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Memo to Obama: Use Market Jitters to Seize the Initiative

Posted by Peter M. Shane on August 10, 2011

Thanks to the debt ceiling deal no one liked, official Washington seems poised now to wait for a cumbersome congressional process to drag the country again through an extended spectacle of pathetic political gamesmanship. Critical points on the time line between now and January 1 include the end of the fiscal year (September 30), at which point the government shuts down unless appropriations are enacted, the November 23 reporting date for the congressional Committee of Twelve, and the December 23 deadline for a congressional vote to head off sequestration. As things stand, we can expect an eleventh-hour, 59th-minute political nightmare on each of these dates.

Here’s an idea for the president: Don’t wait. Seize the initiative. Offer a progressive plan within the next two weeks, and demand Congress enact it by the end of the fiscal year.

The parameters for the plan should be straightforward. The Committee of Twelve is supposed to produce $1.5 trillion in deficit reduction. Make $2 trillion your target. But achieve half that deficit reduction through revenue enhancement and economic growth generated by a redirection of government spending away from low-return subsidies and towards investment in infrastructure, the clean energy sector, and research and development, plus short-term stimulus through extended unemployment insurance and a payroll tax moratorium.

And now for the hard part: Announce you are putting on the table the option of an October 1 government shutdown unless Congress enacts a plan that you find acceptable – a plan that must be jobs-and-growth oriented, protective of the middle class, and focused on revenues, not just cuts. (At the very least, this will tempt the GOP to taunt you with a continuing resolution too good not to sign.)

You will be standing on high ground. Just keep repeating the words, “families,” “middle class,” “growth,” and “jobs.” The markets want to see the United States take actual leadership and show it can address problems before we have a gun, already cocked, to our collective head. Please lead the way.

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What the President Should Say If Congress Misses the Debt Ceiling Deadline

Posted by Peter M. Shane on July 28, 2011

My Fellow Americans:

Today, for the first time in American history, the Congress of the United States has effectively prohibited the government from paying its bills. In the last 50 years, the debt ceiling has been raised 74 times, ten of those times since 2001. Those votes have been bipartisan. They have occurred under both Democratic and Republican presidents. They have been all but universally regarded as essential to preserving the full faith and credit of the United States. Yet a minority faction of today’s congressional representatives — in the face of proposed deficit-cutting plans with overwhelming support from the American people — has taken the unprecedented step of allowing us to slide into potential default.

As a result of this inaction — this betrayal of the trust of the American people — we must face a hard truth. If the government continues to spend the funds Congress has already appropriated at the rate Congress anticipated when it appropriated those funds, we will simply run out of money before the end of the fiscal year. We will face an across-the-board government shutdown, with no end in sight. We cannot let this happen.

Because this situation is unprecedented, there is simply no clear law to guide my actions in response to this crisis. Read literally, the Congressional Budget and Impoundment Control Act of 1974 allows me to defer spending that Congress has already authorized on the basis of what that statute calls “contingencies.” It has been argued that I may use that authority to choose selectively, designating obligations to meet now and obligations to defer in order to avoid a shutdown of government services. At the same time, I am also aware of arguments that the Act does not give me such authority — that a statute intended to control impoundments cannot faithfully be interpreted to allow a president to postpone so much spending at his sole discretion. If these critics are right — if the Impoundment Act does not give me such authority — then my decisions not to spend money on particular programs would violate the many statutory provisions under which Congress mandated that those funds be spent.

It has also been argued that Section Four of the Fourteenth Amendment allows me to ignore the statutory limit on incurring government debt. That section provides, “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.” Some legal scholars argue that this provision authorizes the president to continue borrowing whatever funds are necessary both to meet our obligations to creditors and to continue funding government programs at the levels Congress has already approved. I have already expressed my doubts about the validity of this interpretation. I have been inclined to agree with those who read Section 4 as obligating Congress to provide for the repayment of debt, not to permit the president to ignore statutory limits on borrowing.

The fact is, however, that I am now faced with a no-win choice. I could cease government borrowing and defer some government spending, on a selective basis, under the uncertain authority of the Impoundment Control Act. But that would risk violating the many statutory provisions under which Congress has provided for government spending. I would risk disabling key government programs from operating effectively. Alternatively, if I continue government borrowing under the uncertain authority of the Fourteenth Amendment, then I will certainly be violating the statutory limit on federal debt and I will perhaps be misinterpreting our most fundamental law.

Let me clear about this conundrum. The Constitution obligates the president to “take care that the laws be faithfully executed.” I cannot duck that obligation. Yet, if I rely on one statute to withhold some government spending in order to advance what I regard as our critical priorities, then I risk violating some of the statutes through which Congress has directed the executive branch to spend money. The government spends only money that Congress appropriates; spending as Congress directs is, in most cases, a legal obligation. On the other hand, if I continue borrowing to fulfill these congressional mandates and to repay government debts that were lawfully incurred, then I am violating the debt ceiling and risk misinterpreting the scope of the Fourteenth Amendment. The legal path is not clearly marked either way.

Faced with this choice, I am compelled by both conscience and necessity to take the latter option. Deferring government spending under the Impoundment Control Act would require me to claim unprecedented discretion to pick and choose among programs that Congress has already determined to move forward. It would also leave the full faith and credit of the United States at risk, and impose numerous and unforeseen hardships on Americans who depend on the smooth and efficient operation of government programs already in place. If, however, I breach the statutory limit on borrowing, my assertion of power under the Fourteenth Amendment has a clear limit.  I can borrow no more than required in order to repay those debts that have been already been incurred pursuant to law without curtailing those government programs for which Congress has appropriated funds.  This is not a blank check. It is fulfilling a set of mandates that Congress itself has imposed.

I have thus decided to continue borrowing funds on behalf of the United States in order to repay those debts that have been already been incurred pursuant to law and to continue those government programs Congress has already authorized. In so doing, I believe I am faithfully executing both Congress’s current appropriations statutes and the intent of the framers of the Fourteenth Amendment to insure that the federal government would never repudiate its lawfully incurred obligations.

I would welcome congressional action to ratify this decision by statute. I would welcome even more the kind of balanced approach to debt reduction, deficit-cutting, and revenue enhancement that I have been urging on Congress for months and that can finally put our fiscal house in order for the next decade and beyond. Until Congress can reach some such agreement, however, I owe it to Congress and to the American people to stave off irreparable economic harm and to keep in effective operation the functions of our federal government for which Congress has already provided and on which the American people rely.

Thank you, and may God bless you and the United States of America.

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What May a President Do if He Cannot Pay Our Bills Without Borrowing and Borrowing More Money is Unlawful?

Posted by Peter M. Shane on July 19, 2011

An obvious question, should Congress not manage to fend off default within the next two weeks, is: What does the President do then?  If the President cannot pay off America’s creditors and keep all government programs running, what legal authority does he have to deal with the crisis?

A little history helps to put the answer in context.  In the nineteenth century, Congress simply did not have a budgeting process.  It appropriated funds for various federal purposes, confident that customs revenues would outpace federal spending.  In the unlikely event – unlikely, that is, before the Civil War – that appropriations outpaced revenues, Congress implicitly left it to the President to keep expenditures and revenues in line by not spending appropriations that were permissive rather than mandatory.

Congress did not adopt a formal budgeting process until 1921, when it created the Bureau of the Budget (now, the Office of Management and Budget) in the White House and the Government Accounting Office (now, the Government Accountability Office).  The 1921 Budget Act was the first to task the President with presenting Congress each year with a proposed budget for its consideration.

Flash forward now to the Nixon Administration.  Congress had created a statutory framework to help structure the exercise of executive branch spending discretion.  But Nixon, misinterpreting nineteenth century practice, insisted he had inherent constitutional authority to “impound” – that is, not spend – government funds that he thought had been unwisely appropriated.

In the wake of Watergate and in response to Nixon’s abuses of impoundment power, Congress rebelled.  It said, in effect, that whatever authority presidents enjoyed to manage government funds was a consequence of authority delegated to the President by Congress, either implicitly or explicitly.  And to prevent any future claims of inherent presidential impoundment authority under the Constitution, Congress enacted the Congressional Budget and Impoundment Control Act of 1974 (ICA).

Simplifying things a bit, the ICA can be understood as dividing presidential decisions not to spend appropriated money into two categories – rescissions and deferrals.  Rescinding funds means never spending them; deferring funds means not spending them right away.

The ICA basically took away any presidential right of rescission.  If the President wants to cancel altogether some congressionally authorized spending, he must send his recommendation to Congress.  The rescission then occurs only if, within 45 days, Congress enacts a new statute approving the proposed non-spending.  In other words, unless Congress affirmatively approves the President’s decision, sooner or later, he has to spend the money Congress appropriates for mandatory expenditure.

In 1974, however, Congress treated deferrals differently.  Presidents could propose to defer authorized spending for a fixed period of time, and those proposals would take effect unless either the House or the Senate voted to override the proposal – a so-called legislative veto.  The problem with this arrangement turned out to be that legislative vetoes are unconstitutional.  So said the Supreme Court in 1983.

At that point, the question became:  Did the President now retain his authority to defer spending, no longer subject to a legislative veto?  The U.S. Court of Appeals for the District of Columbia Circuit answered, “Sometimes.”

Sometimes, that is, Presidents want to defer spending because they think Congress did the wrong thing in funding a particular project or activity.  Deferring spending on such programs really amounted to a policy objection to Congress’s approved programs or activities.  According to the D.C. Circuit, the Supreme Court’s decision to nullify legislative vetoes effectively took the President’s power of “policy deferral” away.  Congress would never have enacted any policy deferral authority in the wake of the Nixon Administration, unless it knew it could retain legislative veto authority.  In “law-speak,” “policy deferral” authority could not be “severed” from the legislative veto.

Sometimes, however, presidents want to defer spending because, however, unobjectionable a program, deferring spending is necessary to provide for unforeseen contingencies.  Sometimes, for example, deferred spending enables the government to achieve savings through unanticipated efficiencies or changes in program requirements.  Such “programmatic deferrals,” according to the Court of Appeals, were still permissible.  They were instances of good management, not policy resistance.

Reacting to this decision, Congress amended the ICA to reflect the policy-versus- program distinction.  The ICA now basically prohibits “policy deferrals,” but allows “programmatic deferrals.” The President may recommend deferrals to achieve savings or otherwise “to provide for contingencies.”  Such deferrals take effect unless Congress affirmatively legislates to overturn them – which, of course, the President may veto if he chooses.

So, this is where the President would stand on August 2 if informed that government spending at current rates cannot continue without further borrowing, which, in turn, would violate the statutory limit on incurring government debt.  The President could claim authority to defer government spending in such amounts as necessary to avoid further borrowing.  He would presumably cite as his legal authority 2 U.S.C. sec. 684(b)(1), which authorizes deferrals “to provide for contingencies.”

Of course, exercising his statutory “programmatic deferral” authority in this way would be deeply ironic; the President could select expenditures to defer or not defer only by making policy judgments about spending levels that are different from the policy judgments that Congress enacted in its appropriations Acts.  In the words of separation of powers scholar Louis Fisher:  “Recognizing a broad power of impoundment by the President to handle the federal government in the absence of a higher debt limit would permit the President to radically change budget priorities by deferring this but not that — precisely the same kind of power that got Nixon into trouble.”

And yet there seems no other option.  If there is not enough money in the till to pay all the bills that are due and further borrowing is impermissible, something has to give.  The idea that the Fourteenth Amendment empowers the President to unilaterally raise the debt limit is implausible.  The President has statutory authority to respond to contingencies; he would have to use it.

Because nothing in the ICA would instruct the President on what basis to choose appropriations to defer – that is, what commitments not to keep — he would have to decide, on his own initiative, what projects and activities to put on hold to keep from violating the law.  Congress would thus have tacitly abdicated to the executive branch a huge swath of the power over government fiscal policy that the Framers quite deliberately vested in Congress.  The results, for good government — and certainly, for government as know it — would be calamitous.

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Madisonianism Misunderstood: A Reply to Professors Posner and Vermeule

Posted by Peter M. Shane on April 8, 2011

I disagree so deeply and at so many points with The Executive Unbound: After the Madisonian Republic, the new book by Eric Posner and Adrien Vermeule, that I feel compelled to begin on a positive note.  Theirs is a challenging, provocative work.  Regular engagement with interlocutors as thoughtful and well-read as these two authors would deepen anyone’s thinking.  To those who remain normatively committed to a robust rule-of-law vision of presidential authority, they pose a more interesting challenge than do putative constitutional originalists who find the founding generation oddly sanguine (and modern) in their thinking about executive power. 

In addition, two implications emerge from The Executive Unbound that I wholeheartedly support.  One is a recognition of the challenge (the authors would say “impossibility,” which I do not endorse) of reshaping the political landscape in a way that would make the revitalization of legal checks and balances a realistic program.  The second is the importance of strengthening the institutions that check the President politically, not just legally.  I agree enthusiastically.

 For Professors Posner and Vermeule, professorial contestation about Framer intent is quaintly beside the point.  As they describe it, the Madisonian vision of checks and balances simply fails as a description of how the administrative state works.  And, because, as they depict that vision, it actually cannot be implemented, it ought not to be our normative framework either.  Instead, we should recognize that, under current institutional arrangements, we have an executive branch that can pretty much do as it pleases within constraints that are significant, but almost always more political than legal.  Our normative ideal should be the strengthening of these extralegal institutional constraints to try to insure that what the executive branch winds up doing with its inevitable discretion is at least consistent with public opinion. 

 So here are my four essential points of disagreement.  First, they misrepresent – or perhaps “ignore” is more accurate – the core aim of Madisonian constitutionalism; it is not just to avoid dictatorship, but chiefly to thwart the spirit of faction and to produce government in the public interest.  Second, I find them too uncritically enamored of a rational choice perspective on how politics operates. Third, I think the wooden checks-and-balances/rule of law vision that the authors dismiss is largely a straw man.  At least, although they do me the honor of including me by name among those whose views they are rebutting, I am quite sure they are not describing the Madisonian vision outlined in my own work.  Fourth, I reject the idea that we should dismiss a normative vision because it cannot be perfectly instituted, especially given that calls for the rule of law and calls for bolstering extralegal forms of accountability are far from mutually exclusive.

 At the heart of the legal tradition that Professors Posner and Vermeule attack is supposedly what the authors call “tyrannaphobia,” a “horror of dictatorship” that, in the American context, the authors think to be largely irrational.  But tyrannaphobia of this sort – a fear of legally unchecked rule by executive authorities who cannot be replaced by democratic means – is not what chiefly animates Madisonianism.  Madison’s central preoccupation was the curbing of faction.  “By a faction,” Madison wrote in his famous Federalist No. 10, “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

Fears of imminent American dictatorship are plainly overblown in contemporary America – one wishes Glenn Beck’s viewers would take Posner and Vermeule’s argument to heart on this point.  But “faction,” in the Madisonian sense, could hardly be a more serious problem.  Americans who worried about Bush and Cheney calling off elections were paranoid.  But progressives are right on target in worrying whether our politics are driven unduly by the self-interest of the very rich and the corporations through which they wield much of their economic and political power.  What appears to be government’s frequent, even systemic inattention to equity for the poor and for the middle class is a profound democratic defect, and one that Madisonian constitutional design might have been expected to check.

Part of the problem here, I suspect, is that the preferred Posner-Vermeule analytic toolset – chiefly, rational choice political theory – has no convincing way of understanding “the permanent and aggregate interests of the community” apart from the expressed preferences of the citizenry at any given moment.  How to understand the “public interest” is a tough and enduring debate, and the authors pretty much sidestep it.  In appearing to accept public opinion as measured in polling or in elections as a full expression of the public interest, however, the authors run into a very obvious problem.  It is a problem that the authors actually diagnose astutely with regard to Congress. 

Posner and Vermeule argue that members of Congress are likely always to under-protect checks and balances because the benefits of checks and balances will largely inure to later generations and thus cannot be captured by contemporary political actors.  But this is every bit as true of contemporary voters.  Contemporary voters, if they act totally according to rational self-interest, will quite likely under-protect America from the effects of climate change and deficit financing.  They will undervalue education, pure research – and even checks and balances and the rule of law.  But, whatever the public interest is, it must surely involve some degree of care for future welfare even at the cost of short-term sacrifice.  Nudging America towards a yet more plebiscitary politics, as Posner and Vermeule seem to prefer, is thus quite risky for the public interest for just the reasons Madison feared.  This is one of the two most fundamental reasons why I think the authors’ exclusive reliance on rational choice theory to evaluate both political behavior and institutional design is misguided. 

The second reason is that rational choice theory largely ignores the mix of ideology, identity and self-conception that motivates much political behavior. In my own discussions of the rule of law, I emphasize the importance of these factors as they operate within government institutions to undergird the norms, customs and conventions that give life to the rule of law.  Posner and Vermeule dismiss any reliance on such emergent behaviors as having explanatory or normative value because champions of their importance, such as I, have not rigorously specified exactly how such behaviors work.  That is a fair challenge, although I hasten to point out that it’s a challenge to Posner and Vermeule’s own work, as well.  In relying on Americans’ skepticism towards executive overreaching and their practices in becoming informed citizens, Posner and Vermeule are also relying on norms, customs and conventions.  They just locate the relevant norms, customs and conventions in the electorate, not in the government.

The “rule of law” vision that Posner and Vermeule expressly dismiss is a vision in which rules enacted by Congress and enforced by courts are sufficient, in and of themselves, to constrain executive behavior.  The more discretion that the executive enjoys that is unchecked by enforceable rules, the less “law” there is in our “rule of law.”  But the “rule of law” for which I yearn in Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) is not this either/or version.  To quote myself:

“What [I describe] is a version of the rule of law that is not formalistic, but institutional.  Checks and balances, in operation, depend on an assemblage of norms, cooperative arrangements, and informal coordination activities that actually fit the political science definition of an “unstructured institution.”  James March and Johan Olsen have usefully defined an “institution” as “a relatively enduring collection of rules and organized practices, embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to the idiosyncratic preferences and expectations of individuals and changing external circumstances. Sometimes the relevant “rules and organized practices” are exceedingly clear and documented, like the rules inside the cover of a board game.  But sometimes, as political scientist Kenneth Shepsle has pointed out, these rules and practices “are more amorphous and implicit rather than formalized.”  We still recognize them as institutions because they “may be described as practices and recognized by the patterns they induce,” but compared to, say, a game of golf, they are, relatively speaking, “unstructured institutions.” Understanding the rule of law as an unstructured institution provides a far more attractive account of what citizens expect from a “government of laws” and a far more plausible account of why they might just get it; it provides an account of government behavior that rests on observable patterns of actual human behavior, not just the formal specification of legal rules in the form of written documents.”

Posner and Vermeule may regard this account as insufficiently rigorous, or they may say that “norms, cooperative arrangements, and informal coordination activities” are really politics, not law.  To those who participate in them, however, they are recognizable as law, and that recognition is a great deal of what gives them whatever institutional power they have.

At the proverbial end of the day, it may be that Posner and Vermeule would be content to accede to all these objections, at least for argument’s sake, but might still say: They don’t matter.  In their opening footnote, they are generous enough to group me with Bruce Ackerman and Theodore Lowi as authors of “diagnoses of decline” that are “so convincing” that we should recognize our “prescriptions for revival” of the rule of law as “futile.”  What Ackerman, Lowi, and I describe of political behavior, in other words, “if true, rule[s] out [our] prescriptions.”  It may be that the authors are more about right about this than I would like to acknowledge, although either accepting or rejecting their proposition involves as much faith as analysis, and I have always been the optimist in my particular household. 

I do want to say, however, that the impossibility of vindicating the rule of law at every turn is not a persuasive argument for abandoning the rule of law as a normative vision.  Every ethical system worth its salt aims for a pervasiveness of virtue that no one expects to be realized fully.  Moreover, along with Cynthia Farina (most notably among administrative law scholars), I have long argued that democratic legitimacy cannot be convincingly grounded on any one foundational principle.  The rule of law is important, but not everything.

Abandoning the rule of law as a normative vision seems especially foolish when embracing a political agenda for the reinvigoration of checks and balances is arguably consistent with the reform program that Posner and Vermeule would prefer.  They urge reformers to shift attention away from the rule of law “to the political constraints on the president and the institutions through which those political constraints operate–chief among them elections, parties, bureaucracy and the media.”  But the reform agenda they advocate would significantly enhance the prospects for the rule of law, as well.  Near the end of Madison’s Nightmare, I wrote: “[T]he practice of constitutionalism within the halls of American government will be shaped, most profoundly, by changes in the quality of our collective democratic life in society at large.”  Rule of law advocates would surely be enthusiastic if Americans constructively turned to the checking potential of our extralegal institutions.

To return to my positive note, I do hope readers more sympathetic to my critique than to The Executive Unbound will nonetheless take time to wrestle with the Posner-Vermeule line of reasoning.  They have pitched their ideas in a distinctly academic voice, but the debate they are seeking goes to the heart of American constitutionalism.  At the core of the debate are very different approaches to both democracy and public welfare.  Professors Posner and Vermeule render a service in adding to that debate an important and distinctive set of arguments.

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Using “Mandate Gap” to Measure Fault in the Event of a Government Shutdown

Posted by Peter M. Shane on April 7, 2011

According to the United States Election Project at George Mason University, 132,645,504 Americans turned out to vote in the 2008 election, representing 61.6 per cent of the eligible voting population.  Voters casting presidential ballots handed Barack Obama a 53 to 45 per cent win over John McCain. 

In 2010, 90,682,968 Americans voted, representing 40.9 per cent of the eligible population. Those voting for House members gave Republicans overall a 52 to 45 per cent win.  (Of the 246 GOP winners on election day, 85 won with Tea Party endorsement.)  Votes for Republican Senate candidates beat Democratic candidates 49 to 45 per cent.

In 2009, Rich Lowry, editor of the conservative National Review wrote: “Obama’s mistake is governing as if he has a heroic mandate when he really has a modest one. This is his mandate gap.”

In deciding who may at fault for causing a government shutdown, it might be worthwhile to consider who is straining their “mandate gap” now.

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“Love is the Answer”: Original Songs Recovered from 1970-72

Posted by Peter M. Shane on March 7, 2011

Between 1970 and 1972, Rick Lewis, Elissa Fazio and I engaged in a spate of song-writing.  Rick was my roommate for three years at Harvard and Elissa, one of my dearest friends from West Hempstead High School.  We produced about a dozen songs together, and – in late 1971 or early 1972 – another roommate, Andy Chester, recorded Rick and Elissa performing our songs (including one I had written the summer before college with another friend, Bill Hellert).  Andy owned what seemed to us to be a pretty advanced four-track reel-to-reel tape recorder.  I recently found my copy of that tape, had it digitized, and shared it with Rick and Elissa.  Our collective view is that eight of the songs are surprisingly not too shabby after 40 years.  If you make due allowance for youthful self-absorption, I’m not even too embarrassed by the lyrics.  Elissa now runs a small business in Tucson, Arizona (and is engaged in myriad other activities).  Rick is a cardiologist in Virginia.  But, if there’s going to be a 2015 folk revival, I think they’re ready for touring.  And, if Elton John decides to ditch Bernie Taupin, well . . .

1.  January Ways

Music by Rick Lewis
 Lyrics by Peter Shane
 Vocal: Elissa Fazio
 Piano and guitar: Rick Lewis
 © 2011.  Peter M. Shane and Richard A. Lewis.  All rights reserved.

2. New York City Summer Days

 Music by Elissa Fazio
 Lyrics by Peter Shane
 Vocal and guitar: Elissa Fazio
 © 2011.  Peter M. Shane and Elissa Fazio.  All rights reserved.

3. Parting Friends

 Music by Elissa Fazio
 Lyrics by Peter Shane
 Vocal and guitar: Elissa Fazio
 © 2011.  Peter M. Shane and Elissa Fazio.  All rights reserved.

4. Ingiving

 Music by Elissa Fazio
 Lyrics by Peter Shane
 Vocal and guitar: Elissa Fazio
 © 2011.  Peter M. Shane and Elissa Fazio.  All rights reserved.

5. Feeling Fine

 Music by Rick Lewis
 Lyrics by Peter Shane
 Vocals: Elissa Fazio and Rick Lewis
 Guitar:  Rick Lewis
 © 2011.  Peter M. Shane and Richard A. Lewis.  All rights reserved.

6. Always at the Beach

 Music by Rick Lewis
 Lyrics by Peter Shane
 Vocal: Elissa Fazio
 Piano and guitar: Rick Lewis
 © 2011.  Peter M. Shane and Richard A. Lewis.  All rights reserved.

7. Love is the Answer

 Music by Rick Lewis
 Lyrics by Peter Shane
 Vocal and guitar: Elissa Fazio
 © 2011.  Peter M. Shane and Richard A. Lewis.  All rights reserved.

8. Goin’ On

 Music by Bill Hellert
 Lyrics by Peter Shane
 Lead vocal:  Elissa Fazio
 Background vocal: Elissa Fazio
 Guitar: Elissa Fazio
 © 2011.  Peter M. Shane and Bill Hellert.  All rights reserved.

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Digital Stories Dramatize Information’s Role in the Lives of People and Communities

Posted by Peter M. Shane on March 1, 2011

Today marks the formal debut of Information Stories, a series of twelve three-to-five-minute video narratives (plus an introduction and conclusion) that respond to two questions:  What’s at stake when local news and information flow doesn’t serve all members of a community equally well? How can people respond? 

Some are stories of journalism.  Examples include the struggle of a labor union secretary/mother of five to get media coverage for asbestos-related disease in Libby, Montana, and the creation of an online newspaper for the “news desert” of southeast New Hampshire.

 Others are stories of activism.  The executive director of Native Public Media describes the drive to bring broadband to Indian Country.  A faith-based community organizer discusses a campaign to help poor people overcome the powerlessness caused by living “in an information vacuum.”

 Inclusiveness is a major theme to Information Stories.  For example, an undocumented immigrant tells how he pursues art and community organizing to make visible the immigrant experience.  A young radio reporter and producer from Chicago reveals how he learned to listen to, not just speak to his community.  A high school student relates why she thought it important to make transgender people a more visible presence at San Francisco Pride.  A “hard-of-hearing” English professor talks about making the voices of deaf students heard. 

 Other storytellers include a small town mayor, the manager of an online dialogue space, a community television board member, and a convener of community conversations about public health.

 Information Stories reveals the loss when local information flows leave stories uncovered, concerns unaddressed, or voices left out – and the gain when these exclusions don’t happen.

 I came up with the idea for Information Stories in collaboration with Liv Gjestvang, a Columbus, Ohio filmmaker who is also the coordinator of the Digital Union at Ohio State.

 I wanted to produce the videos as a follow-up to my work in 2008 and 2009 as executive director to the Knight Commission on the Information Needs of Communities in a Democracy.  The Knight Commission was a diverse, bipartisan group of 17 leaders in media, public policy, and community, who were organized to articulate the democratic information needs of America’s 21st century local communities. 

Funded by the John S. and James L. Knight Foundation and organized through the Aspen Institute, they were asked to recommend remedial measures where the Commission perceived that community news and information needs were not being met. 

As the Knight Commission was preparing to issue its October, 2009 report, I asked Liv for help in making the Knight Commission issues more compelling and concrete for the everyday public.  The Commission explained why “second-class information citizenship is looming” for many Americans, but commission reports tend not to be powerful tools for organizing grass-roots organizing.

My hope is that the online stories will help motivate activists around the country to pay attention to their local information ecologies.  Everyone should be asking themselves whether they and their neighbors get the information they require to meet both their personal and civic needs – and, if not, what they can do about it.

My aim with Liv with also to come as close as we could with just a dozen storytellers to assemble a kind of American tapestry.  The last line of the Knight Commission report is, “The ‘information issue’ is everyone’s issue,” and we wanted to drive that home.

The Information Stories storytellers learned how to produce their narratives through a July, 2010 Digital Storytelling Workshop, co-sponsored by the Ohio State University Digital Union, the University Libraries, and the University Center for the Advancement of Teaching. The series was produced with a grant from the John S. and James L. Knight Foundation, which advances journalism in the digital age and invests in the vitality of communities where the Knight Brothers owned newspapers. Since 1950, the foundation has granted more than $400 million to advance quality journalism and freedom of expression.

The Information Stories web site provides links to both captioned and non-captioned versions of the individual stories.  The site links also to resources that explain how anyone can produce his or her own “information story” and a feedback form to enable viewers to explain how they used Information Stories in their local communities.  A low-cost DVD containing both the individual stories and a “full reel” version that shows them as a continuous documentary is also available

 Ohio State University is releasing the Information Stories series subject to a Creative Commons non-commercial license.  That license allows the stories to be freely copied, distributed, transmitted or adapted for noncommercial purposes, provided appropriate credit is given.  We hope this means the stories will be downloaded, shared, and discussed in classrooms, libraries, community centers, church basements, and living rooms everywhere.

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Not Defending DOMA: A Conscientious and Responsible Decision

Posted by Peter M. Shane on February 25, 2011

A distinguished fellow law professor, Adam Winkler, has recently argued that the Obama Administration’s decision not to defend the constitutionality of the federal Defense of Marriage Act (DOMA) is an abdication of the responsibilities of the presidential office.  He wrote:  “For decades, presidents, Democrats and Republicans alike, have taken the position that it’s the executive’s obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution’s command that the president ‘shall take Care that the Laws be faithfully executed.'”

This position, however, is wrong on history and reflects an incomplete reading of the Constitution.

In analyzing this question, it’s important to distinguish two very different things:  the executive duty to carry out the law and the President’s duty to defend statutes challenged in court.  On the first matter, Attorneys General have long set a very high bar before opining that the executive branch can decline to carry out the law.  In 1919, Attorney General A. Mitchell Palmer, justly infamous on other grounds, penned a line that Attorneys General have consistently followed on the issue of whether questionable laws should be enforced:  “Ordinarily, . . .it is not within the province of the Attorney General to declare an Act of Congress unconstitutional–at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department.” 

The only likely defensible exception to this stance would occur if Congress were to enact law plainly violating well-established constitutional rights.  Thus, for example, if Congress purported to reestablish racial segregation in D.C. public schools, the executive branch could rightly decline implementation.

In reaching this position, Attorneys General – like Presidents – have to take into account two different provisions of the Constitution.  One is the “Take Care Clause” mentioned by Professor Winkler.  The central purpose of that clause is to prohibit the executive suspension of statutes, a key protection for the integrity of the legislative process going back to the 1688 Declaration of Rights in England. 

The other provision, however, is the presidential oath, which requires Presidents to “preserve, protect, and defend the Constitution” – presumably, all of it.  In carrying out laws that the President regards as unconstitutional, he might seem to be in violation of this straightforward vow.  But, regarding unconstitutional laws, the courts are available to protect the public from their operation.  The danger to constitutional checks and balances of allowing Presidents simply to ignore laws they disagree with is too obvious and too grave to be ignored.  Presidents simply have to strike a balance.  And, with regard to legal implementation, the right balance is, almost always, to carry out the laws Congress enacts.

Defending laws in court is a different matter for three obvious reasons.  First, the executive is not claiming to have the final say on legal implementation — or even interpretation.  The challenged law will remain on the books – and enforced – unless the courts rule otherwise.

Second, the executive stance does not deprive the law of defenders.  In the case of DOMA, for example, courts are likely to allow Congress to intervene and offer a defense.  This is exactly what happened when the executive branch declined to defend the constitutionality of the legislative veto in the 1983 Chadha case.

Third, government attorneys are officers of the court.  As advocates, they are bound by professional and ethical norms.  An important question, then, for the Justice Department is how far to go in pressing arguments in a judicial forum if the Department does not think the arguments are valid. 

President Reagan’s first attorney general, William French Smith, articulated a very restrictive stance on this question:  “In my view, the Department has the duty to defend the constitutionality of an Act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts.” 

His immediate predecessor, however, Benjamin Civiletti, staked out a position that left more room for discretionary judgment.  In a letter to a Senate committee, he wrote:  “The Attorney General has a duty to defend and enforce the Acts of Congress. He also has a duty to defend and enforce the Constitution. If he is to perform these duties faithfully, he must exercise conscientious judgment. He must examine the Acts of Congress and the Constitution and determine what they require of him; and if he finds in a given case that there is conflict between the requirements of the one and the requirements of the other, he must acknowledge his dilemma and decide how to deal with it. That task is inescapably his.”

Attorney General Holder’s letter explaining the decision not to defend DOMA represents a rigorous and conscientious implementation of the Civiletti view.  It does not deny, as Civiletti went on to say, that “when the Attorney General is confronted with . . . a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”  But it also does not portend any executive branch power grab.  Taking this careful, highly deliberate step in defense of what the President and the Attorney General take to be the right view of the Constitution is consistent with the best interpretation of the executive’s obligations towards the Constitution and the rule of law.

In short, one may debate the Attorney General’s legal analysis – although, for the record, I agree with it.  In taking their stance, however, President Obama and the Attorney General have acted well within the institutional norms long followed, to good effect, by their predecessors.

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Are the People of Egypt Available for Freelance Democracy Building?

Posted by Peter M. Shane on February 11, 2011

Now that the people of Egypt have successfully ended the Mubarak regime, I’m wondering if they are available for freelance work.

For example, I am thinking of a nation whose capital is home to over 600,000 people, none of whom are represented by a voting member of their national legislature.

It is a country where about 16 per cent of the population is given control over half the seats in the upper house of that legislature – and can effectively block what a majority of citizens want. (Actually, it’s worse than that because a single legislator in that House can block legislation, and not even a majority can insist on a vote.)

It’s a country where the right to vote is not even in the national constitution. Its Supreme Court actually said that no one in the country has a constitutional right to vote for its President.

Of course, there are other ways of catapulting democracy. You can invade, as we did in Iraq. But when I consider the price tag for that effort, in both money and human life, the Egyptian plan looks way better.

And the country I’m thinking of is not even a dictatorship. If the Egyptians have 18 days to work their democratic genius, they could probably institute democracy in half that time and grab a week for a well-deserved vacation.

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An Inconvenient Text: Will House Members Obey the Constitution They Read Aloud?

Posted by Peter M. Shane on January 5, 2011

It’s wonderful that Members of the House of Representatives are preparing to hear a reading of the Constitution of the United States.  I would enthusiastically echo the hopes of Dahlia Lithwick and Garrett Epps that close attention to such a performance might prompt at least some of our constitutional fundamentalists to appreciate that the document they revere is both imperfect and complex.  Things they hope to find there will be missing.  Things they wish were not there are explicit. Readers of Dahlia’s and Garrett’s essays will find numerous examples to mull over.

I thought, therefore, that I would limit my post today to a single question:  After the reading of the Constitution, will all members of Congress who are military reserve officers or who hold appointments as retired military officer resign their posts?  I ask because, Section 6, Paragraph 2, of Article I states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  It’s called the Incompatability Clause.  To hold a commission in the armed forces reserves or an appointment as retired military officer is to hold “Office under the United States.”  So, while in Congress, don’t Reserve officers and retired military officers have to resign their executive branch positions?

A group of reservists opposed to the war in Vietnam brought the issue of reserve officers to the fore over 35 years ago, and succeeded at the trial and appellate court levels in getting a declaratory judgment that Members of Congress are ineligible, while in Congress, to hold a Reserve “commission.”  The Supreme Court set aside the judgment on a procedural ground, namely, that the plaintiffs were not injured personally by the asserted violation of the Constitution’s Incompatibility Clause, and were therefore not entitled to sue on the matter in a federal court.

Of course, the fact that individual Americans cannot sue Congress because of procedural hurdles should not keep Congress from doing the right thing, right? 

In a Fourth of July week message last summer, now Rep. Allen West (R-FL), said:  “I believe in our Constitutional Republic which means we are a Nation respecting the rule of law. We must . . . enforce our laws, clearly articulated in the Constitution.”  Does that mean that “Lieutenant Colonel Allen West (US Army, Retired),” as he describes himself on his web site, will now resign that appointment? 

Just asking.

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