Eugene Volokh's Blog, page 2614
February 16, 2012
The Fourth Circuit on Civility in Lawyering, and (Indirectly) on Contrition and Loyalty
From a footnote in United States v. Venable (4th Cir. Jan. 18) (paragraph break added):
Finally, we feel compelled to note that advocates, including government lawyers, do themselves a disservice when their briefs contain disrespectful or uncivil language directed against the district court, the reviewing court, opposing counsel, parties, or witnesses. Unfortunately, the government's brief is replete with such language: it disdains the district court's "abrupt handling" of Appellant's first case, Appellee's Br. 19; sarcastically refers to Appellant's previous counsel's "new-found appreciation for defendant's mental abilities," Appellee's Br. 21; criticizes the district court's "oblique language" on an issue unrelated to this appeal, Appellee's Br. 22; states that the district court opinion in Jones "revealed a crabby and complaining reaction to Project Exile," Appellee's Br. 57; insinuates that the district court's concerns "require[ ] a belief in the absurd that is similar in kind to embracing paranormal conspiracy theories," Appellee's Br. 59; and accuses Appellant of being a "charlatan" and "exploit[ing] his identity as an African–American," Appellee's Br. 61.
The government is reminded that such disrespectful and uncivil language will not be tolerated by this court. See Ruston v. Dallas County Tex., 320 Fed.Appx. 262, 263 (5th Cir.2009) (striking pleadings because they "contain abusive and disrespectful language"); Carter v. Daniels, 91 Fed.Appx. 83, 84 (10th Cir.2004) (finding party's "language in his brief intemperate and disrespectful of this court and the district court," and cautioning party that it may be subject to sanctions if it continues to file such pleadings); Hamad v. Deshazo, 1996 WL 556788, at *1 (5th Cir.1996)(unpublished) (warning party that "the use of abusive and uncivil language, as displayed in his appellate brief, will not be tolerated by this court" and directing him to "review all pending appeals to make sure that they do not contain such language").
Two thoughts, on the world as it is and not necessarily on the world as it should be:
1. When and whether courts should impose formal sanctions on lawyers for rudeness is a difficult question. But lawyers should certainly remember that there's always a less informal, and often subconscious sanction available — if judges are alienated by your tone, they'll be less likely to rule in your favor.
This footnote is a helpful reminder of that, though of course for every uncivil filing that leads to this sort of public reminder, there are hundreds in which the judges are just annoyed in silence, and in many of those the lawyers (and, regrettably, their clients) suffer as a result.
2. There's also an interesting side story here. The opinion originally included — not in the footnote but in the attorney list — the name of the Special Assistant United States Attorney who cited the brief, alongside the United States Attorney for the district, who signs all the government's briefs in that district. This wasn't done to fault the lawyer; it's the norm in all cases. Yesterday, the court issued an order deleting the AUSA's name from that section, prompted by a letter signed with the name of the head USA followed by "By:" and the name of the AUSA who argued the case (not the one who was originally listed as being on the briefs), saying:
I write to apologize for the government's brief on appeal in United States v. Venable. This Court's opinion criticized that brief as intemperate in footnote 4. It was not my intention to use invective against anyone or impugn the integrity of the district court. Judge Payne is a highly intelligent, well-regarded, and conscientious judge.
The government's brief was my own work, and the language that the Court criticized is not the responsibility of [the] Special Assistant United States Attorney [on the case] and now an attorney [in private practice]. Because a reader of the caption to the opinion could draw the conclusion that [the AUSA] was responsible for the government's brief, I am respectfully requesting that his name be removed from the caption.
I can't speak to what is the optimal practice for courts in this context. But I can say that, rightly or wrongly, a little contrition can go a long way, and so can a little loyalty to a subordinate (when framed as contrition rather than stonewalling).
UPDATE: I had originally said the letter was from the USA; in response to a helpful comment from "another appellate lawyer," I've corrected this, and added a link to the letter.
Withdrawal and Expulsion from the European Union and the European Monetary Union
Over at the Opinio Juris blog, I've been raising questions about the EU, governance, and the eurozone crisis. My most recent query was how, from a legal standpoint, the withdrawal or expulsion of Greece from the eurozone might actually take place. Everyone is talking about it, it seems – or tweeting about it, at least. (Comments open.)
The assumption of many commentators seems to be that if Greece wants to quit the eurozone, no problem, it just walks – the problems are not legal or governance as such, but practical matters of how to get drachmas going again, will it be "orderly" or "disorderly," and what happens to the banking system, capital flight, etc. The assumption also seems to be that leaving the EZ does not have consequences for Greece legally in other EU frameworks – everything else just marches along as before, and it just becomes an EU country that does not use the euro. The same assumptions seem to be at play in the scenario that Greece is somehow kicked out of the EZ. It's not entirely clear who does the kicking, but again commenters seem to assume that if that's what Germany and France want, it somehow happens.
As a matter of legal requirements, however, it does not appear that simple. I mean, maybe in the event, it turns out to be one of those moments when everyone politely ignores the governing treaties of the EU – but that's not what the documents themselves suggest about the process. The ascension of the euro was intended in the treaties to be a one-way event. In 2009, a member of the European Central Bank's legal staff, Phoebus Athanassiou, prepared a paper on the legal requirements for withdrawal and expulsion. It is a fine paper and an excellent discussion and is available at SSRN. No doubt in the emergency of the moment, ad hoc will prevail over legal form. Whether this creates any lasting issues for governance or legitimacy, only time will tell. But on paper, at least, the path to a Greek exit is legally daunting:
This paper examines the issues of secession and expulsion from the European Union (EU) and Economic and Monetary Union (EMU). It concludes that negotiated withdrawal from the EU would not be legally impossible even prior to the ratification of the Lisbon Treaty, and that unilateral withdrawal would undoubtedly be legally controversial; that, while permissible, a recently enacted exit clause is, prima facie, not in harmony with the rationale of the European unification project and is otherwise problematic, mainly from a legal perspective; that a Member State's exit from EMU, without a parallel withdrawal from the EU, would be legally inconceivable; and that, while perhaps feasible through indirect means, a Member State's expulsion from the EU or EMU, would be legally next to impossible. This paper concludes with a reminder that while, institutionally, a Member State's membership of the euro area would not survive the discontinuation of its membership of the EU, the same need not be true of the former Member State's use of the euro.
Meanwhile, some are suggesting that Greece is already fashioning the beginnings of a new currency, through "quasi-monies," in this case so-called pharma-bonds. As a recent Business Insider report notes, citing an economist's report from UBS (Stephane Deo quoted below, emphasis added):
The Greek state hospitals accumulated arrears to suppliers during the period from 2005 to 2010. In May-June 2010, the Greek government decided to put an end to this practice and decided to take up this outstanding debt (law 3867/2010). In the following months, all the accumulated debt of public hospitals and the healthcare system from 2005 to mid 2007 was settled on a cash basis. The amount was EUR1.5bn for the years 2005 and 2006, with an additional EUR240 million for the first half of 2007. A total of EUR5.6bn accumulated between 2007 and 2010, was settled with zero coupon bonds. This was the creation of the "Pharma-Bonds".
These financial instruments are bonds, and have all the characteristics of Hellenic Republic Bonds: they bear international securities identification numbers (ISINs); they are negotiable on the Athens Exchange and they rank pari passu with other Greek debt. The government, in one of its press releases, notes that "bondholders who choose to discount these bonds at the banks will crystallise a 19% discount versus their original claim."
We would argue, however, that they are more than just another bond issued by the Greek government. To be specific, they seem to us very akin to what economists call quasi-monies. These quasi-monies have appeared in a number of cases, usually put in place by government to find an escape valve out of nominal fiscal rigidities in the face of a financing issue. This especially happens in a case of a government of a monetary union that cannot print money to fund its deficit.
February 15, 2012
Administration Again Admits Individual Mandate's Penalty Is Not a Tax
Testifying today before the House Budget Committee, Jeffrey Zients, acting Director of the White House Office of Management and Budget, acknowledged that the penalty provision used to enforce the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is not a tax. Philip Klein has details (and video) here.
Testifying on Cybersecurity Legislation
The Senate's big cybersecurity bill has finally surfaced officially, and the hearing will be tomorrow at 2:30 DC time in front of the Homeland Security and Government Affairs Committee. After Sen. Rockefeller and Sec. Napolitano, I'll be part of a panel that includes Gov. Tom Ridge, Scott Charney of Microsoft, and Jim Lewis of the Center for Strategic and International Studies.
Here's the first few pages of my prepared testimony. The rest is up on Skating on Stilts, for those who just have to see my take on how to draft cybersecurity emergency authorities.
Mr. Chairman, Ranking Member Collins, members of the committee, it is an honor to testify before you on such a vitally important topic. I have been concerned with cybersecurity for two decades, both in my private practice and in my public service career, as general counsel to the National Security Agency and, later, to the Robb-Silberman commission that assessed U.S. intelligence capabilities on weapons of mass destruction, and, more recently, as assistant secretary for policy at the Department of Homeland Security. In those two decades, security holes in computer networks have evolved from occasionally interesting intelligence opportunities into a full-fledged counterintelligence crisis. Today, network insecurity is not just an intelligence concern. It could easily cause the United States to lose its next serious military confrontation.
Moore's Outlaws: The Exponential Growth of the Cybersecurity Threat
Our vulnerabilities, and their consequences, are growing at an exponential rate. We've all heard of Moore's Law. What we face today, though, are Moore's outlaws: criminals and spies whose ability to penetrate networks and to cause damage is increasing exponentially thanks to the growing complexity, vulnerability, and ubiquity of insecure networks. If we don't do something, and soon, we will suffer network failures that dramatically change our lives and futures, both as individuals and as a nation.
It doesn't take a high security clearance or great technical expertise to understand this threat. It follows from two or three simple facts.
Fact One. Breaking into computer networks to steal secrets has never been easier, despite all the security measures we encounter on those networks.
Why do I say that? Simple. In recent months, we have learned that some of the most security-conscious institutions on the planet have been compromised. HBGary, RSA, Verisign, and DigiNotar are all in the network security business; they understand how to protect secrets on line — if anyone does. But RSA was electronically attacked and its most important business secrets, the keys to its security business, were stolen. HBGary lost control of its CEO's email correspondence to a group of online vigilantes, and its CEO lost his job as a result. DigiNotar, a Dutch entity that issues online credentials, was compromised by a hacker working with Iranian security forces. Six weeks after the breach became public, DigiNotar was out of business. I think it's fair to say that these security-conscious companies would have done whatever they could to prevent these disclosures, but they failed. They were unable to secure their networks.
Actually, the same is true for governments. The Defense Department used to say that attacks on its systems had never penetrated the classified networks. Now it has disclosed that this is no longer true. Defense contractors have also been compromised, and with them, the designs for our most recent weapons systems.
That is the first fact: No network, no matter how important its secrets and no matter how security conscious its owner, can be seen as secure in today's world. Attackers have an excellent chance of breaking in and stealing secrets. And here is the second:
Fact Two. Once the attackers are in, they don't have to stop at stealing secrets. They can cause severe physical damage just by manipulating the digital systems they have compromised.
When I was at DHS, we demonstrated that hackers could cause a large generator to self-destruct, just by sending the generator commands over the network. More recently, the Stuxnet malware is believed to have crippled Iran's uranium enrichment efforts for months, simply by infecting the computerized industrial control system responsible for Iran's centrifuges. That was good news for people who think that Iran's nuclear program is dangerous. But Stuxnet was also a proof of concept, showing that network flaws can be used to cause massive damage to any machinery that relies on computerized industrial controls.
And what machinery runs on such controls? Pretty much everything necessary to sustain our society: refineries, pipelines, electric power, water, and sewage systems. Worse, the industrial control systems that run these necessities are not really designed with cybersecurity in mind. In fact, there is reason to believe that Windows networks running on the Internet are much more secure than industrial control systems. At a minimum, we can say with confidence that industrial control systems are no better protected than the systems that failed at RSA, Verisign, HBGary, and DigiNotar.
Cyberweapons pose a real threat to the United States. Those two facts lead to a third, common-sense conclusion: Any nation that feels the need to prepare for a military confrontation with the United States has already begun developing cyberweapons. Cyberweapons are especially potent against the United States. That's because they are deniable; figuring out who has launched a cyberattack will be very difficult, making our other military assets less useful in deterring attacks. Cyberweapons are also asymmetric; they cause more harm in developed nations than in less advanced societies. And perhaps most importantly, such weapons can overturn the American war experience of the last sixty years – that conflicts will be fought far away, at a time and place of our choosing. Any nation expecting a conflict with the American military would be enthusiastic about developing a weapon that can cause massive civilian suffering on our home front before a single shot has been fired on the battle lines.
Now that such a weapon is within their reach, the impact could be unprecedented. We have no experience with losing large parts of our power, refinery, water and sewage systems all at once. The closest we've come was New Orleans after Katrina. And there, everyone knew beforehand that the disaster was coming. Preparations had been made, and most people left the city well in advance. They went to places where the infrastructure still worked, while organized military and civilian relief efforts rapidly moved in to help those who remained. Even so, the breakdown in order and the human suffering was extreme.
Thanks to growing cyber insecurity, all Americans now live in a digital New Orleans, with Katrina just offshore. And not one Katrina, but many. Computer exploits that we once thought were the work of large nations such as Russia or China now seem to be within the capability of countries like Iran and North Korea. If I am right that computer insecurity continues to grow worse each year, then the sophistication needed to launch a cyberattack will continue to decline, and soon such attacks will be within the capability of criminal gangs and online vigilantes like Anonymous.
Disaster is not inevitable. We can head this threat off if we treat it seriously. We may have years before suffering an attack of this kind. We do not have decades. We must begin now to protect our critical infrastructure from attack. And so far, we have done little.
…
Another source of resistance comes from advocates who claim that this bill is somehow similar to the Stop Online Piracy Act, or SOPA. If the bill reaches the floor, they threaten, it will meet the same fate as SOPA.
Well, to paraphrase Sen. Bentsen in the 1988 vice-presidential debate, I knew SOPA, I opposed SOPA, and Mr. Chairman, this bill is no SOPA.
I took a very early stand against SOPA, and I'm proud to have played a role in forcing its reconsideration. SOPA was a bad idea because it would have given a little help to one industry while making everyone who uses the Internet much less secure. That criticism of SOPA struck a chord with Americans because we all use the Internet with a nagging fear that our security is at risk. That security concern was at the heart of the early opposition to SOPA. This bill, in a real sense, is the opposite of SOPA. It addresses the entirely justified security concerns of ordinary users.
There is another reason not to heed the advocates who oppose this title. They're the guys who got us into this fix.
…
FCC Standards Come to Arizona Classrooms
Here's a bill currently being considered by the Arizona Legislature:
A. If a person who provides classroom instruction in a public school engages in speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio:
1. For the first occurrence, the school shall suspend the person, at a minimum, for one week of employment, and the person shall not receive any compensation for the duration of the suspension….
2. For the second occurrence, the school shall suspend the person, at a minimum, for two weeks of employment, and the person shall not receive any compensation for the duration of the suspension….
3. For the third occurrence, the school shall terminate the employment of the person….
B. For the purposes of this section, "public school" means a public preschool program, a public elementary school, a public junior high school, a public middle school, a public high school, a public vocational education program, a public community college or a public university in this state.
What a silly bill. First, what's the point of this sort of micromanagement by the legislature? I would guess that in most schools, teachers' vulgarities will get them disciplined by administrators even without a state statute. Moreover, I would assume that such discipline can be more finely calibrated than the statute suggests — is it really obvious that a high school teacher who swears in the classroom three times in his career (perhaps given some extenuating provocation) must be fired?
Second, the FCC standards are notoriously vague, as this Second Circuit decision (now being reviewed by the Supreme Court) laid out. The standards have shifted dramatically over time, and by subject matter. I assume that even under the FCC's current, more restrictive, standards a classroom discussion at Arizona State's law school on the "Fuck the Draft" case can use the word "fuck," but who knows, given the FCC standards?
Now, to be sure, the government acting as employer has considerable authority to restrict its employees' speech, even when the restrictions are vague, at least outside the context of university teaching. (For cases striking down as unconstitutionally vague certain restrictions on speech in university teaching, see Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996); Silva v. University of N.H., 888 F. Supp. 293 (D.N.H. 1994).) And some such restrictions are necessary. Even government employers must be free to discipline employees for rudeness to coworkers or to members of the public, even without a clear definition of "rudeness." Likewise, teachers who say cruel things to their students should be disciplined even without a clear definition of "cruel," and the same may apply to inappropriate vulgarities. But this sort of judgment, it seems to me, is best handled through internal employment decisions that are based on administrators' judgment of what works for this particular job, at this particular grade level in this particular subject at this particular school, not through the legislature calling on administrators to apply federal communications law standards that are confusing even to communications lawyers.
Third, the bill on its face potentially applies even to off-the-job speech (and "conduct"), since it covers any "person who provides classroom instruction in a public school" without limiting it to action while providing classroom instruction in a public school. That, though, is a comparatively minor drafting glitch that could be easily fixed in the legislative process — unlike the other problems I identify.
Now I'm not saying such a bill would necessarily violate the First Amendment, at least setting aside the possible vagueness problems at the university level, and limiting the bill to on-the-job speech. Public employers are entitled to speak, for instance by teaching particular subjects to students in a particular way. To speak, they need to hire employees to speak for them. The employers must therefore have the right to dictate what employees who speak on the employer's behalf say, and to fire employees who turn their government-provided platform into the employee's own show rather than the government's. (I think that's true even as to public universities, possibly setting aside some heightened vagueness concerns. For good institutional reasons, such universities give their professors a good deal of flexibility, but if UCLA demanded that I teach a particular set of topics in my class, or teach them from a particular viewpoint, or teach them without using certain words, I think UCLA would be within its constitutional authority.)
But that the state may do this doesn't mean it should do this — and here, I see no good reason for the state to enact such a law, and good reasons for it not to.
European Court of Human Rights Upholds Swedish Criminal Convictions for Anti-Gay Leaflets
The case is Vejdeland v. Sweden (Feb. 9, 2012):
8. In December 2004 the applicants [who are adults] … went to an upper secondary school (gymnasieskola) and distributed approximately a hundred leaflets by leaving them in or on the pupils' lockers. The episode ended when the school's principal intervened and made them leave the premises. The originator of the leaflets was an
organisation called National Youth and the leaflets contained, inter alia, the following statements:
Homosexual Propaganda (Homosexpropaganda)
In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances (avarter) to embracing this deviant sexual proclivity (böjelse). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society (folkkroppen) and will willingly try to put it forward as something normal and good.
– Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold.
– Tell them that homosexual lobby organisations are also trying to play down (avdramatisera) paedophilia, and ask if this sexual deviation (sexuella avart) should be legalised.
For this, the defendants were convicted of "agitation against a national or ethnic group," which I take it is a legal term of art in Sweden that also extends to sexual orientation groups, and Swedish courts upheld the convictions. The European Court of Human Rights in turn upheld the convictions, reasoning:
55. The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools. The Court agrees with the Supreme Court that even if this is an acceptable purpose, regard must be paid to the wording of the leaflets. The Court observes that, according to the leaflets, homosexuality was "a deviant sexual proclivity" that had "a morally destructive effect on the substance of society". The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS had gained a foothold and that the "homosexual lobby" tried to play down paedophilia. In the Court's opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations.
56. The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them. Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.
Note, though, that the prosecution was not simply for trespassing on school property, but was based on the content and viewpoint expressed in the leaflets. My question: Under Swedish law, just what sorts of discussions of the propriety of homosexuality are legally safe? Recall, these aren't express calls for killing or physical attack or even execution, which on its face seems to suggest a change in the law to make the execution lawful (see this recent English case). These are simply arguments condemning homosexuality on moral and pragmatic grounds.
Are you only allowed to make such arguments to people who are already on your side, so that you are forbidden from trying to reach out to others who might be persuadable and yet who might be offended (even when offended people were free to simply throw out the leaflets once they saw what they said)? Are you only allowed to talk about it to adults, and forbidden from trying to reach out to persuade high school students, apparently of age 16 to 19 — even though, as best I can tell, statements about sexuality generally to such "impressionable and sensitive" students is quite legal, and indeed even sex with such students is quite legal (since the age of consent in Sweden is 15)? And are even discussions with willing adults safe, or could they too lead to criminal prosecutions for "agitation against a [sexual orientation] group"?
Or is it that, once the law has changed (in my view, correctly) to legalize homosexuality and to treat it as morally and legally equivalent to heterosexuality, it is now illegal to try to change social opinion in a way that would change the law back to what it once was — or even to create social condemnation of homosexuality even if there is no legal condemnation?
Briefs by VC Authors in the Individual Mandate Case
Regular VC readers might be interested in knowing just how many briefs in the individual mandate case have been authored by your humble Conspirators. In this post, I try to summarize all of them. Not surprisingly, they all urge the Court to strike down the mandate.
Pride of place goes to Randy Barnett's coauthorship of the merits brief for the National Federation of Independent Business and other private plaintiffs in the case. Randy is in many ways the architect of the legal strategy against the mandate.
My own amicus brief on behalf of the Washington Legal Foundation and a group of constitutional law scholars, argues that the mandate is not a "proper" exercise of Congress' power under the Necessary and Proper Clause. I blogged about it in more detail here. Among our legal scholar amici are VC co-bloggers Jonathan Adler and Todd Zywicki.
David Kopel is the author of an excellent brief on behalf of the Independence Institute, Gary Lawson, Robert Natelson, and Guy Seidman, which focuses on a different aspect of the Necessary and Proper Clause. Lawson, Natelson, and Seidman are among the leading academic experts on the Clause.
John Elwood is the counsel of record on this amicus brief on behalf of the American Legislative Exchange Council, an organization of some 2000 conservative and pro-free market state legislators. John's brief focuses on the Commerce Clause, the Necessary and Proper Clause, and especially on the ways in which the mandate is inimical to the interests of the states.
Former VC-er Erik Jaffe is the counsel of record on this amicus brief Docs4Patient Care, the Benjamin Rush Society, the Pacific Research Institute, the Galen Institute, and Angel Raich (of Gonzales v. Raich fame).
It's possible that I have inadvertently missed some other VC-authored brief. If so, I'm sure my co-bloggers will set me straight.
No Vaccines? You're Fired!
When my younger daughter was getting some of her first vaccinations, I asked our pediatrician how he would feel if we refused to have her vaccinated. His reply: "I'd ask you to find another doctor." This point of view appears to be spreading. As the WSJ reports there is an apparent increase in the number of doctors "firing" patients who refuse vaccinations.
Medical associations don't recommend such patient bans, but the practice appears to be growing, according to vaccine researchers.
In a study of Connecticut pediatricians published last year, some 30% of 133 doctors said they had asked a family to leave their practice for vaccine refusal, and a recent survey of 909 Midwestern pediatricians found that 21% reported discharging families for the same reason.
By comparison, in 2001 and 2006 about 6% of physicians said they "routinely" stopped working with families due to parents' continued vaccine refusal and 16% "sometimes" dismissed them, according to surveys conducted then by the American Academy of Pediatrics.
Vaccination rates have declined in recent years, largely due to completely unfounded fears that vaccines cause autism or other problems. Non-immunized children aren't the only ones at risk when vaccines are refused. Lower vaccination rates make disease outbreaks more likely as herd immunity is compromised. Many experts suspect recent outbreaks of measles and whooping cough are the result of declines in vaccination. Perhaps if more doctors insist on vaccinations as a condition for care, more parents will get the message.
The Dead Are Registered, But Do They Vote?
A new report from the Pew Center on the States finds widespread irregularities and inaccuracies in voter registration rolls, including nearly two million dead people who remain registered to vote. As the NYT reports, approximately one-in-eight active voter registrations is "invalid or inaccurate." From the NYT:
The report found that there are about 1.8 million dead people listed as active voters. Some 2.8 million people have active registrations in more than one state. And 12 million registrations have errors serious enough to make it unlikely that mailings based on them will reach voters.
"These problems waste taxpayer dollars, undermine voter confidence and fuel partisan disputes over the integrity of our elections," said David Becker, director of election initiatives at the center.
Mr. Becker warned that poor record keeping at the registration stage is not evidence of fraud at polling places. "These bad records are not leading to fraud but could lead to the perception of fraud," he said.
The report also found over 50 million people who are eligible to vote are not properly registered.
February 14, 2012
Single Payer Advocates Who Want the Individual Mandate to be Struck Down
Among the many amicus briefs filed in Supreme Court on the individual mandate case in recent days is this one urging the Court to strike down the mandate, on behalf of a group of supporters of single payer health care.
A few weeks ago, I wrote a post criticizing claims (usually made by left-liberal defenders of the mandate) that conservatives and libertarians should support the mandate because it is the only alternative to socialized medicine. One of the points I made was the following:
[I]f getting rid of the individual mandate really will bring on the advent of socialized medicine, why don't any liberal activists and health care experts support it? There are plenty of left-wingers who would prefer socialized medicine to the Obama plan. If they think that the repeal of the latter would lead to the former, then they should form a coalition with Obamacare opponents on the right and work to get it repealed. A small number of liberals are in fact willing to get rid of the mandate, most notably Howard Dean. But even Dean doesn't claim that abolition of the mandate would lead to socialized medicine. He merely thinks that the mandate is a political liability for Democrats and that the Obama plan can work just as well without it. The extreme rarity of left-wing support for repeal of the mandate suggests that few liberals genuinely believe that getting rid of it is likely to lead to socialized medicine.
The organizations represented in this brief (Single Payer Action, It's Our Economy, and a group of fifty physicians who support a single payer system) do seem to believe that getting rid of the mandate would help pave the way for a single payer system – though the legal arguments in their brief don't rely on this idea. So there are at least some single-payer advocates who want to abolish the mandate and believe that this will help their cause in the long run.
That said, I'm still not convinced that opposition to the mandate is a poor strategy for opponents of socialized medicine. Many of the points I laid out in my earlier post on the subject are completely independent of whether single-payer advocates happen to agree with me. Moreover, it seems clear that the vast majority of left-wingers still do support the mandate, at least in the sense that they consider it to be an improvement over the preexisting status quo and do not believe that it is an obstacle to further expansions of government control over health care.
Looking at a relatively complete list of briefs filed in the case, it is noteworthy that every other brief filed by a left of center party urges the Court to uphold the mandate – many of the defending the mandate on policy as well as purely legal grounds. With due respect to the parties represented in this particular brief, none of them seem to be major players in the public policy debate. However, I welcome correction from health care experts who think I may be underrating their importance.
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