Fiat Lux

While it is of course too soon to say anything definite, it appears likely that control of the government will continue to be split between the parties after election. Almost every polling aggregator and prediction market predicts that the Democrats will probably control the Senate and White House, but that Republicans will retain control of the House- leaving control of government divided.

If control is divided, both parties will need to cooperate in order to resolve two imminent financial crises: the debt will hit the debt ceiling by the end of this year, and a series of automatic tax hikes and spending cuts will go into effect in early January. Unfortunately, the sequestration will neither eliminate the deficit, nor come into effect before the debt ceiling is reached- leaving the United States without sufficient legal grounds to continue operating the government. The lame duck congress and President will therefore need to make significant policy decisions in the coming months- and even if they are able to resolve the debt ceiling manner in a conventional and uncontroversial manner, the incoming congress will still need to deal with the impact of sequestration and future debt ceiling crises.

If Romney is elected President, the problem could be equally severe. The Democrats are likely to retain control of the Senate, leaving them with the ability to threaten a government shut-down if Romney doesn’t accede to their (unknown) demands. While the Romney campaign has argued that, if elected, he would be able to prevent a crisis, Senate Majority Leader Harry Reid has made it clear that Democrats are likely to adopt the same tactics the Republicans used in the previous debt-ceiling crisis. (While the Democrats in Congress tend to be less ideologically unified than the Republicans, Reid will only need to 41 senators to filibuster any proposed solution to the debt ceiling- leaving plenty of room for some senators to defect.)

The New York Times and others are reporting on pre-election and post-election legal battles that could tie up the results of the presidential election for hours, days, or weeks. The NYT reports:

Together, the pre-election legal skirmishes were a potential preview of the clashes that could emerge in as many as a half-dozen swing states over Tuesday’s voting. The closeness of the races in those states has intensified the stakes of voter turnout, smooth operations at polling places, ballot problems and recounts.

Both campaigns have armies of lawyers ready to descend into the unresolved state(s).

But is there a way to avoid the legal mess associated with elections? One solution might be simplifying the voting process. But in many ways, the layers of complexity added to the process in recent years (voter ID checks, early voting, weekend voting) were meant to make it more secure and more accessible.

Another solution to the legal mess would be federally-controlled elections. But these provide a few concerns. First, elections are by nature a local venture, and kicking that responsibility up to the federal level would require tremendous data transfer between localities and the federal election overlords. Additionally, Americans may not trust a complete centralization of the process on which the preservation of their democracy depends. Think about the danger of hanging chads across the entire United States. And finally, local control of elections allows for experimentation. Localities can explore ways that maximize election security and voter accessibility.

Locally controlled elections, with the mandate for local government to experiment with process, makes legal battles unavoidable. Perhaps the upside of an election riddled with litigation is that people care about their vote and the votes of others. The fights against voter fraud and limited voting days for military personnel indicate that the citizenry cares about the institution which makes democracy work.

In the waning days of the Presidential campaign, campaign events and coverage begin to obsess over electoral math. The variables this year? The big three: Ohio, Florida and Virginia dominate coverage, but Colorado, Iowa, New Hampshire, Nevada and Paul Ryan’s home state of Wisconsin are all in question. With Obama holding onto a slight lead in all those states except Florida, forecasters are throwing out numbers as high as 80% (as of this evening) for the President’s re-election.

From the remaining battleground states, Obama will need 33 electoral votes, while Romney needs 64. Fortunately for Romney, he holds a 1% lead in Florida according to the most recent CNN poll. If he loses Florida, he would need to sweep every other contested state. This won’t happen.

Should Obama win Ohio’s 18 votes, which seems likely with his comfortable 3-4 point lead, Romney will need to not only sweep the large states (fairly likely) in order to prevent Obama from capturing the last 15, but also pick up a few nearly-even states such as Colorado and Nevada and upset Obama in Wisconsin and Iowa, where the WSJ’s polls published today suggest he trails the President by 3 and 6 points, respectively. If Romney manages to win Ohio in addition to Virginia and Florida, however, he’s only 2 points shy of the necessary 270 electoral votes. Any remaining state would be enough to win him the election, including New Hampshire, where the WSJ reports that Romney has cut Obama’s lead to less than 2 percentage points. Fivethirtyeight, a New York Times blog, has Romney trailing in all those states however, saying his best odds in any of those states are a mere 36% for Colorado.

The Wall Street Journal published surveys today highlighting the electorate’s rigidity. In Iowa they found only 4% of voters remain undecided. Fivethirtyeight predicts a 3 point advantage to Obama and the WSJ found a 6 point lead, putting Iowa’s 6 electoral votes all but out of Romney’s reach. Perhaps most important is the WSJ’s finding that out of almost 1,200 decided voters (WSJ did not publish the exact figure), only 4, or.34%, say they might change their mind. If this is true for other states, Romney needs more than a “calm, cautious” end to his campaign.

In an unexpected twist to the ongoing legal battle between Apple and its Korean rival Samsung, the US Patent and Trademark Office yesterday declared Apple’s ‘381 patent for “rubber banding” or “bounce-back scroll” invalid. This decision flies in the face of the now-infamous August jury decision that ‘381 is not only a valid patent, but that Samsung willfully infringed it on all devices Apple claimed damages against.

The announcement is not the unforeseeable bombshell that much of the tech world is branding it, though. First, the announcement was merely a “non-final Office action”, meaning the decision is far from indisputable and should it stand, is still months away from finality. Samsung has pounced upon the opportunity nonetheless, filing it with Judge Lucy Koh, the judge who presided over this summer’s high-profile trial. Judge Koh is currently hearing appeals from both companies to override the jury’s decision.

The decision is also not as unexpected as it seems to the public. Scott Daniels, an IP lawyer, reported an anonymous re-examination request on patent ‘381 in May. Google and Samsung are the obvious suspects, but the identity of the challenger does not matter. Since the challenges are publicly available, both Apple and Samsung doubtless knew the patent was under review.

This is the second victory for Samsung since the jury gave Apple a sweeping victory on August 24th, at which point Samsung owed Apple $1.05 billion and was blocked from selling its Galaxy Nexus devices in the US. Samsung appealed the decisions separately and on October 11th, however, a US Appeals Court “reversed and remanded” Judge Koh’s decision to grant the injunction against Nexus devices, criticizing her decision as an “abuse of discretion”. Apple has appealed the ruling.

Late last week on Oct. 20th, Judge Koh also ordered Apple to disclose financial information including profits on specific devices to consider their appeal for an additional $535 million in damages from Samsung. Apple has now appealed the order, claiming the information would help competitors.

Samsung, meanwhile, continues to press its momentum, asking Judge Koh to throw out the entire jury’s decision. Samsung alleges misconduct by the jury foreman Vel Hogan, who they claim misled the rest of the jury in favor of disregarding Samsung’s claim that previous art invalidated Apple’s patents. Hogan failed to disclose that Samsung’s business partner Seagate had sued him and caused his bankruptcy in 1993. Hogan did not answer any questions dishonestly however; he was only asked about litigation in the past ten years. “It is very hard to get a jury verdict thrown out for juror misconduct,” Stanford Law School professor Mark Lemley said in an email to Bloomberg. “If he truthfully answered the questions he was asked, Samsung will have a hard time proving bias.”

Though the potential loss of patent ‘381 further undermines Apples trial victory, Florian Mueller, a celebrated IP lawyer turned analyst doubts it will cause any long term damage to Apple, which has stockpiled dozens of patents for their interface. “It doesn’t matter in a strategic sense if some of [Apple’s patents], or even many of them, get invalidated. [Apple] just needs to enforce enough of them to ensure product differentiation” Mueller posted to his FOSS Patents blog. Apple has, in fact, filed another lawsuit claiming 17 additional Samsung products including the popular Galaxy S III violate Apple patents. “At the end of the day [‘381] just one of many patents-in-suit.”

Starbucks popped up on campus this summer, and with it came the obligatory op-ed criticizing Stanford for selling out to a corporate behemoth. In the Daily, Tom Taylor laments the loss of a place to watch soccer and the choice of Starbucks over local options. But what he calls a “sell out” was really a smart business move by the university.

As a non-profit, Stanford needs money for all sorts of important things like financial aid and faculty salaries. Starbucks pays rent to the university, so every time someone purchases a coffee, they contribute to some university fund. It may not be the financial aid fund, but it will go to something that may alleviate costs for students elsewhere, like Stanford Dining, or that may result in new buildings or faculty or something of some benefit to the university. The people managing those funds may use them poorly, but ideally it will benefit students.

Earning more money for the university doesn’t mean Starbucks has to undertake the venture. But the national chain has proven its profitability and may provide more revenue for the university than a local coffee shop lacking Starbucks’ economy of scale. Also, campus visitors may be more likely to spend at Starbucks than they would at lesser-known places. All of this means more money for the university to spend on its principled positions: providing equal educational opportunity, advancing scholarship for the benefit of humanity, etc.

Taylor is concerned about forgoing a local, unique coffee shop for a corporate one. But Stanford already has local coffee shops. Coupa Cafe began in Venezuela and only branched out to Palo Alto when family members came to Stanford. The family grows their own coffee in Venezuela. Philz operates only in the Bay Area. And of course the CoHo has been a local favorite for years. Also, Starbucks will employ locals who probably appreciate the new job opportunity. Bringing one Starbucks to campus is not going to take away Stanford’s ability to be “unique and quirky.”

Some people prioritize choice in their coffee over the ownership of the shop. Just as Taylor wants the choice to watch soccer on campus, some people want the choice to drink Starbucks’ French roast. The addition of Starbucks probably increases the aggregate utility of students, faculty, and visitors to the campus.

In choosing to allow Starbucks on campus, the university had to carefully analyze what it meant to “sell out.” And it probably determined that Starbucks could raise more revenue and make the campus happier. It weighed one principle (supporting local businesses, soccer watchers) with another (lowering costs for students elsewhere, providing drinks many students wanted). There was no selling out of a principled position, as either position could be principled. Rather than calling it a “sell out,” it should simply be called good business. It would be great if non-profits and higher education didn’t need money to exist, but because they do, revenue must be a constant discussion.

Stanford made a great business decision a few years ago with an example Taylor uses in his op-ed: football. He argues that Stanford didn’t sell out on its football team when they performed very poorly, and that it paid off. But really, funding Stanford football was sort of a commercial sellout, as Taylor would define that term.

By paying for recruiting, training, and logistics, the university enabled Harbaugh and his talented team to turn Stanford football into a commercial behemoth. At the same time, money spent on the program could have gone to academics, financial aid, or other lesser-known athletic programs.

But sales of t-shirts, tickets, and TV contracts benefited other sports programs on campus. Even better, a successful football program probably drove increased donations to the university, and many of those donations directly benefited students receiving financial aid. In diverting resources that could have been spent on other sports programs or the university as a whole, Stanford has made a commercial investment that could be vastly more successful to everyone involved. Few would argue that investing in the football team, the most commercial of Stanford athletic teams, was a bad choice.

Stanford should continue to make smart business decisions, even in the face of people who claim some of them are sell outs. To be clear, there is such a thing as “selling out.” For instance, the university should keep commercial influence out of curriculum and faculty hiring. But when it comes to reasonable advertising or corporate food options on campus, a close assessment may reveal more benefit to more people than otherwise would be the case.

At the final faculty senate meeting last year, several faculty recited a skit  in honor of outgoing Chair Rosemary Knight. It also served as an elegy for the IHUM program:

[SAM Professor Russell Berman:]

“I am Sam
Sam IHUM.
To my classes
Frosh must come.”

STUDENT [Professor Ray Levitt]:
“That Sam IHUM.
That Sam IHUM
I do not like
His curriculum.”

[ Laughter ]

SAM:
“Do you like
Green eggs and IHUM?
Would you like them
Freshman year?”

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“I was an eyewitness to 9/11- I saw the second plane hit the twin towers…Afterwards, like so many people in New York, I wandered the streets, wondering how I could help. I’ve spent the last few years answering that question,” said Jeh Johnson at an October 3rd talk at the Stanford Law School. About 150 people listened to Johnson discuss both his life story and his actions as General Counsel of the US Department of Defense in his talk, “The Role of Lawyers in National Security Policy-Making.”

Johnson began by urging the audience, composed largely of Law School students, to pursue careers in public service. “Law firms are an excellent training ground for the practice of law. But there are many other career paths that you can pursue- public service especially,” he said. “These opportunities often are not as apparent. But they are there.”

He then described his own career path: despite early interest in politics and government, he spent his first 6 years after graduating from Columbia Law School at Paul, Weiss, Rifkind, Wharton & Garrison, LLP, where he concentrated in hostile takeover litigation. Seeking increased court exposure, he then spent two years working as a public prosecutor before returning to private practice. In 1998, President Clinton asked Johnson to serve as the General Counsel of the Air Force- a request that came absolutely out of the blue to Johnson, who had had little previous contact with the Clinton Administration. When asked about his selection during Q&A, Johnson guessed that “the Clinton Administration was just looking for good lawyers…Part of Clinton’s legacy is that he took lawyers like me and steeped us in national security knowledge.”

Johnson first met then-Senator Obama in 2006, at a fundraiser for Robert Menendez, who was running for US senator in New Jersey. Pressure was already building for Obama to run for President: Johnson described how Obama called him the day before Thanksgiving, two months before he officially announced his candidacy, to ask for Johnson’s support if he did run. Johnson went on to serve as a surrogate for Obama on TV, a national security advisor, and a member of Obama’s national finance committee. After Obama was elected, he nominated Johnson to be the General Counsel of the DoD.

As General Counsel, Johnson was in charge coordinating the DoD’s position on legislation, Executive Orders, and Freedom of Information Act requests, determining policy on legal issues, and overseeing the DoD’s force of over 10,000 lawyers.

In his time as General Counsel, Johnson concentrated on two major issues: the proposed repeat of “Don’t Ask, Don’t Tell,” (DADT) and the legal limits on counter-terrorist operations.

Johnson co-chaired, with General Carter Ham, a committee of 65 people assigned to consider DADT repeal. They spoke with over 25,000 soldiers at Information Exchange Forums, so named because “we didn’t want to call them town halls.” They also relied on anonymous online surveys, which allowed LGBT soldiers to speak out without fear of violating DADT: one anonymous soldier said “Repeal would simply take a knife out of my back. You have no idea what it’s like to serve in silence.” They also provided President Obama’s favorite quote on the subject: “We have a gay guy in the unit. He’s big, he’s mean, he kills lots of enemies. Nobody cares that he’s gay.” In the end, Johnson and Ham reported that the risks of DADT repeal would likely be “minimal,” and Congress repealed it.

Johnson’s other concentration has been on the legal aspects of counter-terrorist operations. He said that “Armed conflict against al-Qaeda and its affiliates is the most challenging aspect of my job…We fight the enemy where we find the enemy…[but] our approach has been to apply the conventional principles of armed conflict. We have also tried to be more transparent.” To this end, the US has negotiated agreements with host nations, such as Afghanistan, Somalia, and Yemen; it has also revised guidelines at Guantanamo Bay, in an effort to improve the transparency, legality, and humanity of previous guidelines.

Much of the Q&A session focused on these reforms. A few questions, such as one regarding the criteria for use of force without host nation consent or one regarding potential lawsuits following the publication of No Easy Day, forced Johnson to beg off a complete answer due to classified information. (His answer to the first question was that “in an act of self-defense, we can go into a nation to deal with a terrorist thread it is unable or  unwilling to deal with itself;” his answer to the second was that “he would have publically stated that [the author of No Easy Day] is in violation of his agreements.”) Others evoked a more legalistic response, such as his outline of US options for trying the killers of Ambassador Stevens, should they to be captured. Another question, regarding civilian oversight of the military, elicited a summary of how legal decisions get made at the DoD: the DoD’s 9,500 Judge Advocate Generals review and pass significant decisions to Johnson, the Secretary of Defense, and finally the President. Johnson’s approval of legality is required before the Secretary of Defense and President start to consider potential military-related operations.

Johnson also has had to deal with a number of what he described as “thorny legal issues.” For example, Mt. Soledad in San Diego, is the location of a military cemetery topped by a large cross. Since 1989, the state and federal governments have been involved in rounds of litigation sponsored by the ACLU, veterans groups, and christian organizations, dealing with the presence of the cross. Some solutions, such as selling the land in question, have been ruled illegal or failed as ballot initiatives, while others, like passing the land from the state to federal government, did nothing to solve the problem.

California Common Sense (CACS), a non-profit and non-partisan organization founded by Review Alumni that informs voters by opening government data to the public and analyzing policy, has released their 2012 voters guide to “propositions that will have major fiscal and structural impacts on the State”.

Driven by their “common sense” mantra, CACS has sought out substantive research to back arguments both for and against the propositions in question. Their effort to eliminate rhetoric in favor of data results in analysis that reflects issues like tax return volatility and the distribution of state spending from a given source.

Read about CACS and pick up their voting guide before heading to the polls.

Judge Jim Gray, the VP candidate running with Gov. Gary Johnson is coming to Stanford on October 25th.

Judge Gray is a highly lauded speaker and author who served on both a Municipal and Superior Court in California. Best known for his stance against current drug laws and the War on Drugs, he retired from judicial work in 2009 and sponsored the Regulate Marijuana Like Wine Initiative and became an activist against drug law.

Libertarian Party Presidential candidate Gary Johnson selected Judge Gray to be his running mate on April 30th and the two were officially nominated by the Libertarian Party less than a week later.

His talk, co-sponsored by the Stanford Review and the Decisions and Ethics Center of the Management Science and Engineering Department, will focus on the 2012 election.

Hear him speak October 25th at 6pm in the Oberndorf Auditorium at the GSB.

A Stanford student writes on life and politics inside the Beltway. See other posts here. 

K-Street used to host many of the largest lobbying firms in the country. (Photo: Alex E. Proimos/flickr) 

Ross Douthat, in a recent column, compared Washington, D.C. with the Capitol City in The Hunger Games series. Of course, DC residents don’t usually wear flashy clothes. And the fight to the death is only metaphorical in Washington.

But his comparison makes some sense. The Washington metro-area ranks very high in wealth and education compared to the rest of the country. He attributes the DC area’s increasing wealth and prosperity to increased federal spending. Dylan Matthews dives deeper to determine that the closest correlation with DC’s premium wage growth comes from an increase in lobbying and influence-peddling. While other factors may be at play, Matthews writes, “[I]t seems improbable that the $1.7 billion increase in lobbying between 1998 and 2010 wouldn’t increase wages in the D.C. area.”

K-street, then, is the maker of great metropolises. In fact, K-street tries to be the maker of great nations. But this shouldn’t be. Most people naturally reject lots of money and arm-twisting in the lawmaking process, with decent reason. The democratic ideal strives to give all people equal influence in the political process, and entities throwing money into lobbying disrupts this balance.

But these lobbying corporations, special interests, and organizations are not unjustified in their attempts to influence. Companies represent large portions of the economy and should have some say in how their industries are regulated. And many organizations lobby on behalf of underrepresented groups. Stanford should be lobbying for educational interests when they come before the federal or California State governments. Lobbying can have a positive effect on the policy-making process.

For people who still dislike the lobbying industry, a natural solution to the K-street influence would be to tighten lobbying regulations. Since the Jack Abramoff scandal, many have pushed for and seen greater reforms in the industry. But Abramoff himself remains skeptical of the effects of increasing regulations.

The real solution to limiting lobbying and influence-peddling, if one believes this would be better for society, should not come through increased regulations, but rather through decreased federal spending. Lobbying will increase whenever the government takes a greater role in the lives of the people through taxation, spending, and regulation, as the recent success of the Washington metro area currently indicates. And eventually, efforts to regulate lobbying will run into the first amendment, where they will have to stop. Lobbyists cannot be prevented from donating to or bundling for campaigns, as this would clearly limit their freedom of speech. Additionally, lobbyists cannot and should not be prevented from helping write legislation, where they often bring unique expertise to the table.

The best alternative to limiting influence-peddling and lobbying is to decrease the opportunity cost of choosing not to lobby. When overreaching regulations and barrels full of federal cash land on the House and Senate floor, companies naturally want to make their voice heard. And they should, because they have skin in the game. Lawmakers should weigh the companies’ interests with others’ interests, but in the end all interests should be heard.

Huge amounts of federal spending and high levels of regulation require the government to decide how it should all be distributed, and this isn’t always a fair process, as government has to intrude into the affairs of private individuals and firms. Any central planning will disrupt the fairer transactions of the market (the market isn’t always perfect so there is a role for government, just not as big as one sees now). By eliminating the need for companies and organizations to speak up to defend their interests, the lobbying expenditures in the capital will decline. Limiting lobbying cannot come at the cost of free speech, and should not come at the cost of well-written policy. Decreasing federal spending and regulation would let the market take care of lobbying, which may just leave its better parts.

A lesser K-street may mean a lesser DC metro area. But it would also mean a fairer lawmaking process where those people in the DC metro area have a more powerful vote.