It’s Midterm Season and the Media Is Really Bored

The 2014 midterm elections are rapidly approaching. Next week many Americans (well, probably more like 40% of them) will head to the polls to decide the composition of Congress during the remainder of Barack Obama’s presidency. Healthcare, immigration, the administration’s treatment of the Iraq/Syria conflict and latest Ebola outbreak will serve as prominent avenues of attack for the GOP and points of retreat for many Democratic candidates.

As always, conservative candidates have indulged in their usual series of idiotic statementsludicrous claims (see above), and childish behavior. The Democrats have likewise made their fair share of ill-advised advertisements,  statements and non-statements all topped off with a healthy dollop of academic dishonesty. Not limited to the partisan frey, even universities are getting in on the action this year. Indeed, there has been no shortage of jaw-dropping gaffes and the cross-aisle bickering remains as as fervent as ever. However, there is a distinctly muted aura that has surrounded this year’s campaigning. Even with the fate of the Congressional majority hanging in the balance, Americans simply aren’t interested in next week’s election, and it shows. As a result, the media has produced a startlingly broad consensus on two primary and very much intertwined electoral themes.

First, you have a unanimous forecast of an overwhelming Republican victory. Estimates currently place the chance of a successful Republican consolidation of a Senate majority at various degrees of likelihood. Most exceeding 50% by a very comfortable margin and have been increasing steadily since about mid-month. The Washington Post place the chances of a GOP victory in the Senate at 93%,  The New York Times puts them at 66%, YouGov at 63%, and FiveThirtyEight at 62.3%. While this is certainly in line with the majority of the statistical models, the (editorial, not mathematical) certainty with which these predictions are being touted is unusual. Consequently, the dominant narratives have been those featuring liberal America lethargically resigning itself to a predetermined result.

Interestingly, the introduction of “big data” to mass media and the rise of the infographic have given a new angle to the American love of statistics and cemented the role of the pollster in contemporary politics. It seems as though the “triumph” of nerd-prophet Nate Silver in predicting the outcome of the 2012 Presidential election has inspired a sense of reverence among a new generation of Americans (at least those who consume news media) for the projections of popular number-crunchers.

Backing up these relatively dense and technically-oriented predictions have been a series of pieces that remind the electorate of these conclusions. Even back in September, Fox News’ headlines have highlighted the “gloomy” democratic prospects, while Hill contributors are certain of the GOP’s “big victory in the Senate, House and statehouses”, and Bloomberg editors jumping at the chance to “be the first to congratulate Republicans on their victory“. While I am certainly not suggesting that the Democrats are likely to win (or even retain control of the Senate), dismal Democratic midterm performances may not be as certain as the President may think.

The second, and far more amusing, theme of the upcoming election is the absolute insistence that they are both a) boring and b) not even really about anything substantial. The extent to which the media has rallied around this motif is impressive. Nate Silver, the aforementioned patron saint of millennial stat-fodder, said back in mid-2013 that this is “not a super interesting year in politics” and proclaimed that the 2014 midterms will be “dull“. The Atlantic ran an article from Peter Beinart that explains how the relatively “low stakes” of this election are to blame for the fact that it’s “so boring“. New York Times contributor David Brooks called it “the most boring and uncreative campaign I can remember“, while The New Republic ran an article with the title It’s Not Just You. The Midterms Are Boring. Even the more vigorously partisan outlets are running the message: The American Conservative published The Boring Midterms about the aforementioned Atlantic piece while MSNBC’s  Morning Joe discussed David Brooks’ remarks.

This is taken a step further by several outlets claiming that not only are the midterms boring, but they don’t even have any substance to speak of either. An NBC article proclaimed that “the 2014 election sounds at times like a campaign about nothing“, while The New Republic’s Guide to Midterm Elections asserts that “if you want to talk about policy, you’ll have to wait until 2016“. Gloria Border of CNN capitalized on the sentiment of the former, explaining that “to a degree, this is a Seinfeld election, a show about nothing“.  While the majority of these articles admit that the election results will likely not be inconsequential, they’re all united in condemning the vapidity of political discourse as if it were unique to this particular election.

The battle for control over the trajectory of American politics exists much as it has for the past few decades. The intense political polarization of Americans is welldocumented and looks to be increasing with each passing year. I’ve written before about how so-called “Independents” are really anything but and the decreasing number of swing voters in America is fast becoming a defining element of electoral strategy, two points raised by Lee Drutman and Mark Schmitt in their Washington Post article The 2014 campaign is a campaign about nothing. As familiar as we now are with this theme, Drutman and Schmitt astutely judge that the acute lack of “ideological overlap” between parties and lack of incentives for aisle-crossing centrism are driving the high-cost/low-substance character of the 2014 elections. The intense and deep-seated polarization in Congress reflects the American flight from the center.

While the 2014 midterms may come to be defined by their monotony, there are still a few reasons to tune in. For one, there are a few interesting candidates. There’s a cartoon cat-tie wearing pizza guy (who “actually does” smoke marijuana) and an American (almost) Idol, both pursuing Congressional office. There are also a few (legitimately) important issue items such as the potential “second wave” of marijuana legalization which could have profound effects, not only on the future of the drug’s legality on a national scale but also on the recently reinvigorated debate over D.C. statehood. The success of certain campaigns will likely also influence the future of the debate surrounding “dark money” in politics and the 2010 Citizens United ruling. Of course there is also the off-chance of an upset victory. This is most interesting in the case of  Kentucky Democrat Alison Lundergan Grimes, who is benefiting from the public assistance of populist heavy-hitter Sen. Elizabeth Warren in her attempt to attempt to unseat the current Senate Minority Leader, Mitch McConnell.

Besides, there’s always the presidential election looming in the distance. And if you think that the problem with this election is a lack of exciting new blood, just wait until we’re confronted with Bush vs. Clinton in 2016.

The Death of Mainstream Legal Opposition to Gay Marriage in America

Coming right off the back of a similar ruling in Oregon, the recent Pennsylvania Supreme Court decision against the state’s same-sex marriage ban made it the 19th state, alongside the District of Columbia, to allow gay marriage (or, depending on your tolerance for semantics, the 25th – if you include states that currently don’t disallow it). In striking down the ban, District Court Judge John E. Jones III, a George W. Bush appointee, stated emphatically that:

“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

The decision, made just a few days after the 10th anniversary of the first American gay marriage legislation, has brought with it several noteworthy milestones in the country’s stroll towards equality. For reference, an interactive map with a quick breakdown of the gay marriage situation in each state is available here. The Pennsylvania ruling has consolidated the northeast as the second American region (alongside the states of the Pacific coast) to boast full marriage equality. While progress has largely followed the familiar ‘two-steps-forward-one-step-backwards’  approach to progressive reform in the United States, this week’s decision marked a staggering 14th straight victory for advocates of equality.

It would seem that, for the time being, momentum is on the side of justice. At the moment, approximately 48% of Americans live in a state with full marriage equality. When considering the changes brought by the recent decisions in Oregon and Pennsylvania and the relative estimated density of each state’s gay residents, it’s possible that the majority of gay Americans can now marry in their home state. Additionally, a recent Gallup poll has indicated that a record-high (55%) percentage of Americans agree that “marriages between same-sex couples should… be recognized by the law as valid, with the same rights as traditional marriages”, as seen below.

Unsurprisingly, the figures also show overwhelming support for same-sex marriage among Millennial Americans, with the 18-29 age group nearly twice as likely to support it as those in the 65+ bracket (78% vs. 42%). It seems likely that the younger generation is poised to drag the country into a relatively progressive future through sheer electoral brute force.

Amusingly, Judge Jones’ decision made reference to the Federal Supreme Court Justice (and prominent conservative judicial activist) Antonin Scalia’s caustic dissent against the Court’s 5-4 ruling against the Defense of Marriage Act’s exclusionary definition of marriage in United States v. Windsor. Couched within his tirade against “same-sex marriage (or indeed same-sex sex)”  is a prediction that the actions of the majority in striking down DOMA “arms well every challenger to a state law restricting marriage to its traditional definition”. Regardless of the tone and intent with which Scalia’s prognosis was produced, several publications across the political spectrum have noted just how prophetic it has turned out to be.  

Indeed, in the summer of 2014 we have reached an interesting point where a District Court Judge appointed by George W. Bush is citing language written by a Supreme Court Justice appointed by Ronald Reagan in striking down popular state-level bans on gay marriage. Indeed, he is in good company, with the vast majority of post-Windsor pushes for equality coming via judicial review attached to explicit references to the landmark case (see above).

Dr. Martin Luther King Jr. famously said that “the arc of the moral universe is long, but it bends towards justice”. In America that arc often proves itself to be frustratingly long, but it continues to bends nonetheless. Progress in establishing national marriage equality has, at times, been frustratingly lethargic, but the wave of recent District Court decisions is certainly cause for cautious optimism.

Update (11/08/14): The streak of unbroken pro-marriage equality decisions was finally ended by Roane County Circuit Judge Russell E. Simmons, Jr. in Tennessee.  In his decision, Judge Simmons Jr. said that “neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility”. Amusingly, the case of Borman vs. Pyles-Borman was, in fact, brought to the court in order to determine the state’s ability to provide the couple with a divorce (by recognizing the validity of their marriage which took place in Iowa). Thus, the ruling effectively forced the couple to stay married in Tennessee.

The Shutdown and America’s Post-Democratic Era

The ongoing government shutdown and Congressional stalemate over the government’s ability to fund its programs has highlighted an essential element of contemporary American Zeitgeist.  Financial backing for the Affordable Care Act, which was passed into law in March 2010, has run aground while facing opposition from a very vocal Republican minority within the House of Representatives. The anti-healthcare contingent has demonstrated that it has no qualms about doing wide-rangvoiling damage to the government of the United States or the American citizenry in order to divert national attention to their agenda. Despite the fact that Obamacare remains a fait accompli, the far-right remains convinced that by obstructing the continued operation of the federal government, they will achieve their goals. Welcome, everyone, to the post-democratic era of American politics.

The shutdown has come as the manifestation of an increasingly stagnant legislature that has produced record levels of dissatisfaction among constituents. Aggregated across multiple polling efforts, Congressional approval ratings are currently peaking  just a fraction above 10%. As discontent with Congressional intransigence continues to swell, especially among disaffected Millenials, the age-old American myth of unadulterated self-reliance has been given a new lease on life. An excellent example of this, if you’ll remember, was the Romney presidential campaign’s attempt to decontextualize the ‘If you have a business: You didn’t build that’ soundbyte from a July 2012 speech by the President. While it remains blatantly obvious to any casual observer (or, in fact, anyone who bothers to read the line in context) that the president was not suggesting than an omnipotent central government was responsible for the success of small-business entrepreneurs in America, that did not stop the GOP from pushing their agenda of finger-pointing and birther-esque slander. Indeed, an appallingly cynical conception of America’s working poor and the willingness of Tea Party politicians to regurgitate an abundance of boldfaced lies have combined with the enduring American tradition of governmental distrust to foster a disconcerting base of support for those committed to the anti-government cause.

The very nation’s commitment to “exceptionalism” at the expense of popular welfare has produced, in its latest manifestation, a detrimental legacy of disregard for the marginalised sectors of society. This tradition of neglect forms an oft-ignored subtext that underscores the increasingly prominent return of rhetoric that fetishizes notions of ‘rugged individualism’ and a disdain for the working poor. Despite the disastrous results of the President Herbert Hoover’s trust in the virtues of self-reliance to guide the country through the burgeoning Great Depression and the absurdity of Reagan’s ‘by your bootsraps’ convictions (we’re still waiting for that wealth to trickle down…), high profile Republicans and Libertarians continue to deliver lines that would make Ayn Rand beam with pride.

Once responsible for fostering the immigrant-friendly ‘melting pot’ culture that attracted the world’s greatest scientific and academic minds, America’s fascination with individualism and self-determination forms an integral part of the national spirit (not to mention the second passage of the Declaration of Independence). Today’s ‘Boostrap revival’ efforts, however, have perverted the egalitarian and anti-bourgeoisie aspirations apparent in the spirit of America’s inception. In an ironic move that has pitted the ‘populists’ against the population, shutdown-era radicals of the far-right equate future lower and middle-class prosperity with the eradication of government assistance to those very same groups. We have to look no further than the mid-September bill pushed through the House of Representatives by the GOP majority. The proposed legislation features deep cuts to federal programs that provide assistance (namely ‘food stamps’, which increasingly come in the form of debit-style electronic cards) to those who otherwise cannot afford to eat.

The Nutrition Reform and Work Opportunity Act, which features over $40 billion in cuts over the next 10 years to the government’s Supplemental Nutrition Assistance Plan (SNAP), was labelled ‘one of the most heartless bills I have ever seen‘ by Democratic Representative James McGovern from Massachusetts. The Republicans, for their part, have an entirely different perspective. House Speaker (and shutdown celebrity) John Boehner claimed that the bill would make ‘getting Americans back to work a priority again for our nation’s welfare programs’. This sentiment, as well as the bill’s lofty title, would lead you to believe that the bill contains some sort of pro-labor provision that would work to help soften the blow of slashed government benefits to the poor. This, however, is far from the case.

When viewing the Act’s contents, any allusions of GOP sympathy for impoverished Americans are quickly dispelled. Boehner’s description of the bill’s utility as a tool in expediting the unemployed masses’ return to work is wildly disingenuous. In place of any remotely proactive initiatives exist a series of draconian measures that highlight the elimination of ‘state performance bonuses’, ‘increas[ed] oversight of SNAP programs for the homeless, elderly, and disabled’, and the consent of the federal government for states to ‘conduct drug testing on SNAP applicants as a condition for receiving benefits’.  Voilà, ça y est. Today’s Republicans care little about reinvigorating the working-class foundation of the domestic economy, and much more about preventing the President’s health care bill from coming into effect.

The third item of  the aforementioned list has featured heavily in recent conservative agendas. The push to mandate drug testing for SNAP recipients does little to discourage the perpetuation of the caustic and bigoted ‘welfare queen’ mythology. It has become increasingly clear that the modern libertarian equates poverty with sloth and unemployment with apathy. The drug testing initiative, in addition to being ethically and morally objectionable, has been shown to make little economic sense. Florida conservatives were temporarily successful in launching a new law that resulted in a four month period of testing in 2012. In a deeply ironic twist, the examinations produced a failure rest of just 2.8%, which resulted in a cost to the state of $118,140. The program, which cost the state more than the expense of the potential benefits to the 2.8% of drug-using welfare-recipients, was deemed likely to have been a ‘constitutional infringement’ by a Federal District Court who discontinued the testing via temporary injunction.

The unsurprising results of the Floridian experiment have done little to deter the right wing’s push to further marginalize the American lower classes. Regardless of the matter at hand, be it food stamps or healthcare, it is clear that the anti-government contingent of the GOP will stop at nothing to see the income disparity widen and the downtrodden fall increasingly underfoot. The most recent manifestation of this desire, the government shutdown, has only pushed their pursuit further into the international spotlight. It is becoming increasingly apparent that the far-right is far less concerned with implementing alternative routes towards American prosperity than they are to obstructing ideologically undesirable legislation and attempting to annihilate the reputation of Democratic presidents.

 

madhouse of reps
Star Tribune/Cagle Cartoons

 

The unflattering rightward shift of the political spectrum in the United States has coincided with a growing disparity between the privileged few and the disenchanted masses, with the lower echelons of society inheriting the lion’s share of the resulting burden. The contingent of anti-welfare extremist Republicans in the House of Representatives referred to as the ‘Anarchy Gang’ by Senator Elizabeth Warren and their constituents have achieved an overwhelming level of success. President Jimmy Carter recently remarked that:

The disparity between rich people and poor people in America has increased dramatically since when we started… The middle class has become more like poor people than they were 30 years ago.

Adding insult to injury, the push to disenfranchise (see: the recent fight over voter registration laws) and marginalize the American masses is exacerbated by a declining education system. The de-funding of public schools fits neatly into the far-right’s program to comprehensively privatize American life. It also, not-so-coincidentally, functions to inhibit the upward mobility of citizens and abolishes any prospect of ‘bootstrap’-style salvation. A recent report by the Organization for Economic Cooperation and Development has quantified the decline of American academic prowess. A BBC article on the report remarked that the United States represented ‘an education superpower of a previous generation’, where younger generations are increasingly less educated than their parents. This downward spiral has had tangible effects beyond the general ignorance of the population, with the number of ‘highest-skilled’ professionals in the US falling from 42% to 28%.

The reality, however, has remained almost entirely irrelevant to the far right. Plummeting levels of education and unprecedented levels of poverty Practicalities do not represent any significant impediment to the GOP’s pursuit of unabashedly ideologically-driven agenda. If anything, the downward trend in education enables the radical right’s pursuit of all things anti-science and anti-modern. Equally, it simply does not matter that  their ‘small government’ rhetoric runs completely contrary to drug testing for welfare recipients that costs the state exorbitant sums. The fact that Obamacare is based largely on conservative designs and represents a significant step forward for the American population is equally irrelevant. The commitment to antagonism at the expensive of reason has spawned claims about the Affordable Care Act that cross a line drawn far beyond absurdity and extend well into the realm of nauseating obscenity. The legislation, which functions to expand healthcare provisions to significant swathes of previously-uninsured Americans, has been labelled ‘a law as destructive to personal and individual liberty as the Fugitive Slave Act of 1850‘ by Republican Representative Bill O’Brien. Tea Party leader and architect of the ‘not-quite-filibuster’ Senator Ted Cruz has led the charge among the minority of Republicans committed to a protracted shuttering of the government. In his opinion, the President and Senate Majority Leader Harry Reid are responsible for grinding the government to a half over their unwillingness to ‘compromise’ on Obamacare. The reality, in stark contrast to the Tea Party Senator’s remarks, is that the Patient Protection and Affordable Care Act passed through both houses of Congress, was upheld by the Supreme Court, and was reaffirmed by the election of Obama (in lieu of Mitt Romney, whose promise to ‘repeal Obamacare’ formed the basis of his entire presidential campaign) to a second term.

While the  shutdown has come as a shock to many, American and non-American alike, it is really far from surprising when viewed from a wider perspective. The current situation has come as a simple product of cause-and-effect. There can be no reasonable expectation of responsibility when ideologues are voted into government. It is not an event that comes without repercussion. It seems especially silly to except the smooth operation of Congress from Representatives that campaign on a platform of anti-government values. When politicians are more committed to the partisan pursuit of destroying the legacy of an incumbent President than they are to providing for the well-being of their fellow countrymen, it becomes absurd to expect a positive result.

It is dangerous, though, to think of the Congressional deadlock as the problem, and not a symptom. The shutdown (and possible upcoming default) has come as a direct consequence of the mainstream acceptance of Tea Party politicians and the dangerous extremes that they represent. Most recently, an individual appeared at the anti-Obama protests in front of the White House accompanied by a Confederate flag. This wildly inappropriate gesture in many ways embodies the senselessness and misguided nature of the government shutdown as well as contemporary American politics at large. Despite impassioned cries of protesters, galvanized by an appearance of Tea Party celebrities Sarah Palin and Senator Ted Cruz, the truth that emerged undeterred. In today’s political arena, the reality has taken a back seat to reactionary fervor. Fear and moralizing partisanship have overtaken the practical considerations of governing, and politics has been reduced to a game of who can behave in the most petulant manner. The reckless brinkmanship is well represented in the recent remarks of President Obama, who has continually affirmed that he ‘will not negotiate’ over things like ‘the full faith and credit of the United States’ or ‘whether or not America keeps its word and meets its obligations’. However, it remains quite difficult not to mentally substitute the latter half of that phrase with its more conventional conclusion.

In response to the flag-bearer’s breach of decorum, Atlantic editor Ta-Nehisi Coates remarked that ‘If a patriot can stand in front of the White House brandishing the Confederate flag, then the word ‘patriot’ has no meaning’. In addition to the immediate significance, the sentiment is especially poignant in considering the contemporary distortion of traditional GOP priorities. Gone are the days when practical economic considerations drove policy within the Republican Party. While it’s very likely that Congress will conjure up a last-minute compromise to avoid a cataclysmic breech of the debt ceiling, it will not be because any minds were changed. No compromises will be struck, because today’s Conservatives are uninterested in doing so. Pragmatism, like bipartisanship, is a relic of the old GOP.  The new Republican party is willing to be defined by a small minority of Tea Party extremists who are,  by and large, more concerned with portraying the President as a litany of increasingly laughable evils than they are with improving the country, or, as the previous weeks have demonstrated, even allowing it to function.

Presidential Declarations of War and American Unilateralism

After reading the shameless attention-grab that was Tim Stanley’s latest Telegraph blog post (Obama and Syria: Britain has helped Obama rediscover the Constitution. No need to thank us, America), I realised that it was not, in fact, the ‘Anarcho-Catholic’ and ‘temperamentally conservative’ author’s attempts at being clever (‘Obama referred to America as a constitutional democracy. It’s a republic, sir, a republic. What grades did he get at college I wonder?‘) that made the largest impression on me. Instead, it was the fact that he considered Obama’s decision to seek Congressional approval for a military intervention to have been a ‘remarkable performance.’ The notion that the President’s decision to seek out the proverbial ‘green light’ from Congress is at all controversial is deeply worrying. While the school of thought that considers unconstitutional every post-Second World War American armed conflict (John Nichols writes that ‘no president since Roosevelt has respected the Constitution sufficiently to seek a formal declaration of war.’) fails to account for the insufficiency of archaic international institutions, political assumptions, and legal norms, it certainly seems more lucid than the alternative. As House Republican Peter King sees it, Obama is ‘undermining the authority of future presidents’ by not acting unilaterally in lobbing cruise missiles into the Syrian conflict. ‘The president doesn’t need 535 Members of Congress to enforce his own redline‘, he argues. But at what point was the Commander-in-Chief given the power to draw these red lines in the first place?

Obama and the Red Line in Syria
David Fitzsimmons/The Arizona Daily Star

Jack Goldsmith, Professor at Harvard Law School, expert on international law, and former Assistant Attorney General published a blog post entitled ‘Why Doesn’t President Obama Seek Congressional Approval for Syria?‘ a few days ago, when a Presidentially-sanctioned unilateral  strike seemed all but imminent. After running through a litany of potential justifications for such a broad conception of presidential power (e.g. ‘military action is being rushed’, ‘formal congressional approval is not a priority’, etc), he concludes that exactly none ‘are good reasons from a constitutional perspective, and in light of the costs of unilateralism’. While the first half of that statement is rather self-evident, the latter half deserves more than a passing acknowledgement. Thus, we will return to the notion of unilateralism in concluding this text. It would seem that Constitutional law scholar Garrett Epps concurs with his Harvard colleague, going as far as to title his first article in The Atlantic on the topic ‘The Authority to ‘Declare War’: A Power Barack Obama Does Not Have‘. In a twist that only becomes ironic after reading the commentary of Tim Stanley, Epps points out that while the Prime Minister of the United Kingdom reserves the right (backed by ‘Royal Prerogative’) to send Britain into war without Parliamentary consent, the American President surely does not. He continues on to explain why historic precedents of Presidentially-sanctioned intervention (most notably: Korea) do not readily apply to the current situation.  As any action would, inherently, lack the pretence of defensive or emergency action, Epps judges that: ‘This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between President and Congress.’ He conjures up a very appropriate quote from South Carolina Governor and author of the United States Constitution, John Rutledge as he argued against a President with exceedingly broad powers during the  from the minutes of the Federal Convention of 1787:

‘ [Rutledge] said he was for vesting the Executive power in a single person, tho’ he was not for giving him the power of war and peace.’

If that is not applicable to the debate over the Framers’ intentions, I do not know what is. Epps went on to publish a second article, Yes, Congress Can Authorize War Without Formally ‘Declaring’ It, which refutes the notion that a Congressional decision is an ‘all or nothing’ affair that was meant for national mobilisation for Total War. In agreeing with Alexander Hamilton’s judgement that the ‘powers of war and peace’ should be viewed as ‘a concurrent authority’ that is shared between the President and Congress. He further levels his sights against those who share the views of John Nichols in pointing out that:

‘If every “undeclared” conflict is a violation of the Constitution, we need retroactive impeachment of Adams, Jefferson, Monroe, Eisenhower, Johnson, Reagan, and both Bushes.’

Finally, and most importantly, Epps emphasises the fact that  international law is ‘very much a part of the constitution’ (see, for example, the Supreme Court’s recognition of international treaties in relation to the Supremacy Clause [This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…]), and, as such, war can not be used as mechanism of foreign policy. In any case, I do not find persuasive arguments that place a higher importance on defining the words ‘declaration’ and ‘war’ than on the notion that the Constitution has provided the United States Congress with the responsibility (emergency situations notwithstanding) of deciding when military action is appropriate, and when it is not. Even a cursory glance at the eighth section of the very first article  will give the impression that Congress was to be given the responsibility of authorising the use of what has become the world’s most powerful army. I believe that unilateralism, in its various manifestations, is the quintessential problem with contemporary American foreign policy. That is to say, I think it is the most fundamental flaw. A lack of regard for the opinions of the rest of the planet is the culprit behind such a staggering proportion of the world’s (freely substitute: “Intellectuals”, “Europe’s”, “the United Nations'”, etc.) problems with the last remaining superpower. It is so rare to encounter individuals who harbour a genuine aversion to the concept of humanitarian intervention, though it is equally rare to find someone who believes that the United States has done a stellar job of spearheading such efforts. Similarly, the question should not, as Kerry and company have indicated, be centred around whether or not President Obama reserves the right or privilege of commanding the military into action. Instead, I propose,  it should be about whether doing so would be such a good idea after all.

The Future of File Sharing

As a life-long nerd, I’ve followed the development of online piracy and the ensuing industry backlash since the days of Napster (which, I might add, was developed by Shawn Fanning, a high-profile dropout of my alma mater, Northeastern University). The advent of publicly-available, affordable, and easily-accessible broadband internet and the introduction of file-sharing software to the mainstream user have ushered in a new realm of intellectual property challenges. The spectre of widespread online piracy has emerged as a  thorn in the side of entertainment and legal entities worldwide.

On the more aggressive end of the prosecution spectrum, you find agencies such as the American Department of Homeland Security’s Intellectual Property Rights Center (DHS IPR) and its long list of partner agencies. [1. http://www.iprcenter.gov/ ] Among the  DHS’ most visible ties are those to the Recording Industry Association of America (RIAA), which is most notorious for its string of hawkish and costly lawsuits  throughout the mid-2000s. The series of lawsuits emptied their pockets to the tune of $64,000,000 over a three year period, while only to returning a paltry $1,500,000 in damages ($1.5 for every $64 spent), [2. http://www.techdirt.com/articles/20100713/17400810200.shtml] and pursuing legal action against high school cheerleaders (after labelling them ‘vexacious’ after not agreeing to settle for $200 per song). [3. http://www.wired.com/threatlevel/2008/10/riaa-decries-te] For a comprehensive look at the RIAA’s legal crusade between 2003 and 2008, check out RIAA v. The People: Five Years Later on the Electronic Frontier Foundation’s website.

Das tut uns leid.
Das tut uns leid.

Obtuse and heavy-handed copyright enforcement hasn’t been limited to the sue-happy legal culture of America, though. An honorable mention goes out to the German Gesellschaft für musikalische Aufführungs-und mechanische Vervielfältigungsrechte (GEMA), which takes its duties as seriously as its name scheme would suggest. If you’ve ever lived or travelled in Deutschland, I’m sure you will have been made intimately familiar with the preceding image. They have been accused for single-handedly putting Germany back into the ‘digital dark ages’ by making an obscene proportion of Youtube videos unavailable to the general public. [4. http://www.thelocal.de/sci-tech/20130130-47633.html]

The entertainment faces a significant reshuffling with the dawn of quickly accessible online content. No longer are the industry’s middle men be able to extort exorbitant fees for an obsolete service. Equally, rights-holding companies will be less empowered to use the technical limitations of media ‘artifacts’ (i.e. CDs, DVDs, etc.) to maximise profits and resist technological progress until it is economic convenient. As a result, a series of comically absurd anti-piracy advertisements have been produced, as seen below.

…as well as the Motion Picture Association’s much-lampooned ‘Piracy, It’s a Crime’ campaign.

The notion that motor vehicle theft and downloading unlicensed media exist in the same legal realm is rather absurd. While the circumvention of legal avenues for  acquiring media is at best a snub of the social contract and by no means something that should be encouraged or perpetuated, nor is it something that can be effectively advocated on ethical grounds, the knee-jerk reaction that ‘piracy is bad for the entertainment industry’ may not be as cut-and-dry as it initially appears.

Allegations of lost profits made by the various trade associations (and government agencies on their behalf) fail to take into account the reticence of the industry to accept the new order that began with the modern internet. As peer-to-peer networks have demonstrated, there is absolutely no need to provide the consumer with physical media any longer. To claim that this has no impact on the products final cost is rather absurd. I would argue that media is now much more susceptible to legitimate market forces, as consumers are now able to obtain the film or album in an illegal manner with little to no additional effort. Compounding things is the fact that the entertainment industry’s attempt to halt technological progress with the invention of the DVD, it’s not only becoming easier to acquire things illegally, but you’re often left with an equally high-quality piece of media without having to first invest in expensive and superfluous ‘flavor-of-the-month’ hardware with which to play the media. Ironically, those who choose to view the media illegally also avoid the un-fast-forward-able anti-piracy messages that plague the first thirty seconds of DVD offerings.

Unfortunately for the profit margins of the media conglomerates up in arms with the common downloader, there is mounting evidence to suggest that piracy does very little to erode the sales of popular media. The wildly popular HBO-adaptation of George R. R. Martin’s Game of Thrones series was recently revealed to have made back-to-back claims to the title of most frequently illegally downloaded television series, (even if the most conservative figures are consulted) with about 5.2 million ‘pirates’ compared to 5.5 million network viewers.[5. http://mashable.com/2013/06/24/game-of-thrones-most-pirated/ ] What’s interesting, however, is that Season 2 of the show has thus-far topped Amazon.com’s Best-Sellers list for television shows in 2013. [6. http://phx.corporate-ir.net/phoenix.zhtml?c=176060&p=RssLanding&cat=news&id=1838005 ]

Other evidence has appeared through events like comedian Louis C.K.’s experimental release of a self-produced release, entitled Live at the Beacon Theater, which was distributed independently via his website in late 2011. In avoiding the traditional channels of diffusion (namely broadcast and physical media), C.K. provided fans with the performance for a fraction of the traditional price. Wrapped up in a few sincere words from the comedian himself that reiterate his belief that a strengthened fan-artist relationship and reasonable pricing scheme deter piracy, the consumer was provided with access to multiple digital downloads and an online streaming version of the performance free of any sort of annoying digital rights management (DRM) schemes for a mere $5. As a result, the comedian accrued over $1,000,000 in sales in only twelve days (of which $280,000,000, arguably a conservative estimation of the amount that would have been claimed by a production company, went to charity) .[7. https://buy.louisck.net/news/another-statement-from-louis-c-k]

What’s the point of all of this? You certainly don’t have to declare yourself a fan of illegal downloading to participate in the ongoing dialogue regarding the evolution of intellectual property, the entertainment industry, and most importantly, the willingness of governments to devote valuable resources to the prosecution of those who choosing to commit illegal acts that have been demonstrated to have little consequence on society at large. It’s at this point that parallels can be drawn to the failed War on Drugs. In the same way that one can support the redirection of government funding and energy away from the futile and destructive battle against illicit drugs without actually supporting their use or taking them personally, it’s possible to speak out against government subservience to legal teams of the entertainment industry and the conscious effort to impede technological progress and the benefit that it brings consumers without actually participating in the activities yourself.

While the moral and ethical arguments against the infringement of intellectual freedom touted by prominent actors such as Kim Dot Com (of Megaupload fame), the Pirate’s Bay trio (Gottfrid Svartholm, Peter Sunde, and Fredrik Neijj) [8. TPB AFK: The Pirate Bay Away From Keyboard, a documentary about the three founders of the Swedish file sharing monolith can be found at http://www.youtube.com/watch?v=eTOKXCEwo_8], and Anonymous can be difficult for the average internet user to identify with, they do not detract from the importance of the larger debate. The recent mass-market appearance of technology like the 3D Printer only increased the stakes of this debate, as the nexus of file-sharing and intellectual property will involve an even more immediate assortment of real-life consequences. The new ground being broken by today’s legal debates has the potential to set a series of precedents for years to come.

How will the issue change when the average citizen can download the plans to ‘print’ an assault rifle? In what ways, legally-speaking, will that data be treated differently from a unpurchased film? While we have the distinct generational privilege of witnessing the debate unfold in front of our eyes, I’m optimistic that our children’s children will be able to watch it online, instead of buying the DVD.