In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
The Constitution is Old
~by E.C. Gach
Since S&P downgraded the U.S., Fareed Zakaria has been reminding people that currently, “no country with a presidential system has a triple-A rating from all three major ratings agencies.”
The downgrade occurred, Zakaria notes, because of political dysfunction:
“Listen to what the S&P actually said in its downgrade. ‘America’s governance and policymaking [is] becoming less stable, less effective and less predictable than what we previously believed…Despite this year’s wide-ranging debate, in our view, the differences between political parties have proven to be extraordinarily difficult to bridge.’”
Zakaria singles out the United State’s presidential system as the underlying structural reason for this recent political failure, and proposes that a parliamentary system would be better suited the challenges currently facing the nation:
“In the American presidential system, in contrast, you have the presidency and the legislature, both of which claim to speak for the people. As a result, you always have a contest over basic legitimacy. Who is actually speaking for and representing the people?
In America today, we take this struggle to an extreme. We have one party in one house of the legislature claiming to speak for the people because theirs was the most recent electoral victory. And you have the president who claims a broader mandate as the only person elected by all the people. These irresolvable claims invite struggle.”
This makes sense to me. Whether or not you agree that a parliamentary system would be better, the current system is clearly yielding sub-optimal responses.
But to some, that sub-optimality is good enough. Peter Wehner at Commentary writes:
“I have several thoughts in response to Zakaria, beginning with the inconvenient fact (for Zakaria) the debt ceiling debate had a resolution. The two parties did arrive at an agreement, and a default was avoided. The process may not have been pretty, but it worked. Remember, if Obama had had his way originally, there would have been a “clean” debt ceiling vote, meaning the debt ceiling would have been raised without spending cuts. It’s only because of the opposition by the GOP the debt ceiling debate included any spending cuts.
What is really driving Zakaria’s commentary, I suspect, is what often happens when liberals are elected and fail: their supporters begin to lay blame on the American system of government. Jimmy Carter’s advisers did the same thing. It turned out the problem then, as now, wasn’t the American system of government; it was the American president. The failures of Obama cannot be laid at the feet of Madison. And if the public is wise, they will do to Obama in 2012 what they did to Carter in 1980.”
First, as Scott Galupo points out, the only resolution that occurred was one to resolve the matter at a later date. That’s hardly a successful outcome. Plus, the fact that Republicans refused to unconditionally give Obama a “clean” debt ceiling vote is precisely the problem. The way the system is set up it makes political sense for Congress to pass a budget and than maneuver to oppose the very spending they called for in the first place. By positioning it as a voluntary request by the President rather than a necessary allowance, Congress is able to eschew responsibility for its budget while at the same time claiming victory for putting together patchwork fixes. Only in a divided legislature that also remains distinct from the executive branch can one arm of the government not only oppose the other but oppose itself as well. “A house divided against itself cannot stand,” except, it appears, when we’re celebrating the merits of separation of powers and Congressional gridlock.
Finally, raising the specter of Carter is important. If one wants to look for where the seeds of American decline were sown, look no further than 1980. Deficit spending exploded as “starve the beast” came into vogue and administration after administration stopped paying for the welfare state without actually dismantling it. Wages stagnated, health care and higher education costs ballooned, and the military budged continued to increase while other areas of investment withered away. It’s not that the presidential system started failing the country yesterday, it’s been failing for a while.
Emanuele Ottolenghi also misses the point:
“Finally, the so-called PIIGS countries – Portugal, Ireland, Italy, Greece and Spain – that are the root-cause of the Eurozone sovereign debt crisis are all parliamentary democracies.
Whether they ultimately fix their problems (a big question mark), their gigantic financial holes were dug by parliamentary systems working the kind of marvels extolled by Zakaria’s four-minute pep talk.”
It’s not that European countries aren’t in a similar mess. The point Zakaria is making is that they’re political framework is better suited to solving them. Missing from the Ottolenghi’s analysis most notably is Britain, which, whether you agree with austerity or not, has show remarkable political will to enact the measures necessary to move toward fiscal sustainability. Ottolenghi is wrong if he thinks Greece and Spain are the United States’ closest analogues on that side of the Atlantic. Britain and Germany would be better models. While they have problems to solve, there is little indication that either country has the institutional incentives not to do so.
“Debt crises across the West make this a particularly bad time for paralysis. Western countries have all built up very large pension and healthcare obligations that lead to huge amounts of debt. They need to figure out some systematic way to work that debt load down to a much more manageable level. This means a lot of pain.
Given this situation, it becomes very easy in a presidential system for the executive and the legislature to get into a classic standoff over benefits as we saw in the debt crisis.”
Many elements of the American system are outdated and ill-suited when it comes to the challenges that, as Galupo writes, “require a more nimble response than our slow-grinding constitutional machinery allows.” The point of the American system is to force stalemates that make large scale action unlikely. And it’s very good at doing that. But large action is what’s needed now on many fronts: large investments in infrastructure, large reductions in military expenditures, and large reforms of entitlement spending.
James Fallows pointed out several problems with our political institutions in an Atlantic cover story from 2010:
“If Henry Adams were whooshed from his Washington of a century ago to our Washington of today, he would find it shockingly changed, except for the institutions of government. Same two political parties, same number of members of the House (since 1913, despite more than a threefold increase in population), essentially same rules of debate in the Senate. Thomas Jefferson’s famed wish for “a little rebellion now and then” as a “medicine necessary for the sound health of government” is a nice slogan for organizing rallies, but is not how his country has actually operated.
We are now 200-plus years past Jefferson’s wish for permanent revolution and nearly 30 past Olson’s warning, with that much more buildup of systemic plaque—and of structural distortions, too. When the U.S. Senate was created, the most populous state, Virginia, had 10 times as many people as the least populous, Delaware. Giving them the same two votes in the Senate was part of the intricate compromise over regional, economic, and slave-state/free-state interests that went into the Constitution. Now the most populous state, California, has 69 times as many people as the least populous, Wyoming, yet they have the same two votes in the Senate. A similarly inflexible business organization would still have a major Whale Oil Division; a military unit would be mainly fusiliers and cavalry. No one would propose such a system in a constitution written today, but without a revolution, it’s unchangeable. Similarly, since it takes 60 votes in the Senate to break a filibuster on controversial legislation, 41 votes is in effect a blocking minority. States that together hold about 12 percent of the U.S. population can provide that many Senate votes. This converts the Senate from the “saucer” George Washington called it, in which scalding ideas from the more temperamental House might “cool,” into a deep freeze and a dead weight.”
So the problems fall under two categories. The first is what Zakaria describes as conflicting legitimacy. If representative government is to work there needs to be a clear link between the representatives and those who support them. But currently, legitimacy is divided between the House, Senate, and Presidency. The House reflects localized sentiment. The Senate reflects the majoritarian sentiment of individual states. And the Presidency reflects national support. As a result, public support is segmented off into three groups which then seek to oppose one another for their own political gain. Everyone can claim to speak for the people without ever having to take the reigns and lead them.
Fallows gets at the second set of problems. Namely, 18th century political institutions no longer reflect the reality of the country. Equal senatorial representation may have been a good solution to the political reality of 1787, but it now makes the nation ungovernable where overwhelming majorities can be thwarted by small minorities and narrow interests.
Unfortunately, Fallows is correct about the impracticality of Zakaria’s proposal: “A parliamentary system? This too would improve C-SPAN viewing. But not having started there, we cannot get there.”
Likewise, a new revival of Constitutional Fundamentalism makes it unlikely that there will be significant reforms to the Electoral College or representational apportionment. So for now it looks like the best that the American system has to offer are super committees and imperial presidencies.