Fanning the Flames: The Freedom Project Blog


Palin By Comparison

By Shawn Healy
Senator John McCain answered Senator Barack Obama’s historic acceptance speech on Thursday and vice presidential nomination a week ago Saturday with his own running mate selection last Friday. To the surprise of both the political and media establishment, the Arizona senator selected Alaska Governor Sarah Palin. What follows is an assessment of this pick as I make my way to the Twin Cities for the Republican National Convention.

Conventional wisdom suggested that McCain would make a so-called safe pick in light of the fact that he trails Obama only marginally and is even tied or ahead in many head-to-head tracking polls with fewer than 70 days remaining until the general election. Adding to this assumption was Obama’s pick of Washington-insider and seasoned campaigner Senator Joseph Biden as his second-in-command.

Surely McCain would tap the nationally-vetted former Massachusetts Governor Mitt Romney, or the “Sam’s Club” Governor of Minnesota Tim Pawlenty. True, the prospect of a pro-choice running mate trickled through the air, elevating the prospects of former Pennsylvania Governor Tom Ridge or Independent Connecticut Senator Joseph Lieberman, but conservative pundits lampooned the idea and threatened to sit out the election. Indeed, McCain was allegedly honing in on Lieberman until the waning days of the selection process.

What followed was first a head-fake from the campaign, as they refused to leak the pick on the night of Obama’s historic acceptance speech, but top surrogate Pawlenty cancelled all scheduled appearances, adding to the buzz that the Land of 10,000 Lakes would coronate their leader one week later in the St. Paul convention. By Friday morning, word broke that both Pawlenty and Romney were informed of their runner-up status, and a stealth pick in the form of Palin wafted through the air.

The story broke just hours before McCain’s scheduled rally in Dayton, OH, as Sarah Palin accompanied the 72-year old senator on the stage as the crowd led two renditions of “Happy Birthday.” McCain praised Palin for her not-of-Washington stripes, willingness to take on the party establishment, and executive experience. Her leadership on energy issues and her support of the military were also touted.

Palin then dashed to the podium as McCain stood by her side throughout her maiden national speech. She praised her new running mate, then proceeded to introduce her family. Unlike Biden six days earlier, Palin held her punches, not even mentioning Obama, remaining above the fray with an optimistic, if general address. They exited the stage to Van Halen’s “Right Here, Right Now,” ushering in the barrage of 24-hour news cycle analysis of what they termed a “game changing” decision.

The reality is that presidential races are typically decided by the two individuals atop the ticket, not the number two’s. Running mates, more than anything else, are meant to balance the ticket, be it regionally or ideologically, or to “double-down” on a candidate’s perceived strengths. Biden was certainly a balancing pick, adding Washington experience and foreign policy bona fides to the relatively untested, yet inspirational, Obama-led ticket.

Palin, 44, balances out the Republican ticket with her relative youth complimenting the oldest candidate to ever receive a major-party nomination in McCain. Her executive experience supplements his 26-year tenure in Congress, and outsider status offsets his inside-the-beltway reputation.

The pick also underscores McCain’s maverick tendencies, to walk into headwinds and do what he thinks is best contrary to popular opinion. The selection has been received by the media establishment as high risk, but potentially yielding a lucrative return. Palin has only been governor for less than two years, serving two terms as Mayor of tiny Wasilla (Population 9,000) prior to her election in 2006. She boasts little national security experience, seemingly undercutting one of McCain’s chief lines of attack against Obama, especially with the septuagenarian atop the ticket, yet her son will soon deploy for Iraq. In this respect, like McCain and Biden, she has “skin in the game.”

Palin has led on ethics reform, adding to McCain’s mantra of reform, be it campaign finance, global warming or immigration. Moreover, she boasts successes in the area of energy policy, be it supplying the lower 48 states with oil or leading the way on renewable forms of energy. This issue alone has emerged as a pivotal one in this election and the Republicans, McCain included, believe they have the upper hand. Palin is also an avid hunter and lifetime member of the National Rifle Association, and her advocacy of 2nd Amendment rights should resonate with white working class voters in critical swing states.

Her strong socially conservative beliefs also helped placate McCain’s tenuous relationship with a group he once dubbed “agents of intolerance.” Her staunch pro-life position on abortion speaks to McCain’s commitment to pursue an end to Roe v Wade. Indeed, Palin gave birth in April to a son with Down’s Syndrome, and spoke passionately against the 90 percent of all Down’s Syndrome pregnancies that now end in abortion. A mother of five, her husband is a commercial fisherman and accomplished snowmobiler. McCain’s camp believes he can make further headway amongst outdoorsmen and women on this front.

The Palin pick is also a proverbial “shout out” to the former supporters of Senator Hillary Clinton, many of whom are either committed to McCain or considering a protest vote. Her speech invoked Representative Geraldine Ferraro’s unsuccessful VP bid in 1984, but also the 18 million votes that Clinton won in her epic primary battle this past winter and spring. Whether this olive branch will be enough to convince “Hillraisers” to cross the aisle remains to be seen, but Palin’s presence on the ticket guarantees that history will be made this fall in one form or the other.

In the end, McCain won plaudits from the socially conservative base of the Republican Party and also women everywhere by tabbing Palin as his running mate. Palin's relative inexperience, particularly at the national level, opens the door for criticism on a front where McCain previously maintained a clear advantage over Obama. At the same time, Obama undermined two of the key tenets of his campaign in selecting Biden, namely his relative newcomer status in DC and his early opposition to the Iraq invasion. Biden has served in Congress eight years longer than McCain and sponsored legislation that enabled President Bush to use force in Iraq as a condition for failure to carry out inspections for weapons of mass destruction.

While Obama played to his vulnerability on inexperience and commander-in-chief credos, McCain struck against his advanced age and Beltway reputation, while also playing to a swath of female voters still steaming from a bitter Democratic primary. Unlike Obama, he arguably made his pick from a position of strength, although some have panned it as a desperate ploy in a race where he is slowly losing his grip. Time will tell, but the dynamics of the fall campaign are finally taking shape.

Shifting to the matter at hand in St. Paul, MN, the Republican National Convention has been scaled back significantly in wake of Hurricane Gustav. Tomorrow’s first day is all but cancelled, and plans for later in the week remain in limbo. It is expected that Governor Palin will speak on Wednesday and accept the VP nomination, and McCain will follow on Thursday with a benediction of his own. Check back here for on-the-scene coverage of political theater that is ever more climactic with the final two month sprint to the White House in tow.


Deconstructing the DNC

By kgpatia
National Conventions for either political party tend serve as giant parties intended to rally the base, and generally produce little “real” news. They attract politicos, pundits, a massive swath of media, protesters, and in the case of the Democratic National Convention (DNC), as former president Bill Clinton noted, “hardcore Democrats.” With the tendency of the conventions to become media spectacles, it is thus easy to be cynical about what has come out of the confetti, fireworks, and seemingly endless punditry.

However, a closer look at this Olympic political event, which ended last night with Senator Barack Obama’s speech at the Invesco Field Stadium in Denver, Colorado, is warranted. For among the speeches and speculation, some answers to relevant questions and important insights were gleaned.

The DNC had an A-list line up of speakers for the week with both Clintons, John Kerry, Nancy Pelosi, former president Jimmy Carter, Al Gore, Bill Richardson, and a host of others garnering a speaking spot. There were a number of phenomenal speeches, but out of the soaring rhetoric, some important conclusions were drawn.

The Obama-Clinton rift seems to have healed. Heightening the media buzz at the convention was obsession over the question of whether or not the Clinton and Obama camps would finally get it together and, in the words of the convention night geared toward this effect, “unify.” At the very least, any outward appearances of lingering resentment from a divisive primary battle could not be found. Hillary Clinton gave a good speech in which she asked her “sisterhood of the traveling pantsuits” (one of the better lines of the convention) to join her in supporting Barack Obama.

However, some critics felt that there was something missing from her speech. The most ready critique was that Sen. Clinton did not say Obama was ready or prepared to lead as president of the United States. This seems like a valid critique, considering the “inexperience” argument that propelled Clinton’s primary campaign. However, this deficiency was corrected in former president Clinton’s speech. He emphatically said, “Barack Obama is ready to lead America and restore American leadership in the world. Ready to preserve, protect, and defend the Constitution of the United States. Barack Obama is ready to be President of the United States.”

Obama himself appeared to be trying to patch things up with the Clintons as well, complimenting Hillary on her speech and noting of former president Clinton in his speech Thursday night, “We measure progress in the 23 million new jobs that were created when Bill Clinton was President - when the average American family saw its income go up $7,500 instead of down $2,000 like it has under George Bush.”

Obama told his story. Until this week, Obama suffered one of the worst campaign problems a politician can have: people didn’t really know his background or his story. In an electorate where people oftentimes make a decision about which candidate to vote for based on heuristics, this was a serious deficiency. Last night, 38 million people reportedly watched Obama’s speech, in which he discussed his background, and presumably the biographical video that preceded the speech, which was produced by the DNC.

Obama laid out the specifics. Another favored criticism of Obama, that his speeches are merely “pretty words” that lack any real policy oomph, was addressed in the speech last night as well. Obama went into (greater) detail on his energy, education, and tax plans, to name a few, saying explicitly, “let me spell out exactly what change would mean if I am President.”

The Democrats went after McCain. From Hillary Clinton’s “No Way. No How. No McCain” to Obama’s call to leave behind cheap attacks on each other’s patriotism, the week was filled with efforts to highlight the stark contrast between John McCain’s vision for America and the Democratic Party’s vision for America.

All in all, a political event of this Olympic magnitude deserves its own awards. Thus, I have awarded a few below:

Best line from a speech: “People the world over have always been more impressed by the power of our example than by the example of our power.” –From Bill Clinton’s speech Wednesday night

Funniest line from a speech: “To my supporters, my champions – my sisterhood of the traveling pantsuits – from the bottom of my heart: Thank you.” –From Hillary Clinton’s speech Tuesday night

Best zinger from a speech: “It's not because John McCain doesn't care. It's because John McCain doesn't get it.” – From Barack Obama’s speech Thursday night


With McCain’s selection of Gov. Sarah Palin of Alaska as his vice presidential nominee, a move not many in the political world saw coming, next week’s Republican National Convention promises just as big of a media blitz and answers to many of the arguments made this week by the Democrats. Shawn Healy will cover the RNC next week from the Twin Cities.


'Biden' Time in Springfield

By kgpatia
At 2:30 AM, early Saturday morning, my cell phone alerted me that I had a text message. I (albeit groggily) read the message from Senator Barack Obama’s campaign letting me know he had selected Senator Joe Biden to be his running mate. While good news to me, it was old news, as earlier in the evening word had spread quickly around a gathering of friends that the New York Times had reported Biden as Obama’s vice presidential running mate.

Just three short hours after receiving the Obama campaign’s text message, I was up and off to catch an Amtrak train down to Springfield, Illinois—my hometown—to watch Obama “introduce” Biden to his campaign, and America. The 7:00 AM Amtrak train might as well have been called the “Obama Express.” As I walked the length of the train, I saw a plethora of Obama shirts, buttons, and signs. Despite the early hour, people seemed cheery and enthusiastic.

By the time the train pulled into Springfield at around 10:15 AM, lines had formed around several city blocks. Luckily, I was able to join family in line, although there were probably hundreds of people still ahead of us in line. According to one of the many police officers working to keep the downtown area in order, people had already stated forming a line at the early hour of 3:00 AM, when the officers started their shift. While the prospect of waiting over 12 hours ahead of time for a political event seems shocking, it is heartening to see people devote the kind of time usually reserved for waiting in line to buy season tickets or the latest video game system to the political process.

By 11:30 AM, we had made it through the intense security and secured a spot on the lawn of Springfield’s Old State Capitol. With a fairly decent view, all that was left to do was wait—a feat not made any easier by the blazing sun and close quarters, as people packed in to hear the senators speak.

The last time Senator Obama spoke in Springfield, when he announced his candidacy last February, people struggled to keep warm in the blistering cold. Now, nearly 19 months later, a reported crowd of 35,000 people, roughly twice the size of the February crowd, battled heat exhaustion, dehydration, and sunburn for a chance, as many stated, to “be a part of history.”

When the event finally kicked off at around 2:00 PM, all of the inconveniences of the day were forgotten as the crowd came to life. Springfield’s mayor, Tim Davlin, gave a brief speech, which was followed by a lengthy, but apt invocation led by the leader of a local church. Two members of the Obama campaign followed this, informing the crowd of ways to get involved in the campaign.

After hours of waiting, the crowd erupted when Senator Obama finally made his appearance and began his speech. Although the text of the speech is now available from many news sources, and could be viewed on all the major networks, hearing it in person was quite the experience.

I have long-admired Senator Joe Biden’s work in the Senate, and in the early stages of the presidential campaign, when the three frontrunners dominated the news, I had hoped that Biden might find his way into the winner’s administration, perhaps as Secretary of State.

Listening to Obama detail Biden’s life story, experiences, and accomplishments, I was confident that the senator would greatly compliment the Obama campaign. As Obama noted, because of his experiences, Biden is uniquely suited to be his running mate. For although he has been in the Senate for nearly 36 years, Biden has managed to maintain a reputation as somewhat of a maverick. Biden brings experience, especially much-needed foreign policy experience, to the table without tarnishing Obama’s outsider image. After all, as Obama pointed out in his speech, Biden never moved to Washington, D.C. in all his years in the Senate, instead taking an Amtrak train home each night.

Furthermore, continuing in Obama’s vein of building coalitions and “coming together,” Biden represents a figure with respect on both sides of the aisle. On Friday, I found myself doing something rare: agreeing with the (relatively) conservative columnist for the New York Times, David Brooks, as he outlined the reasons Obama should select Biden as his vice presidential nominee.

Biden does have a history of speaking off the cuff whatever is on his mind, which has gotten him into trouble in the past. However, as Brooks notes in his column, “voters are smart enough to forgive the genuine flaws of genuine people.” There are even many individuals that appreciate him for this perceived “flaw,” rather than in spite of it (as Jonathan Alter aptly summarizes in a piece in Newsweek).

When Biden took the stage in Springfield after Obama’s introduction, he appeared energetic and enthusiastic as the crowd on the capitol lawn cheered his welcome. This represents an exciting start to the lead-up to the Democratic National Convention in Denver, CO, which begins this week.

Although I will unfortunately not be attending the convention in Denver, I will post throughout the week with updates and commentary on the convention activities. Shawn Healy, Resident Scholar at the McCormick Freedom Museum, will be attending the Republican National Convention in Minnesota the week after, and will post with updates from the convention.

All in all, it seems that no matter what your political leanings, this is gearing up to be an exciting and interesting election.

(photos taken by author)


Supreme Court Review

By kgpatia
On Thursday, August 7, Richard Epstein and Geoffrey Stone, both distinguished professors of law at the University of Chicago (the James Parker Hall Distinguished Service Professor of Law and the Edward H. Levi Distinguished Service Professor of Law, respectively), reviewed some of the year’s most important and interesting Supreme Court cases. An audience of nearly 200 gathered to hear the forum, which was sponsored by the McCormick Freedom Museum in partnership with the Chicago Lawyer Chapter of the American Constitution Society and the Federalist Society. The evening’s discussion was moderated by Alison Cuddy, a senior producer, editor, and host at Chicago Public Radio.

The forum’s topic, a review of the 2007-2008 Supreme Court docket, certainly provided a springboard for a riveting discussion that touched on topics from gun control and voting rights to the application of the writ of habeas corpus and what, if any, circumstances call for judicial activism. Many of the Court’s decisions involved controversial and important matters, and left a deluge of media coverage and analysis in their wake. From this body of decisions, Epstein and Stone highlighted five cases which represented the range of topics addressed, distilled the essence and important questions caught up in each case, and proffered their own analysis.

What follows is a synopsis of the discussion surrounding each of the five selected cases.

Boumediene v. Bush

Cuddy set up the basics of the case before turning things over to the panelists. She noted that in Boumediene v. Bush, the Court considered, in a series of companion cases, whether foreign prisoners being held at Guantanamo Bay have the right to go into courts and challenge their detention using the writ of habeas corpus. In a 5-4 decision, the Court found part of the Military Commissions Act of 2006 unconstitutional. In a June 13 article on the decision, the New York Times described the unconstitutional portion of the Act as having “stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.” Thus the two main issues caught up in the case are the rights of Guantanamo detainees and the application of habeas corpus.

Stone began by delving into the second of these issues—the writ of habeas corpus. He noted that this “fundamental part of…Anglo-American Law” provides for instances where, if an individual is seized and detained by the government, he or she can petition the court to determine whether the detention is lawful. If the court finds the detention to be unlawful, it can then issue a writ of habeas corpus, which “directs the executive officials to release the individual.”

Stone emphasized the importance of the writ of habeas corpus, calling it a “fundamental part of the whole concept of liberty,” noting that “without the writ of habeas corpus, the king, initially, or the executive branch today, could simply seize any of you off the street, toss you in a brig, and you would be there as long as the executive chose to hold you, and no other part of the government would have any other opportunity to determine if the executive had acted unlawfully.”

Epstein, for his part, found the central question posed by the case to be the scope and reach of the writ of habeas corpus, since the conditions for its suspense (contained in the suspension clause of the Constitution) are “clearly” not present. He argued that there are four categories that must be considered when considering the scope of habeas corpus: citizens at home, citizens abroad, aliens at home, and aliens abroad. The question, Epstein noted, is: How do we think of the writ of habeas corpus in connection with these four categories? Ultimately, he argued, due process applies to all persons, unlike other privileges that only apply to citizens.

Stone called the lack of due process at Guantanamo Bay “a disgraceful episode in American history,” explicating that, “the idea that we would not even allow these people to have due process is something about which we should not be proud.” He aptly summarized the main questions and issues involved in the case when he asked, “Are we holding people [at Guantanamo Bay] for 5, 6, 7, 8 years who didn’t do anything, and they’ve never had a chance to have a hearing to determine whether in fact they’re being held lawfully?”

In one of two dissenting opinions issued by the Supreme Court, Justice Antonin Scalia vehemently disagreed with the majority opinion (and ultimately Stone and Epstein’s classification of the case). The New York Times described Justice Scalia’s dissent as “apocalyptic,” quoting from the Justice’s opinion in which he declared, “It will almost certainly cause more Americans to be killed…The nation will live to regret what the court has done today.”

District of Columbia v. Heller

In District of Columbia v. Heller, the Supreme Court asked “Does Washington D.C.’s ban on private handgun ownership violate the Second Amendment?” The Court ultimately affirmed that question in (another) 5-4 ruling, and found Washington D.C.’s handgun ban unconstitutional.

Epstein began the analysis of this case, noting that in the media that followed the decision, the best take came from the Chicago Tribune, which noted, “Sometimes the Founders needed an editor.” He then proceeded to read aloud the second amendment, because, as he noted, “the ambiguity leaps out after you.” He read: “A well-regulated militia being necessary to the security of a free state,” adding to laughter, “a proposition that many people would deny today…oh no, that’s not in there,” and then finished, “the right of the people to keep and bear arms shall not be infringed.” The two clauses, he concluded, do not fit together.

The question inherent in the case, he suggested, is “how do you think about this under the Constitution of the United States? Which is not a question about what Richard Epstein happens to think about the wisdom of gun laws.” The decision, he argued, was a case of “poor originalism.”

Justice Scalia’s error in judgment, Epstein argued, was that in treating the first clause of the second amendment as a precatory clause (a clause which is non-binding), he engaged in a “14-word disappearing act.” Having thus narrowed down the amendment to the second clause, Justice Scalia then concluded, as Epstein put it, “this statute is over-broad, come back to me sometime in the next 20 years, more than once if need be, and I’ll tell you what’s ok.” That problematically presents a flood of litigation; as Epstein put it, “everybody and anybody and his uncle are going to be suing saying that these restrictions are too much, these restrictions are too little.”

Justice John Paul Stevens, on the other hand, argued in his dissenting opinion that the first clause of the second amendment was not precatory, but rather, as Epstein classified his argument, established “an essential nexus” between the purposes of the clauses and the protection involved. Thus, Stevens argued, the only way one could justify use of the amendment is to connect it to performance of a well-regulated militia; since the plaintiff was not a part of the militia, and was just an ordinary citizen, Justice Stevens concluded the second amendment doesn’t apply in these cases.

Epstein concluded that in the end, Justice Stevens was right because he did something that Scalia did not: “integrate the second amendment with the rest of the Constitution.”

Stone went back to the discussion of the ambiguity of the second amendment, and offered up a compelling way to demonstrate the importance of this first clause. He posited the question, what if the first amendment had said: “Democracy being necessary for the welfare of the state, Congress shall make no law abridging the freedom of speech…”?
Under this version of the first amendment, he argued, commercial advertising is not protected, “because it specifies a purpose which may have nothing to do with commercial advertising, although it may have a lot to do with political discourse.”

As a final point, Stone noted that this case presents an interesting take on judicial activism. As Stone explained, in this case, it was the so-called judicial conservatives who were advocating “a muscular intervention, when you would expect conservatives to be… much more cautious about intervening in this way.” This, Stone observed, is a break from what we typically think of as judicial activism.

Crawford v. Marion County Election Board

In a 6-3 Decision, the Supreme Court upheld an Indiana law that requires voters to present identification prior to casting a ballot. The law had been challenged as “an unconstitutional burden on the right to vote” by the Democratic Party of Indiana, as well as the ACLU. The court ruled that the law does not present a burden, and that in order to overturn it, the court would need proof that real people are actually being deterred from voting.

Stone described the reasoning behind the challenge, noting that there were many individuals for whom the availability of photo identification could be a burden, for instance, the elderly, the poor, those without a drivers license, and those registered voters that “have no other reason to have a photo ID, and so the only way for them to be able to vote is to go get a photo ID specifically and exclusively for the purpose of voting.”

Stone noted that part of what made the case and subsequent decision so interesting was that its “political origins are so in-your-face.” The Republican Party, after all, was responsible for enacting the legislation, and the Democratic Party for challenging the legislation. Stone argued that the purpose of the legislation was “to make sure poor people and others who are more likely to vote Democratic are put to a disadvantage in terms of their ability to vote,” and that “no one really doubts that is what this law is about.”

Stone would have found the law unconstitutional, and noted that the Court should have seen through the “fantasy” of this being just a case about voter IDs and voter fraud and recognize that this was an effort to “shape the electorate to advance certain partisan interests at the disadvantage of other partisan interests.” Furthermore, Stone would have put the burden of proof back on the state to justify the law, rather than on the plaintiffs, to prove what is “obviously” the case. “If you have to go out and get a voter ID just for the sake of voting,” Stone explicated, “a lot of us wouldn’t bother, and we wouldn’t vote.”

Epstein noted that he was inclined in the state’s favor, but probably would not have sustained the law. Rather, he noted, he would have said, “Go back and tell me a little bit more about this fraud stuff, I’m inclined in your favor, but I just don’t think you said enough to do it…I would have remanded rather than sustained at the end.”

Stone added one exception to his earlier conclusions, noting that, he “actually would have upheld this if the state law said everybody has to go get a special voter ID…I want to emphasize the equality point. What this does is allow all of us who have driver’s licenses and are middle class…we don’t have to do that. The only people that have to do it is a small segment of the population, almost all of whom are Democrats.”

Kennedy v. Louisiana

In yet another 5-4 decision, the Supreme Court found a Louisiana law that allowed the death penalty for the crime of child rape to be unconstitutional under the 8th amendment’s ban on cruel and unusual punishment.

Epstein felt that the decision was “clearly wrong,” because within the Constitution, death is dealt with in other places besides the 8th amendment. Thus, if you already have things in place that regulate death, Epstein argued, the “cruel and unusual punishment” clause clearly does not involve a regulation of death. Explaining himself, he noted that, “The way I look at it, the only question you can decide is ‘can you use the death penalty?’ and if so, then the question of the offenses for which you use it then becomes a political question.”

Stone noted that this was one case on which he and Epstein disagreed. While Epstein’s argument was based on originalism, Stone argued for evolving standards of moral decency. He noted that while the Framers of the Constitution imagined a world in which there was the death penalty, they also lived in a world in which there were not prisons, at least not in the sort that exist today. Since there was no such thing as life in prison, this was why, Stone explained, individuals “had to resort to various kinds of physical punishments in that society that made sense because the alternatives were not available.”

Defending his position of evolving standards of decency, Stone said, “It seems to me that the availability of those alternatives is perfectly relevant to deciding what is a cruel or unusual punishment, and that that can change over time, the variety of sociological and technical changes, and the existence of the ability to confine a person and isolate them from society changes the calculation.”

Stone reasoned that the death penalty requires a higher degree of scrutiny for the “simple reason that it’s irreversible. If it turns out 5, 10, 20 years later you were innocent, you can’t do a damn thing about it.”

Epstein countered Stone’s reasoning, noting that, “The argument that we now have prisons so don’t worry about this is a very dangerous way, and I’d rather be a craven originalist than a dubious sociologist.” He added that, “I don’t see any reason why moral decisions that are contestable have to be made by a court; for once, I think the democratic process ought to do it.”

Davis v. FEC

The final case analyzed by the two panelists, Davis v. FEC, received much attention and analysis from the media in the days and weeks after the decision was handed down by the Court. In another 5-4 decision, the Supreme Court struck down the so-called ‘Millionaire’s Amendment’ provision of the McCain-Feingold Act (Bi-Partisan Campaign Reform Act).

In this case, money was seen by the Court as extension of other forms of expression (and thus protected under the first amendment of the Constitution). As Stone pointed out, the four “moderate liberals” on the court did not see any reason to disallow the Millionaire’s Amendment, as they felt it did not harm a disadvantaged part of the population.

Stone noted that although he was sympathetic to the goal of equalizing—for instance, he notes, in a town hall setting, “we would never think of selling debate time to the highest bidder”—he ultimately would have found the law unconstitutional.

His backing of the ruling is based in his distrust of legislators dealing in regulation of political expenditures, likening it to “the fox going in the hen house.” He explained his skepticism, saying, “I mean what you can really be sure about with political regulation of political campaigns is that the first goal will be to get themselves re-elected, so they will never enact legislation that threatens incumbents.”

Epstein agreed with the Court and Stone’s rejection of the Millionaire’s Amendment. He noted that while, “corruption in politics is a serious issue,” there are other ways to deal with corruption than the way the amendment approached it. On this point, Epstein put forward a challenge: “Tell me why it is that these things have broken down; you’re not telling me that when you just prove people spend a fortune on an election.”

He added, evoking some laughter from the audience, “Given the damage that both political candidates can do by victory, the fact that we’re only going to spend a billion dollars when they have the capacity to cost us a trillion dollars with one piece of legislation, strikes me that we’re spending much too little on politics relative to what we ought to spend given the stakes of these campaigns.”


Come on journalists, you can do better

By scipio191
By Warren Watson

Since everyone in the Western Hemisphere seems to have checked in on the journalism ramifications of the John Edwards affair, I thought I would join in the fun.

Actually, it isn't fun to bash traditional news organizations -- online, in print and on television -- for their slow-to-the-draw effort in revealing the former Democratic presidential candidate's shameful antics in his brazen affair with Rielle Hunter, an erstwhile filmmaker.

For a time, the story of his tryst was reported only by the National Enquirer, a tabloid that gives supermarkets a bad name. The story, which Edwards steadfastly denied, was kept alive by bloggers until ABC-TV smoked out Edwards in a primetime report on Aug. 8.

The whole escapade showed once again the ethical dilemma faced by traditional newspapers and TV in new digital information age: Get it first or get it right.

In the new paradigm, information sprouts forth online, often coming from individuals on their Web logs. Often, the information is premature and unreliable. In this instance, many outlets just couldn't nail down the Edwards story, which has been in the blogosphere for more than six months.

The more they closed in, the more a defiant Edwards continued to lie.

Traditional media organizations backed off, unwisely shunting aside the story and making only token efforts. After all, they surmised, the National Enquirer justly has a shoddy reputation for using second-hand sources and innuendo, and secondly, many bloggers shared a similar reputation for unreliability. So why take it too seriously?

But the story finally appeared, with Edwards, interviewed on primetime TV, confirming the account that had heretofore come from a questionable source. Suddenly the traditional media were at the end of darts of all shapes and sizes. And it was justified.

This was more than just a celebrity dalliance. Edwards was a serious presidential candidate who preached morality as the bedrock of his campaign. For him to demonstrate such hypocrisy in his own deeds elevates this matter into the realm of important public policy.

In a stinging rebuke of his peers, Clark Hoyt, public editor of The New York Times, said on Aug. 10 his newspaper should have pursued the story harder. He criticized other newspapers as well. Only the newspapers in Charlotte and Raleigh, N.C., had put any kind of effort into confirming the National Enquirer accounts.

Alex Jones, director of the Shorenstein Center on Press, Politics and Public Policy at Harvard, said the story matters: "It showed John Edwards' recklessness in having an affair and the issue of whether he lied about it. I fault the news organizations for holding their noses and burying their heads," he told Editor and Publisher, a periodical that tracks developments in traditional media.

The blogosphere deserves credit for keeping the story alive in this instance, much as those bloggers -- journalist-wannabees on the Internet -- successfully kept the Swift Boat/Kerry and Dan Rather/Bush stories afloat in times past.

More serious reporting needs to be done in closing the loop on the Edwards story. Important questions remain unanswered, including the paternity of Hunter's illegitimate child and the possibility that hush money was doled out by others in the Edwards campaign.

Traditional news organizations -- usually important First Amendment watchdogs -- can do better. Let's see if well-resourced newspapers and television networks will work a little harder this time.

Where are Woodward and Bernstein when we need them most?

Watson, director of the J-Ideas First Amendment institute at Ball State University, is a lifelong journalist. He teaches reporting and editing at the Muncie, Indiana, campus.


Radioactive Reformers

By Shawn Healy
This post represents the tenth and final installment of the elongated "Pass the Pundits" series. Needless to say, the pace of the campaign has made my issue comparisons difficult, especially in light of the candidates shifting their positions slightly, and in some cases dramatically, in an effort to appeal to the more centrist segment of the electorate. Regardless, my hope is that this series has helped to shed light on areas under-covered by the mainstream media, addressed in only broad platitudes by the candidates, and shrouded in nuance for the average voter. Today I address immigration, the last of ten issues identified by voters in an earlier Gallup Poll as pivotal to their presidential decision.

Any casual observer of American politics over the last few years cannot help but recall the firestorm that recent debates over comprehensive immigration reform ignited. President Bush twice campaigned on a promise of a humane overhaul of our current immigration apparatus, and Congress assumed the mantle of leadership on this issue in the wake of his re-election. You might remember the House of Representatives passing a bill in late 2005 emphasizing border security and heightened enforcement overall. The Senate followed in 2006 with a more comprehensive plan that included border security, but also a guest worker program and a path to citizenship for the 12-20 million illegal immigrants currently residing in the United States. Rather than hold a conference between the two bodies, Congress took its case to the people, and the verdict was alarmingly polarizing. While advocates of enhanced rights held marches throughout the country, vigilantes took matters into their own hands and patrolled the Southern border with Mexico. Americans of all stripes were torn over a topic that defines who were are as a nation.

After Democrats took control of Congress in the Fall of 2006, the debate began once more the following spring. Immigration demonstrations were staged throughout the country, though attendance dwindled. President Bush was tied down by historically low approval ratings, his political capital all but spent. The Senate courageously etched out another compromise that in mirrored their previous product in many ways, but appealed to only moderates, shedding support on each side of the political spectrum. A vote to end a filibuster failed. The House, recognizing the radioactivity of the issue, refused to even schedule debates on the issue.

In the aftermath, our immigration system remains as broken as ever, and we were told to wait until 2009 when a new Congress and President could work together to achieve the ever-elusive reforms. In the interim, a massive population of illegal immigrants remains on American soil, a permanent cast of "second-class" citizens. Employers are without a fresh supply of low-wage workers as ICE (Immigration and Customs Enforcement) has staged successive raids on employers suspected of hiring undocumented workers. Select states and cities are burdened by the costs of providing human services for these individuals minus a reciprocal tax base. True, border security has been enhanced, with the construction of the infamous 700-foot wall in progress, but it may be doing a better job of keeping illegal immigrants from leaving than it does denying their entrance (The national economic downtown has unquestionably reduced the inward flow, too).

This brings us to the presidential contest between Senators Barack Obama and John McCain, both participants in the debates recounted above. However, unlike any of the the previous nine issues addressed in this series, both candidates see eye-to-eye when it comes to immigration. Indeed, McCain co-sponsored the 2006 bill with Obama supporter Senator Ted Kennedy that the presumptive Democratic nominee rallied behind. Their respective plans are remarkably similar, and I will detail each below.

In order to understand McCain's stance on the issue, one must consider recent history. His outspoken support of comprehensive immigration reform hurt him among many conservatives and nearly cost him the Republican nomination. Last summer, when the debate came to a climax, it is no coincidence that McCain's Straight Talk Express was running on fumes. It was only when the issue receded to the rear view mirror that he staged a remarkable turnaround, and lingering resentment from some circles continues to temper Republican enthusiam from his candidacy.

Since this fallout, McCain has receded a bit on this issue, suggesting that he learned that Americans do not trust the federal government to address this issue in the aftermath of Hurricane Katrina and other debacles. To prove their mettle, Congress and the President need to first secure our national borders, he argues, and have this certified by the affected governors, McCain's Arizona included. Only then does McCain open the door for comprehensive reform.

Obama, but comparison, does not mandate any such preconditions, but instead promises the comprehensive reforms that he supported while serving as a senator. While emphasizing the importance of border security, his plan is premised on drawing illegal immigrants out of the proverbial shadows, allowing them to pay a fine and back taxes, learn English, obey the nation's laws, and go to the back of the line for citizenship.

McCain echoes these points, but places additional emphasis on weeding out those who committed crimes other than entering the country illegally, promising prosecution and deportation. He would also clamp down on fraud related to Social Security, require citizenship classes, and emphasize family reunification throughout the naturalization process.

Both candidates offer plans to speed up the process of apllying for citizenship, recognizing the bureaucratic malaise that cripples the system. Obama hopes to expedite the process through lower fees and more efficient background checks in order to naturalize more applicants each year. McCain begins by prosecuting what he terms "bad actor" employers, or those who knowingly hire undocumented workers, through an electronic verification system. This system would use a limited number of documents and biometric information, be swift in execution, and protect the identity of the individuals enduring screening.

McCain also articulates a detailed plan for temporary workers. High-skilled workers would be recruited from the cohorts of international students who flock to the U.S. for college, respond to employer and market demand, and enable extensions for those awaiting permanent resident status. Low-skilled non-agricultural workers would mostly assume temporary roles as mandated by market conditions. McCain promises enforcement of both humane labor laws, but also a mandated return to home countries for most of these temporary workers. He would apply similar priciples to agriculural workers, calling for a "non-bureaucratic, adaptable, useable" program.

Obama fails to address temporary worker programs in any detail. To his credit, his web site has been more thorough than McCain's throughout the duration of this study, though McCain has since filled in the details on many of these issues and his home page warrants a second look by Fanning the Flames readers. On this issue, at least on his web site, speaks in specifics, while Obama is locked in generalities.

Like many of the other domains we have tackled in this journey, however, it is the next president's broad vision, rather than his policy nuances, that will shape solutions crafted collectively with Congress come January 2009. Based on their records and stated objectives when it comes to immigration, voters have two candidates who are committed to comprehensive reform. Subtle differences emerge when parsing their respective plans, but the key ingredient in light of recent history will be leadership. This series has been short on this facet of candidate qualifications, but I will leave this assessment to voters.

A mere 90 days remain until the long-awaited November 4th election. Vice presidential picks will soon be announced, followed by the Democratic National Convention at the end of August and the Republican National Convention one week later during the first week of September. As the candidates gear up for the final sprint to the finish line, I urge you to peel yourself away from the horse race for a few spare moments, no matter how compelling it may be. Consider the candidates' qualifications for office. Evaluate their leadership potential. Most of all, dive deep into the issues, for these are the matters that land closest to home come Inauguration Day.


Maligning the Media: Is There a Bias in Campaign/Election News Coverage?

By kgpatia
The media as an institution has long been a virtual punching bag for critics in the public domain. One doesn’t have to look far to find individuals bemoaning what they perceive to be inaccurate, unfair, or biased coverage. Frequently, these media criticisms fall into a pattern of accusations of liberal bias. Regular buzz words on the typically conservative Fox News Network, a discussion of the “liberal media” has perpetrated mainstream news sources and blogs alike in recent weeks in light of reports that Sen. Barack Obama, the presumed Democratic presidential nominee, is receiving a greater amount of coverage than the presumed Republican presidential nominee, Sen. John McCain.

In response to what he perceived as an unduly large amount of coverage featuring his opponent, Sen. McCain and his campaign created a web advertisement dubbed “Obama Love” featuring journalists calling a Obama a “rock star,” confessing that “sometimes it’s hard to remain objective,” and in the most effuse example of this alleged “Obama Love,” Chris Matthews states that he “felt this thrill going up [his] leg” when he heard Obama speak. Frankie Vallie and the Four Seasons’ “You’re Just Too Good To Be True” plays in the background of this montage. A conservative organization, Citizens United, has plans to release a documentary on the subject entitled “Hype: The Obama Effect.”

The accusations of a liberal or Democratic bias in the media started flying in a large part due to the media reaction to Barack Obama’s trip overseas to the Middle East and Europe. The trip was simultaneously a fact-finding mission, an effort to boost Obama’s foreign policy credentials and make him look ‘presidential,’ a chance to prime foreign audiences for possible future diplomatic endeavors, as well as—let’s face it—one pretty amazing photo-op.

In efforts to defend themselves against these charges of bias, journalists argued that, as Clarence Page put it in his July 23 column in the Chicago Tribune, “a big story is our biggest bias.” This defense was adopted in several other news sources, including the Los Angeles Times’ Readers’ Representative Blog, which stated in a July 25 post that “The news itself dictates the amount of coverage.” In his July 27 column, constructed as a memo to Sen. McCain, Clarence Page articulated this point rather stingingly, stating that, “The media-bias charge would be bad news, if it were true, Senator. But I think your real problem is worse: You are the victim of a lackluster campaign.” Essentially, these sources, and others that argued similar points, did not attempt to deny the greater amount of coverage given to Obama (at least in recent weeks), but rather strove to justify this coverage in light of standard journalistic practices that preside above any sort of bias, liberal or otherwise.

Although these defenses seem to hold at least some legitimacy, a careful examination of this Obama media explosion is in order. The Project for Excellence in Journalism (PEJ), a non-partisan research center, reported that Obama’s visit to the Middle East and Europe consumed 51% of all campaign news coverage during the week of July 21-27. Somewhat ironically, the third largest block of coverage, occupying 6.9% of the week’s coverage and clocking in just behind the 7.4% of coverage of the Iraq War as an issue, was devoted to introspection on the press treatment of Obama.

The PEJ, as well as, respectfully, the Center for Media and Public Affairs at George Mason University, add a caveat to this observation of bloated coverage. Both research centers observed, in studies performed independently of each other, that not all of the coverage of Obama was flattering or positive. The PEJ noted that much of the coverage surrounding Obama’s trip overseas speculated on “whether adulation abroad would translate into votes at home and whether [Obama] had the specifics to back up his popularity.” The Center for Media and Public Affairs at George Mason University found that despite elevated coverage, “ABC, NBC and CBS were tougher on Obama than on Republican John McCain during the first six weeks of the general-election campaign.”

To complicate these findings even further, the annual Edelman Trust Barometer, which measures trust in various institutions, reported that in 2008, 45% of respondents trusted the media “to do what is right,” up from 43% in 2007, and 30% in 2006. To put this number in perspective, only 39% of 2008 respondents trusted the government to do what is right. Richard Edelman, the president and CEO of the PR giant Edelman, says this rise in trust is because “the definition of media has broadened to encompass social media…and mainstream entities are now available as and when needed.”

It is this last point that serves as the saving measure of the American media. Much like our government, the media have developed a system of checks and balances akin to that of a democratic institution. As media have expanded online, new forums have grown and become major players in the media world. Thus it could be said that, at least in an ideal world, the three arms of media—broadcast, print, and online—like their governmental counterparts, monitor and keep each other in check. The media being naturally critical and self-monitoring as well, as evidenced in the PEJ report (above), should course-correct with time. As Chicago Tribune columnist Steven Chapman wrote in his July 27 column, “With 100 days to go [until the election], there will be plenty of chances for McCain to shine and Obama to stumble—and the news coverage will shift accordingly. By Election Day, Obama may feel like he's been worked over by the Hells Angels.”

If any takeaway point can be distilled from this, it is that despite the somewhat murky and inconclusive conclusions that these range of studies, when taken together, have produced, the media monitoring should continue. For only by monitoring the media, can one make assessments about just what constitutes ‘fair and balanced’ coverage, and how much in one candidate’s direction or the other tips the scale.

In this vein, Shawn Healy (Resident Scholar at the McCormick Freedom Museum) and I (as this summer’s Five Freedoms Intern) began a content analysis of major newspaper coverage of the 2008 presidential election. We started monitoring coverage on July 1 and will continue to do so through August 24, the start of the Democratic Presidential Convention. We selected a representative sample of mainstream newspapers to monitor: The New York Times, The Washington Post, The Chicago Tribune, and The Wall Street Journal. Our process includes gathering all articles related to the election and campaign (performed through a Proquest search of “Obama,” “McCain,” “Nader,” “Barr,” “McKinney,” and “presidential election”), and then coding these articles for their news frame, tone, story form, apparent bias, and candidate featured.

While we cannot report any results from the study at this point, the results do promise several interesting angles of analysis. It is our hope that this study will provide a unique glimpse at the reporting practices of some of the country’s most prominent mainstream newspapers in the lead up to the political conventions.


Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at