Archive for February, 2002

The Ball Toss and Growing Up

Saturday, February 23rd, 2002

“Since baseball time is measured only in outs, all you have to do is succeed utterly; keep hitting, keep the rally alive, and you have defeated time. You remain forever young.” — Roger Angell.

In early 1990, I was flying home after having been away from home for over a week. At the time, my boys were nine and six. The movie on the return trip home was Field of Dreams starring Kevin Costner. The film was a fantasy about an Iowa farmer who is haunted by voices imploring him to construct a baseball stadium in the middle of his cornfield. “If you build it, they will come.”

To some, the movie was about the fictitious return of “Shoeless Joe Jackson,” who had been unfairly banned from baseball after the Black Sox World Series fixing scandal in 1919, to play baseball once again. On a more profound level, it is about how families support each other. Baseball is often the medium within which the conventional passages of life are played out.

The young Iowa farmer, Ray Kinsella, who is the protagonist of the film, has been estranged from his father since the age of 17. Even when they disagreed, baseball used to be the one thing Ray and his father could generally discuss civilly. They could talk while tossing a baseball between them. Their estrangement was deeper than baseball, but it was an argument about baseball that symbolized their final separation. As Ray and his father parted, Ray insulted his father by wondering aloud how his father could idolize a criminal Joe Jackson. Ray’s father died before they could reconcile.

At the end of the movie, old ballplayers emerge from the cornfield to play on the field Kinsella had built. One of the players was Ray’s father, youthful before the worries of age had overwhelmed him. Ray reconciles with his father through the simple expediency of grabbing a mitt and tossing a ball with his dad. Anyone who would not want to immediately go home and toss the ball around with his son after seeing the movie needs a remedial parenting class.

It is often unclear whether baseball is a metaphor for life or visa versa. Nonetheless, how one tosses a baseball with his child measures the stages of a child’s growth as certainly as the marks on a doorway mark a child’s height. In the beginning, you sit inside with your son or daughter on a soft floor legs spread, feet touching, so you form a small, enclosed, and protected world. The simple rolling of the ball back and forth unites father and child in a common endeavor.

When a child gets a little older, you can toss the light whiffle ball back and forth with them until, through trial-and-error and instruction they master the coordination required to guide the ball’s trajectory. When they get older still, you entrust their young hands with a hard ball, capable of great velocity and damage. Placing a hardball in the hands of a youngster says, “I trust you” more eloquently than poetry. Nonetheless, you carefully throw the ball back to them so they do not get hurt as they master the art of predicting where the ball will fly off your hands and placing their mitt into a position to received the advancing ball.

Then there comes a wonderful moment, sometimes imperceptibly, when your faith becomes complete. You can throw the ball at them, without taking a little speed off of it, confident that they can catch the ball. Kids know when you are going easy on them and when they realize you are not pulling pace off the ball, their pride swells within.

Raising children, however, is not without pain. Part of being a teenager is testing limits and testing yourself against adults. There comes a time when a child not only returns the ball with pace, but tests you by throwing the ball as fast as they can, happy if they can elicit a wince from the sting of hard thrown ball. Throwing the ball hard is an assertion of independence. It tells the parent, the time when your child needs your constant attention is nearing an end. Finally, they find they do not need to throw the ball too hard. They relax and throw the ball just for the enjoyment of throwing a ball. Your kids have grown up. They have the confidence of adults.

Both my boys are now in college and have passed through the stages of the simple baseball toss. I do not know yet, but I am fearful that there is another stage. A stage when they do not throw the ball at you with all their might; when they do not throw the ball at you as an equal; a stage when they deliberately take pace off the ball so as not to endanger you.

Recently, my 14-year-old daughter asked to play catch with me. I now can throw the ball at her with little worry about her ability to handle it. She surprised me by throwing the ball at me as hard as she can and the ball stung a little. She is getting to be a big girl now. I am a proud parent.

Assault on the First Amendement

Sunday, February 17th, 2002

It is quintessentially American to be exquisitely sensitive to threats to liberty. Any country born with the motto “Don’t tread on me,” could hardly be otherwise. We worry about limits on flag burning and flag waving, about whether Nazis can march in Jewish neighborhoods, under what conditions artists funded by the government can produce art that is offensive to the public, the extent to which terrorists enjoy the right to counsel, and even the applicability of US Constitutional rights to illegal combatants caught in a foreign land. Yet, the focus on these questions can largely obscure sweeping threats that are far more pervasive and more directly threatening to American liberty. The implicit limitation of free speech hiding under the euphemism of campaign finance “reform” represents just such a threat.

The dynamics of calls for such reform are relentless. As governments grow more and more intrusive in the economy, government decisions rather than impersonal market forces determine economic winners and losers. As a consequence, there are stronger and stronger incentives to influence such decisions. As the perception of influence grows, so do cynicism about the influence and calls for regulation.

The 1974 campaign finance bill, following the Watergate scandal, limited individual contributions to $1,000 per candidate per election, political action committees (PACs) were limited to $5,000 per candidate per election, candidates spending of personal funds was capped and expenditures by independent groups was constrained to $1,000 per candidate per election.

In Buckley v. Valeo, the Supreme Court agreed that the law was far too expansive. While limitations on spending might avoid the “appearance of corruption” this argument could hardly be made against a candidate spending his own money. This limitation was struck down. Limitations on spending by independent groups were ruled a violation of the First Amendment.

After all the dust had settled, in exchange for some government financing, candidates could agree to spending limits. Direct contributions to candidates are called “hard money.” Contributions to political parties for general party activities fall into the category of “soft money.” Campaign ads paid for by soft money near the time of an election are not permitted to directly advocate the election or defeat of a candidate.

Ever clever, political professionals adapted to these new restrictions. Campaign ads for using soft money became cleverly disguised ads that supported general themes that helped or hurt various candidates. Money also flowed to independent groups to make the case for and against independent candidates.

To some, political speech in the form a campaign ads is getting out of control. The recently passed Shays-Meehan House bill bans “soft money” from the national parties, and prohibits unions, corporations and non-profit organizations from broadcasting ads that directly refer to a candidate within 60 days of an election. This latter provision will almost certainly not pass constitutional muster. Indeed, Congress is so certain that it will be overturned that it specifically provides in the legislations that the various components are severable. If one part does not pass a court test, the rest of the legislation would remain. It is irresponsible at the very least for Congress to pass legislation that they are reasonably certain is unconstitutional. Such an action shows a profound disrespect for Constitutional constraints.

Even now it is apparent that if the current bill becomes law, there will be important (unintended or not) consequences that are not healthy for the political process.

Incumbent Protection: In general, incumbents are better known in their districts than challengers and require fewer funds to introduce themselves to voters. To the extent that campaign funds are limited overall and to the extent that electioneering is limited, incumbents are helped. Incumbents, the ones who are writing the law, provided an exception for running against wealthy challengers who finance their own campaigns. If a challenger is wealthy, an incumbent is allowed raise more “hard money” Certainly, if the raising of such funds is corrupting, it is still corrupting in the presence of a well-heeled opponent.

Reducing the Relative Power of Parties: Political parties are where people of broadly similar political persuasions congregate. The presence of political parties nurtures political diversity. Parties will support with money long-shot candidates that political action committees and independent interest groups eschew as poor investments. As political parties wither, political competition weakens. Even in the unlikely event that limitations on campaign funds by independent groups within 60 days of election are upheld, the influence of such groups will increase. National political parties will not have soft money to spend and will not be able to respond to the pitches of various interest groups. Since independent interest groups by their very nature focus on single issues, the political debate will become more polarized and angry. Political parties have a centralizing influence. The Shays-Meehan bill greatly reduces this civilizing effect.

Increasing the Power of Large Media. With fewer political voices mandated by legislation, the power of the press to set the agenda free from dissenting voices grows. There are people on both the Left and the Right convinced that mainstream media misrepresents their issues. Under the planned legislation, the relative power of the press, yes even the corporate press, increases.

Now that passage of this form of campaign finance reform seems likely, some on the Left, are beginning to have second thoughts. Republicans have traditionally had greater success in raising hard money, and this bill increases hard money limits. In particular, Democratic candidates in 2004 presidential elections will likely exhaust their hard money funds in hard-fought primaries in early March or April 2004. Assuming that Bush runs essentially unopposed in the Republican primaries, the Bush campaign will be able to present the case for Bush’s re-election with hard money throughout the summer.

Many in favor of the current campaign reform regime argue that there are no real restrictions on the freedom of speech, because “money is not speech.” Of course, the phrase is a deliberate mis-characterization of the issue. If money is directly connected to speech then it is part of protected of speech. By way of analogy, governments could not limit the amount of money spent to print up a pamphlet and argue that they were not regulating speech but money.

The guiding ethos for free speech has been that, “I disapprove of what you say, but I will defend to the death your right to say it.” ( Friends of Voltaire, 1906) It has now changed to, “I disapprove of what you say, but I will defend to the death your right to say it — so long as it is more that 60 days before a federal election.”


When Chapter 11 Does Not Mean Bankruptcy

Sunday, February 10th, 2002

Within the United States, free trade works to the benefit of all. Goods and services pass easily between Pennsylvania and Maryland, between California and Nevada, between Georgia and Florida. One reason internal US trade works is that the rule of law exists. If a fraudulent transaction takes place in one state, there is a reasonable chance that someone in another state can achieve effective recourse in the courts. In addition, although states can enact legislation locally, the federal government retains the exclusive right to regulate interstate commerce. Indeed, it was the impediments to free trade between states under the Articles of Confederation that motivated the writers of the Constitution to prohibit the states from regulating interstate commerce.

The presence of barriers to international commerce had been an impediment to prosperity in Europe. The rise of the European Union represents a recognition of this. Europe is on a rapid track to full economic integration, now that these countries largely share a common currency.

The North American Free Trade Agreement (NAFTA) is an attempt to largely achieve the benefits of free trade between the United States, Canada, and Mexico. The increase in trade and prosperity following the enactment of the agreement is a testimony to the benefits of free trade. There was not the great “sucking sound” of jobs being vacuumed out of the United States predicted by some.

Nonetheless, Bill Moyers in the PBS program Now: Trading Democracy focuses on what may turn out to be an important if not fatal flaw in the agreement. Whereas most corporations would like to avoid Chapter 11 when it refers to bankruptcy, some that invest in foreign countries are trying exploit Chapter 11 of NAFTA. The offending section Chapter reads:

“No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (“expropriation”), except: (a) for a public purpose; (b) on a nondiscriminatory basis; (c) in accordance with due process of law and Article 1105(1); and (d) on payment of compensation….”

Actually, the provision seems to make sense. If one wants to encourage investment, the investors must be confident that their investments will not be arbitrarily seized. The penalty for the expropriation is payment of fair market compensation.

The problem that Moyers focuses on in his special is potential overly broad interpretation of the “tantamount to expropriation” clause. Apparently, California passed an environmental regulation limiting the chemical additive MTBE in gasoline. The chemical had found its way into ground water and there are serious questions about the long-term health consequences of human exposure to MTBE. The Canadian company, Methanex is a major manufacturor of MTBE. It is now suing California under Chapter 11 of NAFTA. Methanex is submitting to an arbitration tribunal set up as part of NAFTA a request for nearly $1 billion in compensation for an act that is “tantamount to nationalization or expropriation.”

Essentially, the thesis of Moyers Special is that the corporations will be able to use the Chapter 11 provision of NAFTA to assert that any government action that might reduce profits is equivalent to expropriation. While such creative interpretations are possible by the tribunal, they are not likely to survive long. Either the tribunal’s rulings will be consistently reasonable or the treaty will be re-negotiated.

The clause cited above specifically gives governments the right to regulate so long as the regulation is directed to a “public purpose” and “nondiscriminator.” Indeed, later in the NAFTA agreement, environmental regulations are specifically allowed.

“Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns.”

It is always possible for creative lawyers to conjure up new interpretations of a law inconsistent with the original understanding of those who drafted the legislation. Indeed, that is the goal of much of modern interpretation of Constitutional law. It is the purpose of courts and other tribunals to dismiss interpretations that are too expansive. It was disappointing that Moyers did not discuss in greater details the other provisions of Chapter 11 relating to environmental regulation.

What was amusing was to see in the Now program, the solemn hand wringing of William Greider of the Liberal Nation magazine and Martin Wagner of Earthjustice Legal Defense Fund concerned about national sovereignty. I suspect that neither would shed a tear about national sovereignty if international environment agreements were used to compel compliance to stricter environmental regulations even if they US cost jobs and trumped local or national decisions.

There are very important and legitimate concerns about limitations of sovereignty in any international agreement. It is nice to see the Left learn such a concern. Possible unreasonable interpretations of NAFTA ought to be scrutinized. Nonetheless, it does seem that a dispassionate reading of the entire NAFTA agreement would preclude the problems cited in the Moyers special. If, however, the NAFTA tribunal makes consistently unreasonable or expansive interpretations, NAFTA should be reconsidered. The problem that Moyers focuses on is not a problem with the concept of free trade, but in the details in implementing a free trade protocol in the age of creative interpretation of the law.

A Conservative Not a Libertarian

Saturday, February 2nd, 2002

Thomas Jefferson argued that the government that governs best is the government that governs least. Though there is some truth to this assertion, it is probably truer that the government that governs best is simply the government that governs best.

Over the last couple of decades, there has been an alliance of sorts between traditional Conservatives and Libertarians opposing “Liberal” big government. Libertarians insist on a minimalist government and oppose, on principle, an ever larger and more intrusive state. To Libertarians economic markets are the preferred regulators of behavior.

Traditional Conservatives, while not necessarily opposed to strong government, were not sympathetic with the uses the Liberals were making of it. Though Liberals attempted out of good intentions to use government to help those in need, their approach has often degenerated into creating, encouraging and subsidizing a dependent class in exchange for political power. It is ironic that the more successful 1960’s Liberalism is in transforming the disadvantaged classes into the middle class, the less need there is for their programs. Their political saliency increases only in proportion to the failure of their policies.

What Libertarians sometimes overlook is that the functional free markets they worship as the regulators of daily transactions do not sprout like weeds from any soil. Conservatives recognize that markets must be planted and nurtured. Libertarians have long accepted the necessity for the rule of law, the regularization of and enforcement of transactions and contracts, and provisions for public order.

Important as such structures are, they are woefully insufficient by themselves. The complex and numerous interactions between individuals require an implicit trust such that in large measure third-party enforcement is not necessary. If every transaction required a regulator, the normal efficiencies of markets would be overwhelmed and destroyed. Markets depend on the character of the people. Markets cannot prosper without an ethos of trust, integrity and honesty. The undermining of this trust by the irresponsible actions of companies like Enron demoralize the markets necessary for prosperity.

One role of government, recognized by traditional Conservatives and not by Libertarians, is to take care to improve the character of individuals, a character necessary for a free people. Such concern might take the form of a tax code that encourages traditional families, private savings for retirement, and contributions to non-profit charities. Such a concern might take the form of anti-discrimination laws that teach tolerance. Such a concern might take the form of strict enforcement of Securities and Exchange Commission laws that reinforce the notion that success is a function of hard work and luck, the not result of fraudulent tactics.

President George W. Bush has proven to be less of Libertarian and more of a traditional Conservative. When he ran for office, he emphasized government-private partnership in providing the community-based services that large government bureaucracies find so difficult to provide effectively. Faith-based solutions have proven particularly effective for problems of drug addiction.

In the recent state of the union address, Bush seems to be concerned about the self-centeredness taught by a society that focuses too much on material acquisition and too little on other values. For too long our culture has said, “`If it feels good, do it.’ Now America is embracing a new ethic and a new creed: `Let’s roll.”’ Bush used the unity in the wake of the September 11 attacks to focus Americans outwards. He asked Americans to personally reach out and help others in their own communities. Bush asked Americans to commit two years somewhere in their lives to volunteering for others, to share of themselves.

Frankly, the expansion of government volunteer programs, like his USA Freedom Corps, may tend to crowd out rather than encourage local efforts. Nonetheless, Bush’s instinct to call upon the better angels of our natures, to ask us to care for those around us, makes Bush a traditional Conservative. Libertarians would deem such considerations outside the legitimate scope of government. For this reason, Libertarians will likely not make good leaders. And in the long run, a government that takes care to help create good citizens, a government concerned about character, is the one that will have to govern least.