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Toledo Legal News - Editorial List Table

 

White House “chills” on free speech

 

Recently the Office of the Special Counsel publicly recommended that White House counselor Kellyanne Conway be fired for repeatedly violating the Hatch Act, prompting many people to Google what the Hatch Act is (it’s a law that bars federal employees from engaging in political activity in the course of their work) and President Trump to give an interview to Fox News where he stated that, “[I]t looks to me like they’re trying to take away her right of free speech, and that’s not just fair.” (This week, the president tweeted his support for a proposed constitutional amendment to outlaw burning the American flag — an act the Supreme Court has repeatedly held to be a protected form of political expression — thus ending his streak as a First Amendment advocate.)

But back to the Hatch Act for a moment. It was passed in 1939 to prevent federal employees from engaging in partisan political activities, such as endorsing or opposing particular political candidates. It’s grounded in a noble purpose: to protect federal employees from political coercion and ensure their advancement is based on merit and not political affiliation. To that end, federal employees can’t engage in political activity while they’re on duty, in the workplace, or speaking in their official capacity. The letter from the Office of the Special Counsel (OSC) pointed out that much of Conway’s recent conduct has fallen into that category, as she’s been making the rounds, “disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”

White House counsel Pat Cipollone responded with a letter stating, among other things, that applying the Hatch Act to political activity on social media “has a chilling effect on all federal employees whose fundamental First Amendment right to engage in political and public policy discussions should not be compromised based solely on OSC’s guidance.”

This isn’t the first time the OSC has faced that accusation. Ethics and transparency advocates said more or less the same thing last year, when the agency issued new guidelines that federal employees weighing in on President Trump’s prospects for impeachment or talking about “the Resistance” might constitute political activity. National Treasury Employees Union President Tony Reardon’s exact words were, “This guidance is a broad reach that employees may find confusing. It could unnecessarily have a chilling effect on employees’ First Amendment free speech.”

The “chilling effect” is a concept that comes up a lot when we talk about the First Amendment. Essentially, it means that when a law concerning expression is too vague or too broad, people won’t know exactly when their speech crosses the line and violates it. So, in order to avoid punishment, they’ll avoid speaking at all — a major loss for free expression and healthy public debate.

Practically speaking, this isn’t really a concern when it comes to Kellyanne Conway specifically. President Trump has explicitly stated he will not fire her (the OSC only has the authority to recommend that he do so). She has publicly scoffed at the Hatch Act charges, telling reporters, “Let me know when the jail sentence starts.” She continues to appear in public, making it abundantly clear that nothing will get her to chill.

But it’s worth taking a moment to reflect on the impact that laws like this have on other federal employees, most of whom aren’t as protected from consequences as Conway. Henry Kerner, who heads up the OSC, was certainly thinking about this when he recommended that Conway be fired. “In interview after interview, she uses her official capacity to disparage announced candidates, which is not allowed,” he said in an interview with The Washington Post. “What kind of example does that send to the federal workforce? If you’re high enough up in the White House, you can break the law, but if you’re a postal carrier or a regular federal worker, you lose your job?”

It’s a reminder that most government employees have severe restrictions on their First Amendment rights. Some of these restrictions are justified — government offices wouldn’t be able to function if they couldn’t discipline employees for speech that interferes with their duties. But there are plenty of examples of this censorship going too far.

Just look at the impact of the 2006 Supreme Court decision Garcetti v. Ceballos, which removed any First Amendment protection for speech that government employees make in the course of their duties. Since then, we’ve seen numerous cases where government employees have been fired for reporting the misconduct of others and whistleblowing about corruption and mismanagement, with no valid free speech claims at all.

Or think about the times when government entities have decided that their employees’ private conduct on social media impacts their official duties — like the incident where a Pennsylvania public school teacher was suspended without pay because someone posted a photo of her with a male stripper to Facebook. Or think of the postal carriers and regular federal workers who avoid political activity altogether because they’re anxious about running afoul of the Hatch Act.

Here’s hoping that the White House continues championing free speech rights for government employees — it’d be a nice change from prosecuting them for leaking information to the press and accusing them of treason.

Lata Nott is executive director of the First Amendment Center of the Freedom Forum Institute. Contact her via email at lnott@freedomforum.org, or follow her on Twitter at @LataNott.

Lata Nott, Freedom Forum Institute

How long can the federal debt keep rising?

 

A few months ago, the federal debt we have accumulated over the past decades crossed the $22 trillion mark. That’s a record. And it’s surely not going to be the last.

According to Congressional Budget Office estimates, annual federal deficits over the next decade — the deficit is the annual figure for how much more Congress and the president opt to spend than the government takes in as revenue — are expected to average $1.2 trillion. Overall, the debt held by the public amounts to about 78 percent of our gross domestic product.

That’s double what it was before the 2008 recession, and the CBO estimates that without significant changes, it’ll rise to 118 percent over the next 20 years, higher even than right after World War II.

Does this matter? Back when I was in Congress, I came away confused practically every time I listened to an economist offer an opinion. Some thought it mattered immensely. Others, not at all.

Indeed, I remember when the prospect of running a deficit of a few billion dollars caused fiscal experts to say we were facing fiscal catastrophe. They turned out to be wrong. The system has been able to carry heavier debt than we once thought. The problem is, all we know is that we’re okay so far; we have no idea when we suddenly won’t be.

Here’s a useful way to look at it. Interest on the debt is expected to hit $390 billion this year. We’re paying more in interest on the debt than we spend on our children, and we’re headed toward doing the same with defense. I doubt that fits the priorities of most Americans. And I don’t think it’s sustainable indefinitely. It may even be dangerous.

At a certain level, carrying such huge debt — and spending so much each year to pay off the interest — makes it harder for the government to respond to future challenges and raises the risk of an economic crisis with no gas in the tank left to accelerate out of it.

It may crowd out both public and private investment, because there’s less money for the government to invest in human capital or infrastructure, and private capital flows into government bonds rather than other avenues that might stoke economic growth. Or investors may decide that the U.S. government isn’t credit-worthy after all, and either push up interest rates or find a different currency to back, forcing the dollar’s value to plummet.

The bottom line is that ultimately government spending has to be paid for. Deficits don’t replace that need, they merely defer it.

The problem is that attacking yearly deficits is politically very difficult. They have to be addressed on both the spending and the revenue side — that is, with both spending cuts and tax increases — but there’s not much appetite in Washington for either. Even though politicians know full well that it’s not a question of whether we need to raise taxes or cut spending, just of when.

In the end, I believe strongly that the first rule for any policy-maker ought to be: Do no harm. This requires a shift in our thinking about spending policies: If something is really important to do, it’s worth paying for and not pushing the cost into the future and on to the backs of our children. If no one’s willing to do what it takes to pay for it, maybe it’s not as high a priority as its backers think.

Similarly, we need to get real about taxes. It’s hugely seductive to politicians to believe that tax cuts pay for themselves by boosting economic activity and hence tax revenues. There’s no evidence that this is how things work in the real world, however. Instead, deficits just keep increasing.

So do we need to panic? No. But we must not take the view that the question is irrelevant. Far better to begin now to address the problem gradually than to be forced into sudden and drastic measures by a crisis we all knew was coming, but didn’t have the will to forestall.

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar at the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice at the IU O’Neill School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.

Lee Hamilton, Center on Representative Government

Propaganda on the ballot

 

The 2020 presidential election is still more than 500 days away. But with more than two dozen notable candidates already in the running, campaign season is in full swing and each day brings a new wave of information about the crowd of contenders. However, not everything you hear, see or read should influence what you do in the voting booth. Alongside the policy statements and campaign promises, today’s political landscape is littered with disinformation and deceptive content intended to spread falsehoods and mislead the public. Think you’re equipped to sort out the fact-backed claims from the public relations stunts and propaganda? Well, you might just want to think again.

We all know that political campaigns utilize methods intended to persuade and provoke the public. The time-tested strategies of tightly scripted stump speeches and staged photo ops designed to stir our emotions and garner our support date back to the dawn of modern campaigning. Most of us know to think twice about the slick promises and heart-tugging moments campaigns trot out to win votes, but today’s candidates and other political players are experimenting with new methods to influence the online electorate.

Last month, right-wing internet provocateurs Jacob Wohl and Jack Burkman published a fabricated sexual assault allegation against Democratic candidate Pete Buttigieg on the blogging platform Medium. The accusation appeared under the name of a man who soon disavowed the claim. There’s also been an increase in apparent “local news” sites that are actually created by party activists. They run articles promoting certain candidates over others without disclosing the authors’ political connections to certain political action committees. And false quotes by President Donald Trump and Democratic presidential candidates continue to circulate on social media.

Many of these tactics cross the line to become propaganda: emotionally manipulative claims and disinformation designed to hijack voters’ thoughts and actions. And as you can see, it’s not just Russian bots that are to blame. Government and big business are scrambling to find solutions. Twitter is rolling out a new tool for reporting Tweets that are “misleading about voting.” The FBI and Department of Homeland Security have made permanent their task forces focusing on defending against foreign interference in elections, including propaganda and influence campaigns on social media.

But we continue to believe the most direct path to outsmarting propaganda’s manipulative messages lies in educating and empowering the public to spot problematic content and stop its destructive spread. As we voters begin to navigate a seemingly never-ending maze of campaign media and related online information, there are red flags we can all look for to sort politics from propaganda.

Propaganda simplifies the situation. Does the content cite only convenient or helpful facts while glossing over counter-arguments? Red flag. Propaganda exaggerates. Does the content present its candidate as perfect or nearly so? Red flag. Propaganda also uses our emotions against us, exploiting our weaknesses and deepest desires. Does the content you’re looking at make you feel afraid, and then conveniently promise a cure for that fear? Another red flag.

Most corrosively, propaganda seeks to divide us, setting up an “us” versus “them” scenario that broadens divisions between different people, groups and ideas.

Last month, a video of House Speaker Nancy Pelosi, a Democrat, slurring her words garnered millions of views and shares online. The video, which was later proven to be a manipulated fake, was the perfect propaganda for a polarized age. It was shared by conservative politicians and party loyalists in effort to raise speculation about Pelosi’s fitness for leadership and to rally their base. Perhaps those who shared it were unaware at the time that the video was fraudulent. Perhaps they didn’t care. Or perhaps they expected their social networks of choice to police the content distributed via those platforms. (YouTube did eventually take the video down; copies are still available via Twitter and Facebook.) But as the presidential election fans the flames of disinformation, fakery and deception, pleading ignorance or waiting for algorithmic salvation isn’t going to cut it. If you think the country is divided now, imagine how fractured we may be in a year’s time if we don’t become a more media-literate electorate, primed to weed out destructive propaganda.

To paraphrase Thomas Jefferson, an informed citizenry is vital for a free society to thrive. As we prepare for the 2020 presidential election, let’s all do our part to ensure that the information we consume and share is factually accurate. And then let’s put that knowledge into action at the voting booth.

Contributing to this column were Katharine Kosin, NewseumED museum educator and Barbara McCormack, vice president of education at the Freedom Forum Institute. Pierce McManus, NewseumED’s digital communications and outreach director, and Kirsti Kenneth, NewseumED’s curriculum developer, can be reached for media inquiries at media@freedomforum.org.

Kirsti Kenneth and Pierce McManus, Freedom Forum Institute

Compromise is the essence of our democracy

 

You may not be ready for next year’s elections, but in political time, they’re coming up fast. Even politicians who aren’t running for president are crafting their stump speeches. Which means that at some point you’re almost certain to hear someone announce, sternly, “I. Will. Not. Compromise.” And if you’re there in the crowd and agree with his or her position, you may even join the applause.

Which is understandable, but let me tell you why, far from applauding that line, I shy from politicians who use it. In a democracy, being able to compromise — and knowing how — is a core skill for governing. Shouting “No Compromise!” may fire up the crowd, but it’s a recipe for failure when it comes to getting things done in office.

In fact, it was a core skill even before we had our current system. Pretty much every sentence in our Constitution was the product of compromise, crafted by people who felt passionately about the issues they confronted yet found a way to agree on language that would enable the country to function.

It is true that any legislative body needs members who set out the vision — the pure ideological positions — as part of the public dialogue. But if they’re allowed to control or dominate the process, nothing gets done. When pushed, most politicians understand that cooperation and working together to build consensus have to prevail in the end.

So why doesn’t it happen more? Because compromise is not easy, especially on issues of consequence, and especially today, when the country is so deeply divided and polarized. Even the word itself causes disagreement. To someone like me, it’s a way forward. To others, including a lot of voters, it’s a betrayal of principle.

Once you do compromise, you’ve always got the problem of selling the result to others. Sometimes, in fact, you have the problem of selling it to yourself. When I was in office, I often found myself second-guessing my own decisions. Did I give up too much on principle? Was there another path to the same goal without compromising? Maybe I didn’t give enough? Is the compromise that emerged actually workable?

This last is an important question. Any politician seeking to forge common ground with others has to weigh whether people — voters and colleagues outside the meeting room — will be willing to accept or at least tolerate a compromise. I’ve certainly encountered politicians who have walked out of efforts to reach agreement because they felt they couldn’t sell it. Or, even more common, who support compromise as long as it’s the other side that does all the compromising.

The thing is, politicians never control the political environment in which they’re working. They have to seek the best solution given the cards they’ve been dealt. They can’t dictate who’s on the other side of the negotiating table, or the political climate in their community.

This makes the kind of people you’re dealing with supremely important. As a lawmaker or officeholder seeking to move forward and faced with colleagues who may hold very different views, you need counterparts who know they need to make the system work and are willing to be flexible. In a way, you’re hoping for politicians who take into consideration the broad concerns of the entire population, not just those who support them or voted for them.

In Central Park one day during WWII, Judge Learned Hand told an assembled crowd, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.” That is also the spirit of our representative democracy, and we need politicians who embrace it.

So when Americans complain about Congress not getting anything done, I have limited sympathy. Congress struggles because it has members who don’t know how to compromise, are afraid to, or don’t want to. And those members are there because we sent them there. In other words, we share the blame.

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar at the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice at the IU O’Neill School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.

Lee Hamilton, Center on Representative Government

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