Someone Has to Win? Really?

One of my favorite political blogs is The Fix, a regular feature of www.washingtonpost.com, written by Chris Cillizza. On Fridays The Fix has a special feature called The Line where he gives a rundown of the horserace as he sees it. Today's The Line is entitled, "Someone Has to Win the GOP Nomination." So far, I'm willing to accept that someone must eventually win the GOP Nomination. Where I disagree with the esteemed political writer is:

What gets lost in all of the negativity about the Republican field is that in less than two months, someone will be the party nominee. Put simply: Someone has to win this thing.

Less than two months?! That's just a bald-face lie.

Yes, it is true that a majority of delegates will be decided within the next two months, but if things go as they have been, there is no certainty that any one candidate will have amassed the number of delegates necessary to win the nomination. Granted, it's been many a year since this has happened, but there used to be a time when the nominee was chosen at the convention by elected delegates doing more than just waving signs and clapping their hands. If a clear winner does not emerge from the pack to claim a majority, then the convention will once again reign supreme. All the political commentary about the split nomination race seems to miss the actual process of the nomination and how it functions in reality. The nomination is not chosen by an election where a plurality is enough. Strict rules govern the processes, and fifty years of not needing to use them doesn't make them any less relevant.

This has an interesting impact on the decisions of the national party to strips delegates from states violating the nominating calendar, namely Florida and Michigan. Conventional wisdom says this is all positioning because the eventual nominee, who will control the Rules Committee, will seat the delegates anyway. But what if the Rules Committee seats are split among the candidates and thus lack the majority votes to change the rules? What then?

So no, no one has to win anything in the next two months. But if someone doesn't, well, then we are in for some interesting times come convention time.

The Court & The Public

In the past week I have read no fewer than three different editorials about the need for the Supreme Court to allow cameras into oral arguments, or at a minimum release same day tapes of the proceedings. Most recently I read this anemic editorial by the Washington Post. The outcry is the same... people deserve the right to see the proceedings of the court because it's a public institution. I couldn't agree more with the objective, transparency of public institutions is paramount to good decision making... even courts, who are the least participatory of our political institutions.

Where these critics go wrong is in thinking that cameras make a difference... or that oral arguments are someone the "functioning" of the court. The events leading up to a legal decision are a complex web of filings and briefs, of which oral arguments is but one tiny piece. Lawyers generally agree that cases are won and lost on the brief... oral argument is just an chance to run through the briefs and address questions raised by the justices. But it's not like the questions are unexpected and no Supreme Court practitioner worth their salt leaves an unanswered question in hopes the topic comes up during orals. It's all there, in the brief, which are publicly available.

Yet, this isn't even the most amazing part about how incredibly transparent our legal process really is. Consider for a moment the House of Representatives. On a given day the 425 members cast votes on a number of different issues. Now imagine if each of those members had to write down why they voted the way the did, had to cite previous votes by themselves and those who held the seat before them as justification, and had to provide a detailed step-by-step analysis of their thinking. Wouldn't that be something? If the members of Congress had to publicly justify every single one of their votes! How would constituents feel if their member wrote they voted for a particular provision because they got a fat donation check!

Of course, House members don't have to justify their votes... nor do Senators... nor do Presidents (except in the case of a Veto, which is a whole other can of worms). Two out of three branches of government may exercise their constitution powers without a single word of explanation and routinely do so. The Court, in shocking contrast, explains everything. Complete with citations, justifications, historical narratives, transcripts, finds of fact, depositions, and the decisions of the District and Appellate Court from which the appeal originated. It's an overwhelming amount of information and quite frankly more transparency than your average Joe is really interested in. But, it's the law, and the law isn't easy... the law is complex, and no matter how simplistic campaigns may make governing seem, we should never allow the law to become a sound-byte.

So why then fixate on oral arguments? It is but one small (some might argue insignificant) part of the process. When a whole world of records is available to analyze, why are we getting all worked up over this? Lawyers, who have the most to gain from a transparent court, have never demanded it... so why suddenly is everyone else?

I don't have an answer, but I fear it's part of a larger trend to treat the court (federal or state, doesn't seem to matter) as just another political body, whose officials should be subject to the whim of the electorate and the twenty-four hour media machine. It's a bad trend that strikes a blow at yet another of our critical institutions designed to protect the minority from the tyranny of the majority. What I do know is that someday I want to attend an oral argument, not for the knowledge, but for the singular experience. If I ever want to know what actually happened in a case, I'll crack open a book.

State Quarter Quiz

I've been a collector of state quarters since the first year they came out. In fact, just this year I collected the Washington State quarter, an event I've been anticipating for eight years!

I got a quiz in the mail a few days ago testing ones knowledge of the backs of the state quarters with the text removed. Go ahead, give it a try. I got 17 out of 20 right, but some of them are mighty tricky.

Seeing the quarter backs without the words made me appreciate the state histories and landscapes that we so often forget about. Divorced from my contemporary perception, I begin to remember that each of the states has their own complicated story of what it means to be from Utah or from Kentucky or wherever. Sometimes I wonder if our obsession with being "true" Americans has devalued our own state identities, which have a rich value in of themselves.

If you didn't the first time, take the quiz and reflect, for just a moment, on how little we really know about our 49 other neighbors.

Life is Sweet

I realize it's been an unforgivably long time since I last posted... and that post was some strange rant about the Federal Circuit Court of Appeals, which doesn't exactly make for the most stimulating reading. I apologize and hope to do better in the coming months. But let me take this opportunity to tell you, my faithful readers, what's up in my world.

First, I'm writing this post from the deck of my new apartment, sitting in my new deck furniture, overlooking palm trees and the pool, and only a block from the beach. The complex itself is sort of old, but it's undergoing a lot of refurbishment, with new appliances, new landscaping, structural improvements, and a "purge" of sorts to remove members of the community who are not quite responsible tenants. The rent is a tad steep, but I figure if I'm going to live in a California beach town, I ought to live by the beach.

Sarah and I just finished a bit of a spending spree to decorate our new place. In addition to the deck furniture, we bought a sofa and this sort of mini-couch sleeper thing, a super cool "storage" ottoman, a side table, a "C" table (truly the most brilliant development in furniture production in the past 50 years), a table lamp and a floor lamp.

And how, you might be wondering, did I manage to afford all of this? No, not mail fraud, but that's a good guess. No, it turns out that my skills as a webdeveloper are in high demand, especially when you have good customer relation skills. After founding Pro Bono Geek a few months ago I ended up earning way more than I had ever expected. So much I felt compelled to go on this orgy of spending I described above.

All this time I've been working at Evans Data Corporation. Things were going very well there, with a successful corporate site launch and a massive reorganization of their IT infrastructure. But 40 hours a week at EDC followed by 30+ hours a week doing consulting from home, I was finding myself a bit worn thin. And just around that time I got a job offer to come on full time with Articulated Man as a web developer, making a whole ton more than I was at EDC!

Of course, Pro Bono Geek and Articulated Man are/were essentially competitors, although we had worked on several projects collaboratively. But with my new employment came the end of my private consulting work. Which is great, because I'm still making good money, doing what I enjoy, and I don't have to put in 70+ hours a week to do it. As a bonus -- as in signing bonus -- I was able to get a new car!

That's right, as of this weekend, I'm an official car "possessor." I say posses because I didn't end up buying it outright, but instead I'm leasing it. Still not sure why I decided to go that route, but it felt right at the time and I haven't been able to come up with a slam-dunk argument against it. So, I've got a three year lease and we'll see where I stand at the end of it.

Oh, what kind of car is it? It's a 2008 Magnetic Grey Prius (this is a photo of a 2007... couldn't find a 2008 online). It has a start button, I kid you not, and so long as the key is in my pocket the door unlocks automatically and the car will start without having to put the key in the ignition. The thing is unlike anything I have ever seen before. It's not the kind of car I would say is a blast to drive... not that it's not fun, but it's no sports car. What it is is the kind of car I won't feel bad driving around town to do errands.

Now, the close reader may have been wondering, how was it I was able to move to the beach and yet still get to my old job downtown. That's a good question, and if you didn't think to ask it, you're not paying close enough attention. Either that, or you didn't know me well enough to learn my most closely guarded secret. As a child I never learned how to ride a bike. That's right, never complete with italics and everything. So, when work became a 40 minute walk it was not just a simple matter of hopping on the bike. But with the help of some very dedicated friends I managed to teach myself how at the ripe old age of 26. Now I'm a regular speed machine, zipping up and down the streets of Santa Cruz on my new Trek hybrid bike. It's a hybrid because it's half mountain bike (good for hills and stability) / half street bike (good for going fast).

So, that's the sum of things. I'm headed out now to attend my first Santa Cruz Obama organizers meeting to see if there's something I can do to help with the campaign. Looking forwards to meeting some new people, since the new job is home based.

Thanks to anyone who kept checking during my hiatus, I promise to be better for at least a little while.

Stupid Federal Appeals Court...

It's been months, months, since I last blogged, which is really a shame because there are so many interesting things I could have blogged about. Supreme Court rulings, 2008 Presidential Primary shenanigans, new web projects, plans to move, looking at new cars, etc, etc. And yet, for whatever reason, I didn't "pick up my pen" and it is my loss.

But today I read something that really makes my blood boil, so I'm back at the keyboard ready to take a stand. Feel free to read my primary source first, but if don't have the time, here's the summary. Pharmaceutical companies hold patents on drugs that give them sole authority over who gets to manufacture the drug. As a general rule, they elect to only allow themselves to make the drug, which means they have zero competition and without competition they can set whatever prices they want. Most non U.S. countries combat this by regulating the price of drugs, the result is in the United States drug costs are quite a bit higher than any where else in the world.

So, the District of Columbia, in their own effort to combat what they see as excessive prices, adopted a city ordinance that allows for a civil suit if the cost of a patented drug is 30% higher than in Canada, Germany, Australia or the United Kingdom. On appeal to the Federal Circuit Court of Appeals--my least favorite court for a number of reasons I've previously blogged about--deemed this to be in violation of the patent laws and an illegal usurpation of federal power.

I say fooey to that. But D.C. Council member David A. Catania has a more nuanced responce.

It implies that patents would ban any legislation that affects the ability of patent holders to charge whatever they please, which is absurd. The Supreme Court has already upheld legislation that mandates price discounts to participate in Medicaid formularies. And no one has argued that states cannot enforce antitrust and other rules that limit monopoly prices of drugs indirectly -- although the full logical thrust of the opinion would do just that.

I tend to agree. Patents only authorize the patent holder to control manufacture and use, it does not convey absolute pricing control, although absent regulation it is the natural result of a patent. But if this court ruling is correct, it means that if I obtain a patent on gun, which a state later decides to ban, or at least regulate, for safety reasons, the state would be in violation of the Patent Act and unable to do so. Essentially, anything patented is beyond state regulation! (The Congress, I presume, can still regulate under the ruling since they have the authority to trump the Patent Act.)

As is well documented, on the topic of patent law interpretation (as opposed to patent application) the Federal Circuit has a very poor record. If the Supreme Court accepts cert, and I pray they do, you can bet the farm they will overturn as they have nearly everytime the Federal Circuit has claimed its specialized area of law trumps all others.

When will Congress realize that giving an appeals court exclusive jurisdiction over a single area of law while denying them any jurisdiction over other areas ensures that the exclusive area will become paramount in all matters? Laws must be balanced with consideration to the competing interests and a specialized court like the Fed Circuit is tantamount to pressing down on one side of the scales.

A New Playbook in Dealing with the Internet

Some of you may have read about the number which must not be named incident a few weeks back. For those who didn't, there is this number that certain powers that be wish to keep secret. In so doing, issues various cease and desist orders which caused quite a stir and increased the spread of the number far more than if they had never done anything. A classic case of misunderstanding the reality in which you find yourself.

Today the Washington Post brings a story of a young girl from California who has found herself in the middle of a media storm. Due to her excellence in sports and attractive looks, her photo has spread across the internet on blogs and messages boards. Someone even setup a fake Facebook account under her name. The attention has often been sexual in nature and cause grief for the girl and her family.

What impresses me about her story is that she, or at least those who are advising her, have rejected the misguided approach of the copyright maximalists. Instead of sending out cease and desist letters to anyone who ever touched the photo, instead of threaten slander suits against those who speak her name, instead of crying to the media about how unfair it all is, this young girl has chosen to embrace the media storm. Not in the Brittany Spears, "It'll make me famous" sort of way, but in the "okay, if you're really interested, here's my story" sort of way. I predict that by opening up, embracing the storm instead of fighting against it, the frenzy will die down much quicker than otherwise.

Of course, I could be wrong and this may end up stoking the fires, but my gut says that now that she's obtainable, in that her life is not clouded in mystery, she'll be far less of a target for those who obsess about the impossible. Nothing destroys a fantasy like a healthy dose of real life.

My Green Thumb?

I wouldn't have believed it a year ago if you had told me, "Sean, you're going to be able to grow living plants and keep them alive," but, believed or not, it would appear to be true. As evidence, I submit the following photograph

My glorious impatiens

I planted these about a month ago in the planter pot I got Sarah for her birthday (technically these are her flowers that I grow on her behalf). When I first got them I expected two, maybe three, blooms per pot. But now, with some tender love, consistent watering, and the eclectic mix of music played by the neighboring spa, my little flowers are blooming all over the place. More than a dozen in some pots.

The bottom six pots have a mix of different color impatiens and are all doing splendidly. The top pot has a flower that Sarah purchased, so I don't know the species, but it has had a tougher go of things. At first it started dying, dropped all of its flowers and the stalks flopped over the edge of the pot. But I kept watering it, trimmed away the dead bits, and slowly but surely the plant has risen once again.

Due to the nature of the porch it lives on, I have to rotate the pot with some frequency to ensure every flower gets roughly the same amount of sun. I haven't decided if they do better in the sunlight or in the shade, but I know that not turning the pot leads one side to die and the other to do better, so rotation is now part of regular maintenance. In addition, I water my little plants with a trusty spray bottle, which I feel more realistically simulates rain water like the flowers long since forgotten ancestors must have known before cultivation and greenhouses forever changed flower production in the industrialized world.

Sarah is also trying her hand at flower care this season, having killed off her long lived green plant. Here's a wide shot of our little garden.

Sarah's plants are in the green planter and brown terracotta planter

She is also keeping a hanging plant which lives up in the rafters

I'm not quite sure how she gets up there to water it?

Sarah's project is quite a bit more ambitious than mine, but since these are the first plants I've ever successfully grown, I'm happy with the results to date.

A Tough Spot

Recently Circuit City fired 3,400 employees who were earning above the defined pay range for the associate position at the big red store. Before I go any further, let me say that I know a guy who manages a department in the local Santa Cruz Circuit City, and I've had the opportunity to talk business with him on several occasions... so I have some sense of the nature of their business.

Stores like BestBuy, Walmart, Costco and Circuit City are in a all hands on deck battle for big ticket sales. The margins on computers and gadgets isn't enough to warrant those big buildings and the flashy adds... it's all about moving those TVs. And at the end of the day, a slick salesman only goes so far. You have to keep cost low if you want to compete. Consider Costco... I can't say I've ever seen a salesman on their TV floor, but maybe I wasn't looking. Certainly not as many as at Circuit City. So, when faced with the prospect of posting huge quarterly loses, Circuit City let thousands go, hired new younger workers with low pay, and told the old workers they could reapply 10 weeks down the road (at lower pay).

Not only were they upfront about the situation with the associates, they were upfront with the public. According to the Seattle Times, in exchange for their openness they are getting a boycott.

Which makes me confused as to what Circuit City should have done here? According to my manager friend, the best Circuit Cities are near colleges and have a healthy churn of college kids who take the associate jobs for a few years, work their way up the pay scale, then leave to make room for a new salesman. The churn ensures the pay never gets too high. But not every town that needs a Circuit City has a college, so some salesmen stick around for longer than is desirable. Strikes me as they have three options:

1) do nothing, post huge loses and file for bankruptcy
2) do what they did, get hit with a boycott
3) do what they did, but keep it private so the public never finds out

Now, of course, #3 is rife with risks for the company. Should they be found out, they would be vilified in the press and likely become the target of... of a... of a boycott?! Wait, isn't that what happens under #2? Guess that makes it worth the risk then, wouldn't you say? Is that what we want? I don't think that having corporations make wide scale employment decisions without any public explanation is a very good idea, but we leave them little choice if this is the response they can expect for their frankness.

It's just like the politician who lies to his constituency. If telling the truth leads to an assured electoral defeat, what possible reason would they have to be honest?

I don't know if there is an easy solution to the problem. We could criminalize the lack of disclosure, I suppose. But that's certainly pretty extreme. We could turn a blind eye to corporate mistreatment of workers... not much of an ideal situation either. I think, ultimately, the best idea is to accept that some stores opporate on a low pay worker model, and if we don't like that we should avoid those companies all together, not just become morally indignant when they have to be a little more ruthless than normal.

Doing Good Work

I realize there are a number of items I haven't really announced that are worth announcing, so here they are...

1) I am officially employed, full time, by the fine people at Evans Data Corporation, a small survey company here in Santa Cruz. (I would provide a link, but their site is awful... hence my employment.) While the job isn't even remotely related to my law degree, it is an excellent opportunity to gain some real experience in the "corporate" world as well as get to know some regular folks beyond Sarah's graduate friends.

2) Just as exciting, if not more exciting, is that today Planned Parenthood launched its Wall of Protest site, which is web response to the recent Supreme Court decision about the partial birth abortion ban. (Note to constitutional scholars: what is scare about this decision is not that Congress can limit choice in this particular way, but that Congress can regulate in this area at all because it paves the way for a complete Federal ban should Roe v. Wade ever fall. What ever happened to enumerated powers?!) Anyway, working on the site has been great as have the people who coordinated the whole thing. Another company did the flash stuff, but I put together all the submission mechanisms and administrative tools. If you are a supporter of choice in this country, go visit the site and post something... if you aren't a supporter, prepare to be bested by my various security mechanisms :)

3) Sarah, my GF, started a blog of her own about stuff. Check it out. That photo of her, by the way, is from a moving San Fransisco cable car taken on our two day trip during Spring Break.

That's all for now... in the future I hope to be buying a car, so there may be photos a comin'.

The California Lawyers Say It's So...

Today, in the mail, I received two very important letters.

The first informed me that a settlement has been reached in the case of Rodriguez, et al. v. West Publishing Corp., d/b/a BAR/BRI, and Kaplan, Inc. For those following along at home, I'm "et al." Turns out BAR/BRI has been engaged in a little anti-trust no no resulting in a class action. And since no class is sufficiently classy without me, I was asked to tag along. There is $47 million in an escrow account which the lawyers get first crack at (to all you class action nay-sayers... those lawyers are welcome to their share in my opinion. I didn't have to lift a finger, will be getting some money back, and BAR/BRI is going to stop the antitrust behavior. Not a bad outcome for such an "inefficient" system). Then us plaintiffs get our share of the remainder, pro rated, based on the fee we paid. The pool includes all BAR/BRI customers in all states from 1997 - 2006, but since California's bar is one of the most expensive and the fee increased each year, my pro rata should be exceptionally pro, if you know what I mean. The award can be as much as 30% of my fee... which would be nearly $1000.

The other letter, this one from a different group of lawyers, wrote to tell me I am a moral person. It's strange to get a letter from lawyers saying, "yes good sir, you are moral enough to be one of us," but there it is. I posted it on my refrigerator with my new shiny UW Alumni Magnet (it says I'm an Alumni by the power vested in the UW Alumni Board of Trustees... what power do you suppose that could be? The power to ask for money on a bimonthly basis?)

So, that completes the final hurdle to becoming a licensed lawyer in the State of California: Ethics Bar, check; Bar Exam, check; moral character evaluation, check; ridiculous application fee, check. The only thing left is for the Supreme Court to complete the paperwork and send me a form asking for dues. That's right, my very first act as a licensed lawyer will be to pay yet more dues.

Now if only I had one of those fancy law jobs so I could afford to pay 'em. I suppose I do have that settlement money coming...

Learn the Truth

Quickly, watch this video before NBC files a DMCA takedown notice against YouTube on behalf of Cadbury.

The world must know!

On Dancing and War

There is an opinion columnist who writes for the Post that I lovingly referr to as the "scowley faced man" (this is in contrast to "big foreheaded man"). Add Mr. Novak, and these the individuals represent the triumvirate conservative bloc of the Post. Reading their articles usually makes me pretty upset because of the highly selective tunnel vision when it comes to evaluating facts.

Today is no different.

Mr. Krauthammer argues, with great force but little precision, that the multinational institutions of the UN and the EU failed to protect the 15 British sailors who were captured last week by Iran. The EU refused to impose requested tarriffs and the UN refused to condemn the Iranian action. This, according to Mr. Krauthammer, shows the irrelevance of multinational institutions. In the end, it was the Americans who solved the problem.

There's an old saying, "dance with the one who brought you" that is awfully applicable in this situation. Britian chose to become involved with the Iraq war over the objections of other member EU nations and without the support of the UN. The Prime Minister bought what President Bush was selling and have been at our side from the beginning, all the while thumbing his nose at the multinational institutions. In the international order that's their choice; no country is obligated to participate in transnational organizations.

But there are consequences for ones actions. Why, if the EU does not support the military action in Iraq, would anyone expect the EU to support economic sanctions on behalf of a country who has defined that collective will? If Michigan suddenly declared war on Canada, invaded, and had a group of their soldiers captured, would the United States be obligated to impose sanctions against our largest trading partner?

What, a silly analogy you say? Of course it's a silly analogy, the United States would never allow Michigan to attack Canada, the U.S. Constitution prohibits states from engaging in foreign relations. It's one the cohering factors of the Union. Michigan need not fear the U.S. turning a blind eye, and the U.S. need not fear Michigan going on some fool's errand. Such is not the case with the EU, because if it were, the EU would never have permitted the UK to join the American's Iraqi adventure, the sailors would never have been in/near/adjacent to Iranian waters, and there wouldn't even be a question of whether sanctions were needed.

Does the fact that the resolution to this crises came out of American action mean the EU, or the UN, is incompetent or unnecessary? No, it just shows you're best bet is to dance with the one who brought you.

The Source of Facts

Much ado has been made regarding the U.S. decision to tinker with the daylight savings time. Regardless of the intentions behind the Congressional experiment (reducing power consumption) I prefer the change. So there's my bias.

Now, let's talk about the other bias. Ars Technica is running a little piece which can only be described as gloating about the failure of the switch to actually save power. Not sure why it's worth gloating about, but okay. Their source is an even shorter article by Reuters, which doesn't seem very interested in gloating (at least there still some objective journalism in the world) about the apparent failure to conserve. But now you should be wondering, who is the Reuters' source?

Here's the direct quote from the article

"There might have been a small increase in morning lighting, and a slightly larger decline in evening lighting usage," said a spokeswoman at New Jersey utility Public Service Enterprise Group Inc, but that modest decline will have no impact on its overall sales or earnings.

Which means there source is the venerable Public Service Enterprise Group Inc. That's not a link to their homepage, by the way, that's a link to their stock price. Yes, that's correct, PSEG is a privately held, for profit company.

I'm not saying there is anything wrong with for profit utilities (although, the argument could be made...) what I'm saying is that no for profit company is going to come out and announce, for no good reason, "the government's regulation has cut national power consumption and as a result, earnings are down." It's just not gonna happen. There is every incentive for them to say, "silly government, you cannot stop us, for we are the power company... everyone needs our electricity!" Check out that link again, check out their stock price for the past few days following the article (April 2nd). Up almost 3 dollars! Interesting, no?

Now, I'm not saying that power company is lying. I don't have the facts to say that--but I think that a serious news agency like Reuters, and less serious news, um, reporting... er... opinion site like Ars, should look beyond to the source of their facts before they declare something to be a failure.

Giving The District a Vote

The Washington Post reports today that efforts to grant the District of Columbia an actual, factual, vote in the House of Representatives was derailed by a poisin pill amendment, offered by Rep. Lamar Smith (R-Tex.), overriding the District's strict anti-gun laws. Very clever on the Republican's part in one of two ways. Either it puts Democrats from conservative districts in a tough spot (voting against gun freedom), or, it forces the Democratic Leadership to bring the bill up for consideration under a closed rule, thus reversing on a pledge to run the House in a more open manner.

House procedural maneuvering aside, none of this may matter as the President has said he will veto the bill should it reach his desk. He, or at least his advisors, believe the law is unconstitutional. The first clause of Article I, Section 2 of the Constution reads:

The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Which supports the President's claim... states get representatives, not districts. It's worth noting that the President also stated the the McCain-Feingold Bipartisan Campaign Finance Reform Act was unconstitutional, and yet is bears his signature.

Of course, the Democrats have their own legal argument. They point to Article I, Section 8, Clause 17 (the Enclave Clause), which says:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings

This clause has been read to mean the Congress can do pretty much whatever it wants within the confines of the District (makes me a little sad for the residents of DC... would you want Congress to effectively be your city council and state legislature all at the same time?).

Unfortunately, I have to side with the Republicans on this one, at least as far as the legal argument goes. There are two problems with using the enclave clause. First, it makes no meaningful distinction between the District of Columbia and military bases. Both are governed under the same clause and Congress may legislate with equal force. Which means if the District can be granted representation under the enclave clause then so can all of the military bases around the country.

Second, and for me more powerful, is the 23rd Amendment, which grants the District representation in the electoral college as if it were a state (with the minor provision that they can never get more votes than the smallest state, so they are pretty much stuck at three votes). If the Democrats were right about the enclave clause, this amendment would never have been necessary, Congress could have simply granted the District electoral representation by legislative action. Instead they went to all the trouble of assembling 2/3rds of the House and the Senate and a majority in 3/4ths of all the state legislatures.

Given this precedence, it is hard to argue that legislation, even if well intended, can alter the voting rights clearly outlined by the Constition. There have been efforts to grant the District either statehood or full voting rights under another constitutional amendment akin to the 23rd. The statehood route poses many complications (for example, could the new state pass a law ousting the national government?) and is not really consistent with the founders vision of a national capital free from state intervention. The full voting rights option, on the other hand, is pretty straightforward. The key obstacle is history--it's been tried before and failed--and partisan positioning--Republicans won't vote to grant representation to a Democratic stronghold unless they get the same in return.

But perhaps both can be overcome is sufficient political will. If the voting rights folks can frame the issue correctly, show how the Republicans are preventing a giant city from participating in self-governance, focus on representation in the House by dropping the demand for Senators, and then really push the issue when it goes out into the states, then maybe they have a chance. As for the current effort, I sincerely doubt it.

Must Share Funny Video

Sarah's father set her a link to a MadTV sketch that is truly inspired. It is a MUST see.

Because the copyright on this video is, err, dubious, I'm just going to provide a link back to YouTube, where you can watch the video and Google can deal with the liability.

Enjoy.

Seeking Special Protection

We all know about Arthur Anderson, the big accounting firm that went down with Enron in 2002. Suddenly we went from having "The Big Five" accounting firms to "The Big Four." See, the Federal Securities & Exchange Commission (SEC) imposes pretty significant reporting requirements on any publically traded firms. Both before and after the adoption of Sarbanse-Oxly, many of these reporting requirements can only be fulfilled by an outside accounting firm. The large companies rely exclusively on the Big Four to fullfill their outside auditing needs.

But, did you know that before there was The Big Five there was The Big Eight? Presumably there was also the Big 12 and the Not Quite as Big 17. The accounting business, like so many businesses, have been seeking efficiency through mergers since the 70's. Taking smaller companies and merging them into successively larger companies. So imagine my surprise when I read in the Washington Post today that these same companies are seeking legislative protection from liability because, and I quote, "We just don't want to be put out of business."

There tactic here is classic. Since they provide such a valuable and necessary service, they will argue that it is better, for society as a whole, if they are essentially immune from suit so as to ensure the few of them that remain continue to function. It would be worse, they will say, for there to be only three or two firms than for one of them to engage in fraud and get off the hook. It's the same argument the airlines make when they get huge federal bailouts.

The critical difference between airlines and accounting firms is that there is only so much market capacity for airlines. Given the huge capital resources needed to run airlines, terminals, ticketing, etc, it is safe to conclude that there is an optimal number of airlines and that it is a relatively small number. But the accounting firms only real capital cost is in brain power. The more clients they have, the more brains they need to employ. My guess is the whole thing scales rather well... which is why they merged together in the first place. If there is no lost efficiency from merging two firms, both with 50 employees into a single firm with 100 employees (maybe less), then you're going to do it on the grounds of eliminating competition. It's a no brainer (excuse the pun).

I consider this classic short term profit driven thinking. One of the central principles of computing, especially network computing, is to reduce the number of single points of failure. You never want a system to rely on one part which, should it fail, the entire system will go down. The same principle applies to civilization. You don't want everyone employed in the same job, you don't want your food source to be in one location, you don't want all your energy to come from the same kind of fuel. The more you diversify the better prepared we are for unforeseen, yet inevitable, changes in circumstances. It's the same principle behind a diversified stock portfolio.

Yet everytime one of these accounting firms merged together, we got closer and closer to a single point of failure. Now the four firms are so huge and have such an iron grip on the market that it is near impossible for a new market entry. The public traded companies have no choice but to hire one of the Big Four, and thus no medium sized accounting firm can ever become Big #5. Now the possibility of a bankruptcy due to a civil lawsuit is a big deal... the investment system needs these firms to survive, regardless of the cost.

Which brings me the final thought of who, exactly, bears these costs? See, when there is fraud, and that fraud is aided by an accounting firm, the investors have civil recourse to recover lost funds. When a company goes bankrupt, like Enron did, there's not a lot of money available to make those investors whole. To be clear, "investor" should conjure up both thoughts of already rich billions as well as the middle class saving for their kid's college and industrial workers pensions (the stock market, it's not just for elite any more!). If the purpose of the civil justice system is to make those damaged whole again, then going after an accounting firm who helped perpetrate the fraud just makes sense. If the SEC, or Congress, goes along with the Big Four's wishes, don't think those unrecoverable damages just go away. Instead, all those damages felt by the collapse of a public company will be carried by investors, while the accountants who both aided and likely benefited by the fraud, will continue to operate without any punishment or financial loss. Talk about a single point of failure.

Supreme Court Docket Watch

The decision to grant or deny Supreme Court review has been made in two important cases, one involving the Washington State primary and the other involving criminal sentencing. I've blogged about the Washington State primary system before, my belief that the state parties are shooting themselves in the foot, and that the courts holdings so far have been rather inflexible given the political nature of the question.

Well, now we are going to get the Supreme Court's opinion on whether the top-two system is constitutional or not. Louisiana has been using the system for years, so they better be on the lookout... remember, it was California, who adopted Washington's previous system, that went to the Supreme Court last time. If Washington loses like California lost, a national precedent will have been set.

Legal mumbo-jumbo aside, I have to wonder what the courts are doing with all of this? If the blanket primary is unconstitutional, and the top-two is unconstitutional, it begins to seem as if the Constitution has a preferred sort of primary, even though the constitution makes no mention of a primary and the founders, through Federalist 10, make clear that factions--only possible through primaries--are to be avoided. Personally, I found the District Court and 9th Circuit court opinions on the top-two system to be less than convincing. Their holding boils down to relying on the earlier blanket primary holding in California Democratic Party vs. Jones, concluding that anything which diminishes a political party's right to "speak" by selecting a candidate is unconstitutional.

Given that free speech is generally a balancing test, I don't think the courts really gave the question the appropriate scrutiny it deserves. The whole idea behind the top-two system is to say the parties don't get to decide who appears on the general ballot. They can use whatever system they want to pick who gets to use the party political apparatus, but such authority does not extend to deciding who gets to run for office. Put another way, it's not limiting the party's right to speak, it's saying the state isn't going to listen.

The other case, involving a 200 year sentence for a man found with 20 pictures of child pornography on this computer, was denied review. The case sought to question whether such a long sentences (10 years for each photo), served consecutively (instead of concurrently, as most jurisdictions would do) violated the ban against cruel and unusual punishment. The state court review only asked whether the 10 years per photo was fair, and having decided in the affirmative, it did not question the state's decision to apply the sentence consecutively.

What's interesting about this case to me is the quote in the article from a Professor Berman.

For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.

He is referring to the court's decisions limiting punitive damages, such as the rough guideline that the punitive should never be more than nine times the actual damages.

For me, the critical distinction here revolves around state decision making. In the case of punitive damages, the decisions are made by juries within the context of judge made common law. Which gives the Supreme Court a critical role in forming, and revising, those precedents. The criminal punishment, on the other hand, is not by common law. Because of the due process clause of the Constitution (5th or 14th Amendment, take your pick), all crimes, and their punishments, must be the product of the legislature. Which means Arizona's decision to impose consecutive terms, instead of concurrent terms, was made by the state legislature. If the result is seen as excessive, then the political process is the proper route for change.

Thinking About the British Withdrawl

The big news the past two days is that the British are withdrawing forcing from Iraq. There has been a lot of political back-and-forth about this development, with the White House calling it a "good-news story" and the anti-war movement asking why the British get to leave and the Americans don't. Obviously this is all very complicated, but I want to focus on a particular quote out of the Washington Post.

Tony Snow, White House Press Secretary, is quoted as saying

The fact that they have made some progress on the ground is going to enable them to move some of the forces out, and that's ultimately the kind of thing that we want to be able to see throughout Iraq.

The paragraph right before the quote, which is not sourced, reads

The White House argued that comparing the British situation in Basra and the U.S. position in Baghdad fundamentally distorts reality. The south, where the British have been in charge, has no Sunni insurgency and far less violence than Baghdad or Anbar.

Anyone else find that very interesting?

Why is the one populated area where the British forces are most concentrated the one populated area where there is "no insurgency and far less violence?" Strikes me as there are two critical differences between the areas: the occupier and the occupied. But do we really think there is some great difference between the Iraqis in Baghdad and the Iraqis in Basra? Or, could it be that the demoralizing events of Abu Ghraib and the slow response to the evolving situation by the American military leadership have engendered such ill-will towards the U.S. that our troops are simply incapable of being effective in the way the British troops have been?

I am reading a book on Iraq right now, and I'm learning a lot of interesting things about the situation... but at the moment I am far from an expert. But the one thing that bother me vary much are claims from the right about how we must stay in Iraq in order to win the fight... but what if it's not possible to win the fight? What if the window where all the troop increases in the world has already passed? To use a poker analogy, you don't stay in the game when all your holding is pocket 4s and the flop came down all face cards. Sure, you can try and bluff your way out... but this is international warfare against a player with nothing to lose. It's true, if you fold you cannot win... but this is not the ideal time to be bluffing.

Earthquake!

About four minutes ago I felt a very unnatural shaking in the apartment. At first I thought nothing of it, but then decided to see if there was a place where earthquake data was easily available.

Lo and behold: USGS Earthquake Hazards Program

They don't know the magnitude yet, and it hasn't been reviewed by a seismologist, but I can certainly vouch that it happened.

Nothing big, didn't even rattle the pictures on the wall, but it's vary cool to see how fast this information is available.

Update

The USGS now reports it was a 3.0 magnitude quake and about 15 miles north of my current location.

Art Update

I put a little tag by Santa Cruz, in case you didn't know where it was located

Sneaky Rules of the Senate

On Friday Democrats in the House of Representatives flexed their new majority muscle to pass a non-binding resolution opposing the surge/escalation in Iraq. The resolution was brief, to the point, and palatable enough to garner the support of 17 Republicans on top of all but two Democrats.

So impressed by the resolution, Senate Majority Leader Harry Reid scheduled a rare Saturday vote on identical language (as opposed to the 14 page whopper they had tried to adopt the week before). It was my thinking that this was a pretty clever move on the Majority Leader's part. To end the Republican filibuster Reid needed a 3/5ths majority and I figured the Saturday vote would mean fewer Republicans and thus a lower absolute vote total.

Indeed, when the vote was taken it came to 56-34--nine Republicans absent and Democratic Sen. Johnson of South Dakota still recovering from brain surgery. Now 56 plus 34 is 90, and 56 is 3/5ths of 90... so why was the Washington Post story reporting the filibuster had held?

Because Senate Rule 22 says so, that's why. The threshold is not based on the number of votes cast as it is with nearly all other votes in both the House and Senate. Rather, it is based on the number of Senators "duly chosen and sworn." Which means if there are 100 seated Senators, you need 60 affirmative votes to end a filibuster. Just as importantly, a "present" or "absent" vote is equivalent to a no vote. The only reason the minority even bother to vote, as far as I can see, is to avoid accusations of laziness back home.

In the end, Reid ends up looking like the fool. Democratic presidential candidates had to leave the campaign trail to go in for the vote, Republicans were allow out to play, and the Republicans continue to prevent a Senate resolution on Iraq. But don't think this fight is over... there is a mighty big appropriations bill working its way down the pike, and I think Rep. Murtha is going to have a few things to say about it.

They Knew it Was Going to Be Easy

News from the hacker community... the digital rights management (DRM) technology that protects HD-DVD and Blu-Ray high definition video discs has been broken. That's really not news as it was an inevitability.

The Slashdot commentary on this was interesting and pointed out something I hadn't thought of before. I will refrain from quoting the whole comment and instead paraphrase: it is impossible to secure a message when the recipient and the attacker are the same person. And now you are asking, what does that mean?

Okay, quick cryptography lesson from someone who only understands the basic. Assume two people (Bob and Alice) who want to send communication between eachother privately. In order for this communication to occur they must use one of several encryption methodologies. In general, this is done by both Bob and Alice knowing a "secret" and using that secret to encrypt and decrypt the message. Now, a third person (Charles) wants to listen in, but can't because he doesn't know the secret. Works pretty well, for the most part.

Now with DRM, the paradigm is different. Alice (played by the record label or movie studio) wants to send a message to Bob (played by you and I) that he can only listen/watch in certain circumstances. But Bob also wants to watch his DVD in a non-authorized fashion (say, with a Linux box)... which means Bob has a dual identity. He is both Bob and Charles. Any secret Bob knows, Charles knows... and now the gig is up. It may be that Bob doesn't know what the secret is, exactly, that he knows, but it is only a matter of time before smart people figure it out. That's what happened with DVDs several years ago, and that's what happened with the next generation systems.

But this is not what I want to talk about. The title of this post is "They Knew it Was Going to Be Easy" because the makers of DRM knew everything I just said above. They are not, contrary to the opining of the Slashdot crowd, stupid. In fact, they knew this so well that they got a law passed to criminalize the activity... a little something known as the Digital Millennium Copyright Act. §1201(A) reads:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title

Which makes the breaking of DRM a against the law... even if the DRM is really stupid.

So yes, it is easy... but so is bopping someone on the nose. Doesn't take anything more than one of my fists and decent aim. Which is why we pass laws in the first place, to create artificial incentives which conform behavior in a particular manner as established by the legislative process (I love this link!). The media companies said they wanted to keep pirates from breaking into their stuff, they recognized it couldn't be done with technology alone, so they appealed to the legislature and got the needed protection.

Which is to say... they knew it was going to be easy.

The Political Mechanics of Troop Funding

I thought I would share a small observation regarding the debate over troop funding with regards to the Iraq war. A lot has been said over whether the Congress should exercise its authority over the "purse" to bring the troops home, with every presidential candidate or wannabe making some sort of statement. Pretty much every politician is against it, and maybe for good reason... such a vote could easily be portrayed as abandoning the troops.

But that's not what this post is about, this post is about the mechanics of such a vote. First stop is the Constitution, Article I, Section 8 which lists off the Enumerated Powers of Congress. Among them is the following.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Which is very significant.

For the most part the Federal Government is funded on an annual basis through a set of 13 appropriations bills. The government ceases to function without those bills, such as the infamous government shutdown when the House Republicans and President Clinton could not agree on a budget. Now, if a hypothetical Congress truly wanted to write a hypothetical President a blank check for a war, they could just appropriate a hundred billion, gazillion dollars to be spent over the next 100 years and be done with it... but thanks to the clause quoted above, they are Constitutionally barred from doing so. They must affirmatively vote to fund the war a least once every two years.

Which brings us back to Iraq. There will be a new Defense Appropriation bill this year (and thanks to the Iraq Study Group Report, that bill will include the cost of the war, instead of a separate emergency appropriations bill of the past few years). Without this bill the war ends... period, end of story.

I remember an interview committee I once was part of where we reviewed perspective candidates for a lobbying position. The outgoing lobbyist asked one of the candidates, "what's the easiest thing to do in the legislature?" to which the candidate correctly responded: kill a bill.

See, there is only one way to pass a bill through Congress, but there are about a thousand ways to not pass it. And here's a kicker... even if the Senate, its ranks bursting with presidential contenders, votes to fund the war, the House can refuse to do so, and that's the ball game. Even a single Senator can filibuster (absent a Budget Resolution) the entire war if he wanted to; requiring a full 60 Senators to vote to fund the war.

Here's the last critical bit on mechanics. A failure to act is not subject to the presidential veto. He can yell and scream all he wants, but the President lacks the Constitutional authority to compell legislative action. He can't even dismiss the legislature and call new elections, which is a power generally held by most other executive figures in the world.

In the end of the day, the United States Congress really does hold all the cards.

Smart Words from the Chairman of the Joint Chiefs

Buried in a story about the shift of 7 GOP Senators to now back the war resolution debate in the Washington Post, having earlier voted to block the debate, is this gem of a quote. I reproduce it without alteration from the Post's article.

A top Pentagon leader weighed in yesterday on the war debate and appeared to undercut the argument advanced by the White House and many GOP lawmakers that a congressional debate challenging the Bush plan would hurt troop morale.

"There's no doubt in my mind that the dialogue here in Washington strengthens our democracy. Period," Marine Gen. Peter Pace, chairman of the Joint Chiefs of Staff, testified before the House Armed Services Committee. He added that potential enemies may take some comfort from the rancor but said they "don't have a clue how democracy works."

Fantastic! I really couldn't have said it better myself, and I hope the Bush Administration was listening. It is our debate, and even our dissent, which makes us strong. If our enemies take this as a sign of weakness, they do so at their peril.

Copyrights in the News

I've got three different copyright stories, all within a 24 hour period. Clearly the world is beginning to take notice.

First up, the "creator" of the Electric Slide has issued a DMCA take down notice to YouTube for videos where the Electric Slide is being performed incorrectly. First, to silence all of those "the DMCA goes to far" folks (of which I am, arguably, one of... but not in this case), the DMCA is only involved here because YouTube has a chance to avoid contributory liability by taking down the material. The original poster of the material can then serve notice to YouTube that the material is not infringing, at which point YouTube must repost it. Then, YouTube having done its part, it's up to the two parties to resolve the issue. The real issue here is one of basic copyright law.

Which presents an interesting question: can dance moves be copyrighted? The expert from the CNet article (Jason Schultz of the EFF) seems to pass this question off as if it's a no-brainer. Just like a song, performing it without permission is a violation of the §106 of the Copyright Act. But I'm not convinced. To perform a dance I must follow a series of steps, also known as instructions. A series of instructions is generally referred to as a process... and processes, as a rule, are not copyrightable. They are not copyrightable because in this country we protect processes through the patent system. It's very easy to state the rule: "patent ideas, copyright expression." I could make the case that dance steps could be either, but by law it cannot be both.

That's not even the most interesting question... see, the videos he wants taken down show the dance performed incorrectly. Which means that if it were patented, he would have no action (except, maybe, for this thing called the Doctrine of Equivalents, and I don't want to talk about that). On the copyright front, there is no literal copying, so you get into a whole fair use thing. Not to mention, if the rights holder is saying "I grant a license to people to dance this correctly," is there an implied license to dance it incorrectly?!

Next story, from the Washington Post, the GW Hatchet ran a story a few days ago which was picked up by the local TV station. Who in turn did not bother to credit the paper. They argue the idea of the story cannot be protected, thus they have no responsibility to attribute, much less seek permission. But, the Post reports the story used direct quotes from the college paper... that is copyright infringement. But putting that aside, I think the legal obsession with copyright has gone too far. It's not a question of whether the paper is bound by law to attribute, but whether it was the right thing to do.

Lastly, Mikhail Gorbachev is appealing to Bill Gates to drop a criminal suit against a Russian school headmaster who is accused of using unlicensed copies of Windows in the school. Apparently former heads of state don't have a lot to do these days. But it raises two interesting points. First, why are we talking criminal charges? Who was harmed in a way that requires punishment beyond restitution? Make the school pay, remove the software, whatever... but jail? Second, Microsoft is in a great position now to push out a marketing and political win. It agrees to give the school the pirated software, free of charge, and lets the guy off the hook. Now you've got another school district locked into the Microsoft hegemony and they get to make nice with the Nobel Peace Prize winner. What I don't understand is why this issue is on Gorbachev's radar. Is this the beginning of a larger campaign for my humane copyright laws?

Don't Believe Everything you Read About Security

Washington Post has a Q&A up that asks "When I log into my Internet provider's Web-mail page, I don't see the usual lock icon. Isn't it dangerous to send a password over the Internet without encryption?" And proceeds to tell people to fear sites which don't employ the little lock.

It's true, sending passwords over the public lines in clear text is asking for trouble. But that doesn't mean that the little lock is the only way to do it. In fact, that little lock costs a lot of money for websites to purchase (and repurchase, on an annual basis). But there are alternatives that are just as good. LegSim uses such a system, relying on basic cryptography and some intelligence. Just because a site doesn't chose to buy into the SSL certificate racket doesn't mean it can't be trusted.

What I Miss About College

Learning and student government were great, but what I really enjoyed about college was the collection of brilliant people who, when they put their mind to it, were capable of nearly anything. Here's a great example played out at Dartmouth.

The first 45 seconds of this are a little odd... just keep watching.

Leadership Under Fire

Big news coming out of the ASUW Student Senate these past weeks, resulting in numerous phone calls from people I haven't heard from in some time. It was nice to talk to people, it wasn't so nice to hear about the destructive path the ASUW seems to be on this year. I'll withhold my commentary on some of these topics until after this Tuesday's vote, but I did want to share some initial thoughts on a Daily article run this Friday.

Seems the UW Libertarian's have decided to pull out of Senate after a vote to extend the conduct code off campus. I happen to agree with the Libertarian's stance on this issue, although not to the extent of leaving the Senate. But in leaving the organization they chose to not just attack the vote, but the Senate itself. The Daily has the store with quotes. The following is a comment I posted to the story.

The Libertarians ought to look back into the ASUW history before it demands "a more democratic and less bureaucratic system." Before the rise of the Senate, the only body capable of making decisions like these was the Board of Directors, a group of students chosen in a single election dominated by popularity contests, an annual battle between the students from greek row, the residence halls, and the ECC. Once elected the students sat in their offices, indifferent to student groups or interests not aligned with their own.

The changes to the Senate over the past five years have strengthened the institution, creating a more democratic forum. One not determined by a single high stakes election, rather, based on organizations of students who take the time to represent their individual and diverse constituencies.

As for bureaucracy… I suggest we consider the alternative. Bureaucracy is how we make things fair. Rules and regulations design to keep power in check. It is these rules that now have the Chair and Vice Chair under a microscope, and it is these rules which shows how the Libertarian Senator had abandoned his responsibilities through poor attendance. The alternative, a Senate without rules, would produce yet another unaccountable political body… and the ASUW already has one of those.

Leaving the Senate is a powerful message, and I certainly understand the Libertarians’ decision to do so based on the Student Conduct Code vote… but taking a sideswipe at the institution itself, just because you lost a political fight, is like burning down the restaurant because you didn’t like the food.

The Coming Primaries

I've been flirting with writing something about Iraq, especially after reading this op-ed by the National Security Adviser, Stephen Hadley. But I'm not going to do it. The whole situation is simply infuriating, and the only thing left to do is wait for this "new" strategy to go the ways of previous "new" strategies and then hope the Republicans bail on the President and the Democrats remember how to use the power of the purse. In the mean time, I would like to share a few thoughts on the upcoming Presidential primary season.

First, there has been much ado about the Democrats proposal to shift around the primary calendar. The big shift's primary change is putting Nevada (home of the Senate Majority Leader, hmmm...) in between Iowa and New Hamshire. It's not a bad idea on it's own; western state, moderate, labor, lots of things the Democrats could use more of in picking its candidate (not to mention running the whole operation).

This, however, has upset a lot of other states who got passed over. Several states have threatened to push their primary forward as well, compressing the primary season even further. The Democratic Party has rules against this, of course. If a state holds its primary in violation of DNC rules, the party can disqualify the state's delegates. This op-ed argues it should be against the law for the DNC to hold such power. While I agree with the idea that "party action" == "state action," I also know that the party will have an easy time in court explaining why it has a compelling interest in organizing the primary schedule (easier for the candidates, historical tradition, etc), where it probably had less of a compelling interest in excluding blacks. So I don't really think the law is going to help here.

What really gets me about the primary calendar is how Iowa (as the first) has been able to literally hijack the Presidency with regards to ethanol subsidies. The state has everything to gain from high subsidies, so I'm not surprised that their delegation pushes them with gusto. But the historical quirk that places Iowa at the front of the calendar should not allow them to blackmail presidential candidates.

So, when I hear that Florida and California, huge states with significant interests of their own, consider moving their primaries forward, I'm not the least surprised. If Iowa showed a willingness to select a candidate based on more then their own petty self-interest, then perhaps this wouldn't be happening. Instead, the early states have shown a willingness to push their advantage to the absolute brink. And now, here we are... the brink. If California or Florida push their primaries up, Iowa will respond by scheduling even earlier. And then the race is on.

I wonder, in a race between a small agrarian state and a state whose economy is the 8th largest in the world, who is going to win?

More Useful Than Originally Intended

There is a new linux oriented website which I just learned of today called goodbye-microsoft.com. Aside from the likely Uniform Domain Name Dispute Resolution claim Microsoft has against the venture, I've got to say that I'm very impressed with what's going on here.

The idea is simple. Using nothing more than a webbrowser and Windows, go to a website and download all the necessary bits to install Debian Linux onto a desktop. No optical discs necessary. Besides the obvious marketing value of such a website, it has tremendous functionality value for those of us with laptops.

See, more and more laptops these days are shipped without an optical disc drive. Or, if they have one, it connects via a strange PCMCIA card. Which means that it is very difficult to start the Linux install process (though not impossible). The process itself is nearly painless these days (in stark contrast to my first experience in 2000). But if you can't get the damn thing started then you've got serious problems.

But now, thanks to this brilliant invention, it will be trivial to install Linux on my next laptop.

Keeping Count

With the 2006 elections less than three months behind us, the 2008 Presidential elections appear to be in full swing. I found this informative list in the New York Times that I felt was worth sharing to demonstrate just how strange the upcoming primary season is going to be. Here is the list, reproduced, for those who are too lazy to click.

Democratic Candidates
OFFICIALLY ANNOUNCED

Senator Christopher J. Dodd of Connecticut

John Edwards, former senator from North Carolina

Tom Vilsack, former governor of Iowa

Representative Dennis J. Kucinich of Ohio

ESTABLISHING EXPLORATORY COMMITTEES

Senator Barack Obama of Illinois

Senator Joseph R. Biden Jr. of Delaware

Senator Hillary Rodham Clinton of New York

WIDELY MENTIONED

Senator John Kerry of Massachusetts

Al Gore, former vice president; from Tennessee

Gov. Bill Richardson of New Mexico

Gen. Wesley Clark, retired NATO commander; from Arkansas

Republican Candidates
OFFICIALLY ANNOUNCED

Senator Sam Brownback of Kansas

ESTABLISHING EXPLORATORY COMMITTEES

Senator John McCain of Arizona

Rudolph W. Giuliani, former mayor of New York

Tommy G. Thompson, former governor of Wisconsin

James S. Gilmore III, former governor of Virginia

Mitt Romney, former governor of Massachusetts

Representative Tom Tancredo of Colorado

WIDELY MENTIONED

Senator Chuck Hagel of Nebraska

Mike Huckabee, former governor of Arkansas

Representative Duncan Hunter of California

Gov. George E. Pataki of New York

Newt Gingrich, former House speaker from Georgia

Assuming everyone runs (which is doubtful, but you never know) that means 11 Democrats and 12 Republicans. Talk about a crowded field!

Amending the U.S. Senate Rules

Now, I don't claim to be an expert on the U.S. Congress, but I do play one on the internet. As a results of my job I keep pretty well informed about the process and procedure of how the legislative branch goes about doing its business. I am, after all, the world's foremost expert on computerized simulations of Congress (shocking, I know).

But even with all that knowledge, I cannot make heads or tails of the first legislative action taken by the Senate. You may have read about it, as it's in all the papers. My commentary is not on the substance of the bill, which seems all well and good, but rather the vehicle through which the action is being taken.

Article I of the Constitution says "Each House may determine the rules of its proceedings," which is the basis for the Rules of the United States Senate and the Rules of the United States House of Representatives. Both sets of rules are very different from eachother, reflecting the unique nature of the chambers. For example, the Senate is home to the filibuster, a somewhat controversial rule that has been used by conservatives and liberals to fight for causes against a majority of senators. The House, with its expansive membership, has the Rules Committee and their special rules which allow for bill by bill modification of the procedure for consideration. This allows the majority to cut off debate, limit amendments, and generally get their way every time.

What's critical here is that both sets of rules are the sole province of the respective chambers. The House sets its rules and there isn't a thing the Senate can do to stop them. So what does this have to do with the new Senate ethics package?

When the House brought up its ethics package the decision was made to use the House Rules as the vehicle instead of actual law. The upside of such a decision is that you don't have to get Senate approval or the President's signature. But the downside (depending on your perspective) is that the rule only exists for the duration of the current Congress. Come the 111th Congress the House can decide to simply not re-up the ethics rules. It's a tradeoff between expediency and permanency.

To make a change to the House Rules the House adopts a House Resolution, known simply as an H.Res. For the 110th Congress the House Rules took the form of H.Res 6. This is a different form of legislation then if the House were to enact a law. In those cases it uses a bill, and refer to them with just an H.R. H.R. 1 was the Implementing the 9/11 Commission Recommendations Act. Again, the critical difference is that H.Res 6 took effect once approved by the House, where H.R. 1 will require Senate action and is subject to Presidential veto.

The Senate is a little different. First, because the Senate has staggerred six year terms, in each new Congress only 1/3rd of the membership is up for reelection. This means the Senate does not dissolve in the way the House does. The practical result is that the Senate need not approve new rules every two years, it can simply keep the rules from the last Congress and no one would be the wiser.

Which brings me to into the home stretch of this post... the Senate action to amend the Senate Rules took the form of S.1, not S.Res 1. As you may have guessed, an S. is used to adopt laws, just like an H.R., and require bicameral action and are subject to Presidential veto.

But wait, your saying, couldn't it be that the Senate uses the S. designation to amend their rules for reasons of precedent?! Sure, that's possible. But then you have to explain §213, which amends 2 U.S.C. 1605. That's law folks, not just Senate Rules, which means the House gets a say and the President can use his fancy stamp^*.

So what am I (or you, for that matter) supposed to make of all this? If the House does not adopt similar language through an H.R., what becomes of those sections of S.1 that were just related to the Senate Rules? Is it permissible to mix rules changes with law changes? Is there a dependency here, or do the rules go into effect regardless of the outcome to the law amendments? A literal reading of the Constitution says that the Senate may adopt rules, and in this instance they voted 96 - 2 to adopt them.

Strikes me as all very odd.

* Actual presidential veto stamp not featured here. Why are there not photos of the stamp available online? Are we afraid the terrorists will somehow use it against us?

Christmas Time Update

First, a big thankyou to everyone who made time in their busy holiday schedule to see me while I was up in Seattle. It was nice to talk to people and listen to stories of the rainy city. Overall I'm quite impressed with how things seem to be shaping up without me :)

Second, wanted to share a bit of my family mania with you all, since few of you have ever had the chance to meet my mother and sister. Suffice to say, Christmas is not a spectator's sport in my family. Behold, our handy work:

My mother's log cabin


My sister's beach house


Sarah's vintage house


My Saltbox House

You can see a ton more pictures of construction and decoration on my photo gallery site.

Wrong Tactic for ANWR

The Democrats, and by extension their friends in the environment lobby, now have control over Congress. Which means the end of efforts to drill in ANWR. Yay! But, according to CNN, the issue is not dead to this Congress. Apparently their are efforts afoot to declare ANWR a "wilderness" and permanently ban drilling.

Now, I am not an environmental scientist and I am unfamiliar with ANWR's current designation (wasn't already a wilderness?) but I am familiar with our governmental system and this seems awfully stupid. Here's why...

There is a current belief that legislation is required to open ANWR to drilling. That is the status quo. Passing new legislation doesn't change that situation. It's not "double" protected. New legislation can always repeal old legislation. The only way to protect something from legislative alteration is to enshrine it in the Constitution. A move even this green would vote against. If the bill were to ball it just means that the legislation to open drilling has to address the current provision which bans drilling and this new provision. Essentially, it maintains the status quo.

But it could actually do harm, depending on certain court rulings. See, if Congress votes on but doesn't not pass the bill then the Bush Administration can make an attempt to open ANWR through Dept. of Interior administrative regulation. The environmentalists will sue, arguing the existing provision protects the area. But then the Bush Administration comes back and says, "are you sure? Congress doesn't seem to think so, or else it wouldn't have consider legislation to make the protect explicit." Which means the issue is unclear and gives the department deference to make a determination.

Which makes Rep. Markey's bill both unnecessary and risky. If you want to protect ANWR the only way to do it is to keep a majority of one of the chambers on your side. Anything short of that is just grandstanding to look good in the papers.