Anatomy of a Canard: “The Condescending Liberal”

I once read that the smartest smear tactic in politics is to accuse someone else of your worst fault. Hence, among the canards thrown at liberals, one I have especially hated is how the left is so elitist and condescending towards people who disagree with them.

In an especially pristine version of this thesis, University of Virginia Professor Gerard Alexander recently took to The Washington Post to assert — based largely on his tendentious readings of books with which he disagrees: “American liberals, to a degree far surpassing conservatives, appear committed to the proposition that their views are correct, self-evident, and based on fact and reason, while conservative positions are not just wrong but illegitimate, ideological and unworthy of serious consideration.”

Professor Alexander was kind enough to concede, “Every political community includes some members who insist that their side has all the answers and that their adversaries are idiots.” I will make the same concession for my camp.

But, for two reasons, I still hate his argument. First, in terms of demonizing those who disagree with them, the left can hardly compete with the vitriolic right. Liz Cheney’s current campaign to disparage the patriotism of Justice Department lawyers who offered volunteer legal services to Guantanamo detainees is but the most vile current example. To put the point another way, are there days of the week when Glenn Beck, Rush Limbaugh, and their acolytes are not encouraging their audiences — through name-calling, ridicule, innuendo and paranoia — to dismiss liberal positions as “illegitimate, ideological and unworthy of serious consideration?”

But, even worse, it has always struck me that that no one is more condescending to conservatives than the demagogues actually hoping to lead their parade. It has always seemed to me that their customary appeals to fear, animosity, and reactionary instinct were an implicit insult to the collective intelligence of their intended audience. Otherwise, why not appeal to reason? Why not open yourself to actual debate? (William Buckley anyone?)

But, I have despaired, how might I ever persuade anyone on the right that their demagogues really were hoping to prey on their fears, animosities, and reactionary instincts? And so, I want to thank the Republican National Committee for its recent presentation on GOP fundraising. Right there in the presentation, Slide 29 to be exact, the RNC Fund-Raising Committee identifies the precise triggers to pull in order to motivate GOP donations through direct marketing. They are “Fear, ” “Extreme Negative Feelings Toward Existing Administration,” “Issue/Circumstantially Oriented,” and “Reactionary.” What I suspected to be true is now official GOP fund-raising doctrine!

So, Professor Alexander, let me say two things. First, I doubt that liberals are any more likely than conservatives to think that those who disagree with them are idiots. But second, I am certain that liberals do not regard as idiots those who are actually in their camp. That distinction apparently belongs to your “political community.”

Negotiations 101: Why Don’t Congressional Democrats Do the Obvious?

Having much training in public law and very little in practical politics, I tend to think I must be missing something when people in power do not do what looks like what would obviously be in their interest.  But Democratic behavior in Congress is so counterproductive that I cannot resist pointing out two lessons they would surely pick up in an introductory course on negotiations.

First, if you want someone to negotiate, negotiation has to promise a better result than what professionals call the “best alternative to a negotiated agreement,” or BATNA.  Right now, for Congressional Republicans, the alternative to virtually any health care bill that could possibly pass is the status quo.  Republicans are happy with the status quo (or at least they realize that alternatives they might like better, such as draconian malpractice caps and the privatization of Medicare, won’t happen.)  So, why negotiate?

That’s why Democrats should do two things.  They should say to Republicans, “You want to start over?  Fine.”  But first, the House must adopt the Senate health care reform bill.  That would put in play an actual health care reform plan as the actual, real-live, not just imaginary alternative to negotiation.  Then, Democratic and Republican negotiators should give themselves a three-month deadline to strike a bipartisan deal that starts over from scratch.  If they do, great.  If not, at least the Democrats will have accomplished something.  Most immediately, they will have changed the momentum for negotiations.

Second, as others have observed, Democrats and Republicans in Senate face what game theorists call a “prisoner’s dilemma.”  Imagine police have two suspects they believe committed a crime.  They cannot prove it unless one testifies against the other.  The police say to each, “If you testify, you’ll only serve a year in jail and the other guy will serve ten.  But the deal goes only to the one who caves first.”  Neither prisoner should want to cave; they should cooperate with each other and maximize their joint welfare.  But each knows that, if he alone cooperates with his fellow prisoner, but the other caves in, the non-testifier will be much, much worse off than if he had simply abandoned the other.

I believe the major sourcce of public contempt for Congress — and contempt may not be too strong a word — is that Congress seems incapable of doing ANYTHING.  If Congress appeared to be tackling actual problems with imperfect, but incrementally helpful solutions, incumbents from both parties would find their approval ratings going up.  But maximizing the parties’ joint welfare requires cooperation — the equivalent, in the prisoner’s dilemma, of not ratting out.  But, unless there’s going to be some real promise of give on both sides — some actual bipartisanship — each side may think itself better off by posturing for its base.  (Here, however, one has to note that the Democrats do not seem good even at posturing.)

Game theorists have shown that there is one superior strategy for overcoming the prisoner’s dilemma if you have repeat players.  The strategy is called “tit for tat.”  One side offers cooperation; if the other side cooperates, repeat.  If not, retaliate — and hard.  Then, keep doing this strategy over and over.  The idea, through a series of repeat encounters, is to show that playing nice always produces good outcomes, and not playing nice always produces harm to the non-cooperating party.

What this means for the Democrats is that, as a consistent strategy, (1) they have to offer something that Republicans want as a means to induce cooperation, and (2) they have to have plausible retaliation strategies if cooperation does not happen.

Of these two lessons, the first is a no-brainer.  Unless the Democrats change the GOP’s BATNA, they will not negotiate. 

The second lesson should work, too — unless the Republicans actually do not want anything from the Democrats.  If the Republicans believe that doing nothing is always the superior strategy, then the Democrats have to think relentlessly about what they can accomplish by themselves.  Doing nothing and just blaming the Republicans spells weakness.  With a majority in the House and a 59-member caucus in the Senate, if the Democrats cannot enact legislation, voters are unlikely to give them more seats to work with.

A final note to Congressional Democrats:  The Republicans in Congress seem to have taken the introductory negotiations course — probably also the intermediate course — and gotten A’s.  You need to enroll and aim for a grade better than “Incomplete.”

First Draft of a Constitutional Amendment to Authorize the Regulation of Corporate Involvement in Politics

It is time for the American people to push back against a radical Supreme Court indifferent to both democracy and constitutional values. My contribution is a first draft of a constitutional amendment to overrule Citizens United v. Federal Election Commission — and, while we’re reclaiming American democracy, First National Bank of Boston v. Bellotti, as well.

Sec. 1. Notwithstanding any other provision of this Constitution, Congress may prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. Notwithstanding any other provision of this Constitution, States may prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any state or local office, or for any state or local referendum or initiative, within their jurisdiction, and may delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments.

FCC Examination of the Future of Media and Information Needs of Communities in a Digital Age

The FCC just released a public notice, FCC LAUNCHES EXAMINATION OF THE FUTURE OF MEDIA AND INFORMATION NEEDS OF COMMUNITIES IN A DIGITAL AGE. It quotes the conclusion of the Knight Commission on the Information Needs of Communities in a Democracy that “[t]he digital age is creating an information and communications renaissance. But it is not serving all Americans and their local communities equally. It is not yet serving democracy fully.” The notice goes on to state forty-two questions on which the project is conducting research and seeking public input through March 8, 2010. More information and opportunities to comment are available at the project web site.

WH Releases Open Government Directive: Transparency (Plus) Engagement (Equals) More Democracy

The White House this morning released a long-awaited Open Government Directive that follows up on the President’s promise – memorialized on his first full day of office – to usher in a new era of transparent, participatory governance.

The Directive, issued over the signature of OMB Director Peter Orszag, explains: “Transparency promotes accountability by providing the public with information about what the Government is doing. Participation allows members of the public to contribute ideas and expertise so that their government can make policies with the benefit of information that is widely dispersed in society. Collaboration improves the effectiveness of Government by encouraging partnerships and cooperation within the Federal Government, across levels of government, and between the Government and private institutions.”

What is arguably most impressive about the Directive, as highlighted in a public briefing by CIO Vivek Kundra and and CTO Aneesh Chopra, is its specificity and focus on execution.

Some examples:

Agencies get 45 days to “identify and publish online in an open format at least three high-value data sets.”

Agencies get 60 days to “create an Open Government Webpage . . . to serve as the gateway for agency activities related to the Open Government Directive and shall maintain and update that webpage in a timely fashion.”

Agencies have 45 days to “designate a high-level senior official to be accountable for the quality and objectivity of, and internal controls over” publicly disseminated Federal spending information.

Each agency has 120 days to “develop and publish on its Open Government Webpage an Open Government Plan that will describe how it will improve transparency and integrate public participation and collaboration into its activities.”

This is exciting stuff, but it only heightens the need for what communication scholars call “trusted intermediaries” to help everyday citizens make the maximum use of new information resources.

A couple of weeks ago, I was briefing a Columbus city employee who is working on social networking innovations for the city on transparency initiatives at the Federal Communications Commission. She said, “Great! I now have another mountain of information I cannot possibly digest myself.”

If Americans are to take advantage of newly available data sets, community institutions need to alert them to the ways in which they can do so.

If citizens are to contribute their ideas in ways that truly affect policy, then organizers need to mobilize public interest around those opportunities and help people to elaborate their ideas in ways most likely to affect policy thinking.

If transparency is truly to promote accountability, then the public needs journalists to help discover, gather, compare, contextualize, and share the new information becoming available. These journalists may be citizen journalists. They may work for community foundations. They may be graduate students. They may work for HuffingtonPost or any of our local, regional, or national media outlets.

But if more information is coming, we need more people who engage with information not only for their personal benefit, but for the benefit of the public as a whole. It is skillful engagement with information that turns greater transparency into deeper democracy.

High Court to Consider Separation of Powers in Upcoming PCAOB Case

(This entry originally appeared on the blog of the American Constitution Society.)

Roughly since the second Reagan administration, separation of powers sophisticates (SOPS) have been held in thrall – whether in joy or dread – by the theory of “the unitary presidency.” Its central claim is that the president is constitutionally entitled to direct personally the exercise of any and all discretionary authority that Congress vests in any officer of the executive branch. Say the Center for Disease Control is told to write a pamphlet about AIDS. The president gets to edit it. NASA scientists are supposed to write a report on climate change. The president gets to tell them if global warming is good science. Maybe the Park Service has been given the discretion to limit certain activities in national parks either through the imposition of user fees or the promulgation of regulatory restrictions. The president gets to pick. And so on. Any and all discretionary decision making in the executive branch would be hypothetically subject to presidential control, even in areas of government activity for which Article II gives the president no inherent authority.

A number of fellow academics for whom I have great personal affection and intellectual respect assert (a) that they are constitutional originalists and (b) that unitary executive theory represents the proper reading of the Constitution. As I wrote in Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago 2009), I don’t think these positions can be squared. Eighteenth century ideas of executive power simply did not include centralized policy control over all of public administration.

The idea of the unitary presidency is a very tough one, however, to test in court. One would have to imagine a case in which a party with standing was injured by an administrative action that the relevant officer avowedly undertook for the sole reason that the President ordered her to do so, but which, she confesses, she otherwise would not have pursued. Hard to see that happening. So, we SOPS are left to read other tea leaves, and the tea leaves we read most assiduously appear in Supreme Court opinions on appointments and removals. That is because the Court’s conclusions on the president’s appointment and removal powers would seem to have some logical connection to its inferences about the president’s supervisory powers, as well.

This is the main reason that even those of us who devote little if any time to thinking about securities regulation care about Fair Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2008), cert. granted, 77 U.S.L.W. 3625 (U.S. May 18, 2009) (No. 08-861), in which the high court will hear oral argument on December 7.

This case involves the constitutionality of the Public Company Accounting Oversight Board (PCAOB), which was created by the Sarbanes-Oxley Act to oversee the activities of public company auditors. It is an odd institutional creature – a nonprofit private corporation that has been given enforcement, adjudication, and rulemaking powers. The members of the PCAOB are appointed by the Securities and Exchange Commission – presumably because Congress found them to be “inferior officers” and thus subject to appointment, at Congress’s discretion, by the “heads of departments” – and are not directly removable by the president. This is clearly not the unitary executive at work.

Over a scathing dissent by Judge Brett Kavanaugh, the D.C. Circuit upheld the PCAOB on the grounds that (a) PCAOB members are sufficiently subordinate to the SEC to count as “inferior,” and (b) both the appointments provisions and limited removability under Sarbanes-Oxley are constitutional under Morrison v. Olson. These holdings plainly invite a reconsideration of Morrison, which is the Supreme Court opinion most discomfiting to champions of the unitary executive. Morrison upheld Congress’s decision to create an officer called “independent counsel,” who would be appointed by the judiciary – permissible only for “inferior” officers – and subject to removal only for good cause and only by the attorney general. Following a sort of multi-factor balancing test, the Supreme Court concluded that independent counsels count as “inferior” for constitutional purposes, and that their limited removability did not deprive the president of his capacity to discharge his Article II functions. It is the removal point in Morrison that most gives presidential unitarians heartburn. Were the Supreme Court now to insist that all officers of the United States must be removable at will by the president, that might well signal the president’s entitlement also to command their exercise of discretionary authority. (I say “might well” because the points are analytically distinct. A president entitled to fire officers at will might still be legally required to allow them to exercise their discretion as vested and then fire them post hoc.)

As it happens, however, of the seven Justices in the Morrison v. Olson majority, only one – Justice Stevens – remains on the Court. Justice Scalia has since been joined on the Court by Chief Justice Roberts and Justices Thomas and Alito, all of whom, whether as jurists or as government lawyers, have been notably staunch advocates of the “unitary executive.” The apparent “swing vote,” as is often the case, belongs to Justice Kennedy, who recused himself in Morrison and who, in other contexts, has sometimes seemed sympathetic to categorical claims of inherent executive power. There is thus some real doubt as to the enduring vitality of the Morrison analysis.

Because five Justices may, of course, decide anything, it is technically true that a majority in the PCAOB case would have the option of using the case either to limit Morrison to its facts or overrule Morrison’s approach to the removal issue. The latter especially might seem to bolster unitary executive theorists and would raise doctrinal doubts – at least at the “tea leaf” level – about the constitutionality of independent agencies. Or, the Court might decide the case modestly, leaving Morrison’s broad separation of powers implications untouched. (I assume that the Court did not grant certiorari in the case simply to affirm the D.C. Circuit.)

A modest opinion would likely turn on the “inferior officer” issue. That is, it would be enough to invalidate the PCAOB’s mode of appointment to find its members are “principal,” not “inferior” officers, and can thus be appointed only by the president and with the Senate’s advice and consent. Whether PCAOB members count as inferior officers is, however, not necessarily an easy question. Although they receive substantial SEC supervision and appear to lack significant final, unreviewable policymaking authority, the PCAOB has important investigative and prosecutorial powers that involve genuine discretion.

Commenters predicting that the PCAOB case will provide the occasion to limit Morrison sometimes point to the case of Edmond v. United States, 520 U.S. 651 (1997), in which the Court unanimously (through an opinion by Justice Scalia) overturned the appointment by the Secretary of Transportation of civilian members of the Coast Guard Court of Criminal Appeals. The opinion noted, however, that the civilian members were not “inferior” under at least two of the Morrison v. Olson criteria: they are not limited in “tenure” to a single defined task and they are not limited in “jurisdiction” to focusing on a single individual or set of defendants. The Scalia opinion pointedly went on, however, to state that “‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.” The obvious suggestion was that this test, not the Morrison balancing of factors was the better test. Advocates of “unitary executive” theory may be hoping that the PCAOB case at least reads Edmond as overturning Morrison’s approach to inferiority. (It would seem an odd move since Edmond acknowledges that its result is consistent with Morrison.) Of course, even if Morrison’s approach to inferiority were overturned, the holding would leave independent agencies intact. The commissioners and board members who head our key independent agencies are appointed by the president with Senate advice and consent, so there is no appointments issue raised. Congress, however, whenever it wanted to divest the president of appointments power, would have to render the officer whose duties are at stake substantially subordinate to an officer whom the president does appoint. That would put an end to any prospect of resurrecting the precise model of special prosecution enacted after Watergate – but perhaps Judges Laurence Walsh and Kenneth Starr already accomplished that.

The Eisenhower-Obama Doctrine? Ending the Military’s “Blank Check”

In the current political climate, the most dramatic point of President Obama’s West Point speech on Afghanistan. was neither his commitment of additional forces or the precise timing to begin a drawdown of our troops.  It was his determination to apply cost-benefit analysis to our military commitments.

Of course, it helps a President who has not served in the military if he can cite an iconic general for what should be a common–sense point.  So, he invoked Dwight D. Eisenhower for the doctrine:  “Each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs.”

In post-Eisenhower Washington, this is revolutionary stuff.  As progressives propose initiative after initiative to improve the health, education and welfare of the American people, we are continually pounded by ominous predictions of ruinous cost.  Yet, when it comes to national defense, there appears to be no ambition too excessive, no cost too burdensome, no deficit too large.

By reciting what we might now call the Eisenhower-Obama Doctrine, President Obama, to my mind, is setting the stage for the rest of a two-term presidency.  He inherited, as he frequently reminds us, two wars, a huge budget deficit and an economy on the brink of depression.  He is willing to devote much of his first term energies to cleaning up the inherited messes in the economy and national security.  What he is not willing to do is put off the pursuit of other critical national priorities indefinitely. 

In a wise essay,  Jacob Weisberg recently predicted that Obama, by State of the Union time, is likely to appear as having accomplished more in the first year of his presidency than any chief executive since FDR.  Like Weisberg, I do not believe Democrats will scuttle health insurance reform altogether, and even the most modest version of what is being proposed would bring huge help to millions of Americans.  Add that to the start of an economic recovery and a repositioning of America in the eyes of the world and it looks like a pretty good year.

And how will things look by 2012?  President Obama has promised a complete withdrawal of combat troops from Iraq by the end of 2011.  I now predict he will do the same for Afghanistan by 2013.  Why?  In 18 months, there will either be discernible improvement in Afghanistan or not.  If there is, he has the same basis for phased withdrawal as now exists in Iraq.  If not, the American people will simply insist on a strategic exit.  And, if job growth begins to pick up next year or by spring of 2011, the Obama Administration will have set the table for a second term largely devoted to the domestic reforms that are pretty obviously at the top of the President’s personal to-do list.

That does not mean, of course, that jobs, education, financial services reform, climate change and the rest of the domestic agenda will be on hold until 2012.  There is much that might still be accomplished in the first term.  But the timing of withdrawal from Iraq and the beginning of a drawdown in Afghanistan helps to set a timeline for progress on the home front, as well. 

In saying this, I do not want to be misinterpreted as happy with the current pace of change.  Like many progressives, I am angered by how slowly, if at all, those who undermined the rule of law and our economic security over the last decades have been brought to any measure of accountability.  The scope of congressional ambition with regard to health care, climate change, financial regulation, and education strikes me as too narrow – and I wish the Administration were turning its back yet more dramatically on Bush-era abuses and preposterous claims of executive power.

But President Obama has given me hope.  One of his favorite words is “persistence,” and his West Point speech seems to me to be signaling the time frame within which a persistent President can help deliver “change we can believe in.” Even as progressives rightfully keep pushing, President Obama seems determined not to let America’s reflexive support for all things military to blur his focus on other national priorities.   That’s a very big deal.  President Eisenhower would be proud.

Putting Local Journalism at the Core of Higher Education

Last Friday, about 35 of us got together at Ohio State for an informal symposium about the local implications of Informing Communities: Sustaining Democracy in the Digital Age, which was the final report of the Knight Commission on the Information Needs of Communities in a Democracy.  As the Commission’s former executive director, I had the privilege of starting the day with a brief history of the Commission’s work and a summary of some of its key themes.  (Full remarks here.) 

 In addition, however, I posed the following question to those present:  What would it be like to organize an entire college or university education around the idea of journalism?  Here is the portion of my talk that addressed this idea:

 “I am not talking here about what we think of as vocational journalism education.  The idea is not to make everyone a professional editor or reporter.  I am talking, instead, about conceiving an entire program of liberal education that takes as its central theme the idea that the new media phenomenon is potentially making everyone a journalist.  Thus, for both students and faculty, it is critical to be able to analyze media products and to have the skills to help meet the challenge of arriving at ‘truthful, comprehensive, and intelligent account[s]‘ of a day’s local community events ‘in a context which gives them meaning.’  (I am borrowing here the definition of news from the 1947 Hutchins Commission.)    What would such an educational program look like?

 “We could imagine freshman writing courses devoted to some combination of news literacy and training in reportage.  Students would have to learn something about who makes what decisions for the local community and what rights and capacities everyday citizens have to obtain information.  They would have to learn about how to make technical matters accessible for a general audience.  They would have to learn to evaluate information sources.  Some might go on to be the campus equivalent of professional journalists, working for a student paper, radio station, or television outlet.  Others might become bloggers or just better online commenters on the blogs of others.  Perhaps some would form expert networks that would check on the accuracy of stories in mainstream media or offer their services in vetting professionally produced stories within their areas of expertise.  Is something like this imaginable?  Maybe even in, say, a state capital, where there would be lots and lots of government stories to tell at local, state and regional levels of decision making?  . . .

 “[A key insight of the Knight Commission] is that we need not just to preserve journalism where it exists; we need to create it where it does not.  . . .[Moreover,] the production of local news has always depended on some form of subsidy, and markets without subsidies will not produce enough journalism to keep people informed on public issues.  We will certainly not have enough investigating and exposing corruption and neglect by the powerful.

 “Of course, this is not to deny the flowering of many local experiments that are doing good work based on combining support from advertising, individual philanthropists, foundations, corporate sponsorships, and citizen “members,” but I wonder both about their staying power (especially in smaller communities) and their scope.  I am thus especially interested in the prospects for other anchor institutions in local communities to provide ongoing social support for the gathering and dissemination of local news.  I am looking for the kind of resource stability that will support what two noted authors have described as not just ‘information, but . . .news judgment oriented to a public agenda and a general audience.’ 

 “And that brings me back to the question with which I started.  What would it mean to build the theory and practice of journalism into the very DNA of American higher education?  How would it affect communities to see a flowering of news outlets grounded in local universities, colleges, and community colleges?

 “For starters, it seems to me that journalism-centered liberal arts education would respond simultaneously to three major social problems.  One is the shortfall in local news production around the country.  The second is the well-documented deficiency in college student writing.  The third is the low level of Americans’ civic literacy, their knowledge about how social institutions work and who makes the policy decisions that affect their lives.

 “Involving students in local journalism also wins what I like to think of as the educational trifecta.  The issues posed are intellectually challenging.  Students like dealing with them.  The skills students develop increase their marketability and enable them to function more effectively as citizens.

 “An excellent recent study prepared by famed journalist and editor (and OSU alum) Len Downie and the noted sociologist of journalism, Michael Schudson, reports on a variety of exciting models for connecting journalism to higher education.  As they report in, ‘The Reconstruction of American Journalism,’ KQED in San Francisco is partnering next year with the Graduate School of Journalism at the University of California, Berkeley to launch an independent nonprofit Bay area news organization.  According to Downie and Schudson, ‘The new entity’s reporters, working with KQED journalists and Berkeley students, will cover local government, education, culture, the environment and neighborhoods for its own Web site, other digital media, and public radio and television.’

“Along similar lines, several newspapers in southern Florida have agreed to use reporting from journalism students at Florida International University. The Walter Cronkite School of Journalism at Arizona State University in Phoenix operates a service provides student reporting to about thirty client newspapers and television stations around Arizona.  Both Berkeley’s and Columbia’s journalism schools operate a range of online news sites that feature reporting by its students in city or outlying neighborhoods.

“Universities are even becoming homes for independent nonprofit investigative reporting projects started by former newspaper and television journalists, at such places as San Diego State, the University of Wisconsin-Madison, Northeastern, and Boston University.  As a law professor, I have especially admired Northwestern University, where journalism students are working with the Innocence Project to investigate death penalty convictions. They are obviously doing important work because the Cook County prosecutor has already subpoenaed the students.

“My point is not that universities are the single, exclusive, or even best answer to satisfying the daily news and information needs of local communities, but unless there are nonprofit social institutions of significant heft shouldering a lot of this burden, things will get worse.  And it’s not just student journalists who can help.  Business schools can help teach marketing to online entrepreneurs.  Law schools can help local media outlets to pursue Freedom of Information requests and defend against libel suits.  This is not just the business of big research universities either.  Although I may be giving in to stereotype, it may be that, in covering union news or news of relevance to new immigrant communities, our community colleges may have a strong comparative advantage.  Indeed, if you let your imagination roam here a bit, you can envision a consortium of higher education institutions in a local area combining talents and resources to provide a wide range of local information in the public interest.

“The Knight Commission was impressed, as am I, by the wondrous range of new technological tools that are enabling more and more people to be creators, shapers, and distributors of information than ever before.  We do live in a renaissance moment.  But tools are only tools.  They can be turned to democratic advantage only with skill and by design.  Right now, the technology-fueled information revolution is not serving all Americans equally well, and our local communities are in need of help.  The Knight Commission urges Americans to ‘embrace the quality of community information flow as an issue worthy of their concern and involvement.’  My plea is to universities to take this cause seriously.”

Needed: Social Investment in an Informed Society

You could keep yourself quite busy these days reading about and attending conferences on new models for journalism.  But the current moment of journalistic ferment is actually part of a larger and more alarming story.

The United States is dramatically underinvesting in the production and circulation of knowledge.

Three headlines reveal the larger landscape:  “America Falling: Longtime Dominance in Education Erodes.”  “Libraries Struggle with Tight Budgets.”  ”US Statehouse Reporting in Decline.”

On the surface, these sound like separate issues.  Our colleges, libraries, and newspapers face distinct challenges.  To some extent, their problems have different causes, and they require different solutions.

But they share a common pathology:  The United States is relying excessively on free market forces to sustain the key institutions that produce an informed, knowledgeable society.  Those forces have fallen short.  Increased social investment has not followed.

From 1980 to 2004, state support for colleges and universities shrank from 46 to 27 percent.  Tuition as a source of support rose from 13 to 18 percent.  America faces unprecedented competition in the global knowledge economy.  But we are shifting the cost of creating competitors from the greater society to the shoulders of individual students.

Libraries fare no better.  Americans visited libraries 1.4 billion times in 2005. Over two-thirds of adults have library cards.  Yet, in 2003, 2004, and 2005, U.S. communities cut library support.  Many are trimming services just as Americans are most desperate for them.

As for newspapers, individual subscribers have never paid the full freight for gathering and reporting local news.  We have relied, instead, on advertising. 

That model unraveled in the 1990s.  Major news organizations undertook debt that they cannot repay.  Internet advertising shrank their revenue streams.  Newspaper ad revenues fell nearly a third between 2000 and 2007.

Are public media likely to meet the local news shortfall?  Federal investment in public media is currently $1.35 per person.  Most local public radio stations in the U.S. have virtually no news staff at all.  At the same time, Canada invests $22.48 per capita and England spends $80.36. 

Growing up in the 1950s and 1960s, I thought the United States was Number One in more or less everything.  More important, I thought we wanted to be.

No more.  Unless America decides to invest collectively in developing an informed, knowledgeable society, our decline is both frightening and inevitable.  “New models” for journalism, education, or the sharing of knowledge generally will fall short unless we take a hard look at our public policies on information.

Obscure Cases and Important Principles

I am currently participating in on online debate under the auspices of the Federalist Society regarding a case hardly anyone has heard of that is now before the U.S. Supreme Court.  The case is called Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB).  It poses the question whether Congress acted permissibly in structuring the PCAOB.  Its members are (a) appointed by the Securities and Exchange Commission, not by the President, and (b) removable only by the Securities and Exchange Commission – not by the President – and only for good cause.

The Federalist Society has asked its debaters to discuss whether these appointment and removal provisions are unconstitutional.  As my colleague Hal Bruff writes in a forthcoming essay, this is the kind of case only separation of powers cognoscenti typically follow, even though it has the potential – albeit, just slight potential – to revolutionize our separation of powers law.  That is because, if the Court overturns the removal provisions, it may well cast into doubt the great many statutes that create administrative agencies throughout the federal government, such as the Federal Trade Commission and the Federal Communications Commission.  It could instead vindicate so-called Unitary Executive Theory, which I try to refute in Madison’s Nightmare.

I have reprinted below my opening entry in the debate.  Anyone intrigued can follow the unfolding conversation here.  The other invited participants are Martin Flaherty, Andrew G. McBride, Gillian E. Metzger, Donna M. Nagy, Tuan Samahon, Christian G. Vergonis, and Christian J. Ward.

* * *

Appointments: There’s no real doubt that members of the PCAOB are “officers of the United States.” That is, they have duties regarding the implementation of public law that go beyond the tasks Congress could assign to one of its own committees. Hence, its members must be appointed pursuant to the Appointments Clause. And, under the Appointments Clause, they must be appointed by the President with the advice and consent of the Senate, unless they are “inferior officers,” in which case they may be appointed by the president alone, by the head of a department, or by a court of law.

This is the PCAOB’s greatest vulnerability. The members of the PCAOB may well not be “inferior” in the constitutional sense. Although members are removable for good cause by the SEC, their jurisdiction is far more wide-ranging than that of the independent counsel upheld in Morrison v. Olson. The Court could leave Morrison and its antecedents intact, and enjoin the enforcement operations of the PCAOB on noninferiority grounds. This is doctrinally the most modest way to overturn the PCAOB, and I predict this will be the result, with hardly any greater implications for separation of powers law.

If PCAOB members are deemed “inferior,” then I do not see any other vulnerability on the appointments side. As the Court observed in Morrison, Congress’s discretion in choosing among the designated modes of appointing inferior officers is not limited by the text. There would not be anything constitutionally anomalous in giving the SEC power to appoint people with expertise in corporate accounting.

Removal: The more controversial question involves the limitation on direct removals by the President. It is not controversial under Morrison v. Olson. Morrison said that limitations on presidential removal powers are permissible unless they interfere with the President’s capacity to discharge his constitutionally assigned functions. The President, of course, is constitutionally obligated to take care that the laws be faithfully executed. If a PCAOB member is derelict in this regard, the President must be able to instigate that member’s discharge. Under Sarbanes-Oxley, he cannot do so directly – which was also true in Morrison v. Olson – but the failure of the SEC to correct any such dereliction would presumably be good cause for the dismissal of any recalcitrant SEC Commissioner. Under Morrison, this holds up.

The rub, of course, is that there may well be five members of the Court who would now like to overrule Morrison – Roberts, Alito, Scalia, and Thomas, almost certainly, and quite possibly, Kennedy, who recused himself in Morrison. Reaching out to limit or reverse Morrison, however, would be a conspicuous piece of judicial immodesty, especially since the PCAOB can be invalidated on the less controversial ground of noninferiority.

I thus predict the Court will not attack Morrison – but this may be wishful thinking on my part because (a) I agree with Morrison and (b) modesty on the Roberts Court is, at best, an occasional virtue.