Reclaim Democracy!

Replace Bi-partisan Shows With Real Debates

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By Jeff Milchen
Published by the Pacific News Service, Sept 29, 2004

George W. Bush’s father, a five-time participant in events staged by the Commission on Presidential Debates (CPD), described them this way: “…it’s too much show business and too much prompting, too much artificiality, and not really debates. They’re rehearsed appearances.”

The problems began in 1988, when the League of Women Voters halted its long-time sponsorship of the debates over bi-partisan attempts to turn them into glorified infomercials. The League officially stated, “We have no intention of becoming an accessory to the hoodwinking of the American people.”

After the League’s withdrawal, the Republican and Democratic parties immediately seized the opportunity to control the debates with their own bi-partisan group, the CPD. Chaired by former heads of the respective parties, the CPD simply executes agreements made by the major party candidates and shields them from accountability for actions such as choosing sound-bite exchanges over real debate and excluding viable candidates from outside the dominant parties. The 32-page Kerry/Bush agreement forbids direct exchanges between candidates, limits follow-up questions and controls details right down to podium and camera angles.

Though few citizens’ know the full story, millions apparently recognize the events have ceased to be genuinely informative. From 1976 to 1984, 60-80 million viewers watched each debate hosted by the non-partisan League. But since then, Americans have tuned out the CPD’s staged events in droves. CPD events have averaged just 40 million viewers in the past two elections. Sixty percent of households tuned in to watch the Carter-Reagan debate in 1980 (in which candidates had a respectable 4 minutes per answer) compared to 30 percent of households dialing into the last Bush-Gore battle of 2 minute (maximum) sound bites in 2000. Though the numbers rebounded in the first 2004 debate, even with 60 million more potential U.S. viewers since 1984, viewership still is down.

What’s made the events so unappealing? The restrictive rules and shorter response times have enabled many scripted and evasive answers. Even the “town hall” debate is largely a facade, with CPD moderators screening questions from the pre-selected audience and forbidding any follow-up. The Kerry and Bush campaigns specified that the microphone must be cut if any participants deviate from the question approved by the moderator.

The lack of direct exchanges and moderators who stick tightly to standard stump speech topics may be the greatest injury to voters. Among key issues that never were mentioned in any 2000 presidential debate were: corporate power or corporate crime, the “drug war,” population growth, immigration and “free trade.” The only mention of labor referred to banning their soft money contributions. Will any moderator challenge the candidates about corporate power over elections or scandals like Halliburton and Enron this year? It will take exceptional courage as long as CPD events are staged for their owners’ benefit, not voters’.

And while more money than ever is being spent on youth voter registration, the CPD events send the message that their concerns don’t matter. While seniors and social security each were referenced more than 60 times during three debates in 2000, neither teenagers nor college students were mentioned at all — and every debate occurred on a college campus!

The narrow range of topics is linked to shutting out viable independent and “third party” candidates (except when both are convinced the outsider will help them, as with Ross Perot in 1992). For 2004, the major parties decreed that 15 percent of the public must indicate plans to vote for a candidate for him to be invited to the debate club. That’s an impossibly high bar, given that most news outlets never have mentioned that three candidates other than Bush, Kerry and Ralph Nader all have earned ballot positions in enough states to win an Electoral College majority (David Cobb, Green Party; Michael Badnarik, Libertarian Party; and Michael Peroutka, Constitution Party). Voters of every ideology lose when our choices are dictated by the two dominant parties.

This year, the organization I direct, Reclaim Democracy!, was proud to help launch a new and truly non-partisan Citizens’ Debate Commission (CDC) to challenge the CPD’s control and provide real debates, rather than sound-bite volleys. These debates would feature direct exchanges between candidates, set fair candidate participation criteria and address a wide range of pressing issues.

The CDC is supported by more than 60 civic groups as diverse as the American electorate, including leaders of the Free Congress Foundation, Judicial Watch, Youth Vote Coalition, Common Cause, the TransAfrica Forum and, tellingly, the former producer of the CPD debates. Yet most major media (with notable exceptions like the L.A. Times) have ignored the challenge entirely, much like the major parties deny voters’ rights to know their full options.

Simply exposing the CPD’s illegitimacy and directly challenging its control has forced it to adopt some of our plan, like varying moderators, lengthening rebuttal time, and allowing some follow-up questions and surrebuttals. It also led to the Memorandum of Understanding between candidates being released for the first time, which in turn produced more critical media coverage than ever before.

But that’s not enough when it comes to the single most influential forum for Americans trying to decide whether to vote and who to vote for. We all deserve debates that serve democracy, not two political parties. The Citizens’ Debate Commission is ready to serve that role and could well succeed by the next presidential election — if, that is, Americans step up and demand the change.

At the time of writing, Jeff Milchen directed Reclaim Democracy!, a non-profit organization working to revitalize American democracy. 

See our overview of the presidential debates and the need for reform.

Overview of Do-Not-Call Registry Litigation

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by ReclaimDemocracy.org Staff & Volunteers
Last updated October 4, 2004

Editors’ Note: If you seek detailed legal analysis of the DNCR case, see: Mainstream Marketing Services, et al. v. Federal Trade Commission: Resources and Legal Analysis

Introduction

Beneath the surface of the Do-Not-Call list dispute lie critical constitutional and democratic questions, such as: should corporations have free speech rights? Should courts consider economic impacts in evaluating whether a law is constitutional?

ReclaimDemocracy.org has compiled resources presenting all sides of this dispute and the larger issues of “commercial speech” and corporate claims to the protections of the U.S. Constitution. We do so because we believe it presents a key opportunity to re-examine the judicial creation of constitutional rights for corporations (corporate personhood) and explore how corporations use ill-gotten power to trump bona fide rights of citizens.

Background of the Do-Not-Call Registry (DNCR)

U.S. residents have tried to avoid unwanted phone solicitations with unlisted numbers, caller ID, voice mail, and other devices. Until recently, the burden rested on individuals to stop unwanted solicitations by spending time and money on these technologies and by requesting that they be added to company-specific”do not call” lists (a request telemarketers legally are obliged to honor). Despite these significant expenditures of time and money, many citizens complain they are losing control and are unable to defend their personal space.

In response, the Federal Trade Commission (FTC) created the national Do-Not-Call registry in 2003. The DNCR allows citizens to place their phone numbers on a national list controlled by the federal government. Under the law, it is illegal for commercial telemarketers to call people on the registry (however businesses may solicit recent customers who are on the list).

Citizens may register online at www.donotcall.gov or by phone. Three months after registration, commercial telemarketers are forbidden from calling you. Telemarketing companies are required to cover the costs of the program by purchasing the do-not-call lists from the government at a cost of $25 per area code and a $7,375 maximum annual charge. If a telemarketer makes an unauthorized call, the recipient can file a complaint, which the FTC will compile and use to fine or prosecute repeat offenders.

Telemarketing Corporations Sue to Block the Program

Telemarketing corporations filed two lawsuits attempting to stop implementation of the program. In the first, five telemarketing firms jointly argued that the Federal Trade Commission did not possess the legal authority to create and enforce the registry. On September 24, 2003, U.S. District Judge Lee R. West ruled for the telemarketers and prohibited the FTC from implementing the list and its associated restrictions. In response, the next day Congress approved legislation ratifying the authority of the FTC to enforce the no-call list, which George W. Bush promptly signed into law.

This Congressional save did not last long, however. Another group of telemarketing corporations (Mainstream Media Services, TMG Marketing, and American Teleservices Association) had filed a second lawsuit. On September 25 Denver-based U.S. District Court Judge Edward Nottingham decided that the registry unconstitutionally violates the telemarketing corporations’ “free speech rights.” Nottingham reasoned that no legal basis existed for the FTC to allow citizens to screen for-profit solicitors while not also offering citizens an opportunity to block calls from non-profit groups. So Nottingham prohibited the FTC from implementing the registry on October 1, 2003, the date it was supposed to take effect.

The FTC appealed the decision to the Tenth Circuit Court of Appeals. On October 7, a three-judge panel gave the FTC permission to enforce the registry while it decides whether to uphold or strike down Judge Nottingham’s decision. In doing so, the Tenth Circuit found that the FTC had a substantial chance of success on the merits of its appeal regarding the constitutionality of the DNCR.

The FTC reopened access to the registry on October 10, and it went into full effect on October 17. In addition, the Federal Communications Commission (FCC), which has overlapping jurisdiction with the FTC to protect citizens from telemarketing abuses, passed regulations under which it, too, can enforce the DNCR. The two agencies will coordinate enforcement. While the ultimate constitutionality of the registry hangs in the balance, the FTC already has issued civil fines to enforce the registry (see this pdf file for details).

Getting at the Core Issues

The DNCR dispute provides provocation to examine some extreme arguments made by the telemarketing industry:

1. Corporations enjoy commercial speech rights that are on par with, and may even take precedence over, the rights of people to enjoy peace and privacy in their homes.

2. The government must weigh the financial impacts of speech regulation on an industry as part of evaluating a law’s constitutionality. This is particularly disturbing given that telemarketing corporations voluntarily chose to create an industry based on breaching citizens’ privacy.

The inherent conflict between court-created “corporate rights” and the rights of human beings is growing. Consider this dualism: Corporations have obtained “intellectual property rights” to profit exclusively (with government enforcing their private monopoly) from the creations of employees–even for decades after an employees death. Access to, and use of, this information by others is limited because the government forcibly protects this lucrative proprietary information. Conversely, you have almost no power to protect your own personal information, such as your telephone number, e-mail addresses, home address, and personal financial information; and what little power you possess (excepting the DNCR) has required substantial time and effort to exercise. Courts have created corporate property rights allowing businesses to buy and sell this information without your consent.

The question for citizens is whether to accept corporate usurpation of human rights or to help revoke illegitimately-granted corporate privileges.

Updates: On October 4, 2004, without comment, the U.S. Supreme Court rejected an appeal by commercial telemarketers, which upheld the no-call list as constitutional.

Additional Resources

See our legal analysis of the Do-Not-Call Registry cases, with links to major briefs, court decisions and news coverage.

Learn more about Corporate Personhood

Black-Majority Congressional Districts May Undermine Black Americans’ Political Power

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By Henry Louis Gates Jr.
First published by The NY Times, Sept 23, 2004

The Voting Rights Act – signed into law on Aug. 6, 1965 – was a high point of the civil rights era. In 1965, there were 5 black members of Congress; today there are 39. No single piece of legislation since the 14th Amendment has had such a measurable and dramatic effect on the political fortunes of black Americans.

What’s not so clear is whether the effect is now mainly a positive one.

In 1965, in the infamous “Bloody Sunday” police riot on Pettus Bridge in Selma, a young civil rights leader named John Lewis risked his life for the cause of black enfranchisement. Yet two years ago, the same John Lewis, now a congressman from Georgia, found himself accused by John Ashcroft’s Justice Department of violating the Voting Rights Act.

That’s because he and his fellow Georgia Democrats backed a plan to reduce the concentration of minority voters in various districts. And Section 5 of the act prohibits “retrogression”: a change in district boundaries that would diminish a district’s percentage of black voters.

It sounds like some political “Freaky Friday”: was Mr. Ashcroft really trying to protect black Georgians from Mr. Lewis? Not exactly.

Mr. Lewis says Georgia is now a place where black candidates can be elected by black-white coalitions. “More and more, black and white voters, especially in the South, see that they’re in the same boat,” he says. “A lot of issues, like protecting the environment, creating jobs, protecting neighborhoods, cleaning up a toxic site, or trying to do something about Iraq, have very little to do with race.”

Meanwhile, Mr. Ashcroft’s record shows little concern for black voters but abundant concern for Republican candidates. As governor of Missouri, he vetoed two bills designed to redress racial inequalities in voter registration.

As U.S. attorney general, he has effectively seconded the Justice Department’s Voting Section to the G.O.P. Remember Tom DeLay’s plan to redistrict Texas to gain seats for Republicans? As Jeffrey Toobin has reported in The New Yorker, career lawyers at the Voting Section had drafted a long internal memo arguing that the DeLay plan would illegally dilute minority voting power. But late last year, Mr. Ashcroft’s political staff approved the plan anyway. Come November, you’ll see the results.

The creation of black-majority districts was necessary when the Democratic Party had a monopoly in the South, and whites would almost never vote for blacks. But since 1990, districting deals between Republicans and black Democrats have led to political mischief. Shepherding black voters into black districts left other districts lily-white – and skewed to the right. You saw the consequences in 1994, when the House came under Republican control.

In Georgia and elsewhere, there has been a clash between what the constitutional scholar Richard Pildes calls “descriptive” and “substantive” representation. Descriptive representation is centered on the symbolism of skin: a black face for a black constituency. But it came at the cost of substantive representation – the likelihood that lawmakers, taken as a whole, would represent the group’s substantive interests. Blacks were winning battles but losing the war as conservative Republicans beat white moderate Democrats.

Still, Georgia v. Ashcroft – finally settled in favor of the Georgia Democrats by the Supreme Court – is really a symptom of a bigger problem: not racial districting but partisan districting. “The United States is the only country that places the power to draw election districts in the hands of self-interested political actors,” Mr. Pildes says. “The joke is that the voters don’t really choose the candidates; the candidates choose their voters.”

Iowa, which has genuinely competitive districts drawn by a nonpartisan panel, is an exception. Jim Leach, a Republican congressman from Iowa, says about 390 seats in the U.S. House are safe for one party or the other: he calls it “the collegiality of incumbency.” The safe Republican districts “tend to nominate to the right of center, while safe Democratic districts tend to nominate left of center.” The result is a polarized Congress.

In 2007, Section 5 of the Voting Rights Act is set to expire and Congress will have to decide how to respond. After years of race- and party-based redistricting, two things seem likely. There’ll be many black faces in the House – and the Republicans will be running the place.

© 2004 NY Times

Fred Korematsu Speaks Out on Racial Profiling and Scapegoating

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By Fred Korematsu
First published by the San Francisco Chronicle, Sep 16, 2004

In 1942, I was arrested and convicted for being a Japanese American trying to live here in the Bay Area. The day after my arrest a newspaper headline declared, “Jap Spy Arrested in San Leandro.”

Of course, I was no spy. The government never charged me with being a spy. I was a U.S. citizen born and raised in Oakland. I even tried to enlist in the Coast Guard (they didn’t take me because of my race). But my citizenship and my loyalty did not matter to the federal government. On Feb. 19, 1942, anyone of Japanese heritage was ordered excluded from the West Coast. I was charged and convicted of being a Japanese American living in an area in which all people of my ancestry had been ordered to be interned.

I fought my conviction at that time. My case went to the U.S. Supreme Court, but in 1944 my efforts to seek protection under the Constitution were rejected.

After I was released in 1945, my criminal record continued to affect my life. It was hard to find work. I was considered to be a criminal. It took almost 40 years and the efforts of many people to reopen my case. In 1983, a federal court judge found that the government had hidden evidence and lied to the Supreme Court during my appeal. The judge found that Japanese Americans were not the threat that the government publicly claimed. My criminal record was removed.

As my case was being reconsidered by the courts, again as a result of the efforts of many people across the country, Congress created a commission to study the exclusion and incarceration of Japanese Americans. The commission found that no Japanese American had been involved in espionage or sabotage and that no military necessity existed to imprison us. Based on the commission’s findings and of military historians who reconsidered the original records from the war, Congress passed the Civil Liberties Act of 1988, declaring that the internment of Japanese Americans was unjustified. Finally, it seemed that the burden of being accused of being an “enemy race” had been lifted from our shoulders.

But now the old accusations are back. Fox News media personality Michelle Malkin claims that some Japanese Americans were spies during World War II. Based upon her suspicions, Malkin claims the internment of all Japanese Americans was not such a bad idea after all. She goes on to claim that racial profiling of Arab Americans today is justified by the need to fight terrorism. According to Malkin, it is OK to take away an entire ethnic group’s civil rights because some individuals are suspect. Malkin argues for reviving the old notion of guilt by association.

It is painful to see reopened for serious debate the question of whether the government was justified in imprisoning Japanese Americans during World War II. It was my hope that my case and the cases of other Japanese American internees would be remembered for the dangers of racial and ethnic scapegoating.

Fears and prejudices directed against minority communities are too easy to evoke and exaggerate, often to serve the political agendas of those who promote those fears. I know what it is like to be at the other end of such scapegoating and how difficult it is to clear one’s name after unjustified suspicions are endorsed as fact by the government. If someone is a spy or terrorist they should be prosecuted for their actions. But no one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese Americans, then these are very dangerous times for our democracy.

Fred Korematsu was awarded the nation’s highest civilian honor, the Presidential Medial of Freedom, in 1998. He and his wife, Kathryn, continue to live in their longtime hometown of San Leandro.

© 2004 SF Chronicle

Law Firm Fined for Frivolous SLAPP Suit

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Judge punishes firm for attempted intimidation

By Henry Weinstein
First published by the Los Angeles Times, August 16, 2005

Los Angeles federal judge on Monday ordered a large law firm and two of its attorneys to pay $267,000 in sanctions for filing a “frivolous lawsuit” against a community activist and three Forest Service employees who opposed a luxury condominium development on Big Bear Lake.

U.S. District Judge Manuel Real issued the unusual order against Foley & Lardner and two lawyers in its San Diego office, who had filed suit on behalf of developer Irving Okovita against the employees and Sandy Steers, executive director of the Friends of Fawnskin. The group played a key role in fighting Okovita’s proposed Marina Point development.

Real in March threw out the suit against the Forest Service, which substituted as a defendant for its employees, and Steers, saying she was exercising her 1st Amendment right to petition the government.

New York University law professor Stephen Gillers, an expert on legal ethics, said it is “quite unusual” for a federal judge to issue a “six-figure sanction against a law firm. For a court to award that kind of money, the court has to find an utter lack of basis” for the position that the lawyer took in the case, Gillers said.

Attorney David Greene, director of the Oakland-based 1st Amendment Project, who represented Steers, said “hopefully this award of sanctions will have a deterrent effect, not only on these lawyers, but lawyers elsewhere, preventing attacks like this one on people who legitimately petition their government.”

The 1st Amendment group had asserted in a court brief that the developer had “sued Steers in order to harass and intimidate her, to chill her exercise of free speech and to intimidate others from similarly engaging in the lawful activity of petitioning government agencies.”

Steers said she was pleased with Real’s order. “I know that I did nothing wrong. All I’ve been trying to do is make this developer follow the law.”

Foley & Lardner, a large law firm with 18 offices around the country, including six in California, issued a statement: “We are disappointed by the ruling. With all due deference to the court we disagree with the decision and anticipate filing an appeal.” The two attorneys named in the sanction order are S. Wayne Rosenbaum and Suzanne Washington.

Okovita’s suit had raised eyebrows in legal and law enforcement circles because it was believed to be the first time the Racketeer Influenced and Corrupt Organizations Act – known as RICO – had ever been used against Forest Service workers.

Okovita’s proposed development would place 132 luxury condominiums, a 175-slip marina and tennis courts on 12.5 acres on Grout Bay on the north shore of Big Bear Lake near the tiny town of Fawnskin.

Developer Okovita filed his RICO suit last year after U.S. District Judge Robert Timlin, in response to a suit filed by his opponents, issued an order to halt the project. Timlin found it had “the potential to both harass and harm the bald eagle,” which is protected under the federal Endangered Species Act. Further hearings on the opponents’ suit are scheduled for next week.

© 2005 Los Angeles Times

Editors note: To let the giant national law firm of Foley & Lardner know what you think of their plan to appeal, costing taxpayers additional tens of thousands of dollars in court costs, try their San Diego office at 619.234.6655.

Will the Induce Act Outlaw Silly Putty?

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By Hanah Metchis
First published by Reason.com, August 11, 2004

Editor’s note: Unmentioned in this article, Sen. Orrin Hatch, co-sponsor of the Induce Act, suggested last year that people who download copyrighted material without prior permission deserve to have their computers destroyed. At the time, Hatch’s website was using unlicensed software. Details here.

A few short years ago, technology enthusiasts used to claim that technology moves too fast for the law to hold it back. Those predictions turn out to be overly optimistic. In fact, lawmakers trying to put a stop to one evil are likely to create dozens more with legislation about a field they don’t fully understand. Vague language designed to catch potential technological workarounds can put a stop to innovation in completely unrelated areas.

The latest example of this dangerous mix of law and technology is the Induce Act, sponsored by Sen. Orrin Hatch. Its intent-to stop downloading of copyrighted material by making peer-to-peer file trading networks illegal-is bad enough. P2P networks have legitimate uses, like the distribution of taped Senate hearings. But the language of Hatch’s bill is so open-ended that many other electronic devices, from the iPod to TiVo to email-to-RSS converters, would be called into question.

The Inducing Infringement of Copyrights Act (S. 2560) says that anyone who “intentionally aids, abets, induces, or procures” a copyright violation can be sued for copyright infringement. That surely applies to the file trading networks, which make it easy to find and download a free copy of any song you desire. Apple’s iPod could also come under fire for its huge hard drive, which would cost about $10,000 to fill with legally downloaded music. The Electronic Frontier Foundation has prepared a sample complaint against the iPod, pointing out the dangers of the Induce Act against established, respectable companies and technologies.

Others have gone even farther in pointing out the absurdities that could result from an expansive reading of the Induce Act. Tech blogger Ernest Miller is keeping track of an Induce Act “Hit List,” pointing out products and companies that might be seen to “induce” copyright infringement. Among the everyday companies on Miller’s list are The New York Times, which in a recent article “painted a romantic picture of copyright infringers who violate the public performance right for films,” and Lego, which lets users upload pictures to create a Lego mosaic template. One commenter even joked that the manufacturers of Silly Putty could be liable for promoting the gooey toy’s ability to lift an impression off a printed page.

The Induce Act would have a definite chilling effect on technological innovation. Even if judges are not inclined to interpret it broadly, the vague language opens the door to harassing lawsuits. Companies creating multipurpose technologies would have to be prepared to defend themselves against copyright infringement allegations. To avoid that, the Business Software Alliance has proposed changes to the bill, including a limit on frivolous lawsuits and a provision for products with legitimate commercial purposes to be exempted from liability. The latter would reaffirm the Supreme Court’s 1984 Betamax decision which held that the VCR maker was not responsible for copyright infringement by its customers.

Faced with so many unintended consequences, Congress needs to consider whether this solution to copyright infringement is worse than the original problem. Digital content distribution is still in its infancy, but iTunes and other legal download services are growing in popularity. The digital music landscape could change next year, or even next month, in ways that the Induce Act would be unprepared to deal with. The law can undoubtedly cut off some avenues of technological innovation. But at the same time, the tech lovers of 1999 are right-the law cannot anticipate where technology will turn next. In the worst case scenario, a bad tech law could be simultaneously stifling and irrelevant.

© 2004 Reason Foundation

Editor’s note: The bill is co-sponsored by Senators Leahy (D-VT), Frist (R-TN), Daschle (D-SD), Graham (R-SC), Boxer (D-CA). You can reach your Senators via the U.S. Capitol switchboard at 1-800-839-5276 (temporary number).