Mr. Beck goes to WIPO

Can a mere domain name be defamation? Glenn Beck says yes.

Memes strike back...

Full disclosure: I'm linking to these articles for several reasons.

First, anything that shines negatively on Glenn Beck is inherently good. Everyone is entitled to their own opinion. There are people out there that believe that he is the truest form of patriot. They are entitled to that belief. Personally, I believe he is a meglomaniacal, pompous, ignorant gasbag who shouts, weeps and deceives purely out of a desire to drive ratings and expand his brand. He is a phony.

Second, there is a legal issue involved in these articles and it is an issue that will continue to grow as the internet continues to shrink our planet.

Third, the photo of Beck as Leonidas of the movie 300 is freaking hysterical.

Improper Influence: Now FDA-Approved!

As if there wasn't already ample evidence that the FDA approval process for drugs and medical devices is broken (Vioxx, anyone?), this New York Times article provides a cherry on top. With all of the attention paid to the healthcare debate, perhaps we should widen the discussion a bit more to include a conversation about how to end the practice of politics influencing life and death decisions in the FDA approval process.

This is another prime example of the government failing to execute one of its most fundamental and basic functions, that of ensuring the health and safety of citizen-patients.

ACORN Madness!

Unless you've been off the grid for the last two weeks (if you have I commend you and I'm envious), you've probably heard something about the ACORN (Association of Community Organizations for Reform Now) 'scandal.' GOP lawmakers and conservative talkingheads are lathered up good over an undercover video that was posted to the internet two weeks ago in which ACORN employees appear to be offering tax advice to a prostitute and her pimp. Predictable blustering and harumphing ensued, followed by mock outrage at the way taxpayer dollars were being spent.

Apparently, ACORN was set to recieve a smidge of the TARP funds (To put 'smidge' into context, Rep. Alan Grayson of Florida had this to say: "The amount of money that ACORN has received in the past 20 years altogether is roughly equal to what the taxpayer paid to Halliburton each day during the war in Iraq.") In order to strike a blow to the forces of evil (you know, those forces responsible for registering poor and underserved voters, gasp!) the House quickly drew up legislation to deprive ACORN of ever receiving federal funding. They even gave it a nifty name (just in case you didn't know the purpose of the legislation), the Defund ACORN Act.

For those who might be out of the loop when it comes to GOP bogeymen (including me, prior to pokin around the intarweb), the GOP and its cohorts have been after ACORN for a while now, alleging, among other things, voter fraud. Normally I would chalk all of this up to politics as usual, in the same camp with the unsavory practice of naming legislation after abducted, raped or murdered children. However, the poorly drafted legislation could have unintended, and hilarious, consequences.

If the legislation is enacted and applied as written, it would prohibit "covered organizations" from ever receiving government money, whether in the form of contracts, grants or any other type of disbursement. So far, so good. It's not until the legislation defines "covered organizations" that it runs into trouble:

(b) Covered Organization- In this section, the term ‘covered organization’ means any of the following:


2(1) Any organization that has been indicted for a violation under any Federal or State law governing the financing of a campaign for election for public office or any law governing the administration of an election for public office, including a law relating to voter registration.

(2) Any organization that had its State corporate charter terminated due to its failure to comply with Federal or State lobbying disclosure requirements.


(3) Any organization that has filed a fraudulent form with any Federal or State regulatory agency.


(4) Any organization that--


(A) employs any applicable individual, in a permanent or temporary capacity;


(B) has under contract or retains any applicable individual;

(C) has any applicable individual acting on the organization’s behalf or with the express or apparent authority of the organization.

Unfortunately for the reactionary lawmakers responsible for this farce, most of the U.S. defense industry falls under this definition of "covered organization." As Ryan Grim of the Huffington Post puts it, "the bill could plausibly defund the entire military-industrial complex. Whoops."

This point has not been lost on Rep. Alan Grayson. Mr. Grayson is asking the public to help compile a list of "covered organizations" in order to have it added to the legislative history of this bill. See here for a radio interview with Representative Grayson.

The other issue confronting proponents of this bill is the Constitutional prohibition against bills of attainder. For a look at the relevant precedent dealing with bills of attainder, see here.

Net Neutrality for Your Wireless Device?

F.C.C. chairman Julius Genachowski gave an interesting speech at the Brookings Institution this morning. In his speech, Mr. Genachowski proposed to extend "Net neutrality" principles to wireless network carriers. "Net neutrality" refers to the principle of treating all network traffic the same, prohibiting providers from favoring certain forms of traffic over others. "Net neutrality" already applies to home broadband providers. Non-neutrality has been an issue for file-sharing applications on some provider's networks.

With today's proposal, Mr. Genachowski would extend neutrality principles to wireless network providers, such as AT&T. The industry response has been predictably lukewarm. The New York Times and Ars Technica have articles on the speech.

The Behind the Scenes Battle in the Health Care Debate

In August Murphy featured a post discussing the backroom deal between the White House and Big Pharma that was supposed to bring Pharma onboard for the healthcare reforms. Sadly, despite Obama's reprise of Homer Simpson selling his soul for a doughnut, Big Pharma's support might not really matter. The GOP and the usual band of reactionary talking heads have waged a filthy (and successful) campaign to scare the heck out of the American people on the issue of health care.

Since that post in August we've had Sarah Palin creating the spectre of 'death panels,' which she claimed was part of the health care legislation. (Which of the numerous plans in committee she was referring to is still unclear. But hey, it makes great copy.) Not to be outdone by the Rhodes Scholar from Alaska, The Honorable Senator from Iowa Chuck Grassley summoned the bogeyman to granny's door. Finally, we've seen perfectly reasonable citizens attending townhall meetings packing heat and toting signs featuring President Obama done up in Nazi regalia.

Because these types of stories sell newspapers, magazines and drive ratings on cable news channels (with almost no additional sensationalizing needed!), they have been on a constant loop in the media. Obviously, this is a tremendous boon to the insurance industry because it serves their goal of defeating reform. More importantly, however, it allows them to pursue policies that are vastly more effective than grassroots (or astro-turfed) campaigns executed by the frothing-at-the-mouth minions of Rush and Glen. And, with the mainstream media fixated on the Sarah Palins of the world, the insurance industry PR machine can operate free of the watchful eye (that might be a stretch; maybe just 'eye') of journalists.

A piece on salon.com today features the remarks of Wendall Potter. Mr. Potter was a communications officer for the health insurer Cigna. In the piece Mr. Potter discusses the great lengths the insurance industry goes to in order to inform and frame the debate on health care reform. Also, he discusses the industry's efforts to provide lawmakers with selective statistics to help them bolster their case for opposition to reform. The article is informative largely because Mr. Potter spent 20 years working for the insurance industry and was present for the last reform battles in this country.

Will the Supreme Court upset precedent, and allow corporations to spend their profits bashing political adversaries before elections?

As far back as 1905, in an annual address, Teddy Roosevelt blasted corporate campaign contributions, asserting:

All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts. Not only should both the National and the several State Legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation save by the employment of counsel in public manner for distinctly legal services.

Over 65 years later, Congress passed the Federal Election Campaign Act of 1971 ("FECA"), 2 U.S.C. 431, et seq., which prohibited unions, national banks, and corporations from making campaign contributions or expenditures. But in 1976, the U.S. Supreme Court held unconstitutional, in First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978), a Massachusetts' law restricting corporate political speech (aka spending corporate money to influence voters in a referendum). The Bellotti dissent noted the disconnect with federal campaign laws, but the majority felt referendums are distinguishable from electoral campaigns.

Soon thereafter, the plaintiffs in Buckley v. Valeo, 424 U.S. 1 (1976) challenged the constitutionality of FECA, with partial success. The Buckley court held, in essence, that money talks, and that campaign expenditures are protected by the first amendment, but not campaign contributions. Buckley made it clear, however, that expenditures by private persons cannot be limited simply by characterizing them as contributions. Despite Buckley, it remained unlawful for a corporation, national bank, or union to provide funds to a campaign. See 2 USCS 441b.

But corporations soon discovered loopholes that allowed them to support campaigns, so long as they avoided "electoral advocacy." To address this, Congress passed the Bipartisan Campaign Reform Act of 2002, ("BCRA"), Pub. L. No. 107-155, 116 Stat. 113. Under BCRA, corporations must fund "electioneering communications" with PAC money. See 2 U.S.C. 441b. "Electioneering communications" are defined, in part, as broadcasts made within 60 days of a presidential campaign.

This long history of legislatively imposed restraints on corporate campaigning has withstood Supreme Court scrutiny in the past, including in two relatively recent cases, McConnell v. FEC, 540 U.S. 93 (2003) and FEC v. Wisconsin Right to Life, 551 U.S. 449(2007).

But then there was the so-called movie pillorying Hillary (sorry, I couldn't resist) last election, and its corporate sponsor. And now change is in the air.

This week, the Supreme Court, including for the first time Justice Sotomayor, heard, for the second time, Citizens United v. Federal Election Commission (08-205) (the Hillary case), which challenges restrictions on corporate campaign funding, or, depending on your viewpoint, mudslinging. To win, the plaintiffs will need to win over Roberts and Alito--in the past, Roberts has expressed some reluctance about overturning precedent.

We'll see how it goes this time round.