Disorderly Law

When I read about City-County Councilor Joe Simpson’s arrest last week for “disorderly conduct,” I immediately thought about an incident several years ago involving the then-Legal Director of Indiana’s ACLU.

He had been on his front porch when police descended on the house next door, and he took issue with aspects of their behavior which he believed violated the Constitution. He never left his porch, but he did enter into a verbal exchange with the police, who responded by arresting him for disorderly conduct. Being a lawyer–and an ACLU lawyer to boot–he sued for false arrest. For years thereafter, he liked to say that the City provided the downpayment for his new house.

I don’t know the details of the altercation between Joe Simpson and the police–although I do know that the parallels being drawn between his arrest and past legal problems of other Councilors are ridiculous: surely we can draw a distinction between mouthing off to the police and taking bribes. That said, perhaps his arrest was justified, perhaps not.

My problem is with laws that lack specificity. Laws against “disorderly” conduct and “loitering” are widely recognized as invitations to official abuse. Police are notorious for using these catch-alls to arrest people whose “crime” has been to challenge their authority. As I tell my students, the rule of law requires that laws be written with sufficient specificity and clarity to alert citizens to the sort of behavior that is being proscribed.

It is manifestly unfair to legislate against vague categories of behavior, without defining the elements of that behavior. If the legislature passed a measure outlawing “irresponsible” driving, for example, such a law would fail to provide any meaningful direction to drivers and would vest far too much discretion in traffic police. Instead, we spell out the behaviors we want to prohibit: speeding, texting while driving, failing to wear a seat belt, etc. Policymakers and citizens can agree or disagree about the propriety of those particular prohibitions, but we all know them when we see them.

There is no such clarity with laws against loitering or disorderly conduct.

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Money Matters

When the Supreme Court decided Buckley v. Valeo and declared, in essence, that money equaled speech, I agreed. I have always been a free-speech purist, and it seemed reasonable to me that the freedom to express my opinion should include my freedom to spend my money supporting issues and candidates with whom I agreed.

I was wrong. The Court was wrong. Money is not speech, and corporations are not “people.”

Citizens United should have been a predictable consequence of Buckley. Recent experience teaches us that reasonable restrictions on political spending and insistence on full disclosure are absolutely essential to the democratic process.

I do not make the argument that the candidate with the most money will always win an election. There are plenty of examples to the contrary, and lots of reasons besides financial ones why elections are won or lost. That said, in order to be viable, candidates need enough money to compete, to get their message out. Money more often than not makes the crucial difference.

Here in central Indiana, the airwaves are already full of gauzy, saccharine 30-second spots introducing us to a new and improved version of Mike Pence. The real Pence polls high negatives. He has a legislative record that is–to  be kind about it–undistinguished, and a hard-right self-righteousness that is off-putting. He is also clearly favored to win the gubernatorial race, for two reasons: he will have lots and lots of money, courtesy of many of the same plutocrats who supported Scott Walker; and his opponent, who has shown an unfortunate propensity for unforced political errors, has thus far not raised nearly enough.

If Gregg continues his lackluster fundraising, Pence will continue to dominate the airwaves, airbrushing his own persona and redefining Gregg’s. By the time November rolls around, voters will choose between two caricatures bearing very little resemblance to the flesh-and-blood individuals upon whom they are based.

This situation is not unique to Indiana. Thanks to our conflation of a right to spend unlimited sums of money with a right to freedom of expression, we have turned campaigns into arms races, where a candidate’s ability to ingratiate himself with big-money donors outweighs any other strengths he may bring to the table. Even good candidates find themselves compelled to spend untold hours fundraising, at the expense of the sorts of “retail” politics in which voters have unmediated contact with candidates for office.

Given enough money and a really good media operation, Lady Gaga could run for office as a clone of Mother Teresa. It wouldn’t be any more of a stretch than Mike Pence pretending to be someone who cares more about jobs and the economy than about demonizing gays and de-funding Planned Parenthood.

Houston, we have a problem.

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This is Getting Tiresome

Micah Clark of the Indiana Family Institute is nothing if not dependable. And unhinged.

The Indianapolis City-County Council is considering a proposal that would extend benefits to unmarried employees whose significant others are either unemployed or cannot get those benefits from their own employers. Predictably, councilors received a long, rambling email from him with accusations that such a policy would “undermine marriage and mock Indiana’s marriage statute,” that it was a “political statement, not a policy change,” that children residing in the homes of unmarried partners “will be sexually, physically or emotionally abused,” and that “gay men are substance abusers at a higher rate than the general population.”

Zach Adamson–who has more patience than I would have with Mr. Clark’s accelerating emotional instability–calmly tried to respond to the torrent of accusations. As he noted, the proposal does not “extend marital benefits” as Clark charged; it simply amends the City’s employment package to adjust compensation levels. It is a human resources policy modeled after that used by over 60% of Fortune 500 companies to attract and retain a qualified workforce. Other midwestern cities–Columbus, Cleveland and Cincinnati, for example–already have such policies.

Zach’s point-by-point takedown was a great example of trying to reason someone out of a position he didn’t reason himself into. It was also futile. The two page diatribe simply dripped with hatred for GLBT people, with accusations that gays are trying to destroy marriage, that lesbians are alcoholics, homosexual men syphilitic…well, you get the picture. It is impossible to read it without wondering what demons Mr. Clark is battling–what monsters are in his personal closet.

Thankfully, the days when Micah Clark and his ilk controlled the public discourse on these issues are over. Homophobes used to be able to use religion to deflect criticism of their hatreds, but increasing numbers of churches are endorsing equality for gays and lesbians. As their fig leaves are stripped away, nothing but incoherent fury and frustration remain.

Poor Micah Clark. I feel sorry for him, but I’ll be glad when society quarantines his particular strain of mental illness.

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On Wisconsin

In the movies, the righteous “little guy” usually prevails over the moneyed forces seeking to enrich themselves further at the expense of the public. In real life, not so much.

Today is the Wisconsin recall election. As the media has endlessly intoned, this is only the third time in American history that a sitting Governor has been subject to a recall. (The last time was in California, where we expect such shenanigans.)

Whatever else is at stake in Wisconsin, today’s election is first and foremost about the power of money. Scott Walker, the Governor, is so obviously a pawn of the plutocrats who own him body and–if he has one–soul that he barely matters. For those who’ve been hiding out on another planet (actually, a wise decision) the facts are simple: Walker narrowly won the Governor’s race, and immediately began bargaining with Wisconsin’s public-sector unions for “givebacks,” citing the state’s fiscal woes. The unions largely acceded, agreeing to wage and benefit cuts. After getting what they wanted, Walker and the GOP legislature nevertheless proceeded to strip the unions of their bargaining rights.

In the ensuing furor, it became pretty clear that this had been Walker’s game plan all along, despite the fact that his anti-bargaining position never surfaced during his campaign for office.

Walker’s hard-right ideology–fueled by huge donations by the infamous Koch brothers and other wealthy backers–hasn’t been limited to union-busting. He also signed a bill repealing Wisconsin’s equal pay law, rolling back the principle that men and women doing the same job should be paid the same wage.

In the wake of Walker’s betrayal of the unions that had bargained with him in good faith, there were weeks of demonstrations. Working women were furious at his assault on the principle of equal pay. His closest advisors are under investigation for criminal activities. A former college girlfriend has gone public with a story about how the “pro life” Walker deserted her when she got pregnant and refused to have an abortion. Wisconsin’s job numbers are dismal–dead last, according to one report.

With all this, you’d think this recall would be a slam-dunk. You’d be wrong.

I am not a fan of recalls as a policy matter, but Wisconsin law allows them, and this Governor has been a disaster for Wisconsin. Nevertheless, polls show him slightly ahead going into today’s election, and that shouldn’t surprise anyone who has followed the money trail. The wealthy backers who have actually been deciding Wisconsin’s policies have poured millions of dollars into the campaign,  burying Tom Barrett, his opponent, in a blizzard of radio, television and internet ads. Campaign contributions are running 8-1 in Walker’s favor, and in our post Citizens United world, Wisconsin voters have little idea where that money is coming from.

The real question Wisconsin voters will answer today is: can money buy democracy?

This isn’t a movie, and I’m very much afraid the answer will be yes.

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Sociological Whiplash

Yesterday’s New York Times Magazine was devoted to innovation. It had a story about Craig Ventner, who sequenced the human genome and is working on producing artificial life–including bacteria that will excrete a substitute for oil. It had a story about inventions poised to come on the market–a fabric that can charge your cellphone, a car with cruise control that automatically maintains a set distance between you and the car in front of you, a bike with anti-theft handlebars, synthetic alcohol (on Star Trek, that was called synthahol!), vastly improved resolution for movies,a blood test for depression… My favorite was a breakthrough that would substitute an edible “shell” for food packaging. For example, your yogurt might come in a shell of strawberry you could eat, rather than another carton to clutter our landfills.

The whole issue was a tribute to human ingenuity and smarts–to our ability to understand our world and its building blocks and to confront our challenges big and small.

And then there’s our politics. If America is producing savvy scientists and remarkable technologies–and we are–we are also electing embarrassing buffoons who are doing their best to return us to that state of nature known as “ignorant.”

There are so many examples, choosing one was hard, but let me try. This week, North Carolina lawmakers proposed a new law that would require estimates of sea level rise to be based only on historical data—not on all the evidence that demonstrates that the seas are rising much faster now thanks to global warming. The sea level along the coast of North Carolina is expected to rise about a meter by the end of the century. Business interests in the state are worried that the projected rise will make it harder for them to develop along the coast line. So legislators plan to deal with that issue by writing a law requiring inaccurate projections.

Scott Huler, who works for Scientific American and lives in North Carolina, summed up this brilliant approach thusly:

Which, yes, is exactly like saying, do not predict tomorrow’s weather based on radar images of a hurricane swirling offshore, moving west towards us with 60-mph winds and ten inches of rain. Predict the weather based on the last two weeks of fair weather with gentle breezes towards the east. Don’t use radar and barometers; use the Farmer’s Almanac and what grandpa remembers.

In this corner, the brilliant minds that gave you your computer and IPhone. In that corner, the champions of denial and short-term gratification. The existential questions: can the smart guys save us from the idiots we elect?  And figure out why we elect them?

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