On the filibuster, and the SOTU

Here's my recent post to the W&M American Constitution Society blog, on "Mitigating the Filibuster." Without the Republicans' abuse of the Senate's arcane rules, President Obama would already have signed health care reform and climate change reform into law. Period.

As for the State of the Union last night, I thought it was an excellent speech. Obama made his priorities clear and reaffirmed his belief in the principles that we elected him for — that the American people are resilient, that Washington must change the way it governs, that we must end the war in Iraq, and that government must provide a better social safety net for the least among us. Since his election, a new priority has emerged of necessity: that government must do a better job of regulating the financial system. Our growth in the 2000s was largely the result of speculation and the housing bubble. The growth went largely unnoticed for the average American, who saw his wages decline during that period. We can't keep building on a house of sand. He was also right to say that without the stimulus package, we would be in much, much worse shape than we are today.

I disagreed with him on a few points. A three-year spending freeze on discretionary spending is unrealistic, won't do much to cut the deficit, and is essentially pandering to the Blue Dogs in the House. He basically quoted that part from a speech that John Boehner gave last year, but I'm sure Republicans will still find a way to criticize him for it. He's also wrong about the Citizens United decision, the one that allows corporate spending on campaigns. The outcome's going to be bad, at least in the near term, but you can't criticize a Supreme Court decision simply because you don't like the outcome. The conservative justices got the law right — the First Amendment protects the right of people who incorporate to speak about political candidates. Any legislation that Congress passes in response will be a waste of time, and will probably get struck down.

I found the reaction of the Republicans to a few key parts of the speech absolutely amazing. They paint Obama as a tax and spend liberal but when he said — quite truthfully — that his administration has not raised taxes once, but in fact has cut taxes 25 times, the Republicans sat on their hands. They don't like lower taxes? Hmm, that's funny. When he said that the biggest banks (not all the banks, just the ones that got TARP funds) should have to pay a fee until the rest of the bailout money is repaid, the Republicans sat on their hands. Really!?! The banks shouldn't have to repay the bailout money? Also, why do Senate Republicans (except Judd Gregg) oppose the creation of a bipartisan commission on reducing the federal deficit? I thought it was clear last night that Republicans will oppose Obama even if he proposes initiatives that are consistent with their ideology.

Also, he was right to tell Democrats not to "run for the hills" just because of the special election in Massachusetts. They do still have huge majorities and if they pass a jobs bill, and the economy keeps growing, they'll keep most of those majorities in November. He's also right to keep calling for more transparency. It's Congress that's sitting on its hands. They should post all earmark requests online, so that we know which members are increasing the deficit, by how much, and for which projects. And it's about time we repeal Don't Ask, Don't Tell. What a moronic policy, keeping people in the closet. Finally, health care reform will get done, as it should.

A Big Week for Old Media

The world of media is changing so fast even the New York Times, the paper of record, can't always keep up. This week three developments marked significant shifts in the future of the media business model. All three could benefit the struggling daily newspaper industry, or at least what's left of it.

The first is perhaps the most obvious, because it comes from the newspapers themselves. The New York Times this week announced that it would begin charging nonsubscribers for frequent access to its website, starting in 2011. This is bad news for frequent news consumers, bloggers, and probably even cite-checking law students, who all rely on easy access to the Times' incredible archive of reliable information. But it's probably good news for the newspaper itself, which will see an immediate spike in revenue. With ad sales and circulation declining, the Times Company's decision to charge for access to online content will temporarily anger readers (like me) but undoubtedly will help the paper retain its invaluable news staff. This isn't a panacea for the newspaper industry, but others will watch to see if the Times' decision helps stop the bleeding. If it does, other large newspapers still standing in 2011 will likely follow suit.

Second, the Wall Street Journal claims to have confirmed rumors that Apple will unveil its long-anticipated iSlate tablet device next Wednesday. If it sells half as well as the iPhone, this device will revolutionize the way we access digital information. Few people enjoy reading large quantities of text on computer screens, iPods, or Blackberries but increasingly, not doing so leaves a person in the dark. Most of us need to access digital information with great speed and frequency, so we do it in spite of these reservations, and our preference for paper. I'm not suggesting that books will disappear, of course, only that Apple is filling a need. The iSlate is great news for newspapers because it decreases the need to distribute the paper versions of their product, cutting circulation costs without losing readers. (As an aside, the iSlate could also be fantastic news for college and law students. Think of the potential for digital textbooks to drive down costs.)

The third development is more subtle, and comes packaged in what seems like bad news: the U.S. Supreme Court held yesterday, 5-4, that people using the corporate form have the same free speech rights in political campaigns as the rest of us. Since Congress passed the McCain-Feingold Bipartisan Campaign Finance Act, for-profit and non-profit corporations, as well as labor unions, were limited in the ways they could donate to and speak about political candidates. The Act exempted media corporations, meaning that a giant corporation like Fox News could say whatever it wanted about a candidate up until Election Day, while a non-profit group like the ACLU had no such ability to endorse or criticize a candidate. Media corporations, now on a level playing field with other corporations, have mixed views about the ruling. The Wall Street Journal hailed the ruling as a victory for the Constitution and free speech rights, while the New York Times (long a supporter of campaign finance reform) assailed it as a "blow to democracy". Whatever your feelings, until Congress makes a change, corporations are free to start buying political advertisements. Who will get all this money? The old media. The same New York Times Company that criticized the ruling will undoubtedly accept these advertising dollars. The Times editorial board may continue to support campaign finance reform but the Times Company's board of directors surely will not stop this new flow of money.

Not a bad week for old media.

The beginning of the end, and televising the Prop 8 trial

My final semester of law school began this week. It feels a bit surreal to know that, to know that in a few months the people I've grown accustomed to seeing in the halls will be on their way to jobs at law firms across the country, clerking for judges, or moving back in with their parents (as I may do myself, sorry Mom and Dad). But here we are, not quite sure why we're taking classes like Selected Topics in Corporate Governance, Natural Resources Law and Legislative Redistricting, except that we need the credits to graduate. My schedule is a healthy mix of practical lawyering skills and abstract curiosity satiation:

• Philosophy of Law: Is there a moral duty to obey the law? What is the essence of a law
• Domestic Violence Clinic: seeking protective orders for victims of domestic abuse
• Law & Literature: essentially a book club in which we read four novels, and meet with food and wine at a prof's house to discuss them
• An externship with a local public defender's office: hoping to do a ride-along with the police department!
• Trial Advocacy: running through all the steps of a mock trial
• Select Topics in Criminal Justice Seminar: comparing how different common law countries handle criminal justice issues differently, such as police interrogation, equal protection, punishment, sentencing, etc.

Many of us are still job-hunting, of course. Having read an article that says this is the worst legal job market since the Great Depression, though, I'm not stressing too much about it, except that I'm not quite sure where to take the Bar exam. Oh well. Good things come to those who wait.

I want to comment on a frustrating decision the U.S. Supreme Court handed down yesterday. A pair of California lesbians filed suit in federal court, challenging the constitutionality of Proposition 8, the 2008 referendum that made same-sex marriage illegal in California. The women's lawyers are David Boies and Ted Olson, two of the most experienced Supreme Court advocates in the country, who just happened to argue both sides of Bush v. Gore back in 2000 — against each other (Olson argued for Bush, Boies for Gore). Olson, a well-known Republican conservative, believes that people like him should start accepting gay marriage, and he feels passionate enough about it that he's willing to take this case all the way to the Supreme Court.

The federal judge presiding over the trial, which started Monday, agreed with the plaintiffs' request to put each day's proceedings on YouTube after court ended for the day. This was an unprecedented step for a federal judge, and a fantastic one. We expect openness from the executive and legislative branches of government (C-Span and C-Span 2 are good examples) and though we don't always get transparency, we're at least frustrated by it. The judiciary, however, has gotten away with largely shutting us out, and we don't even make them apologize for it. We give federal judges the ability to open civil trials by putting broadcasts of the proceedings online. (Criminal trials are quite different, because of defendants' rights, and would command a more careful set of broadcasting rules.)

The defendants objected to the webcasts (why? are they afraid they'll look bad?) and eventually appealed to the Supreme Court, which on Monday issued a temporary stay, preventing the webcasts until it had time to make a more informed decision. The Court issued that "more informed" decision yesterday, blocking the YouTube webcasts for the remainder of the trial. The Court did not say, however, that broadcasting is a bad idea, or that it would offend some constitutional right of the defendants (it wouldn't). The Court merely said that the federal judge may have violated a federal statute by not providing enough time for public comment on his decision to change a local rule and allow the broadcasts.

If this decision seems downright silly, it's because the judge did allow a couple of days of public comment and during that time, he received nearly 139,000 comments. Of those, all but 32 were in favor of televising the Prop 8 trial. Would more time have yielded more negative comments? Probably. Would it have yielded exponentially more positive comments? I think it's likely. The public favors openness.

The Supreme Court's (unsigned) decision blocking the broadcast of the trial was 5-4, with the conservative members in the majority and the more liberal members dissenting. I'm optimistic that in time, the Court will change its mind about broadcasting federal civil proceedings. When it comes time to decide the merits of this issue, I hope that at least one of the conservative justices will change his mind.