Russian product. In the end, the walls that would have to be built to keep American intellectual property excludable may be just too tall. Our conversation, at the least, should be about what shape those walls would need to take, and if they are worth building.