Former "Law and Order AG": Too Many Crimes

When Ed Meese was Attorney General, he was caricatured by the press and the Reagan administration's political opponents as being insensitive to the rights of the accused.


Of course, Meese didn't help matters any when he famously stated that "if a person is innocent of a crime, then he is not a suspect."


Still, Meese was actually a highly capable public servant, and I recall the amazement of my fellow law students, who had been prepared to protest him, when Meese spoke to a packed auditorium and convinced the vast bulk of them of the need to be more sensitive to the constitutional protection of property rights in the early 1990s.


So, it may surprise many to learn that Meese's current concern with the criminal justice system today is that the criminal law it too hard on people:

America is in the throes of "overcriminalization."

We are making and enforcing far too many criminal laws that create traps for the innocent but unwary — and threaten to turn otherwise respectable, law-abiding citizens into criminals.

Meese cites as examples a 12 year old girl being prosecuted for eating a french fry in the DC public transit system, an elderly cancer patient being arrested for failure to trim her hedges, and a high school science student being taken into custody by the FBI for failure to affix a required sticker to a package containing his science project.


The problem illustrated by these cases is that we're criminalizing non-traditional activities.  The criminal law was once used to deter people from doing things we all knew were subject to the criminal law - such inherently bad things as murder, robbery and rape.  We could reasonably say that every citizen should know this, and had no excuse if they committed such an act because "ignorance of the law was no defense."


The same cannot be said today.  According to the American Bar Association we have criminalized over 3,000 offenses (just under federal law) and there's "no conveniently accessible, complete list" of them.


A website dedicated to these issues can be found here:


http://www.overcriminalized.com/

If I find some cogent criticisms of this proposition and movement, I'll be sure to note them.

The Congressional Debate Over Derivatives

I recall Congress debating derivatives several years ago.  Listening to members talk about them was painful.  One member even discussed them as if Congress was discussing mathematical derivatives (such as that above) and asked why Congress thought it could regulate mathematics.  Needless to say, nothing was done at the time.

With the financial crisis and the role that derivatives well publicized (if not totally agreed upon), it appears Congress is now ready to tackle them.

Derivatives (as in the financial type - no the mathematical) are simply agreements for party A to pay party B some money if something else happens (interest rates go up, the price of wheat falls, the dollar rises against the ruble).  For many parties, such as farmers and manufactures, its a useful tool to "hedge" against a risk that party doesn't want to bear.  In current parlance, hedgers are known as "end users" and are generally thought to be ok sorts of folks.  The other guys are the "speculators" or those who create them to speculate rather than hedge any risk that derives from their business operations.  These are mainly Wall Street types.

The main questions being debated: to what extent must derivatives be standardized and traded through exchanges (with the exchange serving as a middleman) rather than customized and traded "over the counter" directly between two parties?  Next, to what extend should financial institutions need to segregate their derivatives trading from other financial activities?

These topics are way to complex to do justice to them in a blog, but I'll try to post some links to useful sources for those who want to learn more soon.

The Senate Takes an Inward Look

Members of the US Senate are not, by nature, terribly self analytical.

It's not their fault.  Really.  They're awesome.  Just ask their staff and the lobbyists who make up, between them, 75 percent of Senators' human contact.

So it's noteworthy that the U.S. Senate Committee on Rules and Administration ("Senate Rules") is holding a series of hearings designed to assess the current state of the U.S. Senate's filibuster rule, which allows for unlimited debate until "cloture" is invoked.  Because a cloture vote requires 60 votes, the minority can, in affect, require that virtually any measure taken up by the Senate require a 60 vote (out of 100 Senators) super majority.

This isn't terribly surprising.  At present, Senate Democrats are frustrated with the increased use by the minority Republicans of the filibuster.  When the Republicans had control of the Senate, they too were frustrated by the filibuster, and held hearings of their own in 2003.

To the great credit of Chairman Charles Schumer (D-New York), he recognizes that the increased use of the filibuster is something that has occurred "over the last decade" (implicitly acknowledging that it's a bi-partisan problem) and that the best place to begin with is the history of the filibuster.  When you really want to understand something, beginning with history is usually the best place to begin.  You not only know the "what," but equally importantly, the "why."

I'll be following these hearings, which began yesterday - summarizing and commenting where appropriate.

Coming Out of Retirement

Too much is going on for me to keep indefinitely silent.  There are simply too many things that are interesting and important.  Rather than not blog at all, I've decide to "re-open" shop with some modifications.

(a) It's ok if I don't post every day.

(b) It's ok if no one reads it.

My inability to make a daily, high quality post, and the fairly low "hits" number were discouraging to me.  But I've decided it's quality rather than quantity in both numbers of posts of readers that really counts.

TPB

Going Out of Business

When I started this blog, I wasn't sure exactly where it was going to go or evolve.

At the very least, I wanted to make a small contribution during this political season to promoting a better understanding of the political process for those who were trying to make some difficult choices in the election.

It was never my desire to guide anyone's choice or substitute my opinion for theirs. It was only to provide some counsel to those looking to deepen their own understanding and make better choices.

This was important to me, because, as I've stated, we've got the system we deserve in my view. If voters were better informed, politicians would respond by raising the tenor of the political discourse. Now that the election is over, however, it seems to me that the main reason for this blog (even if I didn't realize what it was when I began this summer) has come to an end. Accordingly, I plan to cease my posts.

While writing this blog, I have learned a good deal about the world of blogs. It's a lot like business. You need a product for the market and you need to work hard at something you're passionate about to attract readers, whose blog reading time is as limited as customers' cash.

With the election over, I don't think there is a market right now for the type of blog I'd want to have if I continued blogging here. Most people either want more depth on specific issues than I can devote with my other commitments, a more narrow focus than suits my interests, or more partisanship (which I am unwilling to provide).

So, thanks for reading. It's been fun.

DC Lawyer

Election Day - Time to Vote

Freedom is Not Free - Please Don't Took Yours for Granted

A Government Ill Executed - Posts of Honor

In chapter 3 of A Government Ill Executed, Paul Light turns to the state of federal political appointees.

Unlike the civil service, political appointees come and go with different administrations, and generally serve at the pleasure of the President. They play an important role in the executive branch as intermediaries between the President and the unelected civil service who are on the front lines. As Light describes them, political appointees "play a central role is managing the chain of command, interpreting legislation, overseeing regulations, and faithfully executing the laws." Without a competent person in these roles, the business of the executive branch can slow or even come to a halt.

Light is concerned that the process by which political appointees are identified, recruited, appointed and, if necessary, confirmed is broken. What is needed is a "fast, simple and fair appointments process." What we have, however, has been best characterized as "nasty and brutish without being short." This is due to "needless forms, needless delays" and the sense by all involved that a candidate is "innocent until nominated." As a result, the management of the executive branch suffers as mediocre appointees fill these posts, or they remain unfilled for large amounts of time.

Appointment

Light notes that extensive screening and many questionnaires appointees must fill out. They are unnecessarily time consuming, requiring the candidate to spend inordinate amounts of time locating every last address and phone number since college. Light estimates that a candidate will have had to answer 240 separate questions, including 61 on personal and family background, 32 on tax and finances, 35 on legal proceedings,7 on public and organizational activities and even one on the people they hired for child care.

Appointees are generally left to navigate these with little help from the White House. Outside help from lawyers and accountants must be paid for by the appointee. They then have to wait while overworked investigators from various federal agencies confirm their accuracy. The process keeps getting longer. President Kennedy took just two months to get his Senate confirmed appointments finished. The current President took nine.

Confirmation

Light does not discuss the Senate's confirmation process in much detail, which is too bad because it's every bit as bad. Senate committees have their own questionnaires, sets of interviews, etc. in preparation for a confirmation hearings. The hearing itself is generally a breeze in comparison to filling out the forms and going through the staff interview. Once that is completed, the committee needs to schedule a hearing, which requires Senators' attendance. Merely getting a confirmation hearing on the calendar can delay the appointments for months.

Lessons Learned

Light's research had revealed that appointees are most motivated by the honor and chance to serve their country. Further, they are motivated by the future leadership opportunities that holding a political appointment will provide. The federal government is unlikely to offer pay that is comparable to the private or even non-profit sectors. Presidents can provide more support for their appointees through the Office of White House personnel, which all too often doesn't act as if it really cares whether someone appointed ever takes the position. Forms and questionnaires can be streamlined.

Here, I'll add a few suggestions of my own, having staffed several confirmations in the Senate. The White House and Senate staff should devise uniform questionnaires to streamline the appointment process. Further, the number of appointees subject to Senate confirmation is ridiculous and it seems every time Congress creates a new position, the Senate insists it confirms it to gain leverage in negotiations with the White House even when the particular appointment isn't controversial. The President should agree to reduce the number of appointees (leaving more work to the civil service) in exchange for the Senate's agreeing to reduce the number of appointees subject to Senate confirmation.

I can dream, can't I?