When the Campaign Eclipses Governing: A Matter of Values

In the mix of politics and government in any republic, stretches of governance are marked off by much shorter electoral seasons.  As decision-points, election campaigns are not designed to be of a considerable duration, particularly relative to that of governing.  In other words, the point of elections is governance, whereas the objective of governance is not (and thus should not be) elections. The reason is that the function of elected representatives is to govern rather than to run yet again. When the interstices become the long lines, and the long lines are reduced to interstices, one can expect popular fatigue from incessant fighting and frustration from a lack of attention on governing.

In April of 2011, American news networks were claiming, “2012 has officially begun.” There was a conflict of interest in the assertion because the media stood to gain viewers from brewing controversies among the candidates for president. Both the candidates and the journalists stood to gain from the increased attention.  In early May, for example, The Huffington Post attempted to turn the story of Obama’s killing of Osama into one of electoral politics in the “upcoming” 2012 election. “The daring nighttime raid that killed Osama bin Laden in Pakistan draws a sharp contrast between President Barack Obama and a field of potential Republican challengers who have comparatively scant foreign policy experience.”[1] The key word here is potential. Might it be more prudent to wait for the challengers to officially announce and start actively campaigning before analysis of a “determined” set of candidates is commenced?

Moreover, the attempt to steer the foreign policy story into the field of electoral politics implicitly suffers the opportunity cost of attention being diverted from other foreign policy questions that are related to the death of bin Laden, such as whether Pakistan knew of his compound and whether U.S. foreign aid should continue. The otherwise greater intensity of coverage on Pakistan's role might have made the difference in upping the pressure to the point at which someone in Pakistan with the inside scoop would have cracked and spilled the beans on what Pakistani government officials had really known.  

One of the few downsides of a free society is that media distractions can run far and wide--even snowballing without taking root. To the extent that representatives are either behind such distractions or are pressured to join them, a republic is vulnerable to excessive democracy (the bad side of the demos identified by Plato and Aristotle with the mob). The American citizenry may be too prone to vicariously enjoy the fights of a campaign (the modern day version of going to the statium to watch the gladiators?) while finding the civic responsibility of keeping attuned to the governing (or at least letting the representatives govern in peace) too boring and banal--not sufficiently stimulating in an age of "reality" shows playing out on television. Must the lowest denominator rule in a republic?

As another example of campaigning eclipsing governing in the context of governance, the health-insurance reform in 2009 and 2010 can be cited. The question of whether there should be a government alternative to private health insurance companies quickly gave rise to health-insurance-company-sourced talking points on death-panels thrown to partisans like Sarah Palin, who was not involved in the governing. Also, whether Barak Obama was a socialist was staged as a sideshow oriented to the campaigning realm. For whatever reason, it was difficult for the media (and presumably the viewers) to stay on point even when policy makers were trying to determine the merits of a public option.  In other words, even having representatives oriented to policy discussions may not be sufficient to keep a restless media and citizenry attuned. However, even some of those representatives might have believed their policy positions to be strengthened from a campaign-oriented digression. In an open society, multiple entrance points exist for self-interested distractions.

To be sure, citizen participation during the intervals of governance is not necessary in a republic; the problem is when citizens’ diversions enabled by the media (and/or government officials) eventuate in the governors turning to campaigning even without an election in sight. A crucial difference between representative and direct democracy is that in a republic governance is delegated to representatives. In other words, the citizenry is not obliged to remain engaged once governance again takes over after an election. This does not mean, however, that the citizenry must take the bait when some representatives are tempted to divert from governance by starting the next election cycle too early. Nor does it mean that elected representatives must take the bait from some journalists who suspect a wider viewership (or readership) could be obtained from stirring up campaign controversies even years before the next election.

Perhaps the underlying question is whether a representative democracy necessarily succumbs to the lowest common denominator, or whether a citizenry has the requisite impulse control to maintain the viability of the political system by refusing to distract the governors from their governing (or to take the bait from bored or campaign-oriented officials). It is essentially a matter of what the citizenry values: the duration wherein representatives govern or the titillating excitement of a childish fight at the expense of governing. The funny thing about a republic is that what we observe in our representatives can be a reflection of ourselves.  We blame them exclusively at our own folly. In other words, it takes two to tangle. If there is an adult in the house, perhaps we could get on with governing.

1. Charles Babington, “GOP Presidential Field For 2012 Maintains Foreign Policy Void,” The Huffington Post, May 5, 2011.

See Jeff Zelleny, “Obama Will Move Political Operations to Chicago,” The New York Times, January 20, 2011.

Osama Killed by Obama: What Does American Patriotism Stand For?

On the day after Osama was killed by Obama, people in the American states were united in a feeling of pride for their union. Midway through a run at sunset, I paused beneath an American flag. I was caught not out of breath but by the distinct snapping sound of lazy flapping noises as the flag rolled in the light breeze. I looked up and stared at the red, white and blue performing its series of rolls. The fabric was much more alive than that stiff, wired flag still on the surface of the moon. A flag is meant to be alive—literally carried along as troops advance on a battlefield. Today’s flags hanging off still poles next to restaurants and car dealerships can hardly capture the dynamic energy of victory. To be sure, such victory was hinted at the night before as people ran hither and dither carrying flags in celebration outside the White House. It had struck me in watching the joyous scene how rare such clear-cut victories are.  It is a pity that some enemy must die for such clarity to be celebrated in a spirit of unity.

Looking up at sunset at the American flag—a symbol that has seemingly always been around—I wondered what it really stands for. What values cling most firmly to it?—nevermind the principles that are formally entailed in it. Turning to look at the auto business sponsoring the flag, I noticed a large sign displayed high up across one of the building’s walls above the repair garage: “Free Courtesy Cars for Customers with Select Insurance Companies.” My mind instantly leapt to “Free health-care for citizens with select health insurance only”—the others don’t get any. Is monetary-based exclusion the American way? What does that flag say about those who are not among the select? Is the red, white and blue referring to people living here who have money—the others just sort of existing here as though permanent aliens?

As my eyes were about to go back up the flag pole, I noticed that between tree trunks the naked sun was just about to touch the ground. Heaven would meet earth for a split-second before the ground ate into the perfect circle. I thought of Ben Franklin’s comment at the end of the U.S. constitutional convention in 1787 as he was wondering aloud whether the sun painted on the back of the presider’s chair was rising or setting. It would be ironic if on the day after a great military victory I associated the setting orange disc with the bright colors waving above me; something about the “select insurance companies” wording on the wall of the sponsoring company was giving me a proclivity to do just that, even as I felt a sense of pride in my eyes being drawn to the power in the movements of the giant fabric above me.

After my run, I briefly spoke with an auto-plant worker visiting from Michigan. He had been watching the Detroit Tigers play the Yankees.  He was disappointed in his team because even with a $200 million payroll, they had lost to Minnesota (I think). Of course, the Yankee organization knew how to put out the money to buy talent. The Tiger fan put it more bluntly. “The Yankees buy championships.” For a fan to reduce baseball teams to their payrolls seemed odd to me. Do fans in other regions of the world reduce sport to money, or is there something distinctly American about it? Whereas in Europe player captains receive championship trophies, team owners tend to get the honor in America. Clearly, a subtle difference in the value of wealth (and money as a motivator) distinguishes the United States from the European Union. Might wealth itself be what America is known for as a society?—a people obsessed with valuing money?

Can we go so far, moreover, as to conclude that the American flag stands for money? If so, did the patriotism evinced in the wake of Osama’s death reduce to dollars and cents? The political uncertainty that comes with terrorism is unquestionably bad for business. Even so, the sense of justice achieved through the execution—we could not even risk a trial—stood on the principle of an eye for an eye. Money, it could be said, was put in the service of a normative debt to be paid for the loss of innocent lives even though they could never be retrieved. However, it is difficult to see how the patriotism evinced reduces to greed.

So what does the American flag really exude? Patriotic confidence? An in-crowd based on wealth? Perhaps some other set of values that can only be observed from a distance? What does the diverse empire of fifty republics united in an extended republic stand for? Is there a common denominator or is the patriotism of victory an artificial construction based on convenience?  I suspect that these questions will go unanswered until or unless Americans are called on to sacrifice, for it may be that the value of self-denial is too far removed from what the flag has come to represent.

See related essay involving the impact of killing Osama on Obama's ability to preside.

Leadership at Lehman: On the Failure of Richard Fuld

The failure of Lehman Brother suggests that too much power may go with formal position while non-positional leadership in organizations is not given enough of a chance to check the excesses of office. Richard Fuld could take advantage of much having to do with his formal position so he would not have to lead. In contrast, a competent subordinate, Mike Gelband, faced a considerable headwind in trying to lead through persuasion without the benefit of a position trumping Fuld’s own.

The full essay is in Essays on the Financial Crisis, which is available in print and as an ebook at Amazon.

Related Essays:

 "Fuld's Arrogance at Lehmen: Systemic Risk"

"Lehman's Dick Fuld as the Antagonist in the film, 'Too Big to Fail'"

"Fraud as Fair: Lehman as Beneficiary of Society's Pro-Business Cultural Values"

"Executive Stature: Glimpses of the Man Behind the Curtain"

"Lehman Bros: Insufficient Accountability in Corporate Governance"

Paper Tigers: Firewalls Forestalling Institutional Conflicts of Interest

Structural, or institutional, conflicts of interest are of great significance in applied ethics, even though they often play second fiddle to the conflicts centered on a person’s particular interests. An organizational or institutional conflict of interest, whether within one organization or in the arrangements between organizations, is not any less unethical than a personal conflict of interest.  Therefore, when we take the claims of vested organizational interests that their internal firewalls are more than just paper tigers at face value, our foolhardiness can really be at our detriment. I present a few cases to suggest that “firewalls” in an organization to prevent it from a conflict of interest are, in general, insufficient and thus ought not be relied on. Instead, the public (or government regulatory agencies) should insist that one of the two interests in an institutional conflict of interest be given up.

The full essay is at Institutional Conflicts of Interest, available at Amazon. 

Goldman's Ethical Conflict of Interest: Obviated or Enabled?

According to U.S. Senator Carl Levin, Goldman Sachs “profited by taking advantage of its clients’ reasonable expection[s] that it would not sell products that it did not want to succeed and that there was no conflict of economic interest between the firm and the customers that it had pledged to serve.”[1] Not only was the bank secretly betting against housing-related securities while selling them to clients, in at least one case a client shorting such a security was allowed to have a hand in picking the bonds. What is perhaps most striking, however, is how little Goldman Sachs has had to pay for acting at the expense of some of its clients. One might predict on this basis that the unethical culture at the bank is ongoing.


The full essay is at Institutional Conflicts of Interest, available at Amazon.

1. William D. Cohan, Money and Power: How Goldman Sachs Came to Rule the World (NY: Doubleday, 2011), p. 19.

Computer Technology Revolutionizing Industries: Books and Films

Crude oil was first drilled in 1859 in northwestern Pennsylvania (not in the desert of the Middle East). It was not long before oil lamps became ubiquitous, lengthening the productive day for millions beyond daylight hours. Just fifty or sixty years later, as electricity was beginning to replace the lamps, Ford’s mass-produced automobile was taking off, providing an alternative use of crude oil. For those of us alive in the early decades of the twenty-first century, electric lighting indoors and cars on paved roads have been around as long as we can remember. As a result, we tend to assume that things will go on pretty much as they “always” have. Other than for computer technology, the end of the first decade of the 21st century looks nearly indistinguishable from the last thirty or forty years of the last century. As the second decade of the 21st century began, applications based on computer technology were reaching a critical mass in terms of triggering shifts in some industries that had seemingly “always” been there.  Books, music and movies were certainly among the fastest moving,  perhaps like the dramatic change in lighting and cars beginning a century and a half before with the discovery of crude oil.

Part I: Publishing and Book-Selling

Borders, a chain of book stores that branched out into DVDs and music CDs, was at ground zero in terms of the major changes beginning to affect industry by 2010. All three of the company’s product areas were in decline due to applications of computer technology being harnessed by new companies more so than the old guard predominantly based in brick and mortar. Indeed, it was precisely the brick and mortar foundation of retail that was undergoing such dramatic transformation. Part I of this essay discusses the book publishing and sales aspect, while part II covers DVDs and CDs.

Even as established institutions such as Lehman Brothers can have tremendous inertia and thus seem nearly immortal, discovery or invention can act with relative haste in transforming industries—though after the vested interests with power have put up their last defense against the all-but-inevitable onslaught of the future piercing into the present. The invention of securitized mortgage-backed bonds brought the world's financial system to its knees in September 2008 after years of posturing in a housing bubble. Lawrence McDonald, who had been a trader at Lehman Brothers, subsequently wrote of his father's bearishness on the housing bubble.

In 1999, the elder McDonald had read a report that claimed that brick and mortar shopping malls were nearly obsolete--that within two years everyone would be doing their shopping on-line. Yet this prediction was too hasty. The prospect of even such far-reaching and transformative invention requires some time. "The retail world will hit back," Larry's dad said. "I guess people like picking up books and holding 'em, checking 'em out. There'll still be bookstores. They've been there for hundreds of years, and they'll still be there in the next century"[1] Yet in going so far beyond the inevitable hitting back, the elder McDonald sounds antiquarian. Even such inertia protected by name, wealth and real estate was bound to succumb after a threshold point at a speed that would take many in the older generation by surprise. For once a threshold point between the status quo defenses and the application of a new technology is reached, it is inevitable that change shall come cascading down like a waterfall over a dam then realized to be mud rather than gold.

In mid-April 2011, the number of e-book sales surpassed paper books in the U.S. for the first time. This could be taken as such a threshold of sorts. The digital book market had reached $1 billion. Amazon.com had the vast majority of the e-book market and e-readers, with Barnes & Noble's Nook reader running second. Borders had waited too late with the Kobe reader, and was thus left depending largely on its declining paper book sales. Launched in November 2007, there were already 7.5 million Kindle readers sold by Amazon by 2011. The company was taking advantage of the revenue from its e-book sales to move its color e-readers closer to ipods by adding applications such as the ability to check email, hence integrating applications and facilitating the shift from paper to digital books.

Furthermore, Amazon’s Kindle Direct Publishing was fundamentally changing the self-publishing business, with major implications for publishers, established writers, and bookstores. With self-published writers selling their books for $1 on Kindle, downward price pressure was being felt even by bestsellers, who found that they had to compete on Kindle at $10 a book, rather than merely sell for higher amounts at the brick and mortar bookstores. In The Wall Street Journal, Jeffrey Trachtenberg quotes a senior publishing executive who observed that Amazon was “training their customers away from brand name authors . . . instead creating visibility for self-published titles. Trachtenberg explains that the low cost of digital publishing, plus the ability to use twitter, facebook and a blog to market a self-published book “enabled previously unknown writers to make a splash.”[2] The rise of digital and self-publishing was prompting more people to question their next trip to the bookstore.  Indeed, the book itself was being fundamentally changed with the readers like Kindle and Nook.  Such changes naturally take some time for particularly older people to adjust to, but the young, having been raised with computers, slipped right into the new way of buying and reading books (and newspapers, for that matter).

Even the traditional brick-and-mortar library was being forced to adjust. In April 2011, Woo and Trachtenberg reported that Amazon had announced that it would add a public-library feature to its e-reader, Kindle.[3] For Amazon, library borrowing mean more Kindle readers sold and e-book sales. Barnes & Noble's Nook reader had begun with a library-reader ability, so Amazon was making the feature universal. Rather than being able to save to a hard-drive, library-card holders can temporarily download a digital book they have checked out, typically for 14 or 21 days. Publishers that sell digital books to libraries realized that such books do not wear out, so the arrangements typically require a re-purchase after so many check-outs. HarperCollins, for instance, requires repurchase after twenty-six.

Not surprisingly, libraries tend to question the need to repurchase a product that they have already purchased. It might be that traditional publishers were still not “getting it.” That is to say, they had not yet understood the impact of the new technology—the repurchase requirements being essentially a manifestation of insecurity. The traditional publishers may have been sensing that they were suddenly on borrowed time, and were instinctively grasping at whatever was closest to them in the water.

At the time, I found myself grappling with e-books and readers. At the same time, I would find myself in Borders sometimes thinking all this will be gone and yet no one here—even the staff!—seems to realize it. It was as though the world of brick and mortar bookstores I had known would “always” be had already gone; it was like seeing something as already a ghost even as other people were still taking it as real. It is perhaps like looking back on one’s childhood home as distant and already gone even while it still exists and one is in it. That is to say, it is to sense the present as already historical because one can see that it too shall pass. From such a perspective, the present takes on the appearance of being its own world because one is no longer completely in it; rather, a part of one’s perspective is like a time-traveller already stepping back in time to that world.

As a writer, I was grappling with making the leap to digital and self-publishing even as I was frustrated with the traditional route, as having published an academic book had not made it any easier to broaden out into novels and screenplays. I can understand why digital and self-publishing has taken off at the expense of the traditional publishers. Whereas formerly new writers had to find a literary agent and a New York publisher, the changing technology has brought with it new decisions, suck as whether to go with Kindle or put one’s first book on one’s blog for free downloading in hopes of viral marketing albeit without revenue on the project. In other words, the technology opening has pushed writers more into the publishing business.  Future writers might feel they need an MBA—perhaps taken on-line (university education being impacted by the new technology as well).

Part II: Movie Theaters, On Demand, and DVDs

The effects of computer technology on the sales of movies and on film-making itself were notable as the second decade of the twenty-first century was getting underway. Stopping inside a Blockbuster store to rent a DVD, which itself was short-lived in the process of technological development, was going by the wayside; even buying a DVD at a Borders or Barnes & Noble was fading. As dramatic as these changes seem, the impact on film-making and, moreover, in what a film is hinted at even greater transformation.

In early 2011, Borders closed 200 stores in the United States. Although e-books sold by Amazon.com were giving Borders a run for its money, the chain was also being pummelled by the increasing file-sharing of music and movies as well as DVD rentals by mail and online movie-streaming sold by Netflix, which was rushing to ride the wave from DVD to on-line streaming.

In April 2011, Netflix posted an 86% jump in quarterly profits as its online movie streaming service clicked with consumers. According to The Wall Street Journal, “In the letter to shareholders, signed by Netflix Chief Executive Reed Hastings and Chief Financial Officer David Wells, … the two executives said in the letter that its DVD offerings will be a ‘fading differentiator’ for the service, which last year began letting people subscribe to a streaming only service for $7.99. Already the company has begun to discourage people from choosing rental plans that offer consumers the option of also renting DVDs. In its letter to shareholders, the company said the sign-up page on its website for non-members is now ‘all about streaming’.”[4] The executives wanted to see the postal costs associated with the company’s DVD rental service drop with the decreasing volume as customers switch over to online streaming to make room for the rising costs of licensing content. In other words, the company was riding the technological wave from DVDs to online viewing, leaving brick-and-mortar based DVD companies such as Borders in the dirt.

 (The Wall Street Journal)

The eclipse of DVD sales by on-line streaming effected not only companies like Borders and Blockbuster that had remained primarily Brick-and-mortar enterprises; the change was also putting more pressure on studios to get their films On Demand sooner—at the notable and rather vocal expense of movie theaters.

According to The Wall Street Journal, technology was putting pressure on the old “windowing” system, which “staggers a movie’s release through avenues like theaters, DVD and television, to maximize the profitability of each.”[5] Theaters were concerned about DirecTV’s plan to add movies sixty days after they hit theaters to premium video on demand—cutting the time in half. The studios pointed out that most films earned the bulk of their profits within the first few weeks of release. Filmmakers, including James Cameron of “Titanic” and “Avatar,” wrote that theaters are “the optimum, and most profitable, exhibition area” of the art form.

To be sure, films such as “Titanic” and “Avatar” are particularly striking on the big screen. By the time “Titanic” got to TBS on television, the relatively tiny screen was encumbered by the network’s programming graphics even during the film. Imagine, if you will, a cartoon figure dancing around the bottom left of the screen while “TBS” is shown on the bottom right as the hero and heroine “fly” at the front of the ship in a beautiful sunset.  The “windowing” process can be viewed as a trajectory of increasing decadence as well as inferiority in terms of picture.

However, even with the decadence of commercial television cannibalizing even its own programing, the size of the screen makes less difference for some films than others. Furthermore, to claim that earlier availability on television (or computer) reduces the incentive to see a film in a theater is to manipulate customers rather than trust in us to choose the means of delivery. Todd Phillips, director of “Hangover,” argued that the new science would dissuade would-be movie goers from going to the theaters because the sense of urgency would be removed.  If that sense is constructed rather than real, DirecTV may have been doing the customers a favor.

Were directors such as James Cameron truly concerned to protect the optimality of their art form, the fact that films do not benefit equally from being on a big screen relative to a television wide-screen would suggest that customers could benefit from a system in which films are ranked in terms of the importance of the big screen. Directors could issue a recommended score, say from 1 to 10, and film critics could proffer their own recommendations.  This would systematize the tendency of critics to urge “see it at home” versus “go to the theater.” Of course, in viewing previews advertised on a computer or on television, consumers make their own decisions, rather than feeling an artificial urgency that is in the interest of the theater owners.

As salient as computer technology is to changing how (and where) movies are being watched, the impact of such technology on filmmaking itself and how films may be viewed in the future is perhaps even more dramatic. Cameron’s “Avatar,” for example, involved new digital motion-detection technology in 3-D. More significant still would be a merger of virtual reality and movies (perhaps via video game technology), such that one day a viewer may be in a scene rather than looking in on a narrow range of one on a rectangular screen. Such a development would probably reverse the tendency of scenes to get shorter and shorter (in line with decreasing attention-spans?) because the viewer would be more invested in a given scene.  “Shots” would not make sense; rather, the question for the director would be whether to control the viewer’s vantage point, and if so, how often to change it in a given scene. Furthermore, an editor would have to make the scene changes such that the viewer would not disoriented—“jumping” from one “world” suddenly into another.

Of course, movie theaters would not exist were virtual reality the predominant means, unless the traditional showing would also be sought, and even then, the economics might not support the brick and mortar venues.  In fact, if Cameron and the theater owners were correct, the theaters might not survive DirecTV and the internet.

Like the brick-and-mortar bookstore and library, the movie theater might not be as permanent as their history in the twentieth century might suggest. Indeed, what we take for a book and a movie may be on the brink of fundamental change not only in delivery, but also in terms of content. In both cases, novices with a passion are able to try their hand (or camera) and gain some market share from the “professionals.” Even the latter are being forced to adapt or become antiquated.  As the second decade proceeds, these industries are on the cusp of changes perhaps on the order of those that occurred in lighting and transportation from the 1850s to the advent of commercial air travel. It is difficult to compare the two periods in terms of their respective transformations because the industries differ and the same people were not alive for both. Even so, I suspect that the hope and optimism that came with electricity and the automobile are in the air concerning what is possible as computer technology continues to develop and be applied.

1. Lawrence McDonald, A Colossal Failure of Common Sense (New York: Crown Business, 2009), p. 63.

2. Jeffrey A. Tracktenberg, “Cheapist E-Books Upend the Charts,” The Wall Street Journal, April 21, 2011, B1, B4.

3. Stu Woo and Jeffrey A. Trachtenberg, “Amazon’s Kindle Will Offer E-Books from Libraries,” The Wall Street Journal, April 21, 2011, B4.

4. Nick Wingfield, “Netflix Faces Rising Costs,” The Wall Street Journal, April 26, 2011.

5. Michelle Kung and Ethan Smith, “Filmmakers Pan DirecTV Plan,” The Wall Street Journal, April 21, 2011, B2.

Business Ethics in the Business World: A Glimpse from Goldman Sachs

Goldman Sachs’ ethics code reads in part, “[We] expect our people to maintain high ethical standards in everything they do. . . . From time to time, the firm may waive certain provisions of this Code.”[1] The explicit conditionality is notable and significant. I contend that among other reasons, a negative impact on the bank’s financial position and/or profits is apt to trigger such a waiver not only at Goldman Sachs, but from the business standpoint more generally.


The full essay is in Cases of Unethical Business, available at Amazon.com.

1. William D. Cohan, Money and Power: How Goldman Sachs Came toRule the World (NY: Doubleday, 2011).

A Structural Conflict of Interest in Feinberg's BP-Claims Disbursement Office

A year after the BP oil rig explosion in the Gulf of Mexico, only $4 billion of the $20 billion fund alloted by BP had been paid to claimants. Out of 800,000 claims submitted, two-thirds had been processed.  That is to say, two-thirds of the claims translates into 20% of the available funds. It appears that Ken Feinberg, the lawyer tasked with administering the funds, was being too stingy.

The full essay is at Institutional Conflicts of Interest, available in print and as an ebook at Amazon.

Conflicts of Interest for Public Officials: How Broad?

Michael Carrigan, a member of the City Council in Sparks, Nevada, “says he was trying to make sure his vote on a proposed casino, one that his campaign manager helped develop, did not pose an ethics problem.”[1] Carrigan backed the Lazy 8 casino project proposed by Red Hawk Land Co. Carrigan’s friend and campaign manager, Carlos Vasquez, worked as a consultant on the project. The question is whether the elected official’s relationship to his campaign manager who was a consultant on a project to be voted on constitutes a conflict of interest sufficient for the official to have not voted. The Sparks city attorney told Carrigan that he could vote on the project as long as he publicly disclosed his relationship with the project consultant. The attorney was obviously thinking in terms of transparency. Carrigan made the recommended disclosure. The Nevada Ethics Commission, however, claimed after the vote that Carrigan had a conflict of interest and should have abstained even with the transparency. In its reprimand, the commission cited ethics law that says public officials must not vote when their judgment could be affected by a commitment or relationship to someone in their household, a relative, business partner, or a person “substantially similar” to those specified. The commission classifies the campaign manager in the “substantially similar” category because Carrigan’s loyalties to his campaign manager would have affected his judgment. Caren Jenkins, executive director of the Nevada Ethics Commission, explains, “Here was a friend, a buddy, a close confidant. If Mr. Carrigan ever thought it was in his best interest to vote against the project, would he have?”[2] Carrigan sued the commission for its reprimand, claiming it violated his free speech rights. The Nevada Supreme Court sided with Carrigan, who pointed to the fact that he was not in business with his campaign manager. The Nevada Supreme Court said the catch-all category the commission cited failed to “limit the statute’s potential reach (or) guide public officers as to what relationships require recusal.”[3] The state court said the law “thus chilled speech.” In its appeal to the U.S. Supreme Court, the lawyer representing the commission argues, “State and local legislators have no personal ‘free speech’ right to cast votes on particular matters, much less ones in which they have a personal interest.”[4] The Reporters Committee for Freedom of the Press similarly claims that rules such as Nevada’s are important to ensure politicians don’t vote based on personal interests.

The full essay is at "Conflicts of Interest for Public Officials."

---

1 Joan Biskupic, “Nev. Official’s Vote Turns Free-Speech Case,” USA Today, April 18, 2011, p. 6A.
2. Ibid.
3. Ibid.
4. Ibid.

Contending Healthcare Social Contracts: A False Choice?

On March 21, 2010, the U.S. House of Representatives approved “a far-reaching overhaul of the nation’s health system . . . , voting over unanimous Republican opposition to provide medical coverage to tens of millions of uninsured Americans after an epic political battle that,” according to The New York Times, “could define the differences between the parties for years.”[1] The vote was 219 to 212. “This isn’t radical reform,” the U.S. president said, “but it is major reform.”[2] Whether that was real change is an open question. House Speaker Pelosi said, “Today we have the opportunity to complete the great unfinished business of our society and pass health insurance reform for all Americans that is a right and not a privilege.”[3] While Obama was referring to the bill’s reliance on extant private insurance companies, absent even a public option, Pelosi made explicit the change to the American social contract—access to health-care would henceforth be a right for all citizens rather than a benefit to be conferred to those able to pay from their own wherewithal and insurance. The basis of this new right was undoubtedly the human right to life, as in the right to life, liberty and the pursuit of happiness.

The closeness of the House vote suggests that the people were divided on whether the new right ought to be conferred (and/or whether it should be conferred by the U.S. Government rather than decided on a State by State basis). Sure enough, the pendulum did indeed shift.  On January 19, 2011, the U.S. House voted 245-189 to repeal the health-care law. Then, on April 15^th, the House voted 235 to 193 for a budget  that “would significantly scale back federal domestic programs and cut $5.8 trillion over the next decade."[4] Medicaid would be a set amount sent as a block grant to the States for them to use for their poor (the States or the poor having to make up for any shortfall), while Medicare would be subsidies sent to the elderly for use in their health insurance premiums. Neither the poor nor the elderly would be guaranteed access to health care. "A Congressional Budget Office review of the Ryan proposal predicted that retirees would pay more for their health care under it than they would under traditional Medicare. The agency also said the Ryan plan to convert federal Medicaid spending into block grants for states would most likely end up reducing benefits for those enrolled in the program."[5] The bill would also reduce the top tax rates for individuals and corporations. Democrats “accused Republicans of promoting a morally skewed vision of America by taking savings out of medical care for older Americans and the poor while supporting tax breaks for corporate America and the affluent.”[6] 

In effect, the Republicans in the House were rejecting the change to the American social contract passed the previous year with respect to there being a right to health-care.  Furthermore, the House Republicans were redoing the social contract with respect to the Great Society programs even before the passage of the health-care right because Medicaid and Medicare would be a fixed amount and transferred to the States (in all but funding), and limited to a fixed subsidy, respectively, rather than being open-ended commitments of the U.S. Government. The poor and retirees would have to pay more than what had been the case even without "Obamacare." In other words, the Republicans were pushing to change the social contract in the other direction with respect to the extent of the federal government's obligation, rather than merely undoing the creation of the right that occurred in 2010.

In short, two visions for a social contract pushing the House in opposite directions more or less simultaneously. Even more significant than the electoral pendulum swing in November of 2010, the existence of two different visions for a social contract contending at the same time was evident.  All of the House Republicans had opposed the health-care law in 2010 while all of the Democrats opposed the Ryan budget in 2011. Two distinct social contracts were in a tug-of-war. The assumption was that only one could be enacted, or a compromise that could only result in a third that neither vision wanted. I contend that this is a false choice--that we are making the problem harder than it need be, given our governmental system of federalism. 

The two social contract visions differ not only with respect to redistribution and the extent to which government should secure the survival of its citizens, but as to whether federalism is at all relevant.  Whereas the Democrats wanted the general government of the union to be the governmental agent in the contract, Republicans sought either a mixture of federal and state involvement or, perhaps ideally, a state by state basis on the government side of the social contract. 

Having some federal involvement would allow for a minimal governmental obligation as part of a social contract spanning the union, while involvement by the state governments would enable various social contracts such that both visions could be realized with respect to rights and obligations.  Lest “minimal” actually be “maximal,” a one-size-fits-all social contract would stymie the two mutually exclusive visions. At the same time, leaving the entire matter of social contract to the states would deny a floor of human rights for all Americans. Social contract itself is complex in the United States, as per the nature of a union of states wherein governmental sovereignty is divided between two systems of government (state and federal).  

That the debate had been allowed to funnel into a “one social contract” only scenario at the federal level essentially truncated the union into a consolidated system, as if Congress were only a national legislature, or a state legislature. In his book, Gov. Rick Perry of Texas writes that the federal system of government, "if respected, allows people of varying beliefs to live together united as Americans."[7] He notes that "we can tailor solutions to our own values and perspectives rather than trying to create national one-size-fits-all policies" while agreeing "that there are certain things we must do together."[8]  While Perry views activities of union as only those that the republics in the union cannot accomplish, union could also involve a floor of governmental obligations in keeping with what each generation determines as due Americans simply in being Americans. Yet such a criterion is vulnerable to a slippery slope so the floor feature must be safeguarded by governmental or federal design.

In conclusion, there need not be one choice between the Republican and Democratic proffered social contracts wherein only one of them exists in the United States; the Republican variant could be the law of the land in Texas, for example, while the Democratic alternative could be the social contract in Massachusetts. The only thing to be compromised would be a minimum “floor” of rights for all Americans by virtue of what it means to be an American. Such a matter of compromise would enable us to get past the false dichotomy that presumes a one-size-fits-all decision must be made. In other words, both the Democrats and the Republicans can have what they want--just not U.S.-wide.  To have their respective visions enacted somewhere in the United States means giving up the objective of seeing all of the United States in their own image. 

1. Robert Pear and David M. Herszenhorn, “Obama Hails Vote on Health Care as Answering ‘the Call of History,” The New York Times, March 22, 2010, p. A1.

2. Ibid.

3. Ibid.

4.Carl Hulse, “House Approves Republican Plan to Cut Trillions,” The New York Times, April 16, 2011, pp. A1, A12.

5. Ibid.

6. Ibid.

7. Rick Perry, Fed Up! Our Fight to Save America from Washington (New York: Little Brown, 2010), p. 26. See Skip Worden, American and European Federalism: A Critique of Rick Perry's 'Fed Up!'." 

8. Ibid.