Battleground: Government and Politics 2 volumes (Battleground Series)

BATTLEGROUND GOVERNMENT AND POLITICS

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BATTLEGROUND GOVERNMENT AND POLITICS VOLUME 1 (A-H)

Kathleen Uradnik, Lori A. Johnson, and Sara Hower, Editors

Battleground Series

Copyright 2011 by ABC-CLIO, LLC All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Battleground : government and politics / Kathleen Uradnik, Lori A. Johnson, and Sara Hower, editors. v. cm. — (Battleground series) Includes bibliographical references and index. Contents: v. 1. A–H — v. 2. I–Z. ISBN 978–0–313–34313–1 (pbk. : alk. paper) — ISBN 978–0–313–34314–8 (ebk.) 1. United States—Politics and government—Handbooks, manuals, etc. 2. Social conflict—United States— Handbooks, manuals, etc. 3. Divided government—United States—Handbooks, manuals, etc. I. Uradnik, Kathleen Ann. II. Johnson, Lori A. III. Hower, Sara. JK275.B37 2011 320.973—dc23 2011032642 ISBN: 978–0–313–34313–1 EISBN: 978–0–313–34314–8 15 14 13 12 11

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This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. Greenwood An Imprint of ABC-CLIO, LLC ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America

From Kathy: For Jacob, Alex, and Lizzie From Lori: For Professor William K. “Sandy” Muir, who showed us that the “battleground” of American politics can be a civil, productive, and fun place. From Sara: For Todd, Teddy, and Will, who make everything possible; and to my nephew Charlie, who always wants to know what I’m working on.

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CONTENTS Guide to Related Topics

xi

Series Foreword

xv

Introduction

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Entries: Abortion

1

Affirmative Action

9

Afghanistan, War in

18

Airline Safety

27

Al Qaeda

35

Amending Power

47

Bailouts

55

Bankruptcy

68

Bioterrorism

76

Campaign Finance Reform

83

Census and Redistricting

94

Childhood Obesity

101

China: Economic Emergence

105

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China: Human Rights

113

College Funding and Debt

122

Congress, U.S.

130

Cyberterrorism

140

Death Penalty

151

Divided Government and Bipartisanship

159

Don’t Ask, Don’t Tell Policy

166

Drinking Age

170

Earmarks

175

Ecoterrorism

181

Electoral College

187

Emergency Preparedness/Federal Emergency Management Agency (FEMA)

193

Enemy Combatants

198

Energy Policy

206

Executive Compensation

217

Federalism

227

Flat Tax and National Sales Tax

233

Food Safety

240

Foreclosure Crisis

250

Genetic Testing and the Use of Genetic Information

261

Genocide

268

Globalization

273

Hispanic Vote

279

Human Trafficking

284

Immigration Reform

291

Infrastructure

301

Intelligence Operations

306

Internet Campaigning

312

Iran, Relations with

318

Iraq War

326

Israel and the Middle East Peace Process

333

Contents

Judicial Activism

343

Living Wage

351

Lobbying

356

Medicare and Medicaid

363

Mexican Drug War

370

National Aeronautics and Space Administration (NASA)

381

National Debt and Budget Deficit

388

National Guard

396

No Child Left Behind (The Elementary and Secondary Education Act)

401

North American Free Trade Agreement (NAFTA)

408

Nuclear Proliferation

413

Obama Presidency

421

Pandemics

431

Patriot Act

437

Presidential Power

447

Primaries and Caucuses

455

Recession

467

Right to Die

472

Russia, Relations with

478

Same-Sex Marriage and Civil Unions

487

Second Amendment to the U.S. Constitution

498

Social Security

505

Special Education

512

Supreme Court Nominations

518

Tea Party Movement

523

Term Limits

528

United Nations

535

Universal Health Care

544

Veterans’ Rights and Needs

557

Voting and Voter Fraud

564

Women in Politics

573

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Appendix 1: Case Citations

581

Appendix 2: Statute Citations

583

Selected Bibliography

587

Index

601

About the Editors and Contributors

629

GUIDE TO RELATED TOPICS CIVIL RIGHTS

Abortion Affirmative Action Death Penalty Don’t Ask, Don’t Tell Policy Human Trafficking Immigration Reform Right to Die Same-Sex Marriage and Civil Unions Second Amendment to the U.S. Constitution Veterans’ Rights and Needs ECONOMIC CONTROVERSIES

Bankruptcy Bailouts College Funding and Debt Energy Policy Executive Compensation Flat Tax and National Sales Tax Foreclosure Crisis Globalization Living Wage North American Free Trade Agreement (NAFTA) National Debt and Budget Deficit Recession

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Guide to Related Topics FEDERAL GOVERNMENT

Amending Power Congress, U.S. Divided Government and Bipartisanship Earmarks Federalism Judicial Activism Obama Presidency National Aeronautics and Space Administration (NASA) Presidential Power Supreme Court Nominations FOREIGN AFFAIRS

Afghanistan, War in China: Economic Emergence China: Human Rights Genocide Iran, Relations with Iraq War Israel and the Middle East Peace Process Russia, Relations with United Nations HEALTH AND WELFARE

Childhood Obesity Drinking Age Food Safety Genetic Testing and the Use of Genetic Information Medicare and Medicaid No Child Left Behind (The Elementary and Secondary Education Act) Pandemics Social Security Special Education Universal Health Care NATIONAL SECURITY

Airline Safety Al Qaeda Bioterrorism Cyberterrorism Ecoterrorism Emergency Preparedness/Federal Emergency Management Agency (FEMA) Enemy Combatants Infrastructure Intelligence Operations Mexican Drug War

Guide to Related Topics

National Guard Nuclear Proliferation Patriot Act VOTING AND ELECTIONS

Campaign Finance Reform Census and Redistricting Electoral College Hispanic Vote Internet Campaigning Lobbying Primaries and Caucuses Tea Party Movement Term Limits Voting and Voter Fraud Women in Politics

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SERIES FOREWORD Students, teachers, and librarians frequently need resources for researching the hot-button issues of contemporary society. Whether for term papers, debates, current-events classes, or to just keep informed, library users need balanced, in-depth tools to serve as a launching pad for obtaining a thorough understanding of all sides of those debates that continue to provoke, anger, challenge, and divide us all. The sets in Greenwood’s Battleground series are just such a resource. Each Battleground set focuses on one broad area of culture in which the debates and conflicts continue to be fast and furious—for example, religion, sports, popular culture, sexuality and gender, science and technology. Each volume comprises dozens of entries on the most timely and far-reaching controversial topics, such as abortion, capital punishment, drugs, ecology, the economy, immigration, and politics. The entries—all written by scholars with a deep understanding of the issues—provide readers with a non-biased assessment of these topics. What are the main points of contention? Who holds each position? What are the underlying, unspoken concerns of each side of the debate? What might the future hold? The result is a balanced, thoughtful reference resource that will not only provide students with a solid foundation for understanding the issues, but will challenge them to think more deeply about their own beliefs. In addition to an in-depth analysis of these issues, sets include sidebars on important events or people that help enliven the discussion, and each entry includes a “Further Reading” section that helps readers find the next step in their research. At the end of volume 2, the readers will find a comprehensive bibliography and index.

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INTRODUCTION This book is a new volume in the Battleground series from educational publisher ABC-CLIO. After reading it and the other Battleground volumes, one might conclude that all we do in modern society is fight. Indeed, everything seems to be a battle these days: the economy, the environment, foreign affairs, and even our future. Americans are tired of struggling to get ahead, stay prepared, and leave a better world for their children. And the stakes seem higher than ever before. CAN’T WE ALL GET ALONG? Today’s high school and college students are probably too young to remember Rodney King, a young African American man who was viciously beaten by Los Angeles police on March 3, 1991. A bystander videotaped the incident, which created a sensation across America as it was repeatedly broadcast on the nightly news. When a jury later acquitted the officers charged with the beating, Los Angeles erupted into days of rioting. On the third day, Rodney King appeared on television to ask for an end to the violence. His plea was summarized in the now-famous phrase, “Can’t we all get along?” America does have plenty of conflict, particularly in the political realm. But before we wring our hands too much, it is important to understand that the nation was designed for conflict—in fact, the framers of the Constitution counted on it. When they met in Philadelphia in the summer of 1787, the delegates had a serious problem on their hands. America’s first attempt at selfgovernance, the Articles of Confederation, had failed miserably. The Articles were based on a flexible and largely voluntary relationship among the 13

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original states, each of which wanted to retain as much independence for itself as possible. As a result, the states were joined together in a weak fashion under a unicameral Congress that had little authority. The Articles did not even bother with the executive or judicial branches of government. States ran their own affairs, coined their own money, and traded among themselves and with foreign nations. While it was given the power to declare war and negotiate with foreign governments, Congress’s main duty was to find a way to pay off the debt accumulated in fighting the Revolutionary War. To raise money, however, Congress had to ask the states to contribute. It had no power to tax and no source of revenue. Moreover, it had no ability to enforce its own decisions. It is no wonder that the Articles failed. The states had agreed to form a “league of friendship,” but it fell apart. Delegates to the Constitutional Convention were initially charged with revising the Articles. They quickly determined, however, that the document was beyond repair, and they set about to replace it. Four contentious months later, the delegates emerged with the Constitution. Drafting the document had been a laborious and controversial endeavor. Virtually every aspect of the new government had been discussed, debated, and fought over by the framers. No one emerged unscathed, and no one got everything he wanted. In fact, the Constitution included problematic compromises that greatly upset the delegates; some of them were so angry that they gave up and left the Convention. Rhode Island, for its part, did not even send anyone to the Convention. The toughest compromise in the constitution-making process become known as the “Great Compromise.” Today we take its terms for granted, but at the time, the impasse between opposing sides almost derailed the entire process. The Great Compromise concerned how representation to Congress would be determined. Large states supported the “Virginia Plan,” which called upon representation to be based on a state’s population. Small states supported the “New Jersey Plan,” which provided for equal representation for each state. Naturally, large states wanted to enjoy the advantages of their size and population, but small states feared their dominance. How could they agree when their interests were diametrically opposed? Today, the hard-fought compromise seems incredibly simple. The framers created a bicameral (two-house) Congress. Representation in the House of Representatives was based on population, while representation in the Senate was set at two senators per state. It was not a perfect solution, but it was good enough. Along the same lines, the delegates vehemently disagreed about how to count slaves for the purpose of setting representation in the House. Delegates from the South wanted slaves to count toward their states’ population totals in order to increase their number of representatives. Northern states’ delegates rejected that idea, pointing out that, since slaves had no legal rights and no legal standing (they were, in fact, classified as property), it was hypocritical for the South to try to count them in the population. Again, each side pursued its own interests in the debate; their differing, deeply entrenched political and economic philosophies seemed impossible to reconcile.

Introduction

And yet they managed to do so. The “3/5ths Compromise” is one of the uglier parts of the Constitution, in that it counted each slave as three-fifths of a person for purposes of determining representation in the House. How could a human being be reduced to a fraction? In a perfect world, such a deal would never be struck. But the framers were not living in a perfect world—they were in the real one, which necessitated a noxious but necessary compromise that no one liked. The alternative—failure of the Convention because of the delegates’ inability to reach agreement—would likely have meant the end of the United States. It is difficult to imagine what North America would look like today if the 13 original states had gone their separate ways rather than agree to bind themselves under the Constitution. Other compromises were struck throughout the summer of 1787. The delegates did not outlaw slavery, as some had wanted, but they did agree to allow Congress to stop the importation of slaves as of 1808. The delegates discussed numerous approaches to creating the executive branch, finally settling on a president who would be voted on by the people but actually selected by the Electoral College. They managed to propose a single court in the Constitution—the Supreme Court—but left Congress to create the rest of the federal judiciary. They argued about which branch would become too powerful, so they developed an elaborate scheme of checks and balances to make all of the branches interdependent. They further decentralized power by inventing “federalism,” a system of dual governance under which the states remained independent and retained the authority to manage their own affairs. The United States remains one of the few democracies structured in this way, where the federal government undertakes its responsibilities at the national level and the states fulfill their duties on the local level. In short, the framers did not always “get along.” They did not always win their arguments. They repeatedly had to agree to constitutional provisions that violated their own moral beliefs and political principles. But they nonetheless prevailed; because of their common sense, bold vision, and ability to compromise, they were able to finish the Constitution and present it to the states for their approval. FEDERALIST 10 Ratification of the Constitution was not assured; the framers’ proposal had powerful opponents who found much to fault in it. In order to explain the Constitution’s provisions to the people and convince them to support it, proponents published a series of 85 essays that became known as the “Federalist Papers.” They were written by James Madison, Alexander Hamilton, and John Jay but submitted under the common pen name “Publius.” Many of the papers can be counted among history’s great writings on political philosophy and governance; chief among them is Madison’s Federalist Number 10. At the time the Constitution was written, both ancient and contemporary political philosophers believed that democracy as a form of government was unworkable. Too much could go wrong in a democracy, and the chances of failure only increased as a country became larger and more diverse. According to

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the accepted wisdom, if democracy were to have a chance, it had to be implemented in a small nation with a homogenous population—that is, a population with a common language, ethnicity, religion, economic status, and so on. The United States did not fit that ideal; its 13 states stretched from New England to the Carolinas, and it already had a population of nearly four million people by the time the Constitution was adopted. No country that large could be governed by a democracy. It would collapse under the weight of its own internal strife, expressed in the factions of citizens that would fight each other for control of economic and political power. Madison, however, saw things differently. He rejected traditional beliefs about democracy, arguing instead that the size of a democratic nation was not its curse, but its greatest asset. He recognized that factions were inevitable in society, but argued that a large representative republic would ensure that they remained in check. In fact, when it came to factions, Madison believed the more the merrier: conflict was not something to be avoided in a free society, but embraced. Madison started his explanation for all this at the beginning of Federalist 10, with a frank assessment of human nature. How would men and women be expected to act in society? Madison contended that each person was unique and was gifted with his or her own set of interests, talents, and ambitions. At the same time, each person was flawed. In society, individuals could be expected to seek out others and join into groups—called “factions” at the time and “interest groups” today—to pursue their common interests. This was the framers’ fundamental assumption in setting up their new form of government. The idea that groups in society would act to pursue their “self-interest” was not new. Madison pointed out that factions had long been thought to be a threat to democracy. “There are,” he noted, “two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.” The cause of faction was liberty itself, because, as noted above, free individuals would act in concert to pursue their needs and wants. One could eliminate liberty and thus remove it as a cause of faction—after all, an oppressed people cannot act in its own interests. But that “solution” made no sense. In Madison’s famous words: Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. Alternatively, one could eliminate faction by ensuring that everyone in society shared the same interests. If everyone were forced to think and act the same, factions would not arise. But the mere idea of this angered Madison, who argued that the protection of individuality (what he called the “diverse faculties of man”) was “the first object of government.”

Introduction

Madison and the framers wanted a free nation based on individual liberties, not one where citizens were oppressed or forced to conform to some arbitrarily imposed standard. Given this, Madison focused on controlling the effects of faction. How could government survive and prosper when its citizens were committed to pursuing their own self-interests? Simply put, by staying out of their way. The real solution to the vexing problem of faction was to allow individuals to act as they wanted, alone or in groups, to pursue their passions. Madison predicted that, if left alone, factions would compete against one another in society. This competition would guard against any one of them becoming too powerful. In a way, Madison’s view of factions in society was akin to Sir Isaac Newton’s view of motion: for every action, there would be an equal and opposite reaction. Conventional wisdom said that the United States could not succeed as a democracy because it was large and diverse; under Madison’s approach, these same traits now worked to its advantage. A large republic would have more factions than a small one, and thus more protections against tyranny. No group would be likely to get its way, at least not all of the time, because it would be in constant competition with others who wanted the same thing or wanted just the opposite. Of course, the framers were not content to rest on this assumption. Because they knew that individuals were flawed, they went to great lengths in the Constitution to ensure that no one person or group could gain or hold too much power. They rejected the idea of a pure democracy, where everyone participates in governing, in favor of a representative republic. Electing representatives, Madison argued, would guard against both majority and minority tyranny. Representatives would act as a kind of buffer between the people and their government. A tyrannical or fanatical individual was unlikely to be elected, because he or she had to win the support of a large number of voters. The sheer number of “parties and interests” in society would work to prevent undue influence or control by any one of them. The framers preferred to leave governance to a free people rather than count on the good intentions of a handful of “enlightened statesmen.” These welleducated, well-meaning civic leaders could be found in society, but they could not be counted upon to control society. As Madison concluded: “It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.” Moreover, even enlightened statesmen were fallible, and thus subject to bad judgment, selfishness, or corruption in governing. It was far better to put one’s faith in a free people and the laws that they would adopt than to count on the leadership of elites. Ironically, this conclusion came from the elites who hammered out the Constitution but rejected a special role for themselves in the government that it created.

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THE “GOOD ENOUGH GOVERNMENT” One might say, using modern vernacular, that the framers were “all about” good enough government. They understood that, because humans were flawed, human institutions would also be flawed. Aiming for a “perfect” governmental system was not only arrogant but impossible. Instead they set about to create a new system of government based on the principles that they shared and their hopes for the new nation. They overcame their differences to adopt a Constitution that was flawed and unfinished but the best they could do. What lessons from the founding fathers might we find relevant to our current “battleground” disputes over politics and government? All of them! Americans today still behave pretty much as Madison predicted. We are unique, selfinterested, and free. That means we will fight for what we want, whether it’s a philosophical principle, scarce resource, or public policy issue. In doing so, we will generate information and arguments and, most importantly, opposition. We will debate and discuss, articulate and argue, and ultimately muddle through. Americans aim high, but they have been given a government that requires them to compromise on almost everything. This is a direct result of the framers’ design: because Americans would be free to challenge themselves, each other, and their government on almost every front, political power had to be widely dispersed. Not to do so would provide ample opportunity for tyranny and oppression, and having lived through British rule and fought the American Revolution, the framers would have none of that. Thus America is full of conflict: we have citizens of every political stripe, and interest groups for every cause. We lament the partisan rancor in Congress, but often engage in it ourselves. Our divisions run deep, and too many problems seem beyond our ability to fix because we cannot even agree on how to approach them. Just about every entry in this book demonstrates how well we can disagree and how poor we are at coming together for our common benefit. Given all of our differences, it is astonishing that America has the longestrunning written constitution in history. Then again, maybe it’s not. While the framers hoped for the best, they knew that continuing discord was inevitable, and that subsequent generations would have to adjust the Constitution as they saw fit. Concerns about the Constitution were not resolved upon its ratification; the political and economic divide between the North and South, for example, was not put to rest by the new republic. It grew wider over time, only to be settled by a devastating Civil War. But if the Civil War determined once and for all that the nation would remain intact, it did little to change the fact that everyone in it would continue to disagree. Conflict in politics and government may not be something to celebrate, but ultimately it was, is, and will be the reality of living in a free society. It would help, however, if more Americans followed the framers’ example. Sometimes we must put our most intense moral and political principles aside in order to finish a difficult job. Every delegate at the Constitutional Convention gave up something for the sake of the new nation; we can learn from their sacrifice. As the essays in this book confirm, finding common ground in our

Introduction

political and policy debates is difficult. But it is no more difficult for us than it was for the framers. They taught us that “compromise” is not a dirty word, and that when the stakes are high, compromise might only be reached by sheer force of will—not the will of our citizens and our elected officials to win each issue, but their will to lose at least some of them. FOR THE YOUNG ADULT READER Young adults are part of America’s grand experiment in self-governance. They share the benefits and burdens of citizenship, and consequently should have a say in the way the nation is run. Many young persons choose not to vote or participate, offering a variety of excuses for their inaction. None of these excuses is sufficient, as no one is excused from the responsibilities of citizenship. Prior generations of students have demonstrated that youth activism can make a difference in creating and changing national policy. Their efforts are an invitation to today’s young people to speak out on the issues that they believe in. Not to do so would be a shame. It would also be dangerous. Alexis de Tocqueville, the great commentator on America, observed long ago that, despite its successes, America’s future was not indefinitely assured. Americans’ complacency, he cautioned, could lead to their oppression. He urged Americans to remain active in government and to carefully guard their rights. Tocqueville was on to something. History and common sense indicate that a democracy that falls asleep will awake to tyranny, and that those who take their rights for granted will lose them. The Constitution has given all Americans, including its young people, a stable and prosperous nation in which individuals enjoy numerous freedoms. But without participation, activism, and vigilance by citizens, the Constitution quickly becomes only a piece of paper. In order to protect what’s good about America, and to fix what’s wrong with it, everyone needs to contribute to governance and politics. Young adults—including you—can make a difference by voting, by volunteering, or even by paying closer attention in History or American Government class. Hopefully the topics described in this book will be not only a resource for your political education, but also a call to action on the issues you feel most strongly about. At the same time, though, learn to listen to those you disagree with, and try to understand those who are different from you. Keep an open mind and become informed. Recognize that civility in politics and compromise in legislation are honorable goals. Most importantly, learn by doing. Reading about politics is fine, but participating in it brings greater understanding and greater rewards. Finally, remember that the framing of the Constitution did not end in Philadelphia; it continues to this day. Those who have inherited the Constitution are also its framers. As you seek to make your mark on the nation and the world (and hopefully leave it better than you found it), keep in mind the warning of the French philosopher Voltaire: “Le mieux est l’ennemi du bien.” That is, “the perfect is the enemy of the good.” You will inherit the reins of government soon enough; prepare well for it, and act accordingly.

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METHODOLOGY AND ACKNOWLEDGMENTS The most challenging aspect of this book was deciding which “battleground” topics to include. That involved a seemingly endless process of alternatively adding and dropping “hot” issues. We must have revised the list of entries a dozen times—probably more—because the American political landscape changes so quickly. Our final addition to the list was made two days before the manuscript was submitted for publication, and we still worry that, despite our best efforts, some issues may become outdated by the time the book appears in print. In the end, we identified the issues included in this volume according to a number of criteria. First, it was not sufficient for an issue to be current; it also had to be fundamental and unlikely to be resolved in the near term. We sought to include issues that would remain in the news for the next several years. That meant a number of critical issues became examples in entries instead of entries in their own right. The “Gulf Oil Spill” is one. No one can dispute the damage this natural disaster inflicted on the people and wildlife of the Gulf region or its impact on U.S. environmental policy now and in the future. But by the time this volume goes to print, the disaster will be over a year old and long off of the front pages. Rather than include it as a separate entry, then, it appears in our discussion of U.S. energy policy. Similarly, we did not include an entry on “unemployment,” which is perhaps the most serious issue facing average Americans today, because it occurs as the result of other events that are covered extensively in the book—the recession, the foreclosure crisis, and the national debt, just to name a few. Unemployment is discussed at length in these and other essays. We hope that there are no glaring omissions in our list of entries; we’ve tried to include all of today’s most serious controversies somewhere in the book. Second, we purposely selected some issues for the intended audience of this volume and the Battleground series generally. One example would be the entry on the “Drinking Age,” because it is a perpetually popular and controversial issue for young adults. “College Funding and Debt” is also important to our readers (and their parents). One way to encourage young people to become involved in politics and governance is to pique their interest with issues that resonate with them. Third, we tried to approach this project broadly, meaning that we have included a balance of domestic and international policy issues confronting Americans. In discussing domestic issues, we were committed to presenting various points of view in a neutral manner; these issues are not “Republican” or “Democratic” and should not be described in a partisan way. We have gone to great lengths to make our discussions entertaining and educational while ensuring that they remain objective. Similarly, international issues are not presented from an “American” foreign policy perspective. The aim in offering these entries is to impart an understanding of the impact they have on American politics, not to defend American foreign policy.

Introduction

Finally, the publisher asked us to identify aspects of America’s governmental structure that would be important for young adults to know. Since all three of us teach introductory American government courses at the college level, we were happy to oblige. Obviously we could not include every critical institution or concept—that’s for a textbook, not for this volume. But we did select entries that are essential for students to understand, and we made sure to discuss the current controversies surrounding them. Some examples of “government” topics include “Congress,” “Presidential Power,” “The Electoral College,” and “Federalism.” In selecting references for the entries, we tried to include books and websites that would present a number of perspectives. The list of references included with each entry is not intended to be exhaustive, but rather to provide students with a basic path to further reading and research. Some of the website references may not even exist by the time the volume is circulated—such is the nature of information on the Internet. We would encourage students to read one or more of the books we have suggested for each topic; there’s just no substitute for careful, critical reading and analysis of important primary and secondary resources. While we wrote the majority of the essays in this volume ourselves, it should be noted that about a dozen of them came from contributors, mostly students. “Back in the day” when we were graduate students, we were fortunate to be offered opportunities for teaching and publishing, and we were happy to continue that honored tradition by offering some of the essay topics to others. We edited all of the entries, and ultimately we remain responsible for their content. Any mistakes or omissions are ours alone. We have tried to make this book engaging as well as informative. It is written in a casual, accessible style that we think should make for easy and fun reading for young adults. For those skeptical students out there, we simply ask that you reserve judgment until you read a few of these essays. Each one of them is relevant to you in some way. Indeed, you might think of the time you spend reading this volume as at least a small investment in understanding and, more importantly, in directing your future. With respect to acknowledgments, we’ll keep it simple. We are grateful to the contributors who accepted our invitation to participate in this volume. We are indebted to our editors at ABC-CLIO, and especially Sandy Towers and Vicki Moran, who had the patience and understanding of saints. Mostly, though, we are thankful for our families and friends who put up with us during this project. Your support was essential in seeing it through to completion, and we appreciate it more than you know.

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A ABORTION In 1973, the Supreme Court handed down one of the most controversial decisions in its history in the case of Roe v. Wade. The case recognized abortion as a fundamental right under the Constitution, to the relief of advocates and the shock of opponents. Today, nearly 40 years later, abortion remains one of the most controversial and divisive issues in American politics. The “sides” to the abortion debate seem identifiable enough: “pro-life” or “antiabortion” supporters oppose abortion in all or almost all situations. “Prochoice” supporters believe that a woman has the right to choose abortion as provided under the law. But these common labels oversimplify a complex issue, as the nature of the abortion right has changed over the years since Roe. Subsequent Supreme Court decisions have significantly limited the right to abortion. Moreover, many observers believe that the Supreme Court is poised to again consider whether the right really exists and, if so, to what extent. Will Roe v. Wade be overturned? In many respects, it already has been. ROE V. WADE The history of Roe v. Wade is well known and need not be repeated here. The important and lasting contribution of the case was the Supreme Court’s recognition of the right to abortion, which it found in the “right of privacy” within the Constitution. The “right of privacy” had been discussed in previous Supreme Court cases, most notably Griswold v. Connecticut (1964), as an implied right. That is, the right does not appear as exact language in the Constitution, but can be justified in terms of its overall language and meaning. For the Court, the right

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to privacy was implied by several parts of the Constitution, including the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Each of these amendments seems to embrace the notion that individuals have some level of privacy in their personal affairs, and that government is limited in its ability to reach into and regulate those areas. In some contexts, the right of privacy is much less controversial. But in the abortion context, opponents point out that “privacy” and “abortion” are very different things. They argue that abortion is far too serious an issue to be “discovered” in the Constitution or inferred from reading between its lines. Justice Harry Blackmun, who wrote for the majority in Roe, stated at the outset of the opinion that the Court understood the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. Before addressing the issue of whether abortion was a constitutional right, Justice Blackmun provided a detailed history of abortion, including how religious and political philosophers had viewed it throughout the ages. From that history it became clear to the Court that abortion had been addressed by societies and their laws in many different ways. However, the fact that others had not definitively decided the issue did not prevent the Supreme Court from ruling on it. The Court found that the right to abortion did indeed exist, but that it had to be balanced against other legitimate rights and interests, including the duty of the government to protect life. Consequently, the Court developed the “trimester approach” for determining the scope of the abortion right. At the time, it was common to measure the progress of a pregnancy by dividing it into three equal parts, or trimesters, of 13 weeks each. The Supreme Court ruled that, during the first trimester, when the fetus is early in its development and cannot live outside the womb, the interest of the woman is highest and, it follows, the interest of the government is lowest. During this time, the woman has the right to choose whether to abort the fetus. During the third trimester, when the fetus is well developed and has a good chance of surviving outside of the womb, the right of the state to protect life is the highest, and the right of the mother to terminate her pregnancy is lowest. Thus a state could choose to ban abortion. The middle trimester, of course, was the most challenging to regulate—in Roe, the Court determined that states were allowed to regulate abortions to provide for the health of the mother until the point when the fetus could survive on its own. At that point, the ability to regulate became expanded, and states could ban abortion except when necessary to preserve the “life or health of the mother.”

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In looking at pregnancy as a three-stage process, the Court was able to issue a set of guidelines for each stage. In the first stage, the right of the mother was superior, and states could not ban abortion. In the second stage, where the right of the mother was in decline and the right of the unborn fetus was becoming stronger, the state could choose to regulate and even ban abortion. In the third stage, the state could ban abortion outright. WHEN DOES LIFE BEGIN? There were, of course, several obvious problems with the Court’s formulation. The most important, perhaps, was its treatment of the critical and perhaps defining issue in the abortion debate: When does life begin? Justice Blackmun addressed the question by again tracing the various religious and historical views on the question. Ultimately, however, he determined in his opinion that the Supreme Court need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. The problem immediately identified by abortion opponents is that the Court did, in fact, resolve the question of when life began in formulating its approach to abortion. The State of Texas had argued in Roe that life began at conception and that, because the government has the duty to protect life, it should be allowed to regulate abortion from that point. The Supreme Court flatly rejected this argument, adopting the balancing approach described above. Many became incensed that the Court for all practical purposes did decide when life began, but did not openly admit it. Objection to the Court’s decision was immediate and powerful. An antiabortion political force emerged in America almost overnight, consisting of a coalition of religious and political interest groups united to fight the decision in legislatures and the courts. Outraged opponents of abortion filed lawsuits aimed at overturning or at least limiting Roe v. Wade. Many state legislatures addressed the decision by passing extensive restrictions on the new right. THE AFTERMATH These antiabortion efforts met first with resistance and then, as the personnel of the Court changed, with success. Over the next two decades, the Supreme Court issued a series of rulings in cases that sought to limit many aspects of the right to abortion. For example, it held that a woman did not have to inform the father of her fetus before obtaining an abortion. It also held that states could not require a minor to obtain parental consent before having an abortion. Later, it changed that ruling somewhat to allow states to require parental consent in

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certain narrow circumstances, provided that, should the parents oppose the abortion, the minor was allowed to demonstrate on her own that she was mature enough to make the decision. In addition, states trying to regulate minors had to provide a mechanism for a youth to seek a judge’s consent for an abortion if she could not confront her parents. The Court also struck down states’ efforts to dissuade women from having abortions by requiring that they read literature or hear government-approved statements about the nature of the procedure. The justices also invalidated legislation requiring women to have second-trimester abortions in a hospital instead of a clinic. Finally, the high court protected the abortion right by upholding limits placed on abortion protestors. Demonstrations at abortion clinics became commonplace in the years after Roe v. Wade. Sometimes demonstrators’ tactics went beyond pure political protest when they tried to intimidate women into changing their minds about the procedure or to block their entrance to medical facilities. In response, many state and local governments passed legislation restricting protestors to certain areas outside of clinics and ensuring that patients could enter and exit the facilities without interference. The Supreme Court upheld reasonable limits on protestors, noting that a patient seeking an abortion had a legal, constitutionally protected right to the procedure. A number of states also sought to limit the availability of abortion by refusing to allow public funds to be used for the procedure. The federal government, for its part, adopted a law known as the Hyde Amendment, named after its author, conservative Congressman Henry Hyde (R-IL). The Hyde Amendment banned federal funding of abortions. The Supreme Court upheld these funding limitations, acknowledging that the government was not required to subsidize the right to choose. Moreover, by 1989, the Supreme Court confirmed a state’s right to ban abortions in public hospitals and other public medical facilities. At the same time, pressure from pro-life interest groups led many facilities to stop providing abortions. Medical schools by and large stopped teaching abortion procedures. Although legal, in some states it was impossible to obtain an abortion because there were no remaining providers. Women seeking abortions had to travel to adjoining states, or to wait for a doctor from another state to travel to their local clinic. Increased public awareness about abortion and public pressure on medical providers resulted in a measurable but ironic result: abortions became harder to come by for many women. Advocates of the right of abortion celebrated Roe v. Wade for making the procedure legal, but in the aftermath of the decision, the victory became at least somewhat symbolic, in that it did not lead to acceptance and ready availability of the procedure. Importantly, abortions in the United States did become significantly safer because they were legally performed in medical facilities, but the number of facilities willing to provide them declined precipitously in the years after Roe.

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CASEY V. PLANNED PARENTHOOD In 1992, the Supreme Court decided the highly controversial case of Casey v. Planned Parenthood, which concerned the constitutionality of Pennsylvania’s restrictions on abortion. Abortion opponents believed that the Casey case might be used to finally overturn Roe v. Wade. In the end, however, the 5:4 ruling left all sides to the abortion debate unhappy, as the members of the Court struggled over whether Roe was still good law. The Casey decision was written by Justice Sandra Day O’Connor, the first female justice appointed to the Supreme Court. Because Justice O’Connor was appointed by Republican President Ronald Reagan, many believed she would become a conservative on the Court. But as history had repeatedly shown with presidential appointments to the high bench, an individual’s political background is not always an accurate indicator of his or her future judicial behavior. In her 24 years on the Court, Justice O’Connor embraced a role as a centrist who tried to reach the right decision in each case by weighing competing interests rather than by imposing a strict or dogmatic judicial philosophy. Some admired her for her willingness to be the “swing vote” on crucial cases; others, including Justice Antonin Scalia, often found her approach results-oriented and unprincipled. To the dismay of pro-life forces, Justice O’Connor voted to affirm a woman’s fundamental constitutional right to abortion. She argued that two generations of women had come to rely on the right, and that Roe v. Wade, although controversial, was binding precedent that the Court was obligated to follow. That being said, pro-choice forces were not pleased with the rest of Justice O’Connor’s opinion for the majority, which in a real sense gutted Roe v. Wade anyway. The first blow to Roe came when the Court rejected the trimester system structure. Noting that advances in medicine had made demarcation by trimester questionable, if not entirely obsolete, Justice O’Connor offered a new notion for when protection of the fetus becomes paramount: “viability.” Viability refers to the ability of the fetus to live outside of the womb. Since 1973, tremendous progress had been made in keeping premature babies alive at increasingly earlier ages; Justice O’Connor recognized as much by throwing out the trimester system as a guide for determining the rights of various persons affected by abortion. In addition to adopting viability, the justices approved of extensive new restrictions on the abortion right. It approved Pennsylvania’s 24-hour waiting period and distribution of an “informed consent” pamphlet describing the abortion procedure. It also approved the state’s requirement that at least one parent consent to a minor’s abortion (although noting that a judge should still be provided if the minor could not confront her parents). The Court went as far as to say that restrictions on abortion were legal so long as they did not place an “undue burden” on the pregnant woman. Of all the restrictions adopted by the state of Pennsylvania, only one was found in Casey to constitute such a burden: the Court struck down the requirement that a woman notify her husband before obtaining an abortion.

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In short, the Casey case offered something for everyone to dislike. The Court did not overturn Roe v. Wade, to the relief of pro-choice advocates. But it did not leave much of Roe intact, either. PARTIAL-BIRTH ABORTION BANS After the decision was handed down, everyone understood that the issue of abortion was still far from settled, and the sides regrouped and refocused their efforts to see that Roe was overturned or, conversely, that the right to abortion was preserved. For its part, the Supreme Court remained silent on the issue for several years. Finally, in 2000 it heard and decided its first “partial-birth abortion” case, Stenberg v. Carhart. Nebraska had passed a law outlawing “dilation and extraction,” a relatively uncommon abortion procedure used late in a pregnancy, typically during the fifth or sixth months. Known derogatorily as “partial-birth abortion,” the procedure involves partially removing the fetus from the womb, crushing its skull, and taking out its brain. Many in the medical community decried partial-birth abortion as unnecessary and barbaric; some, however, argued that the procedure was necessary on rare occasions to save the life of the mother. Nebraska’s law did not include an exception to the ban to save the life of the mother; this omission ultimately led the Supreme Court to strike it down. Subsequently, in 2003 the Congress passed and President George W. Bush signed into law a federal ban on partial-birth abortions. This legislation marked the first time Congress had acted to create a nationwide ban on a type of abortion procedure. In keeping with Roe, the law included an exception if the procedure was necessary to save the life of the mother. At least one lower federal court, however, concluded that this exception was not broad enough, and that the legislation should have allowed the procedure to be used in “medical emergencies.” As expected, challenges to the law soon came before the Supreme Court. In the spring of 2007, a deeply divided Court ruled 5:4 that the partial-birth abortion ban was constitutional. Justice Anthony Kennedy wrote the majority opinion, which concluded that banning the procedure did not unduly interfere with the woman’s constitutional right. Joining him were Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. Justices Alito and Roberts, who had recently been appointed by President Bush, did not disappoint political conservatives, who expected them to side with the administration on the issue. In dissent, Justice Ruth Bader Ginsburg argued that Congress and the president had no business limiting the procedures available to doctors or instructing doctors on the procedures they should choose. Justice Ginsburg concluded that the partial-birth abortion ban was an attempt by antiabortion legislators to “chip away” again at the abortion right, which, she pointed out, had been repeatedly reaffirmed by the Court since Roe v. Wade. Abortion opponents believe that, given the current makeup of the Supreme Court, they may still see Roe v. Wade overturned. It takes five votes, and pundits

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predict that Justices Kennedy, Scalia, Thomas, Roberts, and Alito would strike down Roe if an appropriate case came before the Court. However, President Barack Obama already appointed two new justices in just the first two years of his administration: Sonia Sotomayor and Elena Kagan. Together with Justices Ruth Bader Ginsburg and Stephen Breyer, they form the Court’s more “liberal” voting block and are unlikely to overturn the decision. As with any Supreme Court appointment, interest groups on all sides of the abortion issue have a tremendous stake in the selection of the next justice. Whether that will come under President Obama’s administration remains to be seen. IS THERE ANY COMMON GROUND IN THE ABORTION DEBATE? Abortion is unquestionably a polarizing issue, and it is common for advocates in the debate to take an “us versus them” approach and to characterize their opponents as untruthful. Abortion has turned some citizens into singleissue voters, who will vote only for candidates who share their view on the issue. The Democratic and Republican Parties have been accused of having a “litmus test” for their candidates (and their judges), with the Democrats insisting that they be pro-choice and Republicans insisting that they be pro-life. Members and candidates of both parties often express dismay that their party is intolerant of those who disagree with the party’s view on the abortion issue. Clearly, one can find opponents of abortion who take an absolutist view and argue that it should not be legal at any time, under any circumstances. Similarly, there are advocates of the procedure who would like to see it become more widely accepted and practiced. For most Americans, though, their political views on the issue lie somewhere between the extremes, and show that there is at least some agreement on certain aspects of the abortion debate. First, it should be pointed out that even the Supreme Court justices who dissented in Roe v. Wade recognized that abortion could be used to save the life of the mother. There has always been widespread popular agreement on this issue, and even if Roe v. Wade were overturned, it is highly likely that abortions would remain legal under such circumstances. Second, many Americans believe that abortion should be available if a woman becomes pregnant because of rape or incest. Antiabortion foes disagree, believing that all life is sacred. But many public opinion polls indicate that most Americans are willing to allow for these narrow exceptions, most likely because they perceive these types of pregnancy to have been “imposed” upon the mother against her will. Persons who believe that abortion should be available in these situations feel that it is simply unfair to require the woman to complete such a pregnancy. President Bill Clinton, who supported the right to abortion during his administration and twice vetoed the partial-birth abortion ban, characterized abortion in his election campaigns as something that should be “safe, legal, and rare.” Few people advocate abortion as a primary means of birth control, but rather view it as a response to failed birth control. Because abortion is a medical procedure that can have both physical and emotional complications for the patient, it is not a decision to be entered into lightly. Advocates on both sides of

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THE 2008 AND 2010 ELECTIONS The Democratic and Republican Parties have disagreed for years on the issue of abortion, with many Democrats supporting the “right to choose” and just as many Republicans supporting the “right to life.” The 2008 presidential election was no exception. Republican candidate John McCain said that he opposed abortion except in the case of rape, incest, or to save the life of the mother. His running mate, Sarah Palin, took an even more restrictive view, believing that abortion should only be used to save the life of the mother. Governor Palin’s strong pro-life stance heartened traditional conservatives, who applauded her for living true to her principles, given that she had recently given birth to a child with Down syndrome. In a nationally televised presidential candidates’ event at the Saddleback Church in California, interviewer Reverend Rick Warren (known for authoring the best-selling book The Purpose-Driven Life) asked both candidates about their views on abortion, and specifically about when they believed life began. Senator McCain answered that life began at conception. Senator Barack Obama responded that the answer was “above his pay grade,” implying that the question was complex and perhaps unknowable by mere mortals. Obama supporters viewed his response as supporting the principle that an individual rather than government should hold the right to make one of life’s most difficult decisions. His opponents seized on the statement to support their contention that the Democratic candidate could not give a straight answer and was prone to duck controversial issues. Interest groups also seized on the abortion issue. Pro-choice forces ran advertisements informing women that McCain had pledged to appoint conservative justices to the Supreme Court who could overturn Roe v. Wade. They reminded voters that, in her very first national interview after being selected as McCain’s running mate, Governor Palin confirmed her view that Roe v. Wade should be overturned. As is typical in the abortion debate during presidential elections, the very same arguments that served as a call to action for pro-choice Democrats also served as a call to action for pro-life Republicans—for the opposite reasons, of course. Interestingly, however, the abortion issue was not at the forefront in the 2010 midterm elections. In fact, no so-called “values-based” issues were, and neither were the ongoing wars in Iraq and Afghanistan. Voters in the 2010 midterm elections focused almost exclusively on the economy, which had been in shambles since 2008. When the final votes were tallied, Republicans won 63 seats in the House of Representatives and majority control of that body. They also picked up 6 seats in the Senate. One might predict that, given the significant Republican victory, pro-life forces will be emboldened for the remaining two years of the Obama administration. That is not necessarily true, however, because the newly elected Republicans almost universally view the economy as their first, second, and third priority. They believe they were given a clear mandate by the American people to fix the economy, increase employment, and tackle the burgeoning federal debt. Thus social policy issues, although important, will likely take a back seat to economic reforms in the 112th Congress.

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the issue therefore tend to focus on preventing abortions by urging abstinence, health education, adoption, and regular practice of birth control. Ultimately, the Supreme Court in Roe v. Wade was wise to point out that, throughout human history, religious leaders, philosophers, scientists, and political figures have wrestled with the issue of abortion without coming to a definitive conclusion about its morality or propriety. Because abortion is both a religious and deeply personal issue for many people, it is not likely that the controversies surrounding it will ever be resolved to the satisfaction of its most ardent proponents and opponents. To the extent, however, that democracy permits and even encourages consensus building, there is hope that Americans can act through their elected representatives and policy makers to embrace some common ground on this most difficult of issues. While we are unlikely to craft laws to deal perfectly with abortion, it is well within our means to adopt a measured and reasoned approach to deciding its constitutional and legal status. Further Reading Books: Baer, Judith A. Historical and Multicultural Encyclopedia of Women’s Reproductive Rights in the United States. Westport, CT: Greenwood Press, 2002; Gordon, Laura. The Moral Property of Women: A History of Birth Control Politics in America. Urbana and Chicago: University of Illinois Press, 2002; Hull, N. E. H. Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas, 2001; Knudsen, Lara M. Reproductive Rights in a Global Context: South Africa, Uganda, Peru, Denmark, United States, Vietnam, Jordan. Nashville, TN: Vanderbilt University Press, 2006; Schoen, Johanna. Choice and Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare. Chapel Hill: University of North Carolina Press, 2005; Shrage, Laurie. Abortion and Social Responsibility: Depolarizing the Debate. New York: Oxford University Press, 2003. Websites: Abortion: Pro & Con. http://youdebate.com/DEBATES/ABORTION_DEBATE .HTM; Abortion Access: All Sides of the Issue. http://www.religioustolerance.org/ abortion.htm; Alan Guttmacher Institute Home Page. http://www.guttmacher.org/ index.html; Harvard School of Public Health Women’s Health Initiative. http:// www.hsph.harvard.edu/women-and-health-initiative/; National Women’s Health Information Center (NWHIC). http://www.4woman.gov

Kathleen Uradnik

AFFIRMATIVE ACTION Over the past 50 years, the U.S. government and American society have gradually expanded the opportunities for racial and ethnic minorities and women in the workplace and education. Collectively, the effort to provide opportunities to groups that have experienced historical discrimination is called “affirmative action.” The initial impetus for affirmative action was to find some way for our nation to address and redress the political, economic, and social inequities that our society had intentionally or inadvertently caused these groups. While

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affirmative action is not as much at the forefront of national debate as it once was, one important aspect remains critically important to students: the use of race in determining admission to college and graduate school. THE EARLY YEARS The 1960s was a time of great domestic turmoil in the United States. The decade saw profound changes in society’s attitudes toward a vast array of domestic policies and issues. In particular, Americans slowly came to embrace the principles of the civil rights movement and its progeny, including the women’s rights movement and the disability rights movement. African Americans continued to question their place in American society as the veterans of World War II and Korea wondered why the rights they fought for so valiantly overseas were denied them at home. Many of the women who worked as the “Rosie the Riveters” of World War II had left the workforce to raise their children after the war, and were now questioning why employment opportunities were limited for their own daughters. Finally, under the GI Bill, thousands of young men, including African Americans, were taking advantage of federally funded opportunities to earn a college degree, and now those African American graduates were agitating for a fair chance to participate in the workplace. By the early 1960s, public opinion had advanced to the point where most agreed that something had to be done, but what, exactly, to do and how to implement reform remained a subject of debate. At the height of the civil rights movement, the nation was primed for a frank discussion of how to end invidious racial discrimination in the workplace and education. The rising tide of the civil rights movement almost guaranteed that there would be changes in the hiring practices of corporations and the admissions policies of colleges and universities. Spurred by the civil rights movement and concerned that previously adopted legislation and judicial mandates were not having the desired effect on recalcitrant corporations, President John F. Kennedy was determined to increase ethnic minority participation in the contracts awarded by the agencies of the federal government. Kennedy was widely perceived as the young, vibrant, and charismatic president who would lead the country to a new level of understanding and tolerance, and he did not disappoint. In fact, the term “affirmative action” first made its appearance in March 1961, in one of his very first executive orders, signed barely two months into his administration. This executive order was intended to provide equal opportunities to firms run by racial minorities in bidding on federal contracts. After President Kennedy’s untimely death in 1963, Congress passed and President Lyndon B. Johnson signed into law the Civil Rights Act of 1964, which extended those opportunities and created a host of others. For example, all firms over 15 employees were now required to follow the executive order, whether they had federal contracts or not. President Johnson explained the principle underlying the concept of affirmative action in “To Fulfill These Rights,” a commencement address to the graduating class of Howard University delivered on June 4, 1965:

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You do not wipe away the scars of centuries by saying: “now, you are free to go where you want, do as you desire, and choose the leaders you please.” You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, “you are free to compete with all the others,” and still justly believe you have been completely fair . . . this is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and theory, but equality as a fact and as a result. In the 1960s, affirmative action was limited to the workplace. Not only were federal agencies required to actively recruit bids from minority firms, but the firms themselves were supposed to actively recruit minorities and, later, women. How firms were to accomplish this goal, however, was left to their own creativity. They had to document exactly how they were implementing the goal of a workforce representative of the population at large. The goal was intended to cover all workers in the workplace, not simply blue-collar workers. Indeed, both African Americans and women were concerned by the underrepresentation of their numbers in the managerial levels of corporations. Firms were required to send yearly reports to the Equal Employment Opportunity Commission (EEOC) to document their successes in hiring a diverse workforce. Under the federal regulations, African American women became known as “two-fers” since they could be hired and reported to the EEOC both as female and as African American.

A LAUDABLE BUT PROBLEMATIC GOAL On the surface, the idea of affirmative action is simple: to increase the representation of racial and ethnic minorities and women in areas where they have been historically excluded or underrepresented. For the government, this meant the workplace and educational facilities. But the guidelines for implementing affirmative action were typically nonexistent or vaguely worded. Firms were left to their own devices to figure how to gain more minority and later women workers. Many of them ended up using quotas since they were viewed as the easiest method of compliance. In this context, a quota meant that an employer would reserve a certain percentage of its jobs for minorities and women. In higher education, quotas were set to establish percentages of students to be enrolled from various underrepresented groups. The government sought preferential treatment for certain groups so that, in the end, American society could become neutral or “color-blind” in its employment and educational practices. But from the beginning, the granting of favorable treatment to some on the basis of their skin color or gender seemed exactly contrary to the ultimate goal of not judging individuals by their skin color or gender. Proponents of affirmative action argued that it was necessary to employ these policies in the short term in order to “level the playing field” and allow individuals to compete equally. Opponents countered that it was

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hypocritical for government to grant preferences to its citizens simply on the basis of race or gender. They argued that it was improper for government to seek to remedy historical discrimination by rewarding individuals who had not actually been discriminated against. More fundamentally, they believed that government should never be allowed to judge its citizens by their race or gender, even in the pursuit of a laudable purpose. As the federal and state governments augmented their affirmative action programs and extended their affirmative action laws, debate over the propriety of such policies became heated. In the area of higher education, the debate played out quite publicly. At first, the federal government mandated that any college or university receiving federal funds must increase its hiring of minorities and women. These rules applied to almost every such institution in the United States, because they received federal funds in numerous and varied forms, including research grants and student loans for their students. Following this model for hiring, many of these institutions then elected to adopt preferential criteria in the admissions process in an effort to attract and retain minority students. In fact, it became quite common for them to do so. Until 1978, affirmative action requirements appeared in various pieces of legislation and executive orders. Most schools tended to address them by setting up numerical goals for admitting specific groups of minority students to their entering classes. THE BAKKE CONTROVERSY The University of California-Davis was one such institution. In the mid-1970s, it twice denied admission to a white male applicant to its new medical school. The applicant, Alan Bakke, found out that minority applicants with lower test scores and grade point averages had been admitted, and that the medical school reserved 16 places (out of 100) in its entering class for minority applicants. Bakke challenged the university in federal court, arguing that his application to medical school had been denied simply because he was a white man, while less qualified minority students had been admitted under an impermissible quota system. In 1978, The Regents of the University of California v. Bakke was brought before the U.S. Supreme Court, where it became one of the most famous and controversial decisions in its history. Today, the case is often referred to as the first “reverse discrimination” lawsuit, having been brought by a white person who argued that he had been denied opportunities on the basis of his race. In a 5:4 decision with no majority opinion, the high court determined that the university’s use of a numerical quota was unconstitutional, and it ordered Bakke admitted to the school. The Bakke Court, however, was deeply divided. The justices could not agree on the reasoning behind their decision, although five of them agreed on the ultimate result. Associate Justice Lewis Powell was designated to write the opinion of the Court, but his was one of six in the case, and Powell spoke largely for himself. Powell reviewed all of the policy justifications offered by UC Davis in defense of its affirmative action policy. The university argued, among other things, that

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affirmative action was necessary to remedy past racial discrimination. It also believed that its admissions policy would encourage minorities who became doctors to return to their communities and provide medical care in areas where services were limited. The university argued that graduating more minority doctors would create role models for minority youth. Finally, it argued that institutions of higher education benefit directly from having a diverse student body whose members brought to academia varied experiences and perspectives to fuel academic debate. One by one, Justice Powell rejected these arguments. Remedying past discrimination against certain racial groups was not a significantly compelling reason to permit racial discrimination against current medical school applicants, particularly since UC Davis, as a relatively new medical school, did not even participate in historical discrimination. The university’s other goals, although worthy, were not critical enough to permit the use of an admissions system that judged some applicants solely on the basis of their skin color. Eventually, however, Powell reached the issue of whether a university could take race into account in order to create a diverse incoming class. Powell determined that diversity was essential to furthering the mission of higher education, and institutions could use race as a factor in admitting students. Quotas, however, could not stand. A university that wanted to admit a racially diverse class could no longer rely on this quick and easy approach; they could use race as a factor in the admissions process, but only as one factor among many. No specific places could be reserved for minority students, and race could not be the sole or deciding factor in admissions decisions. After Bakke, colleges and universities across America were forced to reform their admissions criteria. But discrimination in higher education was not limited to the admission policies of its institutions. Hiring practices also came under scrutiny. Women, too, were clamoring for equitable representation not only in the student body, but also on university faculties. Male professors were irate to think that their employers would give preference to women in hiring new professors. However, the increase in women receiving PhDs necessitated a change in hiring policies. Commissions on the Status of Women sprang up on many campuses to develop plans for hiring more women and minority faculty. Commissions were vocal on how the colleges could go about changing their hiring practices and begin actively recruiting women and minorities where no real attempt had been made before. In the same vein, the federal government sought to provide equal athletic opportunities for female students at all levels of the educational process. In 1972, Congress passed Title IX of the Educational Amendments. Title IX barred gender discrimination in all academic and athletic endeavors. One of the goals of this groundbreaking legislation was to increase the number of women in college by providing athletic scholarships to young women, just as they had been provided for decades to young men. But in order to have young women qualified to participate in collegiate athletics, they had to have similar priming programs in the lower grades. Title IX caused an explosion in the creation of women’s athletic teams in a wide variety of sports across the country. Girls’

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basketball, volleyball, softball, and track teams appeared in K-12 schools, and women’s teams were created in colleges and universities. Although some in men’s athletics complained about having to share their resources with the new female sports teams, over the next few decades the idea of women’s athletics in education quickly became mainstream. In fact, the idea of gender equity in sports gradually expanded to include the professional sports arena, as women golfers and tennis players argued they should have the same size prize purses as the men. Title IX has not been without its critics. While its opponents are not averse to the stated goal of increased participation of women in academics and athletics, they do object to loss of resources for the “lesser” sports for men, particularly wrestling, swimming, and tennis. Men’s wrestling associations have been perhaps the most vocal about the negative effects that Title IX has had on their sport. They contend that, in order to offer more women’s sports, some of the lesser money-making male sports, such as wrestling, have suffered and at some colleges wrestling has been eliminated altogether. Proponents of women’s sports counter that the reduction in scholarships or the loss of a particular men’s sports program is a decision of the individual school, and that too many schools follow the money by pumping their resources into their lucrative football and basketball programs. Nationwide, sports participation at all levels for women is still below 50 percent, while female students make up more than 50 percent of the campus student bodies. WOMEN AND MINORITIES IN THE WORKPLACE Despite a representational parity in college admissions for women, the workplace has presented a different problem. While hiring rates have risen steadily for women over the past three decades, the aspect of the “glass ceiling” remains a problem. The glass ceiling is a metaphor for the barrier between middle and upper management that women seem unable to break through, despite their qualifications and experience. The glass ceiling is typically thought of as a barrier in the corporate world, but it exists in government as well. Speaking before the 2008 Democratic National Convention, New York Senator Hillary Rodham Clinton, who had waged a strong but ultimately unsuccessful campaign for her party’s nomination for president, told the gathered delegates that she and her supporters had made “18 million cracks in the glass ceiling” that had to date kept a woman from being nominated for president. Days later, Alaska Governor Sarah Palin, upon being chosen to run as the Republican vice-presidential candidate, honored Senator Clinton by telling her audience that the “women of American were not finished,” and that she looked forward to “shattering that glass ceiling once and for all.” The debate over affirmative action has generally been divided along political lines, with Republicans and conservatives arguing that affirmative action gives unqualified candidates a “leg up” on more qualified candidates. They also argue that government policies should be color-blind across the board. Republicans

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are not against affirmative action per se; they believe in a very narrow definition of those who should receive preferential treatment, and they tend to support programs, such as job training programs, that are open to all. Democrats and liberals, on the other hand, argue that the legacy of slavery and racism persists in the United States and that affirmative action remains needed to help rectify these injustices. Over the years, however, much of the policy debate has been settled not by politicians, but by the courts, and particularly the Supreme Court, which set the parameters for permissible affirmative action programs in a series of decisions in the 1980s and 1990s. The most famous of these cases was City of Richmond v. J. A. Croson Company, which the Court decided in 1989. Richmond, Virginia was the historical home of the Confederacy during the Civil War. The city council of Richmond, perhaps in an effort to assuage its controversial past, decided to require its contractors to award 30 percent of their subcontracts to minority-owned businesses. It defined minority businesses as those owned by African Americans, Spanish-speaking individuals, Orientals, Indians, Eskimos, and Aleuts. The Croson Company, a contractor that successfully bid for a city contract but had difficulty finding the required minority subcontractors for its construction project, sued to have this racial quota overturned as a violation of the equal protection clause of the Constitution. Writing for a 6:3 Supreme Court, Justice Sandra Day O’Connor concluded that the city’s preferential treatment of minority contractors was in fact unconstitutional, and that the city had not presented a compelling reason for it. Citing earlier decisions, O’Connor cemented the Court’s view of the issue: government hiring and contracting decisions could not be made on the basis of race, and government could not create preferential hiring and contracting programs to remedy general historical discrimination. Preferences could be used in certain narrow and compelling circumstances, such as when a court of law finds that a governmental entity has discriminated against specific individuals or companies and has ordered a judicial remedy. But the use of quotas or race-based programs was prohibited by the Constitution itself, which required that government treat its citizens equally without consideration of their race. Critics of Croson point out that, while hiring and contracting programs are perhaps the most recognized form of affirmative action, they are not the only ones. They argue that the white society does not recognize itself as the recipient of preferential treatment programs throughout the nation’s history. In any event, proponents of affirmative action contend that the government needs to ensure that minorities enjoy the same opportunities as their white counterparts, and that until minority groups catch up, affirmative action programs are necessary to achieve this important policy goal. In recent years, affirmative action programs have been crafted to avoid some of the common pitfalls that the courts have determined to be unconstitutional. A tutoring program for low-income college freshmen, for example, is perfectly legal unless and until it excludes students on the basis of their race. A seminar to teach nontraditional business owners how to bid successfully for government contracts is also perfectly legal, so long as no government contracts are actually

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awarded on the basis of race or pursuant to an illegal quota. In addition, American society’s definition of what constitutes “diversity” has changed substantially. Today, diversity is not measured merely by race or gender, but by a number of characteristics. These can include one’s socioeconomic status, veteran’s status, disability, sexual orientation, ability to overcome obstacles, and the like. The idea of diversity has been steadily expanded as the nation has come to reject shortcuts and realize that many different traits and experiences can contribute to creating a diverse employee, manager, or student. BAKKE REVISITED As a result of the affirmative action policies and legal challenges of the past three decades, government today is prohibited from judging or classifying its citizens by race or gender absent compelling circumstances. One area where race can still be used is in the higher education admissions process. Twenty-five years after Bakke, most colleges and universities continued to use race as a criteria in its admissions decisions. These practices came under fire in the companion cases of Gratz v. Bollinger, which challenged race-based undergraduate admissions policies at the University of Michigan, and Grutter v. Bollinger, which challenged race-based admissions policies at its prestigious law school. Michigan’s undergraduate admissions process was based on a point system, where the admissions committee assigned points to various items of a student’s application, including his or her race, which received an automatic 20 points. In a 6:3 decision, the Supreme Court determined that this practice was unconstitutional. The Court rejected awarding applicants with points for their race, and in doing so placed all point-based admissions processes in doubt. At the same time, however, the Court upheld 5:4 the law school’s practice of considering all aspects of a student’s application, including race. Unlike the college, the law school did not use a point system, but rather considered an applicant’s race along with a number of other factors in making admissions decisions. The Court concluded, much as it did in Bakke, that the law school’s approach furthered “a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Colleges and universities across the country breathed a temporary sigh of relief after the Court’s decision, because they could legally continue to take race into account in making admissions decisions. But in her majority opinion, Justice O’Connor warned that using race as a criterion would not be sanctioned indefinitely. She stated that she looked forward to the day when it would no longer be needed, which she hoped or predicted would be within the next 25 years. The dissenting justices did not think highly of O’Connor’s pronouncement, arguing that race should not be relied upon as convenient shorthand for determining an applicant’s diversity. If a law school wanted a diverse entering class, it could obtain one by interviewing prospective students—a laborintensive practice that almost no law schools employ. The voters of Michigan, for their part, responded to the Supreme Court’s decision by siding with the dissenters. A year after the decision, the state’s voters

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approved a ballot measure that forbad the use of race as a criterion in admissions. In doing so, it followed the lead of California, which forbad consideration of race in 1996; Washington, which did so in 1998; and Florida, which followed in 1999.

SIGNIFICANT CHANGES AND FUTURE CHALLENGES Educational institutions continue to struggle to determine, within the bounds of the law, how they might achieve parity in educational opportunities for racial and ethnic minorities and other disadvantaged groups. The controversy has become even more acute as both K-12 school districts and colleges and universities across the country face cutbacks in their budgets. That being said, significant progress has been made. Women have achieved parity in academic admissions, and statisticians predict that they will account for the majority of college and graduate and professional school students in the coming years. Still, women as a group lag behind in the workplace, and particularly in reaching the higher echelons of management and higher offices in government. Minority groups, too, have seen tremendous advances across society. But educational opportunities for many continue to be out of reach, particularly in graduate and professional schools. Today and for the immediate future, we must ask whether our government and society remain committed to helping racial and ethnic minorities prepare to meet the demands of life in twenty-first-century America. Affirmative action programs that seek to improve the conditions of various groups of Americans will likely continue for years to come, with a new focus on raising the bar for everyone rather than making up for lost time for some. Absent significant changes in the makeup of the Supreme Court, the group-rights approach to leveling the playing field is unlikely to reemerge. Government officials and business leaders alike will need to develop creative ways to assist disadvantaged citizens without categorizing them by race, ethnicity, gender, or other immutable characteristics. That, more than anything else, will be the challenge for affirmative action programs in the future. For Further Reading Books: Beckman, James A., ed. Affirmative Action: An Encyclopedia. Westport, CT: Greenwood Press, 2004; Carter, Stephen L., Reflections of an Affirmative Action Baby. New York: Basic Books, 1992; Curry, George E., ed. The Affirmative Action Debate. New York: Basic Books, 1996; Gillon, Steven M. That’s Not What We Meant to Do: Reform and Its Unintended Consequences in Twentieth-Century America. New York: W. W. Norton, 2000; Skrentny, John D. The Minority Rights Revolution. Cambridge, MA: Belknap Press of Harvard University Press, 2004; Stohr, Greg. A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge. New York: Bloomberg Press, 2006. Websites: Affirmative Action and Diversity Page. http://aad.english.ucsb.edu; American Civil Rights Institute. http://www.acri.org/; American Association for Affirmative Action. http://www.affirmativeaction.org; American Psychological Association Articles

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Afghanistan, War in on Affirmative Action http://search.apa.org/monitor; Ethnicmajority.com: Affirmative Action for African, Latino, and Asian Americans. http://www.ethnicmajority.com/ affirmative_action.htm; Making the Case for Affirmative Action in Higher Education; The Origins of Affirmative Action. http://www.now.org/nnt/08-95/affirmhs.html

Kim Schiller and Kathleen Uradnik AFGHANISTAN, WAR IN The Islamic Republic of Afghanistan is a landlocked country bordering Pakistan, Iran, Tajikistan, Uzbekistan, Turkmenistan, and China. Afghanistan’s ethnically diverse population reflects its location among historic trade routes leading from Central Asia into southwest Asia. The Pashtuns comprise the largest ethnic group in Afghanistan, followed by Tajiks, Uzbeks, and other ethnic groups. The official languages are Dari (Afghan Farsi) and Pashto. Afghanistan is an Islamic country where roughly 80 percent of the population is Sunni Muslim. Its geographic location at the intersection of the Indian subcontinent has granted it a strategic importance that great powers have strived to control for centuries, giving it a turbulent history that continues today. Afghanistan was the stage for numerous military conquests, including those by Alexander the Great in 330 BCE and Genghis Khan in 1219. During the nineteenth century, competition between the expanding British Empire and Russia heavily influenced Afghanistan in what was termed “The Great Game.” British concern over Russia’s growing influence in Central Asia and Persia (present-day Iran) led to wars in 1839 and 1878. As a result of these conflicts, British and Russians officially established the boundaries of what would become modern Afghanistan. The “Durand Line” created the border between Afghanistan and British India (now Pakistan) and established a buffer zone between British and Russian interests in the region. The border cuts through the Pashtun tribal areas and lies in one of the most dangerous places in the world. (Although shown on most maps as the western border of Pakistan, it is not recognized by Afghanistan.) By 1919, the British relinquished control over Afghan foreign affairs by signing the Treaty of Rawalpindi, giving Afghanistan its independence. THE 1979 INVASION Relative peace characterized a 40-year period from 1933 to 1973 under the reign of King Mohammad Zahir Shah. During his reign, Zahir Shah presided over a constitution that pushed for greater freedoms for women, political parties, and the press. Shah, however, produced few lasting reforms, and allowed the growth of extremist parties on both the left and the right. Instability and eventual political deterioration in Afghanistan grew in the 1970s as both the Communist Party and Islamic movement became more powerful and opposed to each other. In 1973, while seeking medical treatment in Italy, the aging Shah was overthrown by his cousin (and brother-in-law) Mohammad Daoud. Daoud declared

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himself president and crushed an emerging Islamist movement. Although he relied on leftist support to consolidate his power, toward the end of his rule he sought to reduce its influence, and overall Soviet influence, in Afghanistan. Daoud’s dictatorship ended five years later when he was overthrown by a communist uprising in 1978. Along with his family, he was shot dead, and Nur Mohammad Taraki took power as head of the country’s first Marxist government. Nur Mohammad Taraki, followed by Hafizullah Amin, tried to impose radical socialist change on traditional Afghan society. Amin was known for his ruthlessness; he was accused of assassinating thousands of Afghans. His brutal reign fueled opposition to Marxism and support for the nation’s growing Islamic parties. By the summer of 1978, revolt began in eastern Afghanistan and quickly spread into nationwide violence. Unrest in Afghanistan proved tempting to the Soviet Union. It began an invasion of Afghanistan on Christmas Eve, 1979 when paratroopers landed in the capital city of Kabul. Two days later, 700 Soviet troops dressed in Afghan uniforms took control of the major governmental buildings in Kabul. The Soviets installed Babrak Karmal as the prime minister. Internationally, there was widespread condemnation of the Soviet invasion. The United States denounced it, and the United Nations passed a resolution protesting it. An overwhelming majority of Afghans also opposed the communist regime. In defiance, Afghan fighters known as the “Mujahedin,” comprised of loosely aligned Afghan opposition groups, fought a guerrilla war against Soviet troops. As many Afghans joined the Mujahedin, the Soviet Union became embroiled in a military quagmire, especially as their forces failed to gain control of areas outside Afghanistan’s major cities. During the Soviet occupation, the United States quietly supported the Mujahedin, sending weapons and aid covertly through the Central Intelligence Agency (CIA). These weapons included portable shoulder rockets called “Stingers” that were highly effective against Soviet aircraft. The Mujahedin also used tunnels and caves to hide and store weaponry throughout the rugged terrain of Afghanistan. Because of the difficulty in fighting Afghans on their own soil, the Soviet Union’s losses continued to mount. Foreign affairs pundits began to label the conflict the “Soviet Union’s Vietnam,” in reference to the war of attrition that the United States had waged in Southeast Asia during the 1960s. While negotiations toward a Soviet withdrawal had occurred on and off since the early 1980s, a timetable for Soviet troop withdrawal wasn’t realized until 1988 with the signing of the Geneva Accords. The Mujahedin, who did not take part in the negotiations, refused to accept the terms of the accords. As a result, the civil war continued in Afghanistan after the Soviet troop withdrawal, and the country quickly became a magnet for Islamic extremists worldwide. Those who came to Afghanistan had been inspired by the Mujahedin’s success in opposing the Soviet superpower. The last Soviet troops left Afghanistan in February 1989, under reformist Soviet leader Mikhail Gorbachev. During the nearly ten years of conflict, the Soviets lost more than 15,000 troops and were demoralized militarily. Over one million Afghans died in the war.

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THE RISE OF THE TALIBAN AND THE U.S.-LED INVASION AFGHANISTAN The departure of Soviet forces in 1989 left Afghanistan in a state of political strife, with various warlords struggling for power. In 1992, the pro-Moscow government of Mohammad Najibullah collapsed and U.S.-backed rebels took power. After a series of civil wars, the “Taliban” emerged on the Afghan political scene in 1994 in the midst of a civil war between forces in northern and southern Afghanistan. Their initial appeal—and success—was based on a call for the removal of the Mujahedin groups. They gained a foothold in the southern city of Kandahar, and over the next two years were able to expand their influence throughout the country. In 1996, Taliban forces captured Kabul, the Afghan capital, and took control of the national government. The Taliban was initially a mixture of Mujahedin who had fought against the Soviet invasion of the 1980s and a group of Pashtun tribesmen who had spent time in Pakistani religious schools. Pashtuns constitute a plurality in Afghanistan, accounting for about 38 percent of Afghanistan’s population. Taliban leaders practiced Wahhabism, a form of Islam that insists on a literal interpretation of the Koran. Taliban rule was therefore characterized by an extreme interpretation of Islam. For example, it required women to wear head-to-toe veils, banned television and popular music, and jailed men whose beards were considered too short. They were particularly repressive toward women, who were prohibited from attending school or working outside the home, except in health care. The Taliban authorized the use of force to uphold bans on activities deemed unIslamic. They instilled barbaric and often public punishments, including executions, for those who committed crimes against Islam. Human rights violations committed by the Taliban quickly resulted in the loss of international support. Prior to the terrorist attacks of 9/11, the main supporters of the Taliban government were Saudi Arabia and Pakistan. Along with the United Arab Emirates, they were the only countries to recognize the Taliban-led government in Afghanistan. After the 9/11 terrorist attacks, Pakistan and Saudi Arabia became partners in the U.S.-led “war on terrorism” and halted their official support of the Taliban. During the mid-1990s, the Taliban government provided a base of operations to Osama bin Laden and his terrorist group Al Qaeda. Under the Taliban, Al Qaeda used Afghanistan as a safe haven to train its forces, import weapons, and plot terrorist activities. It is estimated that 10,000 to 20,000 people passed through Al Qaeda training camps prior to 9/11. Bin Laden knew Afghanistan well, as he had fought with the Mujahedin against the Soviets. He provided both financial and political support to the Taliban, and its members in turn protected Al Qaeda. From his base in Afghanistan, Bin Laden planned a series of terrorist attacks against the United States and its allies. He was responsible for the bombings of the U.S. embassies in Kenya and Tanzania in 1998, which killed over 200 people and injured thousands more. Al Qaeda forces are also believed responsible for the October 2007 attack on the USS Cole, a destroyer that was docked in the

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port of Aden when it came under attack by suicide bombers in a small boat. Seventeen U.S. servicemen and women were killed in the attack, and dozens more were injured. Bin Laden himself claimed responsibility for the infamous September 11, 2001 terrorist attack against the United States. The attack was undertaken by suicide bombers who hijacked four commercial airliners and flew them to strategic targets. Two planes crashed into and brought down the twin towers of New York City’s World Trade Center; another crashed into the Pentagon; and the fourth crashed into a field in Shanksville, Pennsylvania. Just under 3,000 people died in the attacks, almost all of whom were civilians. The actual death toll continues to rise, as the 9/11 “first responders” struggle with illnesses caused by the toxic environment that they faced on that tragic day. After 9/11, President George W. Bush gave the Taliban an ultimatum to hand over Osama bin Laden. The Bush administration announced that it would not distinguish between terrorists and the governments that harbored them. On October 7, 2001, the United States, along with the United Kingdom, launched Operation Enduring Freedom (OEF) in response to the 9/11 attacks. The goal was to destroy Al Qaeda safe havens in Afghanistan and stop the country from being used as a base for terrorist operations. In less than two months, U.S. and coalition forces overthrew the Taliban regime. U.S.-led air attacks on Afghanistan allowed the Taliban’s opponents to sweep them from power. Kabul was retaken first, and by early December the Taliban had given up the city of Kandahar. In December 2001, Hamid Karzai was named the leader of a U.S.backed interim Afghan government that replaced the defeated Taliban; he was named president of Afghanistan in June 2002. U.S. TROOP BUILD-UP Despite their defeat in 2001, the Taliban continued to wage guerrilla warfare on U.S. forces from the mountainous area on the Pakistan-Afghanistan border. In September 2002, Karzai survived an assassination attempt in Kandahar that was blamed on the Taliban. He proved largely unsuccessful in exerting control over Afghanistan beyond the city of Kabul. Then in 2003, U.S. forces were diverted to the ongoing war in Iraq, allowing the Taliban to regain strength in the southern portion of Afghanistan. With insufficient troops, the Americanled coalition faced an increasingly fierce and well-armed insurgency. It ceded significant areas of the countryside to the Taliban, which also controlled territory in Pakistan. Thousands of troops, militants, and civilians had been killed in the violence, a fact that caused U.S. military and foreign policy officials to rethink their Afghan strategy. In Iraq, a military operation called the “surge” worked well in securing neighborhoods and towns held by resistance fighters. The surge involved deploying thousands more American troops to the country, which were to seize and hold neighborhoods so that they would not fall back into the hands of militants. Once these areas were under stable control of American troops, citizens could begin to resume their normal daily affairs, and local support for disruption and violence would begin to fade. Given the success of the surge in Iraq

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under the Bush administration, military leaders urged President Barack Obama to try it in Afghanistan. Military operations in Afghanistan had been comprised of clearing out towns and cities of insurgents. The problem was that, once cleared of the opposition, U.S. troops could not find anyone to fill the political or legal vacuum. While the troops went on to the next target, Taliban fighters would reenter and retake the cities, inflicting tremendous retribution on anyone who had assisted the Americans. With the situation deteriorating, President Obama sent an additional 17,000 U.S. troops to Afghanistan in 2009, adding nearly 50 percent to the 36,000 American troops already there. In 2010, he ordered the deployment of another 30,000 troops. The president reasoned that maintaining safe cities and stepping up the training of Afghan security forces would create greater political stability for the Afghan government. At the same time, he also declared that a partial troop withdrawal would begin in July 2011. The largest obstacle to a withdrawal of U.S. forces is probably the weakness of the Karzai government. Karzai won re-election in August 2009 in an election marked by low turnout, fraudulent ballots, and suspected tampering in favor of himself. Karzai continues to alienate many influential Afghans, who are also frustrated with the United States for propping up his government. Many believe that any success in stabilizing Afghanistan will depend on whether Afghans can overcome their distrust of the Karzai government. Much of the country is plagued by entrenched corruption with government officials, including Karzai’s brother, who has been accused of taking millions of dollars in bribes. In addition, officials rarely show up at work and thus fail to provide basic services to the local people. Tribal leaders and drug lords rule the rural areas of the country; their level of cooperation with U.S. troops varies, as they remain suspicious of any foreign influence. With no functioning legal institutions, moreover, Afghans turn to the Taliban rather than the government to settle disputes. Years of war have left the country broke, and it has little in the way of modern conveniences. It lacks adequate health care, transportation, and education. It has few roads, so the different regions of the country remain isolated. In short, if Afghanistan is governable, it is barely so. Some military leaders have objected to President Obama’s withdrawal of combat troops, which began as announced in July 2011. The troop reduction will be gradual, and the the United States is likely to have forces in Afghanistan until at least the end of 2014. Currently there are almost 100,000 Americans serving in Afghanistan, at a cost of roughly $120 billion annually. Despite this fact, the issue of Afghanistan was largely absent in the 2010 U.S. midterm elections. Instead, the struggling U.S. economy dominated the headlines and set the tone for most election campaigns. Ironically, November 2010 marked a major milestone in the U.S. war in Afghanistan: the United States had now fought in Afghanistan as long as the Soviets.

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WHAT’S NEXT? Many military scholars and historians doubt the ability of the United States (or any nation, for that matter) to bring a stable government to Afghanistan. Over the centuries, other foreign powers have repeatedly tried and failed to do so. Opponents to the war argue that Afghanistan is ungovernable, or at least ill-equipped for democratic governance, and that it is no longer in America’s national interest to be there. It is true that Afghanistan has a lot going against it. The mountainous terrain and extreme climate isolate cities and villages from one another, and there is no modern infrastructure in place to link them. Afghanistan has experienced thousands of years of tribal rule, and tribal leaders still hold considerable power across the country. Most of the people of Afghanistan are poor and uneducated, and Islamic extremist rule by the Taliban erased pretty much every trace of modern education and medicine. To make matters worse, opium—though illegal—remains the major source of the country’s revenue. It is estimated that Afghanistan produces over 90 percent of the world’s opium, which is made into heroin. Opium money makes corrupt government and tribal leaders rich, and it supplies the money for the Taliban and other insurgent groups to purchase weapons and supplies to continue their fight against the United States and to fund their terrorist plans abroad. All of these factors make Afghanistan a difficult place to conduct a war. America has the best military technology, but it is often ineffective when used in such rugged terrain. The military sends unmanned “predator drones” to places its troops cannot reach. These drones are typically used to bomb mountain hideouts where Taliban and Al Qaeda leaders are suspected to be hiding. But locating these bunkers is a real challenge; no foreign troops know the region like the locals, and the locals do not cooperate for fear of reprisal. In fact, it is never easy to tell whether local officials and citizens support or oppose American efforts to rid the country of the Taliban. Guessing wrong about their loyalties has cost many American soldiers their lives. Indeed, the war in Afghanistan and against terrorism generally has revealed the woeful inadequacy of American “ground intelligence”—the recruitment and training of local informants to provide key information on the identity, location, and plans of the enemy. In October 2010, former Soviet President Mikhail Gorbachev was asked by a British reporter about President Obama’s plan to bring coalition troops home. Gorbachev, who had ordered the withdrawal of Soviet troops in 1989, supported the idea. He said that “victory is impossible in Afghanistan,” and that troop withdrawal, though politically difficult, was the right course. Back in the United States, increasing numbers of elected officials and average citizens may tend to agree with him. Policy makers have started to draw a distinction between eliminating the terrorists from Afghanistan and turning the country into a stable democracy. The first goal is achievable, and great strides have already been made in forcing Al Qaeda out of the country and shutting down the Taliban. The second goal, however, remains in doubt.

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Proponents of staying in Afghanistan argue that the primary fear of the Afghan people is that they will be abandoned by the United States and its allies just as their country begins to make progress toward reform. U.S. military leaders, including General David Petraeus, have repeatedly assured the Afghan government that it is committed for the long term and will leave only after the country is stable. Until mid-2011, Petraeus served as the commander of coalition troops in Afghanistan. He previously oversaw the successful “surge” of troops in Iraq and was tapped by President Obama to implement that strategy in Afghanistan. (President Obama recently appointed him to be the nation’s CIA director.) Those who support America’s continued presence in Afghanistan believe that the United States needs to do more to convince other nations to commit troops to the war effort. Afghanistan is not Iraq; while almost all American allies refused to join in U.S. efforts to oust Saddam Hussein, the war in Afghanistan is being waged primarily to eliminate terrorist organizations that have attacked the United States and the West. Over three dozen countries have sent a smattering of troops to Afghanistan under the auspices of NATO; the vast majority of soldiers, however, are still from the United States and Britain. Other European nations have experienced attacks from by Al Qaeda and other Islamic extremist groups, but have not supported U.S. antiterrorism efforts in the region. At the same time, allied leaders—including the last two prime ministers of Great Britain—have expressed their uneasiness with what they see as America’s changing war strategy. Great Britain readily joined with America in the aftermath of 9/11 to overthrow the Taliban government. In recent years, however, the war has become increasingly unpopular among the British people, as the number of British troop casualties in Afghanistan continues to rise. In addition, the British government sees a shift from the initial U.S. plan to combat international terrorism (aimed especially at Al Qaeda and its Taliban supporters) to new, broader-based goals for Afghanistan such as nation building and drug interdiction. While Britain is still America’s top supporter in the war, it remains to be seen how long its people and its government will support efforts to make Afghanistan stable and democratic. Today, U.S. elected officials remain deeply divided over Afghanistan. Members of Congress on the left have been terribly disappointed by President Obama’s decision to send more troops to Afghanistan, even though he met his pledge to withdraw combat troops from Iraq. They wanted him to withdraw troops from Afghanistan more quickly than the President planned. Indeed, President Obama took an aggressive approach toward Afghanistan by supporting the surge and naming General Petraeus to oversee U.S. efforts there. He took a wait-and-see approach to troop withdrawal, to the chagrin of his liberal supporters, who had expected him to end military aggression in the region in favor of diplomacy. On the right, many have applauded Obama’s efforts, including former President George W. Bush, who during an interview confirmed his support for Obama’s decision to increase troop levels. Senator John McCain (R-AZ), who lost the 2008 election to Obama, argues that victory in Afghanistan is essential

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to U.S. interests. Ironically, Obama may have more support from the Republican Party than from the Democratic Party going forward. While there are some Republican detractors, such as nationally acclaimed journalist and pundit George Will, who wrote a column in the Washington Post calling for a massive drawdown of troops, by and large the party and its members in Congress continue to believe that the war is necessary and should continue. The American people, at least for now, are not paying attention to the war. As indicated above, they were fixated on the economy for the months leading up to the 2010 midterm elections; the election itself demonstrated widespread unhappiness with the status quo in Congress, with Republicans gaining over 60 seats (and majority control) of the House of Representatives. Until the economy improves, voters are likely to remain focused on presidential and congressional efforts to get it moving in the right direction. One might argue that a rising death toll in the Afghan conflict will cause Americans to lose support for the war, but this has not happened. Indeed, 2010 was the bloodiest year for American and allied troops in Afghanistan since the initial invasion of the country in 2001. Nearly 700 troops died, over 600 of whom were Americans. The nation did not turn against the war as a result of this increased casualty toll, but rather tuned out the war because they were consumed with worry and anger about domestic affairs. At this point, the future of Afghanistan is highly uncertain, because the role of the United States and its allies in the country is highly uncertain. President Obama and his administration have committed to staying in the country until 2014, although Obama himself might be out of office after 2012. If Obama can retain Republican support for his military plan while keeping nervous members of his own Democratic Party onboard, U.S. policy should be stable for the remainder of his current term. Popular support for the war is likely to be a nonissue until the economy improves, barring an escalation in violence even greater than that seen in 2010. Of course, the Karzai government remains fragile, and if anything were to happen to it, the entire Afghan strategy would likely need to be reassessed. No one particularly trusts President Karzai, but at present he remains supportive of western efforts in his country and is the best they have. Is it possible that President Karzai could broker a peace agreement between his government and the Taliban insurgents? In September 2010, he announced the creation of a council to pursue peace talks with members of the Taliban who were willing to denounce Al Qaeda and recognize the legitimacy of the Afghan government. Rumors had been circulating for months that these talks were already taking place. The Taliban was represented by Mullah Akhtar Muhammad Mansour, a high-ranking commander thought to be the Taliban’s second-in-command. To entice Mansour to participate in the talks, American and Afghan officials gave him significant sums of money. He met with President Karzai and other Afghan and NATO officials twice. At their third meeting in November 2010, the parties concluded that the individual claiming to be Mansour was, in fact, an imposter. That ended the “peace talks” with the Taliban. However, following the death of Osama bin Laden in May 2011, it is

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perhaps more likely than ever that Taliban leaders will consider it in their interests to negotiate an end to the current conflict. SUMMARY It is a tremendously difficult task to fight an enemy that one has not seen and cannot identify, particularly when that enemy is adept at hiding in the remote and unforgiving corners of a desolate nation. Despite the challenges, and knowing the failures of those who historically have tried to tame Afghanistan, the United States and its allies forge ahead. The question remains, though—to what end? There is no consensus yet on what a “victory” in Afghanistan should look like, and, whatever it may be, it is still years away. Until that time, the Afghan conflict will remain at the center of bitter debate on the proper direction of U.S. foreign policy. Further Reading Books: Bush, George W. Decision Points. New York: Crown Publishers, 2010; Committee on the Initial Assessment of Readjustment Needs of Military Personnel, Veterans, and Their Families; Board on the Health of Select Populations. Returning Home from Iraq and Afghanistan: Preliminary Assessment of Readjustment Needs of Veterans, Service Members, and Their Families. Washington, DC: National Academies Press, 2010; Crews Robert D. and Amin Tarz, eds. The Taliban and the Crisis of Afghanistan. Cambridge, MA: Harvard University Press, 2008; Fair, C. Christine and Seth G. Jones; Beth Ellen Cole, ed. Securing Afghanistan: Getting on Track. Washington, DC: U.S. Institute of Peace, 2009; Filkins, Dexter. 2008. The Forever War. New York: Alfred A. Knopf; Giustozzi, Antonio, ed. 2009. Decoding the New Taliban: Insights from the Afghan Field. New York: Columbia University Press; Giustozzi, Antonio. 2009. Empires of Mud: War and Warlords of Afghanistan. New York: Columbia University Press; Gutman, Roy. How We Missed the Story: Osama bin Laden, the Taliban, and the Hijacking of Afghanistan. Washington, DC: United States Institute of Peace; Jones, Seth G. Counterinsurgency in Afghanistan. Santa Monica, CA: RAND National Defense Research Institute, 2008; Lia, Brynjar. Architect of Global Jihad: The Life of al-Qaida Strategist Abu Mus’ab al-Suri. New York: Columbia University Press, 2008; Malik, Hafeez. U.S. Relations with Afghanistan and Pakistan: The Imperial Dimension. New York: Oxford University Press, 2008; Maloney, Sean M. Confronting the Chaos: A Rogue Military Historian Returns to Afghanistan. Annapolis, MD: Naval Institute Press, 2009; O’Hanlon, Michael E. Toughing It Out in Afghanistan. Washington, DC: Brookings Institution Press, 2010; Rashid, Ahmed. Descent into Chaos: The United States and the Failure of Nation Building in Pakistan, Afghanistan, and Central Asia. New York: Viking, 2008; Rose, Gideon. How Wars End: Why We Always Fight the Last Battle: A History of American Intervention from World War I to Afghanistan. New York: Simon & Schuster, 2010; Sanger, David E. The Inheritance: The World Obama Confronts and the Challenges to American Power. New York: Harmony Books, 2009; Sinno, Abdulkader H. Organizations at War in Afghanistan and Beyond. Ithaca, NY: Cornell University Press, 2008; Stack, Megan K. Every Man in This Village Is a Liar: An Education in War. New York: Doubleday, 2010; Woodward, Bob. Obama’s Wars. New York: Simon & Schuster, 2010.

Airline Safety Websites: Afghanistan online. http://www.afghan-web.com/; CIA, World Factbook: Afghanistan. https://www.cia.gov/library/publications/the-world-factbook/geos/af.html; Country Guide: Afghanistan. Washington Post. http://www.washingtonpost.com/wpsrv/world/countries/afghanistan.html; East Carolina University. “The War on Terror: Afghanistan and the Taliban. http://www.ecu.edu/lib/govdoc/afghanistan.cfm; Operation Enduring Freedom Casualty Report. http://icasualties.org/oef/; Project on Defense Alternatives: War Report. http://www.comw.org/warreport/; United Nations Development Programme: Afghanistan. http://www.undp.org.af/; U.S. Department of State: Afghanistan. http://www.state.gov/p/sca/ci/af/; U.S. Institute for Peace: Afghanistan. http://www.usip.org/countries-continents/asia/afghanistan

Sara Hower AIRLINE SAFETY According to the U.S. Bureau of Transportation Statistics, 769.6 million passengers took to the skies on U.S. airline flights in 2009. This statistic represents individuals who flew domestically on U.S. air carriers and on international flights to and from the United States. In a typical month, U.S. carriers fly approximately 60 million passengers, an average of 2 million passengers per day! In 2009, Southwest Airlines transported the most domestic passengers, with American Airlines transporting the most international passengers. Atlanta’s Hartsfield Airport once again ranked as the nation’s busiest. When one considers that there are over ten million commercial airline flights per year, the number of casualties and fatalities arising from aircraft crashes is miniscule. The National Transportation Safety Board, which investigates crashes, estimates that 4.03 fatalities occur for every one million flight hours logged by large commercial aircraft. That number increases to 10.74 per million on commuter airline flights—still a very, very small number, particularly when compared to other forms of long-distance transportation. Leading aviation information provider OAG and Plane Crash Info.com have compiled statistics indicating the odds of being killed on an airline flight. The level of danger depends on the airline: for the world’s 25 safest airlines, the odds are 1:9.2 million; for the 25 airlines with the worst safety records, the odds are 1:843,744. Statistically at least, U.S. passengers flying on major domestic carriers should not be concerned for their safety. Or should they? Although the statistics demonstrate that U.S. air travel is quite safe, serious concerns have emerged in recent years about the reliability of airline transportation. Increased fuel, maintenance, and labor expenses are making it more difficult for the major airlines to remain viable, a fact evidenced by the bankruptcies of several major U.S. carriers over the past ten years, including TWA (2001), United (2002), U.S. Air (2004), Delta (2005), Northwest (2005), Frontier (2008), and Aloha (2008). Economic challenges facing the aviation industry have led domestic carriers to tighten their belts, in part by outsourcing aircraft maintenance relying more heavily on smaller regional carriers that are not subject to the same standards and oversight as the major carriers.

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And, as if industry challenges weren’t enough, airlines continue to be the mark of terrorist hijackers and bombers, who seek to instill fear in the flying public and disrupt the economies of the nations they target through horrific attacks on aircraft. It has been a trying time for passengers, airline companies, and government regulators and security forces alike. TERROR IN THE SKIES On October 29, 2010, officials in England and Dubai, acting on a tip from Saudi Arabian intelligence, discovered plastic explosives in two pieces of cargo destined for the United States. The bombs had been placed in toner cartridges inside desktop computer laser printers that were bound for two synagogues located near Chicago, Illinois. Both packages had originated in Yemen and were en route when the bombs were discovered; both packages had traveled on cargo and passenger planes. By some accounts, one of the bombs was only 17 minutes from detonation when it was defused. Early accounts confirmed that the bombs were set to go off in flight, perhaps over the Atlantic Ocean or just before landing in the United States. Immediately, U.S. and Yemeni officials suspected that the bombs were created by master bomb-maker Ibrahim Hassan al-Asiri at the behest of Anwar al-Awlaki, leader of the terrorist group Al Qaeda in the Arab Peninsula, known as “AQAP.” A few days later, AQAP claimed responsibility for them. AQAP had previously attempted to blow up a Northwest Airlines (now Delta) Airbus A330 passenger jet on Christmas Day, 2009. The jet, carrying 289 people, was bound from Amsterdam to Detroit. Shortly before landing, the bomber, Umar Farouk Abdulmutallab, a Nigerian-born Al Qaeda recruit, attempted to ignite the same kind of plastic explosives, which he had hidden in his underwear. He almost succeeded, but was subdued by alert passengers and crew as he tried to detonate the bomb. The “underwear bomber,” as he came to be known, is currently at trial in the United States, charged with the attempted murder of everyone onboard the airplane. Another Al Qaeda operative used a similar approach in trying to blow up another U.S.-bound passenger plane in 2001. On December 22, 2001, Richard Reid boarded an American Airlines plane in Paris, headed toward Miami. During the flight he attempted to ignite the plastic explosives, which had been carefully hidden in his shoes. Once again, passengers and crew were able to intercept him as he attempted to ignite the device. Now known as the “shoe bomber,” he is serving a life sentence in U.S. federal prison, having pled guilty to the terrorist act. It goes without saying that Al Qaeda’s most terrifying attack was not the bombing of aircraft, but rather the hijacking of four aircraft on September 11, 2010. The enormity of the 9/11 attack is well ingrained in the United States consciousness and need not be repeated here. The point is simply that, in an effort to instill fear and panic in average citizens, terrorists like Al Qaeda do not hesitate to attack aircraft. In turn, the governments targeted by these attacks have responded in force in an effort to ensure that the skies remain safe.

Airline Safety

AIRLINE SECURITY IN THE UNITED STATES Following 9/11 and the subsequent unsuccessful attempts to blow up U.S. passenger aircraft, the U.S. Department of Homeland Security and its subsidiary, the TSA (Transportation Security Administration), have employed rigorous security measures in an effort to improve airline safety. They started by banning “dangerous” items from aircraft, including “sharp objects” such as scissors and knives, sporting goods such as hockey sticks, tools and their parts such as drills and drill bits, flammable liquids and materials of all kinds, and a long list of other objects that could be used as weapons inside of the cabin of an aircraft. After the attempted shoe bombing, all passengers are now required to take off their shoes as they pass through airport security. The TSA also banned liquids of all types from carry-on bags, except in very small, regulated amounts. This ban extended to commonly carried on items such as deodorant, toothpaste, and shampoo, and for a time to items such as breast milk stored in baby bottles. Passengers wishing to take such items on their trip now need to check them in their luggage. The small amounts that are allowed onboard are required to be placed in a clear plastic zipper bag for easy identification and inspection. Although the U.S. traveling public objected loudly to these rules, which they perceived as both unnecessary and ineffective, the clamor began to recede as time passed. Travelers became used to additional delays and ever more invasive security screening rules. However, after the attempted toner cartridge bombing, the TSA began to implement even more stringent rules for security searches of passengers that caused many to conclude it had simply crossed the line.

FULL-BODY SCANNERS COME TO U.S. AIRPORTS In early 2010, the TSA announced that it was going to install full-body scanners in airports across the United States. A full-body scanner allows a security agent to see under a person’s clothing (but not under their skin). The machine generates a head-to-toe image of the passenger that is quite revealing; some have compared scanner images to nude photographs. Response to the plan was immediate: several organizations accused the TSA of invading travelers’ privacy, by searching them in violation of the Constitution’s limits on search and seizure, and by adopting this course without following required procedures for seeking public comment and looking for less invasive alternatives. Several organizations, including the Electronic Privacy Information Center (EPIC), has sued the government to prevent use of the scanners in a case that is now pending in federal court. The public’s reaction was less severe because the expensive scanners initially appeared in only about a dozen airports. By the fall of 2010, however, the TSA had installed a few hundred of the eventual 500 total scanners. At about the same time, the attempted toner cartridge bombs were discovered, leading the TSA to announce enhanced security rules. For example, every passenger would be required to undergo a full-body scan at airports that had the machines; there

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would be no exceptions for children or for those holding modesty as a religious belief. Those refusing to undergo the scan would be subjected to a heightened “pat-down” search that involved TSA employees using the fronts of their hands to frisk passengers aggressively, with no areas of the body off-limits. Within days, television news stories were teeming with videos of embarrassed passengers objecting to the virtual “strip search” of the scanners and screaming children who did not understand why they were being subjected to strangers placing their hands all around their young bodies. In response to the TSA’s security measures, civil libertarians and irate flyers called for a national “opt-out” day on Wednesday, November 24, 2010, where flyers would refuse to participate in full-body scans and aggressive pat-downs. (The Wednesday before Thanksgiving is traditionally the busiest travel day of the year in America.) The purpose of this grassroots protest was to convince the government that screening procedures needed to be changed, and that the government could not arbitrarily view or feel a person’s most private body parts in the name of passenger safety or national security. Ultimately, the protest did not disrupt air travel—flyers wanted to get to their destinations for the holiday more than they wanted to protest the conditions placed on them to do so. Congress, too, reacted with hesitation to the TSA’s procedures. In November 2010, Representative Ron Paul (R-TX) introduced legislation entitled “The American Traveler Dignity Act.” The act seeks to hold TSA agents to the same legal requirements and punishments as any other person in their use of radiation-emitting machinery or their physical contact with others. The debate continues to rage over the tactics employed by the federal government to keep airline passengers safe. On the one hand, everyone agrees that security must be top-notch, given that aircraft continue to be the target of terrorists around the globe. On the other hand, passengers remain skeptical of surrendering a degree of their civil rights and liberties in security procedures that they worry is unsafe and that may not be effective in stopping terrorists anyway. Certainly there are legitimate competing interests on both sides of the debate, and at some point a proper balance will be struck between keeping travelers safe and honoring their privacy. Right now, however, passengers must choose either to tolerate or to fight the increasingly invasive actions of their government in regulating airline security. OTHER CONCERNS FOR AIRLINE SAFETY: REGIONAL CODESHARE AIR CARRIERS The unprecedented use of regional carriers has raised serious concern among those who investigate and report on airline safety issues. On February 12, 2009, Continental Flight 3407 from Newark, New Jersey crashed into a residential neighborhood just before landing near Buffalo, New York. The crash killed all 49 people on the plane and one person on the ground. Graphic video footage showed the houses engulfed in flames with pieces of the disintegrated aircraft scattered for hundreds of feet. Initial reports indicated that the Bombardier Dash-8 Q400 propeller plane had developed ice on its wings. However, the

Airline Safety

National Transportation Safety Board investigation of the crash placed the blame squarely on the pilots, who worked for and flew the plane for Colgan Air. Among other things, the NTSB found that the pilot was startled and confused, and he reacted in the exact opposite manner he should have when the plane started to stall. Colgan Air is a regional carrier based in Memphis, Tennessee. It is a “codeshare partner” of Continental. A codeshare airline typically is a small, regional carrier selected by a major carrier to undertake a portion of its flights, usually short ones to smaller cities. Because these flights have fewer passengers, it is more economical to transport them using smaller jets or propeller planes like the Dash-8. Almost every U.S. carrier uses codeshare partners of this type to complete some of its flights; in fact, codeshare flights now account for more than 50 percent of the daily departures in the nation. The heavy reliance on regional airlines is a relatively new development in American aviation. As with all innovations, it comes with advantages and disadvantages. On the one hand, using regional carriers means that the airlines can reach more travelers in smaller markets. It is also cheaper to fly smaller planes, especially on “short hop” flights, and many airlines have retired large jets in favor of smaller ones. The entire fleet of successful discount carrier Southwest Airlines consists of Boeing 737 aircraft seating only up to 137 people; the average Southwest flight is less than two hours long. For the largest carriers, it is simply more efficient and cost-effective to use smaller planes and to delegate responsibility for short flights to smaller carriers. When a passenger purchases a ticket on a codeshare airline, however, that ticket still bears the name of the major carrier. Travelers who thought they were flying on Continental to Buffalo were actually flying on planes owned, maintained, and staffed by Colgan Air. Colgan Air itself is a subsidiary of another larger codeshare airline, Pinnacle Airlines, which serves Northwest Airlines (now Delta) as Northwest Express. Colgan Air flies for several major carries under various names, including “Continental Connection,” “United Express,” and “U.S. Airways Express.” These names reflect those of the major carriers, but they are not the same. Codeshare flights are marketed and implemented in an effort to make consumers think that they are traveling on the major carriers. The major airlines try to make their codeshare partners appear to be a seamless extension: passengers buy tickets with the logos of the major carriers; codeshare personnel wear the same uniforms; the planes are painted the same color. Passengers use the same airport gates and participate in the same frequent flyer programs. Some critics consider this approach to be misleading or even duplicitous to the flying public, because it leads to consumer confusion. Few consumers read the “fine print” on their tickets indicating which company is actually in charge of their flights. More importantly, the safety and training standards for codeshare carriers are different, as is the level of regulatory scrutiny to which they are subjected by the government. The nation’s most recent fatal crashes have all occurred on regional carriers. The 2009 Buffalo crash was the first commercial airline crash

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in the United States since August 2006, when another codeshare aircraft crashed while taking off from the wrong runway in Lexington, Kentucky. Comair Flight 191, also known as Delta Connection flight 5191, went down because the runway was too short for the Bombardier Canadair regional jet. Forty-nine of the 50 people onboard the plane died. The NTSB ultimately blamed this crash, too, on pilot error, although airport construction and control tower staffing problems contributed to the disaster. In both the Buffalo and Lexington crashes, the NTSB pointed out that the pilots had failed to follow critical procedures and had been distracted by their own casual conversations. Although the Federal Aviation Administration (FAA), which regulates the aviation industry, and NTSB support a uniform set of rules for all airlines and airline personnel, critics point out that smaller regional carriers simply do not meet the same standards as their larger counterparts. Pilots hired by regional carriers typically have fewer hours of actual cockpit experience. They do not have the same kind of opportunities for continuing education and training. Many of these pilots have complained to the FAA about low pay, poor training, demanding schedules, inadequate maintenance of aircraft, and lax safety enforcement by their employers. The pilot of the doomed Buffalo flight, for example, was still in the cockpit despite failing several flight check tests during his licensure. He did not disclose these failures to Colgan Air, and Colgan did not check his background because it was not legally required to do so. His copilot, who was only 24 years old, had traveled all night from Seattle to Newark to make the doomed flight and was likely suffering from fatigue. Cockpit professionalism was also in question, as the pilots chatted during the flight and did not become aware of a problem until it was too late. After the crash in Lexington, grieving relatives filed federal lawsuits against Comair and Delta seeking damages for their alleged negligence. The federal court in the case ruled that, because Delta was a separate entity, it had no responsibility to the passengers on the doomed Comair flight, and the lawsuit against it was subsequently dismissed. Because the typical codeshare carrier is an independent contractor (which means that it entered into a contract with the major carrier to provide services—namely, to conduct specific flights), it has no legal relationship with the major carrier beyond what is called for in its contract. In the eyes of the law, it is a separate and distinct entity from the major carrier. It is independent from the major carrier in all ways, including in the hiring and training of staff and the maintenance of its aircraft. Thus, even though codeshare flights are marketed and presented as flights from the major carriers, these carriers have no legal duty to the passengers on such flights. The PBS investigative television show Frontline, which in 2010 devoted an entire episode to the safety of regional carriers, reported that it is a common practice for pilots of small carriers to work odd hours, travel long distances to get to their flights, and bunk together in makeshift dormitories because they cannot afford to sleep in motels before their flights. The documentary team visited such a dormitory, where multiple pilots slept in bunk beds in a tightly

Airline Safety

enclosed space and used a white board to reserve their turn in the bathroom to clean up before their flights. After its investigation of the Buffalo air disaster, the NTSB made a number of recommendations for improving safety on regional carriers. Most of them were not new: the NTSB had been urging their adoption for years. Examples of proposed reforms included requiring airlines to verify the flight testing results for applicants who want to be pilots, providing training and oversight for pilots with deficiencies, implementing fatigue management programs, and adopting new de-icing rules and training procedures. Unfortunately, the NTSB has no ability to implement reform—that responsibility belongs to the FAA. The FAA has been slow to enact reforms, but in the spring of 2011 it was embarrassed into doing so. At that time, in a span of just a few weeks, five separate incidents were reported of air traffic controllers falling asleep on their overnight shifts. On at least two occasions, passenger aircraft were forced to land without authorization from the control tower, because the sleeping controllers did not respond to any attempted communications. In response, the FAA implemented new policies to ensure that controllers would receive proper rest. For example, it increased the number of hours between shifts to nine and banned back-to-back shifts, where one controller would take over the shift of another. The FAA also increased the number of controllers on overnight shifts in at least two dozen cities. Many hope that the FAA will continue similar reforms with respect to pilots and other airline personnel. AIRCRAFT MAINTENANCE To follow up on their original report regarding regional carriers, the Frontline investigators turned their attention later in 2010 to a related issue: the outsourcing of aircraft maintenance and repair. Historically, the maintenance and repair of commercial passenger jets were handled in-house by each airline, which employed and trained its own mechanics. In the past ten years, however, much of this work has been turned over to independent contractors who bid for it. Airline companies, many of which have filed for bankruptcy during this time, had to find ways to reduce costs to remain competitive. Most cut their payrolls and turned to outside companies to handle the inspection and maintenance of their planes. These companies are located not only in the United States, but around the world. Critics contend that there is not enough oversight of these contractors, either by the airlines themselves or by the FAA. They point out that some of them have been cited for repeated safety violations, including taking maintenance shortcuts and incorrectly repairing aircraft. Industry watchdogs contend that these failures threaten the safety of the traveling public. The FAA, for its part, points out that statistically the skies are safer than they have ever been, and that their inspectors are responding appropriately to any problems that emerge. But opponents argue that the skies are safe in part due to sheer luck; they believe it is only a matter of time before a mechanical issue causes a serious or even catastrophic failure of a passenger jet, resulting in an avoidable loss of life.

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NTSB’S “MOST WANTED LIST” OF AVIATION SAFETY IMPROVEMENTS Improve Oversight of Pilot Proficiency Evaluate prior flight check failures for pilot applicants before hiring. Provide training and additional oversight that considers full performance histories for flight crewmembers demonstrating performance deficiencies. Require Image Recorders Install crash-protected image recorders in cockpits to give investigators more information to solve complex accidents. Improve the Safety of Emergency Medical Services (EMS) Flights Conduct all flights with medical personnel on board in accordance with stricter commuter aircraft regulations. Develop and implement flight risk evaluation programs for EMS operators. Require formalized dispatch and flight-following procedures including up-to-date weather information. Install terrain awareness and warning systems (TAWS) on aircraft used for EMS operations. Improve Runway Safety Give immediate warnings of probable collisions/incursions directly to flight crews in the cockpit. Require specific air traffic control (ATC) clearance for each runway crossing. Require operators to install cockpit moving map displays or an automatic system that alerts pilots when a takeoff is attempted on a taxiway or a runway other than the one intended. Require a landing distance assessment with an adequate safety margin for every landing. Reduce Dangers to Aircraft Flying in Icing Conditions Use current research on freezing rain and large water droplets to revise the way aircraft are designed and approved for flight in icing conditions. Apply revised icing requirements to currently certificated aircraft. Require that airplanes with pneumatic deice boots activate the boots as soon as the airplane enters icing conditions. Improve Crew Resource Management Require commuter and on-demand air taxi flight crews to receive crew resource management training. Reduce Accidents and Incidents Caused by Human Fatigue in the Aviation Industry Set working hour limits for flight crews, aviation mechanics, and air traffic controllers based on fatigue research, circadian rhythms, and sleep and rest requirements. Develop a fatigue awareness and countermeasures training program for controllers and those who schedule them for duty. Develop guidance for operators to establish fatigue management systems, including a methodology that will continually assess the effectiveness of these systems.

Al Qaeda

SUMMARY Flying in the United States has never been safer. That being said, tragic incidents like those described above make many Americans fearful of the skies and skeptical of the government’s ability to keep them safe. Terrorists will never stop targeting aircraft, and that fact has caused the government to implement new, ever more invasive screening technologies. These efforts may make the public feel better about flying, but they come at a cost to each customer’s time and personal privacy. The demand to run profitable airlines and the concomitant costsavings maneuvers undertaken by carriers will continue for the foreseeable future. Thus the debate over how to make aircraft safe without placing excessive burdens on government resources and the traveling public has really just begun. It will be played out in the coming decades. Further Reading Books: O’Connor, William E. An Introduction to Airline Economics. Westport, CT: Praeger, 2001; Bibel, G. D. Beyond the Black Box: The Forensics of Airplane Crashes. Baltimore: Johns Hopkins University Press, 2008; Anteby, Michel. Moral Gray Zones: Side Productions, Identity, and Regulation in an Aeronautic Plant. Princeton, NJ: Princeton University Press, 2008; Botch, Sabra R. and Robert D. Johnson. Alcohol-Related Aviation Accidents Involving Pilots with Previous Alcohol Offenses. Washington, DC: Federal Aviation Administration, Office of Aerospace Medicine, 2008; Corsetti, Emilio. 35 miles from Shore: The Ditching and Rescue of ALM Flight 980. Lake St. Louis, MO: Odyssey Publishers, 2008; Kinney, Jeremy R. Airplanes: The Life Story of a Technology. Westport, CT: Greenwood Press, 2006; Springer, Anthony M. ed. Aerospace Design: Aircraft, Spacecraft, and the Art of Modern Flight. New York: Merrell, 2003. Websites: AirSafe.Com. Critical Information for the Traveling Public. http://www.airsafe.com; Centre for Asia Pacific Aviation. “Complacency Is the Biggest Risk to Airline Safety Record in the US.” May 24, 2010. http://www.centreforaviation.com/news/2010/05/24/ complacency-is-the-biggest-risk-to-airline-safety-record-in-the-us/page1; Flight Safety Foundation. Aviation Safety Network. http://aviation-safety.net/index.php; Federal Aviation Administration. Airline Safety. http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety; Transportation Security Administration. http:// www.tsa.gov

Kathleen Uradnik AL QAEDA The terrorist organization called “Al Qaeda” (“the base”) is a network of interconnected groups, called “cells,” located in a number of countries. It is committed to a militant Islamic fundamentalism that seeks to undermine Western governments and economies in an effort to reduce the influence of Western culture in the Middle East. It carries out its mission through unprovoked attacks on military and civilian targets, most of which have been located in the United States, Europe, Africa, and Southeast Asia. Osama bin Laden is thought to be the primary founder and inspirational leader of the movement.

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The organization dates back to the late 1980s. It is not affiliated with any particular government, although certain countries have been sympathetic to Al Qaeda and have provided it a safe haven to train supporters and plan operations. Its members come from across the Middle East as well as from nations with significant Muslim populations, including Indonesia and the Philippines in the east and the United States, Britain, and Germany in the west. Al Qaeda also has a presence in Somalia, Sudan, and Eritrea in eastern Africa. Al Qaeda is responsible for highly visible, highly destructive attacks carried out by members who wish to participate in “jihad.” Jihad in the Islamic faith is a quest for truth; fundamentalists seek jihad by waging war against disbelievers and enemies of Islam. Thus jihad in this context refers to a holy war. Those fighting jihad may choose to become martyrs for their cause. While being a martyr does not necessarily involve violence, in the fundamentalist view one can achieve martyrdom by sacrificing him or herself for jihad in service to Allah. Typically, Al Qaeda members who wish to be martyrs achieve this by becoming suicide bombers. It is important to note that very few proponents of Islam believe in the kind of violent jihad preached by Al Qaeda and its related organizations. With Christianity and Judaism, Islam ranks as one of the world’s three largest monotheistic religions; it has at least a billion adherents worldwide. All three of the major religions have fundamentalist factions that do not represent the views or actions of the vast majority of their believers. Indeed, Al Qaeda is a relatively small organization that has gained a significant reputation by its sheer brutality. The exact size of Al Qaeda is impossible to determine, and characteristics of the organization are also difficult to describe with certainty since it operates clandestinely across several continents. The organization started during the Soviet invasion and occupation of Afghanistan, which began in 1979 and lasted for 10 years. Afghanistan is a predominantly Muslim nation. When the Soviets took over, a number of Muslim leaders called upon members of the faith to go to Afghanistan and wage war to drive the Soviets out. These volunteers were called “Mujahedin,” and they became the primary resistance fighters during the occupation. Mujahedin soldiers came from all over the world, including virtually every nation in the Middle East. For many years, they were supported with funding and weapons from the U.S. Central Intelligence Agency (CIA), which had opposed the Soviet invasion. By some estimates, the number of Mujahedin fighters during the conflict reached 250,000; this total can be misleading, however, because the numbers of volunteers rose and fell throughout the conflict. In addition, the fighters were trained in small camps throughout the country and never functioned as a single unit. Osama bin Laden was a Mujahedin fighter. As indicated, the Mujahedin were not organized into a single, well-trained army with a common military strategy, but rather took the form of “freedom fighters” engaged in civil war in various regions of Afghanistan. Bin Laden emerged as a charismatic leader during the war, which for many participants had become a jihad. The Mujahedin used whatever tactics would work against the invaders, with whatever weapons they had on hand. The resistance was a guerrilla movement, and it employed

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sabotage against both civilian and military targets. Common weapons used included handheld rocket launchers, grenades, and land mines. In attacking Soviet positions, the Mujahedin often used civilians, including children, to obtain information and to carry out their attacks. They also became experts in bomb-making and in hiding out in the rugged mountainous Afghan terrain. The same tactics employed by the Mujahedin in Afghanistan became the trademark of Al Qaeda. At the end of the Afghan conflict, which saw the final withdrawal of Soviet troops in early 1989, former Mujahedin leaders had become militant fighters not simply for Afghanistan but for Islam. Bin Laden formed Al Qaeda sometime during the late 1980s with the intention of continuing the jihad in other areas of the Middle East that had been “invaded” by Western influences. When Iraq invaded Kuwait in 1990, a move that threatened its neighbor, Saudi Arabia, Osama bin Laden offered military assistance to the Saudi government, but it refused. Eventually, bin Laden was exiled from his country for criticizing the government; he took up refuge in the Sudan. After his criticism escalated, he was stripped of his Saudi citizenship. Bin Laden’s time in Afghanistan and Sudan allowed him time to spread his message of global jihad, recruit supporters and sympathizers, and plot attacks against the West. He or his followers and compatriots have since carried out a number of well-known terrorist events, including but not limited to: 1992: Attacks on two hotels in Yemen frequented by American military personnel 1993: Assassination attempt against Egyptian Prime Minister Atef Sedki 1993: First World Trade Center bombing in its parking garage 1996: Assassination attempt against Egyptian President Hosni Mubarak 1996: Khobar Towers bombing, Saudi Arabia 1996: Attempted assassination of President Bill Clinton in the Philippines 1998: U.S. embassy bombings in Dar es Salaam, Tanzania, and Nairobi, Kenya 2000: USS Cole bombing in Aden, Yemen 2001: September 11th attacks on the World Trade Center in New York City, the Pentagon in Washington, D.C., and United Airlines Flight 93 over Shanksville, Pennsylvania 2001: Attempted bombing of American Airlines Flight 63 (the “shoe bomber”) 2001–present: Various bombings and attacks against U.S. forces in Afghanistan 2002: Nightclub bombings in Bali, Indonesia 2003: Synagogue bombings in Istanbul, Turkey 2003–2008: Various bombings in Iraq against U.S. forces and civilian sites including mosques, markets, government buildings, and shopping districts 2004: Madrid train bombings 2005: London bus and public transport bombings 2008: Attacks on Taj Mahal Hotel and other public sites in Mumbai, India 2009: Attempted Christmas Day bombing of Northwest Flight 23 (the “underwear bomber”)

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2009: Bomb plots against additional aircraft bound for the United States and Canada 2010: Mass shooting of U.S. military personnel at Fort Hood, Texas 2010: Attempted bombings of U.S.-bound cargo planes Because only some of the perpetrators of these crimes have been located, it is impossible to know which ones were directly planned and executed by Al Qaeda. Placing responsibility is made more difficult by the fact that Al Qaeda now works in a series of loosely affiliated, largely independent cells. Thus, even when a group claims responsibility as “Al Qaeda,” it is virtually impossible to tell whether it worked on its own or at the direction of its prominent leaders. Whether proven to be directly attributable or not, all of these acts were undertaken in the spirit of Al Qaeda as the leading proponent of global holy war against the West. This list, too, is not definitive by any means. Al Qaeda or its operatives are suspected in numerous additional terrorism incidents such as the kidnappings of westerners throughout the Middle East, including the kidnap and murder of Wall Street Journal bureau chief Daniel Pearl in Pakistan in 2002, the hijacking or attempted hijacking of U.S. and foreign commercial airlines such as Air India flight 814 in 1999, ongoing efforts to interfere with U.S. and coalition military actions in Iraq and Afghanistan, and actions to disrupt the stability of the Saudi Arabian and Pakistani governments. CURRENT THREATS: YEMEN Al Qaeda quickly built a network of terror cells across the world. Many of its members were trained at Al Qaeda camps in the Middle East and Africa and are now on their own in planning and executing attacks on targets that they select. Although Osama bin Laden went into hiding after 9/11, it was commonly believed that he continued to function as Al Qaeda’s spiritual leader and to broadly direct its activities until his death in May 2011. His ability to oversee specific operations was greatly diminished by U.S. war efforts in Afghanistan, which targeted Taliban and Al Qaeda insurgencies. Nevertheless, bin Laden continued to issue audio- and video-taped messages explaining the undertakings of the organization and calling on continued attacks against the West. In addition, Al Qaeda members post manifestos and strategies for waging jihad on the Internet. Because Al Qaeda forces in Iraq and Afghanistan largely have been eliminated, other cells have taken their place. One such group is Al Qaeda in the Arab Peninsula, referred to as “AQAP.” It was formed in 2009 by the merging of Al Qaeda groups in Saudi Arabia and Yemen. Based in Yemen, Anwar al-Awlaki is considered the spiritual and operational leader of the group. Al-Awlaki is a U.S. and Yemeni dual citizen who is known for his appearances on the Internet through numerous YouTube videos as well as through his website. (One can even find Al Qaeda on Twitter.) He counseled at least two or three of the 9/11 hijackers as well as Fort Hood mass murderer Nidal Malik Hasan. He has

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repeatedly called upon Muslims to kill Americans and is thought to be behind the as-yet-unsolved attack on the naval destroyer USS Cole in October 2000. That attack resulted in the deaths of 17 servicemen and women and severe injuries to over three dozen more. The suicide bombing blew a huge hole in the side of the vessel and almost sank it; after significant repairs, however, the Cole returned to service. Al-Awlaki is also suspected in the attempted bombings of at least two U.S.-bound cargo planes in the fall of 2010; a judge in Yemen has issued a warrant for his arrest “dead or alive.” Although AQAP claimed allegiance to Osama bin Laden, al-Awlaki is more than a mere regional leader at this point. U.S. intelligence officials believe AQAP to be the most dangerous Al Qaeda group, as al-Awlaki and his counterparts in Yemen are actively recruiting supporters and planning operations. Because he is an American and speaks fluent English, al-Awlaki has reached out to American sympathizers with the hope of executing attacks in the United States. In December 2010, European and U.S. intelligence sources warned that AQAP might launch Christmas holiday attacks in public locations such as shopping malls and sporting events; thankfully, none occurred. The U.S. government is so concerned about al-Awlaki that it placed him on a “capture or kill” list. Scholars and civil libertarians continue to debate whether an American citizen can be assassinated by the U.S. government. In 2010, the American Civil Liberties Union and al-Awlaki’s father filed suit seeking to prohibit the government from targeting him for death. They argue that al-Awlaki is protected by the due process clause and the Fourth Amendment to the U.S. Constitution. The government argues in response that, by taking up arms and actively participating in attacks against the United States, al-Awlaki is at war against it, and that it retains the power to protect Americans from terrorists. Yemen remains a hot spot of Al Qaeda operational activity because, like Afghanistan, its government has little or no control of the predominantly Muslim country. Yemen is the poorest nation in the Middle East. Sympathetic Yemeni citizens protect Al Qaeda leaders and personnel in the country’s remote rural areas. The U.S. and Yemen governments have cooperated to attack suspected hiding places, typically with unmanned predator drones. Similarly, Somalia has also emerged as a significant base of operations for Al Qaeda. That fact is not surprising, given that Somalia’s years of civil war have left the country without a functioning government. For years various warlords fought for control of the country, and Al Qaeda found refuge in the power void. While Somalia is not considered as dangerous as Yemen, the United States continues to monitor conditions there because it is a likely hiding place for Al Qaeda members who have been driven out of Afghanistan. U.S. SLEEPER CELLS It is impossible to know how many secret or “sleeper” cells exist in the United States. After 9/11, the federal government tightened security measures for admission to the country, and has actively tracked individuals believed to be followers of Al Qaeda. Today, the threat may not be from foreigners who have

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come to the United States to study or visit, but from U.S. citizens who believe in or have converted to radical Islam. The FBI and CIA have investigated possible terror cells in or near many major U.S. cities, including New York, Buffalo, Boston, Detroit, and Minneapolis. Michigan, New York, New Jersey, and North Carolina have been identified as areas of suspected operational and financial activity. Al Qaeda is also known to have sympathizers in Canada. Still, governmental authorities have not identified any large cells for criminal prosecution. More commonly, they have targeted and arrested individuals who seem to be acting alone or with minimal guidance from Al Qaeda sources. These so-called “lone wolves” are bent on causing mayhem, but at least thus far have lacked the competency to carry out widespread destruction. Two examples emerged in 2010 on opposite sides of the country. On May 1, 2010, a Pakistani-born U.S. citizen named Faisal Shahzad drove a car bomb to Times Square in New York City intending to detonate it during a peak time for crowds. Alert citizens noticed something strange about the parked automobile and called authorities. Faisal was eventually captured and pled guilty to the attempted bombing. He is currently serving a life sentence in federal prison. Before the bombing, Shahzad was a nondescript professional working as a financial analyst and living in a suburban house in New Jersey with his wife and children. There were no outward signs that he was, as he claimed at his sentencing hearing, a “proud terrorist.” That is one reason why his action was so unnerving—he had not been under any FBI radar or previous suspicion. Shahzad was unrepentant at his sentencing hearing, stating that the Islamic holy war against America had only just begun and predicting that “we will defeat you [America] with time.” Although Shahzad admitted to receiving brief bomb-making training in Pakistan, the device he created was rudimentary. Had it been correctly constructed, the bomb had the potential to kill and maim a large number of people, but Shahzad had not armed it correctly. This kind of lone bomber is perhaps the toughest terrorist to guard against, because law enforcement cannot possibly identify all of them in advance. However, the FBI did locate a young student in Oregon who expressed willingness to commit a car bombing for the cause of militant Islam. Mohamed Osman Mohamud, a Somali-born U.S. citizen, plotted to ignite a bomb at a Christmas tree lighting ceremony in downtown Portland, Oregon. On November 26, 2010, Mohamud activated a cell phone that he thought would trigger a bomb that he had parked near the huge holiday crowd that had gathered in the city plaza. The bomb did not go off—it was a dummy planted by FBI agents, who had been secretly trailing Mohamud, a college student, when they became suspicious of his intentions. Mohamud was charged with attempting to use a weapon of mass destruction to kill the assembled crowd. He pled “not guilty” and is awaiting trial. His attorneys have suggested that Mohamud was “entrapped,” which means set up by the FBI and led down a path of crime. The FBI, for its part, is confident that Mohamud knew exactly what he wanted to do without coaxing from anyone else; a FBI spokesman pointed out that agents gave him numerous opportunities to

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back out of the bomb plot, but Mohamud was committed to seeing it through. Indeed, Mohamud selected the ceremony in Portland because it was attractive from the terrorist’s point of view: it was in a location presumed to be safe from such things, and there would be many women and children present. Mohamud had much in common with the Christmas Day “underwear bomber” Umar Farouk Abdulmutallab. Nigerian Abdulmutallab tried to ignite plastic explosives hidden in his underwear on December 25, 2009 on Northwest Airlines Flight 253 from Amsterdam to Detroit. He was subdued by passengers, arrested, and is awaiting trial. Conviction is likely, and he faces life in prison without parole. Mohamud and Abdulmutallab both came from respected, successful families with no ties to Islamic fundamentalism. They were good students at their universities. Yet both were alone, restless, and unhappy—a profile that made them susceptible to influence from terrorist organizations and activities. Both came to admire jihadists, and both determined to emulate them. Being young and rebellious is almost a rite of passage in America, and virtually every teenager goes through some period of self-doubt and exploration. Very few teens, however, ever become violent. Trying to figure out who has the potential to turn into a terrorist is a formidable and probably impossible task for law enforcement officials. Even if they succeed in identifying persons like Mohamud, they would have to locate all of them in order to stop them before they attempt a terrorist attack. Statistically, then, the chance of another terrorist attack (probably a bombing) on American soil is quite high. The continuing threat from Al Qaeda and its sympathizers is real; experts believe that it is only a matter of time before another attack occurs. They worry about bombings at large public gatherings, but they also worry about the potential for operatives to unleash a “dirty bomb.” A dirty bomb is a bomb with radioactive material that is detonated with conventional explosives. That means an atomic reaction does not occur, but rather that the radioactive material itself is scattered about. A dirty bomb could do significant damage at the site of ignition and potentially in a larger area depending on factors such as the material used and the weather. Similarly, a chemical or biological weapon has the potential to harm thousands of people in a relatively small area if launched under the right conditions. BATTLEGROUND ISSUES ABOUND There is almost no end to the number of controversial issues raised by the 9/11 attacks and America’s subsequent war on terrorism. Many of them are discussed in separate essays in this volume, including “Enemy Combatants,” “Airline Safety,” and the “Patriot Act.” The “Enemy Combatants” entry concerns how members of terrorist organizations should be treated when captured by the United States. Because they are not acting on behalf of any nation, but rather on behalf of a multinational terrorist organization, the U.S. government has concluded that Al Qaeda operatives and sympathizers are not entitled to full protections under either the U.S. Constitution or its treaties with foreign

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nations. This position has created tremendous conflict among Americans who believe that all individuals should receive constitutional protections regardless of their motivation in acting against the country. The “Airline Safety” entry explores the lengths Americans are willing to go to feel safe on passenger aircraft. Airport security is tougher than it has ever been, but studies reveal that it is not even close to airtight. In response, the federal government has purchased and implemented increasingly sophisticated detection devices, including, most recently, full-body scanners. Hundreds of scanners are now in use at U.S. airports, much to the anger of civil libertarians, who argue that the scanned images reveal too much and protect too little. Lawsuits remain pending that seek alternatives to the scanners, exemptions for certain passengers on medical or religious grounds, and assurances that the images will not be stored or otherwise used inappropriately. The “Patriot Act” entry discusses how far the U.S. government can legally go in tracking suspected terrorist operatives. The act permits government to pursue a number of controversial measures, including wire tapping telephones without obtaining a search warrant. The act also gives law enforcement officials the ability to follow the individual rather than the device, recognizing that terrorists use and discard cell phones at will. The U.S. government can monitor calls between the United States and foreign nations such as Pakistan without probable cause; it can also monitor e-mail and Internet usage of those with suspected links to terrorists. All of these issues arise because Americans value their liberty. The U.S. system emphasizes liberty and places significant limitations on government. The Constitution and Bill of Rights provide numerous protections against government intrusion into the private lives of its citizens, such as the Fourth Amendment’s prohibition against unreasonable searches and seizures and the Fifth Amendment’s requirement of due process. Americans guard these rights carefully, and there is no end to the number of interest groups in the country dedicated to preserving civil rights. At the same time, Americans obviously want to be safe. The most important responsibility of government is maintaining the security of its borders and the safety of its citizens. This responsibility is often at odds with civil liberties: the government wants to employ as many legal (or questionably legal or even illegal) methods as possible to keep people safe, but citizens want to maintain their freedom and are suspicious of their government’s intentions. The tension between security and liberty is as old as the nation, and indeed is a fundamental struggle in any organized society. That being said, a balance must be struck. The rise of terrorism against Americans and the American way of life has had the predictable result of creating numerous controversies about what rights Americans are willing to give up in order to be (or at least feel) safe. One particularly divisive issue centers on profiling. A “profile” is a composite description of characteristics that a suspect is likely to possess. Law enforcement agencies use profiles all the time—for serial killers, child molesters, and the like. But creating a “terrorist” profile raises constitutional issues not present in other

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cases. Specifically, officials argue that an accurate profile of an Islamic militant terrorist must include religion, ethnicity, and national origin as components. Many democracies do not hesitate to use these factors in trying to identify potential terrorists. Israel, for example, routinely uses a detailed profile to subject certain airline passengers to extensive scrutiny and questioning, while others are only briefly examined. The U.S. Constitution is not so permissive. Classifying persons according to their religion, race or ethnicity, or country of origin is highly problematic under the U.S. Constitution. The Fourteenth Amendment’s equal protection clause has been interpreted to prohibit the government from arbitrarily discriminating against persons based on “immutable” (unchangeable) traits. The rationale behind the equal protection doctrine is that government should not discriminate against or, conversely, give advantages to persons based solely on arbitrary factors that are beyond that person’s control. Perhaps the most famous application of the equal protection clause was in ending the government’s reliance on race as a factor in its laws and decisions. The government cannot, for example, hire or fire a person based on his or her race, and it cannot make special rules for some races and not for others. If the government believes it must employ rules or procedures based on such a characteristic, it bears a heavy legal burden in showing that those rules are constitutionally permissible. In short, the equal protection clause prohibits the government—and that means all levels, from federal to local—from illegally discriminating against its citizens and residents. However, what is the government to do when the very characteristics that it is supposed to ignore form the basis of a terrorist profile? Judging passengers based on their religion or ethnicity would be unheard of and certainly illegal if the government wanted the information in order to assign seats on airline flights. Clearly the government has no business telling travelers where to sit based on their religious affiliation or racial or ethnic origin. But in terrorist profiling, the stakes are much higher: the government needs to keep terrorists off of airliners. In order to do this, it wants to employ a profile of the typical airline bomber. Recent events suggest that the profile would be of a young Muslim man of Arab descent or citizenship between the ages of 18 and 35 who is traveling alone. The Constitution, however, prohibits the government from judging passengers based on their religion, ethnicity, and citizenship— thus rendering the profile meaningless. Proponents of profiling argue that the Constitution must be realistically interpreted to allow government to function in the modern world. Government certainly has a strong argument in wanting to classify terror suspects according to immutable characteristics; current law requires the government’s justification to be “compelling,” and in this instance many Americans would agree that it is. After all, protecting airline passengers from bombers, or arresting terrorists at the border as they try to enter the United States, arguably are about the most compelling reasons the government could offer. On the other hand, civil libertarians worry that the government will be too generous to itself if it is allowed to employ such criteria in criminal profiling. They fear that the government will simply target Muslim men for disparate

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treatment, considering them guilty until proven innocent. They argue that profiles are not always accurate and do not necessarily include everyone who could be a terrorist. In relying on profiles, moreover, the government ignores other alternatives that may be just as effective and legally sound. Finally, they conclude that the Constitution cannot condone government classifying its citizens, residents, and visitors into religious or racial categories for any reason, and that the harm in doing so outweighs the risk of another terrorist attack. The government’s approach thus far has been to subject everyone to security inspections at the airport, rather than to target individuals based on legally problematic criteria. Everyone who enters the secure area at a U.S. airport must take off their shoes and coats, empty their pockets, and pass through various detectors. At most large airports, these include metal detectors, bomb residue detectors, and full-body scanners. Those who refuse to be scanned are subjected to aggressive “pat-down” searches. Airline passengers disagree about these tactics. While almost all of them dislike the long lines and waits and the intrusion into their personal space, many are willing to subject themselves to close inspection. Others, however, complain that it makes no sense to require elderly passengers or children to take off their shoes and expose themselves to scans or pat-downs. “Grandma,” they argue, is highly unlikely to be a terrorist; indeed, almost everyone who flies is unlikely to be a terrorist. It makes no sense to screen everyone equally, because passengers do not pose an equal threat. Instead the government should focus on those passengers who fit the criminal “profile” of a terrorist and stop wasting its time and resources on everyone else. The terrorists understand America’s love of freedom and use it to their advantage. That places Americans and their government in a difficult position: should we limit our freedoms to protect them? Civil libertarians decry every government intrusion, even the smallest ones, because they want individuals to be vigilant in protecting their rights. They are concerned that too many Americans are willing to permit authorities to perform searches that are constitutionally questionable simply because they feel better when the government looks like it is aggressively fighting terrorism. Opponents of invasive government security tactics argue that devices like full-body scanners do not really make us safer—after all, the scanners only see what is on our bodies, not what is in them, and terrorists have been known to hide explosives in their body cavities. At the same time, though, many of those who point out weaknesses in the government’s “one-size-fits-all” security strategy are not willing to accept profiles or other alternatives that allow for a more individualized approach. Democracies must constantly struggle to properly balance order and liberty in their societies. Both are essential for their survival, but too much of either can prove fatal. Too much security leads a democracy down the path toward government control and tyranny; too much liberty leads it to mob rule and anarchy. Terrorist organizations like Al Qaeda challenge free nations to rethink their philosophy and policies regarding security, and they hail as victories every time they create fear in the public or a security crackdown by authorities. Thus, as long as the terrorist threat exists, all free peoples, and especially Americans,

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THE DEATH OF OSAMA BIN LADEN In the early morning hours of May 1, 2011, an elite team of U.S. Navy special forces soldiers known as “Seal Team 6” infiltrated a well-fortified residential compound in the city of Abbottabad, Pakistan. The soldiers entered the home on the first floor and quickly worked their way to the third. On the third floor they located, identified, and killed their target: Osama bin Laden. The operation had been in the works for several months. Years of intelligence gathering had led U.S. intelligence officials to conclude that a “high profile” Al Qaeda target was residing in the compound, and that it very likely was bin Laden. Because the Al Qaeda leader did not use any electronic forms of communication for fear of discovery, the CIA focused on personal couriers, and over time the agency’s efforts to identify and track various couriers led them to the compound, which was located about an hour from the Pakistani capitol of Islamabad. The daring and dangerous raid took only about 40 minutes. After killing bin Laden, the soldiers took his body and confiscated as much intelligence information as they could find, including cell phones and laptop computers. Three other men, one of whom was believed to be bin Laden’s son, and a woman were also killed in the raid. Several residents were injured. No American soldiers were harmed. Later that morning, the team transferred bin Laden’s body to the aircraft carrier Carl Vinson, where it was prepared for burial according to Muslim tradition. Osama bin Laden was buried at sea less than 24 hours after the raid. President Obama announced the raid and the death of Osama bin Laden to Americans in a hastily scheduled television address that night. Because the operation was so secret, very few government or military officials knew about it. The United States did not inform the Pakistani government or any other nation of the raid in advance. Initially, the television networks and other media sources were not told about the subject of the president’s announcement, although the information leaked out shortly before the president spoke. Reaction to the killing of bin Laden was immediate: in many cities, Americans took to the streets to celebrate, believing that justice had finally been won for the victims of the 9/11 terror attacks. The U.S. government alleviated any concerns that it was, in fact, Osama bin Laden who had been shot by performing DNA testing on the body. The government also took photos of the dead bin Laden for identification purposes, which were shared with members of Congress and the military but were considered too gruesome to release to the general public. Any remaining doubt was erased a few days later, when on May 6, 2011, Al Qaeda confirmed their leader’s death through a series of website posts. Al Qaeda vowed revenge for the killing. The strategic operation was impressive; it had been painstakingly planned and rehearsed repeatedly for approximately nine months prior to the actual raid. President Obama’s approval rating rose substantially as the public came to learn that he had authorized the planning and execution of the raid. Republicans and Democrats alike credited him for a “gutsy” military decision that was tremendously risky, but ultimately a complete success. Pakistan, for its part, expressed anger over the invasion of its airspace and territory without its knowledge or consent. Many high-ranking government officials were also outraged by

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allegations circulating in America that the Pakistanis had to have known that bin Laden was living in their country—and apparently had been for years. The government of Pakistan continues to deny any prior knowledge of bin Laden’s whereabouts. Congress, unconvinced, has vowed to hold hearings to determine whether and at what levels of the Pakistani government officials may have been harboring bin Laden. Initially, some members of Congress called for cutting off the substantial foreign aid that the United States gives to Pakistan (amounting to several billion dollars per year) until its government could prove that it knew nothing of bin Laden’s whereabouts. As time passed, however, both Pakistani and U.S. officials backed off their tough talk. Nevertheless, relations between the two nations remain strained. The U.S. government has taken the threat of Al Qaeda retaliation very seriously. Shortly after the raid, it notified federal agencies such as the FAA, as well as state and local governments, to increase surveillance and security at strategic locations and potential military and civilian targets across the nation. The government pointed out that, while bin Laden was no longer a threat, Al Qaeda would be quick to select a new leader and to plan additional attacks against U.S. and Western interests. America’s celebration of Osama bin Laden’s death as a measure of justice in the war against terrorism was understandable. The fact remains, however, that the danger posed by the terrorist organization he founded has not been eradicated. Until that happens, the United States will remain vigilant in the fight against Al Qaeda and all terrorists who threaten its national security.

are going to have to think carefully about what their liberties mean to them and how to best preserve them. Of all of the battleground issues raised by the war on terror, this one presents the most significant challenge to current and future generations. Further Reading Books: Bergen, Peter. The Osama bin Laden I Know: An Oral History of al-Qaeda’s Leader. New York: Free Press, 2006; Card, Claudia. Confronting Evils: Terrorism, Torture, Genocide. New York: Cambridge University Press, 2010; Costigan, Sean S. and David Gold, eds. Terrornomics. Burlington, VT: Ashgate, 2007; Crenshaw, Martha. The Consequences of Counterterrorism. New York: Russell Sage Foundation, 2010; Cronin, Audrey Kurth. How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns. Princeton, NJ: Princeton University Press, 2009; Durmaz, H. Understanding and Responding to Terrorism. Washington, DC: IOS Press, 2007; Fury, Dalton. Kill bin Laden: A Delta Force Commander’s Account of the Hunt for the World’s Most Dangerous Man. New York: St. Martin’s/Griffin, 2009; Gutman, Roy. How We Missed the Story: Osama bin Laden, the Taliban, and the Hijacking of Afghanistan. Washington, DC: United States Institute of Peace Press, 2008; Hamm, Mark S. Terrorism as Crime from Oklahoma City to Al-Qaeda and Beyond. New York: New York University Press, 2007; Johnson, Corina. Roots of Terror. Carlisle, PA: Strategic Studies Institute, 2007; Krueger, Alan B. What Makes a Terrorist: Economics and the Roots of Terrorism. Princeton, NJ: Princeton University Press, 2008; Lia, Brynjar. Architect of Global Jihad: The Life of alQaida Strategist Abu Mus’ab al-Suri. New York: Columbia University Press, 2008;

Amending Power | Martin, Gus. Understanding Terrorism: Challenges, Perspectives, and Issues. Los Angeles: Sage, 2010; Moghadam, Assaf. The Globalization of Martyrdom: Al Qaeda, Salafi Jihad, and the Diffusion of Suicide Attacks. Baltimore: Johns Hopkins University Press, 2008; Mula, Klejda J., ed. Violent Non-state Actors in World Politics. New York: Columbia University Press, 2010; Pape, Robert A. and James K. Feldman. Cutting the Fuse: The Explosion of Global Suicide Terrorism and How to Stop It. Chicago: University of Chicago Press, 2010; Riedel, Bruce O. The Search for al Qaeda: Its Leadership, Ideology, and Future. Washington, DC: Brookings Institution Press, 2008; Scheuer, Michael. Osama bin Laden. New York: Oxford University Press, USA, 2011; Scheuer, Michael. Imperial Hubris: Why the West Is Losing the War on Terror. Washington, DC: Potomac Books, 2007. Websites: Center for Defense Information. Terrorism Project. “List of Known Terrorist Organizations.” http://www.cdi.org/terrorism/terrorist-groups.cfm; Council on Foreign Relations. Terrorist Organizations. http://www.cfr.org/issue/456/; National Counterterrorism Center. http://www.nctc.gov/site/index.html; National Counterterrorism Center. “National Strategy to Combat Terrorist Travel.” http://www.nctc.gov/docs/u_terrorist_ travel_book_may2_2006.pdf; Picarelli, John T. “The Future of Terrorism.” National Institute of Justice. November, 2009. http://www.ojp.usdoj.gov/nij/journals/264/futureterrorism.htm; START: National Consortium for the Study of Terrorism and Responses to Terrorism. http://www.start.umd.edu/start/about/overview/; Terrorist Organizations. http://www.worldstatesmen.org/Terrorist.html; U.S. State Department. Foreign Terrorist Organizations. http://www.state.gov/s/ct/rls/other/des/123085.htm

Kathleen Uradnik AMENDING POWER The framers of the Constitution were not obtuse: they knew that, over time, the Constitution would have to be adjusted to meet the changing needs of the American people. But just how would such change be accomplished? If the framers made it too easy to modify the Constitution, they could jeopardize their plan for creating a strong central government that would unify the states and the people. On the other hand, if it were too difficult to modify the Constitution, the nation ran the risk of it becoming irrelevant, unworkable, or outdated. Ultimately, the framers adopted an approach that makes it difficult, but not impossible, to amend the Constitution. Article V provides two distinct mechanisms for amending the document. The first authorizes amendment by Congress and the states. It requires that both houses of Congress approve a proposed amendment by a two-thirds majority. As with all legislation, the houses must approve the exact same language before the amendment is presented to the states. After that, state legislatures consider the amendment and vote on it. The states set their own schedule—some may debate and vote on the amendment right away, while others may ignore it. If three-fourths of the state legislatures (38 of 50) approve the amendment, it is certified as adopted and is added to the Constitution. This procedure has been used only 27 times in the nation’s history. The Constitution also calls for amending through a “convention” that can be called when two-thirds of the state legislatures ask Congress to convene one.

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This approach has never been used, and exactly what such a convention would look like is impossible to say. Many scholars and pundits fear that an attempt to amend the Constitution in this manner could cause serious problems, chiefly because there are no guidelines or ground rules for it. Who would attend the convention? What would they discuss? Would the convention be limited to consideration of one proposed amendment, or could it become a forum for rewriting the document in a more substantial way? Because of the uncertainty surrounding the convention approach, it is not likely that this method will ever be utilized to amend the document. But it is certainly not impossible. The Constitution was first amended in 1791 with the addition of the first ten amendments known commonly as the “Bill of Rights.” A number of states considered the Constitution as originally proposed to be incomplete, and made their ratification contingent on the immediate addition of the Bill of Rights to the document. The Bill of Rights contains protections for citizens and for states against the government. Originally designed to protect individuals from possible abuse and encroachment by the federal government, over time, the Bill of Rights was extended by the Supreme Court to include state governments and, with them, local governments. Today, the rights guaranteed in the Bill of Rights must be honored by all levels of American government. The Bill of Rights is perhaps the most famous component of the Constitution. The first eight amendments provide specific rights; the Ninth and Tenth Amendments outline general guarantees to the people and the states. The First Amendment contains the right to free speech, press, and assembly as well as the religion clauses, one that guarantees the free exercise of religion and the other that prohibits the establishment of an official or state religion. The Second Amendment, which has been the subject of much recent debate, concerns the right of citizens to “keep and bear arms.” Just what this right includes has been debated throughout American history; some argued that this right belonged to individuals, while others contended that it applied only to state militias. In June 2010, the Supreme Court concluded in a close vote that the right belongs to individuals rather than state governments. The Third Amendment, largely archaic, prohibits the government from ordering citizens to “quarter” (provide housing for) its soldiers. Amendments Four through Eight contain a number of famous, critical rights bestowed on citizens who find themselves in the criminal justice process. These include the right to be free from unreasonable searches and seizures by the government (Amendment Four), the right to due process of law (Amendment Five), and the right to be free from “cruel and unusual punishment” (Amendment Eight). Amendment Nine, sometimes called the “catch all” amendment, states that any rights not listed in the Constitution are retained by the people. Given its general language, scholars have argued that the Ninth Amendment does not create any new rights, but simply confirms that any rights not discussed in the Constitution are still valid and belong to the citizenry rather than the government. The Tenth Amendment, similarly, provided that powers not

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granted to the federal government in the Constitution belong to the states and the people. Both the Ninth and Tenth Amendments were adopted to assure nervous states and citizens that the federal government would not exploit loopholes in the Constitution to become abusive and omnipotent. At the time, states and citizens understood the need for a stronger central government—after all, their first attempt at governing, the Articles of Confederation, had failed—but also feared that the proposed federal government would become too powerful. The Bill of Rights was added to the Constitution in large part to assuage these fears. WHY AMEND THE CONSTITUTION? Thomas Jefferson has been famously credited with calling for a complete overhaul of the Constitution every generation (20 years). He believed that subsequent generations of Americans should be free to tailor the document to their own wants and needs. But the idea of changing the Constitution every few decades seems impossible today, both because it would be difficult to accomplish under the amendment process and because it would be unwise. The fact that the original Constitution has only been amended 27 times suggests that it works. Indeed, the U.S. Constitution is the longest continually functioning written constitution on the planet. It is not perfect, but it has proven effective and has remained in force in this country for over 230 years. Still, just about everyone can find a part of the Constitution that they do not like. Over time, when a national consensus emerged to change the document, the Congress and the states have done so. Almost all of the amendments to the Constitution are structural, meaning that they changed how the government functions. For example, the Seventeenth Amendment ended the historic practice of state legislatures selecting U.S. senators. It replaced the old approach with direct election of their senators by the people of each state. The Twenty-fifth Amendment, similarly, created the process for succession to the presidency if the president should die or become incapacitated while in office. Several amendments made necessary adjustments to the voting process: The Fifteenth Amendment granted former slaves the right to vote; the Nineteenth Amendment gave women the right to vote; and the Twenty-sixth Amendment lowered the voting age to 18. A few amendments could be characterized as “policy based” rather than structural. The most famous of these is the Eighteenth Amendment, passed in 1919, which prohibited the manufacture, sale, or transport of alcohol in the nation. In 1933, this amendment became the only one to be repealed, by the Twenty-first amendment. Another policy-based amendment is the very last one to be adopted. The Twenty-seventh Amendment prohibits members of Congress from raising their own salary. Interestingly, this amendment was first proposed at the nation’s birth in 1789. Initially it garnered support from the states, but was then forgotten. Over the years it remained unnoticed in a kind of legal limbo, until in the late 1980s it was rediscovered. Anticongressional sentiment led some states to pass the proposed amendment, finally giving it the

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three-fourths majority required for certification—in 1992. A handful of these old amendments remain pending before the states, but none are likely to be adopted. Moreover, it is unlikely today that any amendment will linger for nearly 200 years like the Twenty-seventh Amendment. When a modern amendment is proposed, its drafters typically include a “sunset provision” on it. A “sunset provision” is an ending date for legislation, including proposed amendments, to be adopted. The provision is written into the amendment itself. If the amendment is not adopted by the given deadline (usually 5 to 10 years), it expires automatically. One famous proposed amendment that did not receive approval in time was the Equal Rights Amendment, which was proposed in 1972 and expired in 1979. Amendments to the Constitution are proposed by members of Congress all of the time. Very few, however, prove to have any “teeth.” Some in Congress propose amendments to gain support with voters or to make a political point, knowing full well that the votes are not there to pass it and send it on to the states. One of the most commonly proposed amendments calls for the abolishment of the Electoral College system for electing the president. Throughout the nation’s history, elected officials and citizens alike have objected to the Electoral College, considering it undemocratic. After the controversial election of 2000, where Senator Al Gore (D-TN) won the popular vote but lost the presidency to George W. Bush, many Gore supporters called for the direct election of the president. The proposed amendment, however, never made it out of Congress. Other commonly proposed modern amendments call for banning abortion, placing term limits on members of Congress, banning the death penalty, banning flag burning, denying citizenship to the children of illegal aliens, allowing prayer in public schools protecting the wording of the Pledge of Allegiance (which contains the phrase “one nation, under God”) and balancing the federal budget. Most of these can be considered policy-based amendments, where constituent groups try to obtain through the amending process what they have not been able to obtain through political or other means. On the state level, constituent groups unhappy with court decisions, or who seek policy changes that are difficult to obtain through traditional political processes, can be quite effective in using the amendment process to get what they want. In California, for example, proposed amendments to the state constitution appear on virtually every ballot. California voters commonly use the amending process to resolve issues that their state legislature has failed or refused to address or that their state Supreme Court “got wrong.” The use of popular elections to change a state’s constitution is potentially problematic, in that policy issues that normally would be dealt with through regular lawmaking gain constitutional status and, with it, heightened protection. After all, one can only undo a constitutional amendment by repealing it. Still, some states embrace the use of constitutional amendments to make policy changes in their own constitutions. Over the nation’s history, the U.S. Supreme Court has issued several decisions that have prompted widespread calls to amend the Constitution. In recent

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decades, for example, the Supreme Court ruled that both abortion and flag burning are rights protected by the Constitution. These decisions have caused many voters and elected officials to demand constitutional amendments to make abortion and flag burning illegal. Those unhappy with the U.S. Supreme Court have limited options: they can try to change its mind through subsequent litigation, or they can try to amend the Constitution to overturn the Court’s decisions. The nation has acted on a few important occasions to adopt amendments in the face of unpopular decisions by the Supreme Court. The first occurred early on, in 1795, with the passage of the Eleventh Amendment. This amendment ensures states’ sovereign immunity by protecting them from being sued in federal court by citizens of other states or foreign countries. The amendment overturned the Court’s controversial 1793 decision in Chisholm v. Georgia. The Congress and the states acted again to overturn Supreme Court decisions with the Fourteenth Amendment (granting citizenship to former slaves and overruling the infamous case of Dred Scott v. Sandford); the Sixteenth Amendment (granting the federal government the right to collect income tax and overruling the case of Pollock v. Farmers’ Loan and Trust); and the Twenty-sixth Amendment (setting the voting at 18 and overruling Oregon v. Mitchell). In fact, the Twenty-sixth Amendment was written, passed by Congress, and voted on by the states in just over three months, a record time. There are always plenty of voters unhappy with decisions of the Supreme Court or the legislation passed by Congress. The amending process gives Americans a means to seek change, but it remains a rather ineffective one. Although it might be easy to convince a senator or representative to propose an amendment to the Congress, very few of them ever come to a vote. Like most legislation, proposed constitutional amendments tend to die in committee, having never even been debated. In the past 40 years, only two amendments have been added to the Constitution, and none are currently on track toward adoption. Individual states have amended their own state constitutions to varying degrees, but on the federal level changing the Constitution remains unusual and difficult, which seems to be exactly how the framers designed it. ARTICLE V OF THE CONSTITUTION The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

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THE BILL OF RIGHTS Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Amendment VII In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Further Reading Books: Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998; Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House, 2005; Bond, James Edward. No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment. Westport, CT:

Amending Power | Praeger, 1997; Farber, Daniel. Retained by the People: The “Silent” Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have. New York: Basic Books, 2007; Kyvig, David E. Explicit and authentic acts: Amending the U.S. Constitution, 1776–1995. Lawrence: University Press of Kansas, 2996; Kyvig, David E. Unintended Consequences of Constitutional Amendment. Athens, GA: University of Georgia Press, 2000; Labunski, Richard E. James Madison and the Struggle for the Bill of Rights. New York: Oxford University Press, 2006; Purcell, Edward A. Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry. New Haven, CT: Yale University Press, 2007; Schwarzenbach , Sibyl A. and Patricia Smith, eds. Women and the United States Constitution: History, Interpretation, and Practice. New York: Columbia University Press, 2003; Vile, John R. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–1995. Santa Barbara, CA: ABC-CLIO, 1996. Websites: Exploring Constitutional Conflicts: The Incorporation Debate. http:// www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm; The Constitutional Amendment Process. http://www.archives.gov/federal-register/constitution; Proposed Constitutional Amendments. http://www.reclaimdemocracy.org/political_reform/ proposed_constitutional_amendments.html; Should a Convention Be Called to Amend the U.S. Constitution? http://www.lib.niu.edu/1979/ii790504.html

Kathleen Uradnik

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B BAILOUTS In the fall of 2008, the United States experienced a tremendous economic upheaval in its securities and financial markets due in large part to the nation’s ongoing mortgage foreclosure crisis. This upheaval caused prestigious Wall Street securities firms and large banks to fail, and resulted in a significant decline of the U.S. stock market. At the same time, some of the largest American corporations experienced near-collapse, particularly in the automobile industry. Unemployment rose steadily, and Americans’ pension plans and retirement savings accounts plummeted along with the stock market. By December, economists had finally determined that America was in a deep recession—and had been for the past year. These interrelated events caused an economic crisis not experienced in the United States since the start of the Great Depression in 1929. Desperate financial institutions, insurance companies, automakers, and even consumers demanded help from the federal government. They asked for staggering amounts of money—hundreds of billions of dollars—in what came to be known pejoratively as “bailouts” and more positively as “rescues.” BACKGROUND The mortgage foreclosure crisis is discussed at length as a separate entry in this volume. In brief, over the past two decades, lending institutions loaned trillions of dollars to Americans for the purchase of single-family homes. The government encouraged this behavior, believing that homeownership should be an attainable goal for as many Americans as possible, including

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low-income Americans. While the housing market stayed stable and profitable, everyone was happy: new homeowners, their mortgage companies, banks, and even the federal government. But a serious problem lurked underneath the plethora of new home loans. Lenders, including most importantly the government-created financial entities Fannie Mae and Freddie Mac, had lowered their standards for making loans. Historically, to obtain a mortgage to buy a house, a family had to show steady employment and sufficient income and had to pay 20 percent of the purchase price as a down payment. In recent years, however, lenders routinely gave mortgages to individuals with no steady or verifiable income or little or no money for a down payment. Some mortgage brokers took advantage of this loosening of credit standards to write mortgages for people who had no hope of paying them back—the brokers were paid for arranging the mortgages, while the banks and other lenders ended up with the bad debts. At the same time, the economy began to experience a downturn. Housing values had risen steadily for well over a decade, and many Americans cashed in on the higher values of their homes by upsizing to larger ones. Some expected home prices to continue to rise, while experts warned of an impending burst of the “housing bubble.” In 2008 that bubble finally did burst, leaving many Americans unable to afford their mortgage payments. Increased unemployment contributed to the problem, and Americans began to default on their mortgages in record numbers. How did the default on home mortgages lead to the financial collapse of Wall Street banks and investment firms, not to mention overseas banks and investment firms? For years, stockbrokers and financiers had purchased and sold mortgages as an investment. They did not deal in individual mortgages, but rather in “bundles” of them. Investors purchased a package of mortgages that typically included several hundred or even several thousand individual mortgages. These bundled mortgages were called “mortgage-backed securities.” They were treated by investors just like stock in a company: they had value (the amount of the loans); they were backed by collateral (the homes); they made money (interest rates on the loans); and they could increase or decrease in value depending on the housing market and economic conditions. While the housing market was booming, banks and other investors made a great deal of money on mortgage-backed securities. But if all good things must come to an end, then the mortgage-backed securities market crash-landed. Investors never examined the underlying individual mortgages in their bundles, and when the foreclosure crisis hit, they soon discovered that many of those mortgages were in default or foreclosure. As homeowners abandoned their homes and banks reclaimed them, no payments were being made on the mortgage loans, causing them to lose value. In fact, a foreclosed home no longer even has a mortgage—the bank having taken back the property—which meant, in turn, that securities backed by those mortgages were now worthless. The mortgages disappeared, and the value of the securities went along with them. When thousands of foreclosures became millions of foreclosures, the institutional holders of mortgage-backed securities failed.

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FANNIE MAE AND FREDDIE MAC On September 7, 2008, the federal government seized the assets of housing lenders Fannie Mae and Freddie Mac and placed both entities into conservatorship, essentially taking them over in a procedure resembling bankruptcy. Stock in the two lenders immediately became worthless, which then caused many financial firms holding their stock to fail. Perhaps more than any other event, the demise of Fannie Mae and Freddie Mac precipitated the national and worldwide economic collapse of 2008, a devastating financial challenge from which the United States has yet to recover. “Fannie Mae” stands for the “Federal National Mortgage Association.” “Freddie Mac” is shorthand for the “Federal Home Loan Mortgage Corporation.” Both of these entities were created by the federal government for the purpose of ensuring that Americans, and particularly low-income Americans, could obtain home loans. Fannie Mae can be traced back to the Great Depression, but it ceased to resemble its historical roots in 1968, when Congress privatized it. As a private entity, Fannie Mae was able to issue stock. It had a chief executive and other operating officers as well as a board of directors. Naturally, it also had stockholders, many of which were banks engaged in mortgage lending. Fannie Mae did not actually make home loans to consumers like a bank; rather, it purchased mortgages from lenders across the nation. In doing so, it became the owner of millions of mortgages from all 50 states. Fannie Mae then bundled these mortgages and sold them to investors—thus becoming the source of the doomed mortgage-backed securities. In 1970, Congress created an additional lending entity, Freddie Mac, to compete with Fannie Mae. These two entities, although private, always retained a quasi-public character. They were given their mission by Congress, and Congress was responsible for overseeing their performance. Many members of Congress placed pressure on Fannie Mae and Freddie Mac to become more aggressive in purchasing mortgage loans so that more Americans could become homeowners. At the same time, these same members ignored or looked the other way when presented with evidence that the entities were facilitating risky loans that might not be paid back. Although the federal government did not fund the companies or guarantee their stock, both Fannie and Freddie benefited from the fact that they were created by the government. For example, they did not have to adhere to the tougher standards imposed on banks when accumulating loans, particularly with regard to the amount of capital required to back their loan debt. They were also exempt from state and local taxes. They enjoyed the benefit of their quasi-governmental status by saving billions of dollars in lending costs each year, due in large part to the perception that any money invested in these two huge, government-created entities was safe. Moreover, Fannie and Freddie employed professional lobbyists and donated significant sums to the reelection campaigns of representatives and senators, helping to ensure that Congress would support their business dealings. As a result of their cozy relationship with Congress and their relative freedom to operate in a looser environment than experienced by other financial

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institutions, Fannie and Freddie undertook questionable lending practices, purchasing what turned out to be hundreds of thousands bad loans. Few people questioned these loans while the housing market was booming, but as signs of slowness appeared, observers took a closer look into their lending practices. In 2003, the Bush administration called for tougher regulation of Fannie and Freddie, and Congress investigated alleged questionable accounting practices by these giants. But nothing was done. In 2005, with the housing market bubble predicted to burst, a number of members of Congress proposed the Federal Housing Enterprise Regulatory Reform Act, which was aimed at strengthening the regulations on Fannie and Freddie. By then, members of Congress were openly questioning the companies’ accounting and financial records, accusing their top executives of lying about profits and inflating them not only to make the entities appear sound, but also to increase the executives’ yearly salary bonuses. Extensive lobbying by Fannie and Freddie defeated the proposal, which passed in the House of Representatives but was never voted on by the Senate. By the summer of 2008, as the number of mortgage foreclosures continued to rise, it became clear that Fannie and Freddie were in serious trouble. Although the government was not legally obligated to bail them out, the simple truth was that Fannie and Freddie owned up to $5 trillion worth of mortgages— nearly one-half of all of the mortgages in the United States. They faced billions of dollars in losses because they held “subprime loans,” the risky loans that had been made to borrowers with questionable ability to pay them back. Moreover, they owed over $1 trillion to lenders, money that they had borrowed to buy mortgages in the first place. As stock in the two companies plummeted, the Bush administration decided that the federal government had to take over Fannie and Freddie to ward off a cessation in mortgage lending and the complete collapse of the U.S. housing market. The takeover of Fannie and Freddie was immediately labeled a “bailout,” because the U.S. government guaranteed $200 billion in mortgages. The move was unprecedented: it became the largest takeover in history of a private company by the federal government. The United States in effect nationalized Fannie and Freddie by seizing them and becoming their conservator. Bush administration Treasury Secretary Henry (“Hank”) Paulson did not characterize the process as nationalization, however, pointing out that the conservatorship was designed to be temporary. Indeed, the plan pursued by the Bush administration called for supporting Fannie and Freddie in the short term, until they were able once again to function on their own in some as-yet-undetermined corporate form. The bailout of Fannie Mae and Freddie Mac will be paid for by U.S. taxpayers. As part of their seizure, the federal government agreed to purchase up to $100 billion in preferred stock issued by the companies, and also agreed to purchase an undetermined amount of mortgage-backed securities issued by the companies. In return, the government claimed for itself a billion dollars in stock, which could appreciate over time as Fannie and Freddie become financially stable and perhaps even profitable again. Assuming ownership of this stock allowed the federal government to reassure taxpayers by giving them the

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potential to be repaid at some point. But the fact remains that as Fannie and Freddie neared collapsed, suffering billions of dollars in losses and threatening to destroy the entire U.S. housing market, the federal government was forced to use hundreds of billions of dollars in taxpayer revenue to prop them up, without any real assurance that it will be repaid. SEPTEMBER 2008: A VERY BAD MONTH FOR EVERYONE Within days after the government’s seizure of Fannie Mae and Freddie Mac, two giant Wall Street investment firms essentially disappeared off of the face of the world’s financial map. On the same day, Lehman Brothers, a global firm and one of Wall Street’s oldest investment firms, announced that it would file for bankruptcy, while its counterpart, the equally prestigious international firm of Merrill Lynch, sold itself to Bank of America. Both firms had been hit hard by the deepening housing crisis, and both had significant exposure in mortgage-backed securities. At the time of its bankruptcy, Lehman Brothers had over $600 billion in debt. Most of this debt was in mortgage-backed securities or a related type of investment called a “credit default swap,” a type of derivative asset. In short, a credit default swap is a contract between two parties where the buyer pays a fee to the seller and, in exchange, the seller guarantees to pay the buyer if a particular asset—such as a mortgagebacked security—should collapse. The “asset” purchased by the buyer is, in essence, a contractual promise to pay a debt should that debt prove worthless. Lehman Brothers and Merrill Lynch both engaged in selling credit default swaps, guaranteeing the performance of mortgages that, as it turned out, failed in record numbers. As the investment firms could not pay the debts arising out of their contractual obligations, bankruptcy for both became inevitable. Merrill Lynch avoided bankruptcy only by finding a firm willing to purchase it. Lehman Brothers was not so lucky. When no buyer stepped forward, it closed down, leaving thousands of employees and investors in shock that the firm, which was founded in 1850, no longer existed. Over the coming months, Lehman Brothers was sold off, with the British mega-bank Barclays acquiring much of its North American operations and a Japanese investment firm called Nomura Holdings purchasing much of its Asian, Middle Eastern, and European operations. But the financial turmoil on Wall Street was not over yet. A few days later, the federal government was forced to bail out one of the world’s largest insurance companies, AIG (American International Group). AIG, like its investment firm counterparts, had lost billions of dollars in the sale of credit default swaps. Unlike Lehman Brothers and Merrill Lynch, however, the government decided that it had to intervene to keep AIG from failing. Financial pundits labeled AIG “too big to fail,” which meant that the repercussions of its failure would sweep so extensively through the U.S. and international financial markets that it had to be kept afloat, no matter the cost. That cost was $85 billion in loans from the federal government to the company. In exchange, the government claimed ownership of 79.9 percent of the

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company and charged a significant interest rate on the loan. In addition, the loan was guaranteed by AIG’s substantial assets from its healthy insurance business, which did not suffer the financial blows of its investment subsidiary. THE $700 BILLION BAILOUT OF THE FINANCIAL SYSTEM At the same time it was bailing out AIG, high-ranking Bush administration officials approached Congress to ask for an overall bailout of the U.S. financial system, to the tune of $700 billion. Led by Treasury Secretary Hank Paulson, Federal Reserve Chairman Ben Bernanke, and Securities and Exchange Chairman Christopher Cox, the government explained to members that the U.S. credit market had all but dried up, meaning that banks were no longer willing to lend money to any person or business for any reason. This crisis in the credit market, they argued, had the potential to bring down the entire U.S. economy because, among other reasons, companies often borrowed money on a shortterm basis to meet their payroll and inventory needs. Companies who could not pay their employees, purchase materials, or meet their debt obligations would be forced to close and lay off potentially millions of American workers. The unwillingness of banks to lend money also meant that average Americans could not obtain loans to buy homes, automobiles, or anything else for that matter. In fact, banks had tightened up on credit so much that they were cancelling existing lines of credit, such as home equity loans, that they had extended to their best customers, including ones who had not even tried to use the credit or who had paid all of their debts on time. In an effort to obtain immediate action from Congress, Secretary Paulson publicly predicted the collapse of the U.S. credit market if it were not infused with a significant amount of cash within a few days. At the same time, the Federal Reserve provided hundreds of billions of dollars in funding to the world credit markets in an attempt to keep them functioning, a move that astounded financial experts with its sheer size. It quickly became clear that economic conditions in the United States and around the world were going to get worse—and potentially much worse—if the federal government did not intervene. Congress was undoubtedly shocked by the size of the administration’s request. Indeed, $700 billion was a massive amount of money by any standard, and it easily constituted the largest bailout of the financial system in U.S. history. Congress initially seemed willing to proceed quickly, but then backed off when it read the proposed text of the bailout bill (a mere three pages long), which gave complete authority to the Treasury Secretary in deciding how to spend the money while prohibiting oversight by Congress and the courts (likely a violation of separation of powers). In addition, Congress wanted some assurances that an expenditure of such an enormous size would, in fact, achieve the result of stabilizing the financial markets. When Secretary Paulson indicated that $700 billion would be a start to solving the problem by greasing the wheels of the credit markets, representatives became skeptical about not only the size but also the efficacy of the bailout plan. Unsatisfied with the hastily prepared version from the administration, the House wrote its own version of the bailout bill. It, too, proved controversial.

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Upon closer reading, some found it loaded with earmarks, a particularly unpleasant discovery that angered many in the House and particularly House Republicans. When the plan came to its first vote before the House of Representatives on September 29, it was defeated by a vote of 228 to 205. Both Democrats (who controlled the House) and Republicans voted against the bill. As it turns out, most of the members who voted “no” were campaigning for reelection in close races and presumably did not want to incur the wrath of the voters so close to election day. The Bush administration, and President Bush himself, urged Congress to regroup and adopt a new plan in short order. Both the president and key members of Congress from both parties publicly stated that a bailout was necessary to avoid a complete collapse of the nation’s economy. Images and discussion of the Great Depression began to appear in the media, with many questioning whether the 2008 financial crisis would result in a similar catastrophe. In the midst of the debate over a new bailout bill, Republican presidential candidate John McCain announced that he was suspending his campaign to return to Washington to deal with the crisis and help his Senate colleagues develop an acceptable alternative. On October 1, the Senate passed its own version of an economic bailout bill in a relatively uncontroversial and bipartisan manner. Senators and political rivals John McCain, Barack Obama, Joe Biden, and Hillary Clinton all voted in favor of the bill, which provided a number of incentives intended to coax reluctant House members into supporting it. For example, the Senate version extended tax benefits enjoyed by small businesses and created special tax relief for residents of states hit by recent natural disasters such as Hurricane Katrina. The bill also increased the FDIC’s protection of deposit accounts in banks from $100,000 to $250,000. The bill changed certain rules in the alternative minimum tax to give relief to low-income and middle-class homeowners and provided funding for alternative energy sources. The bill also contained funding for certain pet projects that had been championed by House members who had voted against the original bill, such as aid to rural schools and insurance coverage parity for addiction and mental illness. The Senate’s changes proved effective in gaining House support. On October 3, the House voted 263-171 to pass the bailout bill, formally known as the Emergency Economic Stabilization Act of 2008. The act created the “Troubled Assets Relief Program,” and the entire process came to be known as the “TARP bailout.” COMPONENTS OF THE BAILOUT The final version of the act granted Secretary Paulson the $700 billion he requested, to be allocated in stages: $250 billion was made available immediately, with another $100 to follow at the president’s direction. The final $350 billion would be authorized if the president informed Congress of his intention to do so and gave Congress 15 days in which to object. The act authorized the secretary to identify and purchase bad mortgage debts being held by

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financial institutions. In exchange for assuming the banks’ bad debts, the banks would agree to give the government certain assets or “equity interests.” This approach made the government into a lender-owner of sorts and gave the taxpayers the prospect of being paid back over time. Just how the secretary would figure out which debts to purchase was not defined, but was instead left up to the administration. The act also called for mortgage relief for Americans in an effort to stop, or at least slow down, the growing number of home foreclosures plaguing the country. This component of the act gave the secretary the authority to offer financial incentives to banks that were willing to work with homeowners to refinance their mortgage debt or otherwise find a way to avoid defaulting on their home loans. In response to the fact that many of top executives of recently failed banks and Wall Street firms, not to mention Fannie Mae and Freddie Mac, had received generous bonuses and other forms of special compensation totaling millions of dollars, the act placed limits on executive pay for firms receiving money from the bailout. The act banned certain types of “golden parachutes,” a name given to the lucrative severance packages awarded to CEOs and other top officials upon their departure from a company, even when the company’s value and performance had declined. While the initial version of the act had no oversight provisions, the final version was chock full of them. The act provided for judicial review by the courts and specific oversight responsibilities by Congress. It also gave oversight authority to the Comptroller General of the General Accounting Office and created a special board called the “Financial Stability Oversight Board,” which was to be staffed by the chairmen of the SEC and the Federal Reserve as well as several cabinet secretaries. The AIG bailout—$85 billion—coming on the heels of the Fannie Mae and Freddie Mac bailout—$200 billion—sent shockwaves throughout the United States and international financial markets. The announcement of the need for a $700 billion bailout of the financial system to ensure the continued availability of credit to businesses and consumers was more than the stock market could bear. Immediately after the announcement that the House had rejected the first bailout proposal, both the New York Stock Exchange and the NASDAQ suffered precipitous losses. The stock markets became unpredictable, with wild fluctuations of several hundred points up or down depending on the latest news from Washington. During October and for the rest of 2008, the markets experienced huge declines, with investors losing over a trillion dollars of value in their stock in just a few short weeks. On many days, record or near-record volumes of stock were sold. Single-day losses ranged from 10 to 20 percent, causing many to fear another stock market crash. The effects of America’s financial crisis were felt worldwide: several countries periodically had to halt trading temporarily on their exchanges to stave off losses. Major banks failed in Europe; in fact, all three of Iceland’s largest banks failed. Countries pumped money into the markets to prop them up, with little effect. As 2009 approached, the American and international stock markets and financial markets had not collapsed, but had not really recovered, either.

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U.S. BANK FAILURES Three weeks after the federal government rescued Fannie Mae and Freddie Mac, its Federal Deposit Insurance Corporation (FDIC) seized the assets of Washington Mutual, the nation’s largest savings bank. The FDIC immediately sold these assets to JP Morgan Chase for a reported $1.9 billion, narrowly averting another taxpayer-sponsored bailout of a giant financial institution. The collapse of Washington Mutual marked the largest bank failure in U.S. history. Stockholders in “WaMu,” as it was called, lost everything. Individuals with their bank accounts in Washington Mutual were compensated by the FDIC, which guarantees deposits up to $100,000 per account (subsequently raised to $250,000 in the bailout act). JP Morgan Chase guaranteed depositors’ funds as well, and assumed billions of dollars in Washington Mutual’s debt, almost all of which had come as a result of its investment in risky and now worthless mortgage-backed securities. Without the sale of WaMu, this debt would have become the responsibility of the federal government. In exchange, JP Morgan received all of the banks’ deposits and its branch locations, making it the second-largest bank in the nation. JP Morgan is still in the process of deciding which branches to keep and which to close; it is expected to lay off up to 5,000 former Washington Mutual employees before this process is completed. Other major banks failed in 2008 as a result of the foreclosure crisis, credit crunch, and overall poor economy. In July, IndyMac bank was taken over by federal regulators; in addition, Bank of America completed its purchase of Countrywide Financial, a mortgage brokering and financial firm at the heart of the subprime mortgage crisis. In October, Citigroup purchased Wachovia, the nation’s second-largest retail brokerage firm, after Wachovia experienced massive losses due to its participation in the subprime mortgage and its loans to real estate developers and builders, who were hurting as a result of the collapse of the housing market. Earlier in the year, the formidable Wall Street securities and financial firm Bear Stearns received an infusion of cash from the government after it lost $15 billion in a few days after an investor panic. Ultimately Bear Stearns failed and was taken over by JP Morgan Chase. In short, 2008 proved to be perhaps the most volatile year in the history of the U.S. financial markets, save perhaps for 1929, the year of the stock market crash that caused the Great Depression. Three huge global financial firms—Bear Stearns, Lehman Brothers, and Merrill Lynch—failed and were taken over by others. Giant insurer AIG had to be bailed out. Several major U.S. banks and financial firms collapsed, including WaMu, the largest bank failure in U.S. history.

AUTO INDUSTRY BAILOUT In December 2008, the top executives of the “Big Three” U.S. automakers— General Motors, Chrysler, and Ford—came to Capitol Hill to ask Congress for their own bailout, in the amount of $25 billion. The automakers warned Congress of their impending collapse, claiming that they had only enough cash to pay their bills and their employees through the end of the month. If they were

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not rescued, Congress was told, the automakers faced bankruptcy and liquidation, an event that would rock the national economy and result in the loss of millions of jobs. Earlier in the year, the Big Three had asked Congress for and received a substantial loan to help them retool their manufacturing facilities for the production of fuel-efficient cars. Record high gasoline prices had resulted in a serious decline in sales of automobiles, and the Big Three were particularly hurt as the market for gas-guzzling trucks and SUVs bottomed out. The automakers needed an infusion of cash in order to begin making economy cars and fuel hybrid cars in a hurry. In November, however, the CEOs returned to Congress to request another $25 billion—this time in emergency funds. Both GM and Chrysler testified that they would run out of money before the end of the year if funding was not forthcoming. For its part, Congress was deeply divided over whether and how to give more money to the automakers. Many members argued that the auto industry could not be allowed to fail, if for no other reason than to protect the jobs of autoworkers and workers in related industries. Other members pointed out that the automakers, who had flown to Washington in separate private jets, did not have a plan for how the money would be spent or repaid. In fact, the automakers had provided no explanation for how the infusion of billions of dollars would keep them in business and help them to become more competitive. Congress sent the automakers home, asking them to prepare a proposal detailing how the money would be used and documenting how it would contribute to their economic turnaround. Three weeks later, in early December, the CEOs returned to Washington (this time driving corporate automobiles to show the future promise of the industry) to ask for a bailout for even more money—a whopping $34 billion. As Congress debated what to do, opposition to yet another federal government bailout of a private entity became increasingly vocal and widespread. Free market economists and financial advisors argued that the government should allow the automakers to fail. Many Republicans in Congress complained that the American taxpayers should not have to rescue corporations that were not competitive and had become bloated by bureaucracy and mismanagement. Some called for the United Auto Workers Union (UAW) to renegotiate their employment contracts with the automakers and share in the pain and sacrifice associated with companies on the brink of failure. The American public, for its part, consistently opposed the bailout: numerous public opinion polls found the majority of Americans to be unsympathetic to the Big Three, just as they had been unsympathetic to the banks and Wall Street brokerage houses that had benefited from earlier bailouts. Eventually it became apparent that opposition from Congress, and particularly from the Senate, would make it impossible to pass auto bailout legislation before Congress recessed for the Christmas holiday. Congress left consideration of the bailout to the new Congress, which would be sworn in in early January. Attention then turned to the Bush administration, the automakers’ last hope for cash by the end of the year. On December 19, President Bush ordered

Bailouts

emergency funding in the amount of $17.4 billion to be provided in the form of loans to GM ($9.4 billion with another $4 billion to follow) and Chrysler ($4 billion), to be paid out over the following two months. Ford did not request emergency loan money (a fact that endeared it to many Americans). In an address explaining why he signed the order, President Bush told the American people that, while he did not favor rescuing private companies, the U.S. economy could not withstand the collapse of its auto industry. Extraordinary economic times had compelled him to approve short-term assistance for the auto industry. In exchange for the loans, the U.S. government retained the option of acquiring their corporate stock, thus becoming a partial owner in the automakers. Some industry experts argued that the automakers would not be able to turn around their fortunes quickly enough to rebound from past mistakes and to face the challenges of competition from foreign automakers, many of which manufacture vehicles in the United States. Foreign automakers such as Toyota and Honda turn out cars at a substantially lower cost than the Big Three, primarily because their labor and benefits costs are lower. Auto industry proponents admit that much of the cost behind American automobiles is due to the high wages and benefits paid to autoworkers and the generous pensions paid to retirees. The solution, they argue, is not to demand sacrifices from workers with good jobs, but rather to alleviate some of the astronomical costs borne by the industry, and especially health insurance costs. For his part, President Bush, in authorizing the emergency loan payments, urged autoworkers to renegotiate their contracts to bring them in line with the wages and benefits paid by the foreign automakers to their U.S. employees. Some predicted that the loan money would simply assist the corporations in preparing for bankruptcy, which many Republican lawmakers argued would be in their best interest. Bankruptcy is designed to help a struggling company in organizing and paying its debts, and in canceling the debts that it is unable to repay. Moreover, bankruptcy laws provide that a bankrupt company can void and then renegotiate its labor contracts. For the automakers, getting out from under its generous labor agreements with the UAW would prove a tremendous cost savings. THE CHRYSLER BANKRUPTCY In the spring of 2009, the dire predictions came true when two of the nation’s Big Three automakers filed for bankruptcy. The first to do so was Chrysler, which filed on April 30, 2009. At the time, Chrysler was a privately held company. It sought to reorganize itself into a smaller, more efficient corporation through the bankruptcy process known as “Chapter 11.” Chapter 11 is used when a company cannot pay its current debts but wants to stay in business. This is accomplished by paying off some creditors (typically less than they are owed) in a manner dictated by law and the bankruptcy court. Upon its filing, it announced a deal with Italian automaker Fiat to acquire 20 percent of the company. The bankruptcy judge eventually approved the sale of Chrysler’s assets jointly to Fiat, its employees’ retirement health care trust, and the U.S. and Canadian governments, which became minority shareholders.

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Chrysler’s creditors strongly opposed the reorganization of the company. They preferred that it be liquidated, so that they could be paid from the proceeds of the liquidation. Certain bondholders felt particularly aggrieved by the arrangements made by Chrysler and the Obama administration, arguing that they were being forced to accept pennies on the dollar for what they were owed because the government preferred to keep Chrysler intact. They argued that the court had ignored important, well-established bankruptcy laws in administering payment of the automaker’s debt. One group of creditors even appealed to the Supreme Court on an emergency basis, but the Court declined to give the case a full hearing. Ultimately, the U.S. bankruptcy judge rejected all of the challenges, and the new corporation emerged from bankruptcy on June 10, 2009. Its ability to do so was made possible in large part by a major infusion of cash from the U.S. government, as well as the favorable terms it received at the expense of its creditors. THE GM BANKRUPTCY On June 1, 2009, General Motors filed for bankruptcy under Chapter 11 of the U.S. Bankruptcy Code. Because GM had debts of nearly $173 billion but assets of only $82 billion, it was clear from the outset that many of its creditors—including its stockholders—would not be paid back, at least not in full. Although the bankruptcy was the fourth largest in U.S. history, it was concluded remarkably quickly, in large part because the Obama administration took an active role before and during the process to ensure that it did not drag out. Opponents of the administration’s approach argued that the president was essentially strong-arming certain creditors to accept resolutions that were not in their best interest rather than pursue their rights through bankruptcy litigation. It is true that the federal government was a major player in the bankruptcy—just six weeks later, in July 2010, the “new” General Motors emerged from bankruptcy; its majority shareholder was now the U.S. government. Its former shareholders, who were private individuals and entities such as pension funds and mutual funds, were wiped out. Critics immediately labeled the company “Government Motors” and predicted its eventual demise. The new entity is leaner than the old one. Its top management was appointed by the Obama administration with the instruction to become profitable and to pay back the nearly $65 billion it cost the government to rescue the company. In response, GM shed many of its automotive lines, including Saturn, Pontiac, and Saab. It closed hundreds of dealerships across America and Canada, often without regard for whether they had been profitable and at a tremendous loss to their franchisees and local communities. The company negotiated new employment contracts with the United Auto Workers Union (UAW) and with their remaining suppliers, many of whom had to file bankruptcy themselves when the original GM went under. In April 2010, the company announced that it had repaid a substantial amount on the debt it owed to the United States under the TARP bailout it had received prior to its bankruptcy. Critics in Congress immediately called

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the claim a lie, because GM had paid the debt by using other federal bailout funds that had been sitting in escrow in a separate account. THE CONTINUING AFTERMATH OF THE ECONOMIC CRISIS By 2010, the federal government had already spent or loaned over $1 trillion to private companies in an effort to stop them and the nation from financial ruin. President Obama, who had inherited some of the crisis from his predecessor, supported all of the various bailout programs. This decision significantly affected his popularity, particularly as America approached its November 2010 midterm elections. Rank-and-file Americans expressed dissatisfaction with the rescue of big businesses, and demanded that the government provide some form of economic relief and funding directly to them. In response, Congress extended unemployment benefits numerous times. In addition, in late 2010 it passed legislation called the “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.” Included in it was a short-term “tax holiday,” where Americans would not be required to pay full Social Security taxes for 2011. The rate of tax was reduced from 6.2 percent to 4.2 percent, which for most Americans means that they will see a 2 percent increase in income during the year. The idea behind this plan is to jump-start the economy by allowing consumers to keep—and, it follows, to spend—more of their earnings. Economists point out that consumer spending drives the economy, and when consumers are hurting, they put off both major purchases (homes and cars) and minor purchases (clothing and other retail goods). A spike in consumer spending could grease the wheels of the economy in a profound way; some argue that giving money to consumers would go a lot further in reviving the economy than giving money to banks. Indeed, many observers point out that, despite the recent infusion of cash into the banking system, credit has not in fact become more readily available to businesses or consumers, placing success of the government’s megabailout in doubt. Whether any of these government bailouts (or, depending on one’s perspective, rescue plans) will actually work over the long term remains to be seen. The fallout from the 2008 global financial crisis, and the federal government’s costly efforts to stabilize the national economy, will continue to be felt for years to come. Given that, it is premature to judge the success or failure of those efforts. The next president may very well take a different approach to solving these ongoing economic challenges, further complicating any attempt to evaluate the decisions of the Bush and Obama administrations. In any event, the nation remains in a deep financial hole, one that will take several years to crawl out of. See also Bankruptcy; Foreclosure Crisis; National Debt and Budget Deficit. Further Reading Books: Bitner, Richard. Confessions of a Subprime Lender: An Insider’s Tale of Greed, Fraud, and Ignorance. Hoboken, NJ: John Wiley & Sons, 2008; Fleckenstein, William.

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Bankruptcy Greenspan’s Bubbles: The Age of Ignorance at the Federal Reserve. New York: McGrawHill, 2008; Morris, Charles R. The Trillion Dollar Meltdown: Easy Money, High Rollers, and the Great Credit Crash. New York: Public Affairs, 2008; Phillips, Kevin. Bad Money: Reckless Finance, Failed Politics, and the Global Crisis of American Capitalism. New York: Viking Press, 2008; Shiller, Robert J. The Subprime Solution: How Today’s Global Financial Crisis Happened, and What to Do about It. Princeton, NJ: Princeton University Press, 2008; Soros, George. The Mew Paradigm for Financial Markets: The Credit Crisis of 2008 and What It Means. New York: Public Affairs, 2008; Stiglitz, Joseph E., Aaron S. Edlin, and J. Bradford DeLong, eds. The Economists’ Voice: Top Economists Take on Today’s Problems. New York: Columbia University Press, 2008; Will, George. “In Detroit, Failure’s a Done Deal.” Washington Post, November 18, 2008. Websites: American Enterprise Institute. “The Cascading Financial Crisis: A Review of Work from the American Enterprise Institute.” http://www.aei.org/research/contentID.20080924093822815/default.asp; CNNMoney.com. “Detroit’s Downfall.” http:// money.cnn.com/news/specials/detroitcrisis; Hubpages.com. “The Financial Bailout Explained.” http://hubpages.com/hub/financialcrisisexplained; Novola, Pietro. “A Broken Branch? Four Lessons from Congress’s Great Financial Bailout Saga.” 2008. http:// www.brookings.edu/papers/2008/1009_bailout_nivola.aspx; PBS online. Bill Moyers Journal. The Great Bailout Debate.” http://www.pbs.org/moyers/journal/10032008/ profile3.html; PBS online. Bill Moyers Journal. “Are the Financial Bailouts a Good Idea?” http://www.pbs.org/moyers/journal/blog/2008/09/are_the_financial_bailouts_a_g.html; Ryan, Daniel M. “Morals and Hazards: Pros and Cons of the Bailout.” September 29, 2008. http://www.enterstageright.com/archive/articles/1008/1008bailoutprocon.htm

Kathleen Uradnik BANKRUPTCY The idea of debt forgiveness goes back to ancient times. The Bible contains numerous stories about tax collectors, creditors, and debtors, some of which call for cancelling debt as an act of selflessness or charity. The actual practice of debt forgiveness by humans has not been so magnanimous, however. Traditionally there was little relief for an individual who could not pay back his debts. A debtor could face punishments that today would seem unimaginable: he could become a slave until his debt was paid, lose all of his possessions, or even be maimed or killed in retribution. Thankfully the framers of the Constitution and the members of this nation’s early Congress did not take such a drastic approach toward unpaid debt. They had experience with harsh treatment by the English Crown, which considered and punished indebtedness as a crime, and were united in seeking an alternative for the American people. The framers’ approach to debt forgiveness was undoubtedly linked to their view of human nature. They understood that humans were flawed and would make mistakes. Drawing from their Judeo-Christian roots, they also believed in a healthy dose of redemption. Bankruptcy is that means of redemption for individuals and entities that have borrowed more money than they can hope to pay back. Bankruptcy law grants a second chance to debtors who otherwise would be faced with financial ruin or, worse yet, deemed criminals or otherwise punished for their inability to pay back money they had borrowed.

Bankruptcy

The first U.S. bankruptcy law dates back to 1800. It was one of several adopted in the nineteenth century in response to economic crises. These laws granted temporary relief to debtors who had been hurt by specific economic conditions. Each time the trouble passed, the laws were repealed. It was not until the end of that century that the U.S. Congress created bankruptcy laws that start to resemble the modern system. Specifically, in 1898 it recognized that corporations might need to seek bankruptcy protection and created a means for them to place their assets into “receivership,” which essentially means management and disbursement of those assets by an outside party. Congress understood the need to create a bankruptcy system to address the problems posed by the rapid industrialization of the nation. Nevertheless, business bankruptcies remained rare until the mid-1970s. Today they are common: indeed, many of the nation’s largest corporations have filed for bankruptcy in the past three decades. There is a fine line, perhaps, between helping a sincere debtor in need and rescuing someone who was simply reckless with his or her money. U.S. bankruptcy law has been developed over the years to provide a kind of roadmap for debtors to outline how one qualifies for bankruptcy protection and what the government and legal system are willing to do to assist them. This roadmap is called the “U.S. Bankruptcy Code.” Its rules are lengthy and complex, leading to the development of bankruptcy as a highly specialized practice among the nation’s attorneys. TYPES OF BANKRUPTCY PROTECTION The modern Bankruptcy Code dates to 1978, when Congress passed a major overhaul of all of its existing legislation (most of which had been developed in a piecemeal fashion over the preceding decades, again in response to economic crises) called the “Bankruptcy Reform Act of 1978.” This legislation provided a more comprehensive and uniform approach to bankruptcy. Because bankruptcy law is federal, it is administered by the federal courts. A person who files for bankruptcy protection does so in a federal bankruptcy court, not a state court. Federal bankruptcy courts are located across the country and are presided over by special bankruptcy judges. These judges are appointed by higher-ranking judges from the Circuit Court of Appeals, but they do not serve life terms. Instead, a bankruptcy judge holds the position for 14 years, with the possibility of reappointment when that term is up. The U.S. Bankruptcy Code is divided into chapters covering the various types of bankruptcy protection that a person or entity might seek. “Chapter 7” concerns individual and business bankruptcy; Chapter 11 discusses corporate reorganization; Chapter 12 addresses family farms; and Chapter 13 covers businesses that are not going to be reorganized, but rather closed down in a process called “liquidation of assets.” Chapter 7 Individuals can run into trouble with their finances. When people find that they have an excessive amount of debt with no realistic ability to pay it back,

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they might decide it is better to “start over” by seeking to have their debt obligations legally cancelled by the government. U.S. bankruptcy law, whether for individuals or businesses, is aimed at giving the debtor a “fresh start.” The system is not meant to punish people for being indebted or to judge them for the poor financial decisions they may have made. Instead, it is a forward-looking process for cleaning up old debts and relieving the burdens of the bankrupt person. Thus individuals who run into deep trouble may seek to file a “Chapter 7 petition,” a legal action asking for relief from debt. Chapter 7 is also available to business entities, but it is more commonly associated with individuals. The process of filing bankruptcy is not as benevolent as it sounds. Bankruptcy is designed to be a last resort for individuals and businesses, and it is not to be entered into lightly. For an individual, Chapter 7 involves the collection and liquidation of assets so that creditors can receive at least some of the money owed to them. In exchange, the debtor is released from his or her remaining debt. Today, the first consideration is measuring the amount of debt a person has and comparing it to the value of his or her assets. One must be far enough in debt to legally qualify to file for bankruptcy protection. Otherwise, the person is expected to handle financial problems without government intervention, perhaps by obtaining financial counseling or working out an arrangement with creditors. The eligibility determination is made based on a formula that compares the debtor’s income to the median income of an individual in his or her state. Debtors with an ability to make payments on their debt cannot file a Chapter 7, but may be able to file bankruptcy in an alternative form called “Chapter 13.” If one qualifies to file bankruptcy, the bankruptcy laws control what can be done with his or her property. A person filing bankruptcy is expected to contribute all nonessential assets to a pool of money that is shared among the creditors. The bankrupt person must declare everything that he or she owns, along with its value, and file that list of assets with the court. He or she must also list all debts, describe sources of income, and detail all of the contracts (such as a mortgage or lease) that he or she has entered. Bankruptcy, therefore, is in that sense a very public event: the person filing must set out his or her entire financial life for the court to review. The court official in charge of collecting and disbursing assets is called the “trustee.” Some assets, like one’s house and car, are protected. The purpose of bankruptcy is to give an individual a fresh start, and that does not happen if he or she is homeless and has no transportation to and from work. Certain sources of money, like pensions, can also be protected under the same theory: it makes no sense to leave a person destitute. Thus a bankrupt individual has a legal right to retain a limited number of “exempt” assets. Just which ones, however, can be difficult to identify for an untrained person. Because of a quirk in the bankruptcy laws and respect for the idea of federalism, the states have some ability to determine which assets are protected, and to what extent. Once a person files for bankruptcy protection, his or her financial life is essentially frozen in time by the court. An advantage for the debtor is that he

Bankruptcy

or she cannot be hassled or harassed by creditors, or have assets or paychecks seized by a third party. The court now controls all of the assets and liabilities of the person. Its task is to sell the assets and pay the creditors. Once this occurs, the individual is released from most of his or her old financial obligations. However, bankruptcy is not a free ride, and a person is not allowed to profit from it. Existing contracts, such as a mortgage on a home, are still valid and remain an obligation of the individual. Although thousands of college graduates might dream of it, student loans are not cancelled by a bankruptcy proceeding, either. Moreover, individuals are not allowed to defraud the government and their creditors by, say, running up huge credit card debts right before filing bankruptcy. The court will look into a person’s behavior, and it can deny bankruptcy protection if it finds fraud, abuse, or dishonesty. Finally, anyone who files bankruptcy will have that fact noted on his or her credit report for a period of several years, and his or her credit score will fall. During that time, it will quite difficult, if not impossible, for that person to borrow money for any reason, including to buy a house or obtain a student loan. Stigma of Personal Bankruptcy The bankruptcy laws were not intended to make a person feel like a failure or a criminal for having to file bankruptcy protection. That being said, for decades bankruptcy was seen as a black mark on a person’s character, something that one was embarrassed about and did not discuss in proper society. Over time, however, the stigma attached to bankruptcy faded somewhat. As banks encouraged individuals to use credit cards and made them freely available, increasing numbers of Americans availed themselves of seemingly cheap and easy money, only to get in over their heads. More and more of them sought bankruptcy protection. In turn, the banks fought back, characterizing bankruptcy filers as free spenders who lived lavishly on borrowed money and bought luxury goods that they could never afford. Thus two pictures emerged while Congress considered bankruptcy reform in 2005: Consumer groups portrayed those likely to file bankruptcy as poor or middle-income Americans living from paycheck to paycheck who struggled to make ends meet. Lenders portrayed them as careless and impulsive folks who could not contain their desire for material goods and acquired them with borrowed money. The reality was and remains somewhere in between. Some people get into trouble with debt because of foolishness or lack of restraint. Others, however, become indebted through little or no fault of their own. For example, one of the most common factors leading an individual to file bankruptcy is massive medical debt incurred as a result of an illness or accident. Even families with health insurance can quickly find themselves deep in debt with unpaid medical expenses. Another common cause of bankruptcy is the loss of a job. When a family suddenly loses its income due to a downsizing or the death of the primary breadwinner, debts add up quickly. A third event that can cause immediate massive debt is a legal judgment against an individual reached after a civil dispute and trial.

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Reasonable people disagreed over whether bankruptcy had become too easy to obtain. Creditors certainly felt so, and the nation’s financial industry pressed Congress to do something about it. In response, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, known as “BAPCA.” The new law made it more difficult for individuals to file bankruptcy. First, it required prospective filers to obtain financial counseling before starting the bankruptcy process. It raised the bar on who was eligible to file by enacting a “means test” that compares assets to liabilities. It also altered the traditional notion of a “fresh start” by requiring some filers with an ability to pay to follow a plan for paying off debts after bankruptcy. In fact, the bankrupt individual can now be responsible for payments to creditors for up to five years after the bankruptcy proceeding. The law also imposed a waiting period of eight years between bankruptcy filings, a measure aimed at those who abused the process by filing multiple times. Response to the new law was predictably mixed. Bankruptcy attorneys viewed the changes as excessive and punitive and based on a fundamental misperception of why individuals file bankruptcy in the first place. They pointed out that Congress did not really consult bankruptcy judges or attorneys in adopting the new restrictions, but rather bowed to pressure from banks and credit card companies. The banking industry largely saw the changes as necessary to reform consumer misbehavior and abuse of credit that cost them billions of dollars in losses. Chapter 13 The BAPCA forced many indebted individuals who previously would have filed under Chapter 7 into filing their bankruptcy petition under Chapter 13 instead. Chapter 13 has advantages and drawbacks for the individual. The primary drawback is that the bankrupt person is required to make payments on his or her debts for a period of years. The amount and length of these payments is calculated based on the person’s income, debt amount, and reasonable living expenses. For this reason, Chapter 13 often is used by those who still have a steady income but for some reason have fallen behind on debts such as their mortgage and car payments. Creditors are essentially forced to accept the payment plan ordered by the court. Once the repayment period has ended, the remaining debt is forgiven (“discharged”). The advantage of Chapter 13 is that it is somewhat more comprehensive, in that it wipes out more types of debts than Chapter 7. But common debts such as student loans and child support do not go away even under this type of bankruptcy, and the damage done to one’s credit report and score is the same. Chapter 11 A business with significant unpaid debt has essentially two choices: it can shut down and sell its assets to pay its creditors, or it can try to reorganize itself by working out an arrangement with its creditors in an effort to stay afloat. The

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liquidation of a business is done under Chapter 7; the reorganization of a business falls under Chapter 11. A business, whether it is a corporation or partnership or some other legal entity, is treated like an individual under the law. It has similar rights and responsibilities in bankruptcy court. Any business that wants to reorganize and continue operation must provide a list of all debts and assets to the trustee of the bankruptcy estate. It also must file a plan of reorganization detailing how and to what extent it can pay its creditors. Under the law, certain creditors take precedence over others. Employees of a company, for example, are among the first to be paid as creditors; stockholders in the company are among the last to be paid. The creditors have an opportunity to review the plan, and can either approve or reject it. If the creditors are unified and are unwilling to accept a partial payment of monies owed, they can seek to have the business liquidated under Chapter 7. If the creditors are willing to accept the bankruptcy plan, then they are paid in accordance with it. Once the affairs of the business are set in order according to its plan, the business is “discharged” from bankruptcy. That means its former debts are resolved, and it emerges from bankruptcy with a fresh start. Why would creditors agree to take much less than they are owed when a company becomes bankrupt? There might be several reasons. First, collecting some money is better than nothing, and creditors with priority in being paid are likely to support a company seeking to reorganize. Second, many creditors would like to continue doing business with the bankrupt company. They may be exclusive suppliers of parts to the company, for example, and if the company ceases to exist then they, too, will face a financial crisis. Third, a number of corporations filing bankruptcy are among the largest in the nation. Virtually every major American airline has filed for bankruptcy protection in the past few years, including United and Delta. The nation’s largest auto manufacturer, General Motors, also filed bankruptcy, along with a number of its suppliers. In fact, the 10 largest corporate bankruptcies in U.S. history have all been filed within the last 10 years. What would happen if these companies simply shut their doors? The result could be devastating for the U.S. economy. Hundreds of thousands of employees would lose their jobs. Creditors would be hard hit, and many of them would need to file bankruptcy in turn. Governments would lose billions in tax revenue because the corporate taxes previously paid by the companies would no longer exist; similarly, income tax revenues would decline precipitously because so many people would be out of work. A major upheaval in the U.S. financial markets would follow, and perhaps even another Great Depression, the effects of which would last for decades. This dire picture was presented by the Obama administration and many of the nation’s top economists in the spring of 2009, when General Motors teetered on the brink of bankruptcy. Consequently, the government intervened in General Motors, which did file for bankruptcy protection and reorganization. The government took a direct role in the bankruptcy, becoming an owner and creditor of the corporation so that its reorganization would be successful. It took a

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similar role with respect to insurance giant AIG, which avoided bankruptcy after a major infusion of federal money. The government also worked with Wall Street financiers to ensure that a number of major banks would be propped up with an infusion of government cash, and that the assets of those not lucky enough to be saved by the government would be bought by viable companies in an attempt to minimize the damage and fallout. Critics of the Obama administration’s efforts on behalf of these threatened companies complained bitterly that the government should not support companies that had brought financial ruin and bankruptcy upon themselves. Many economists argued that they should be allowed to suffer the consequences of their own mismanagement. Their ire was directed particularly to General Motors, which was considered in some circles not worth saving because of its failure to fix its long-time problems. Critics pointed out that General Motors had been in trouble for years, but had repeatedly failed to take the actions necessary to solve its financial problems and embrace a profitable business model. Why should the government step in to save a company that caused its own demise by building cars that no one wanted to buy? The same argument was leveled against Chrysler, which had also filed for bankruptcy after years of financial instability and poor car sales. Critics of the GM bankruptcy and the federal government’s role in taking ownership of GM—which they cynically called “Government Motors”—argued that the company should have been allowed to fail and be liquidated in accordance with free market principles. Companies that are not competitive are not viable, and the government’s role does not extend to running private corporations. They also questioned the doomsday predictions of the Obama administration, believing that no company should be considered “too big to fail” and pointing out that government’s generosity toward GM was ironic given its lack of generosity to individuals demonstrated by the tightening of bankruptcy rules in the BAPCA. The GM and Chrysler bankruptcies were highly unusual—indeed, unprecedented—and their ramifications are still being debated today. Chapter 11 is intended to allow businesses to start over, but they need to prove that they can do so. There is no point in allowing the reorganization of a company that is not going to learn from its mistakes, or that has too much debt to escape ruin, or that has no viable plan for its future. Generally when creditors have no faith in a company it is forced into liquidation. If the federal government is involved in a bankruptcy at all, it is usually as a creditor. It is uncommon for the government to intervene in a corporate bankruptcy, and unheard of for it to do so for the benefit of the overall society and the U.S. economy. Whether the government will ever do so again remains to be seen. Economists remain deeply split over the government’s actions with respect to GM and Chrysler, as does the American public. Both companies emerged from bankruptcy very quickly, and are today running in a leaner and hopefully more effective fashion. They plan to return to profitability some day and to pay back the monies borrowed from the government. There is no guarantee that they will be able to do so, and the jury remains out on the successfulness and efficacy of these particular Chapter 11 bankruptcies.

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AMERICA’S TEN LARGEST CORPORATE BANKRUPTCIES Company

Type of Business

Bankruptcy Date

Value in Billions

Lehman Brothers

Financial Services, Investment Banking, Securities Brokerage

September 2008

$691

Washington Mutual

Banking

September 2008

$328 (largest bank failure in U.S. history)

WorldCom

Telecommunications

July 2002

$104

General Motors

Automaker

June 2009

$91

CIT Group

Financial Services, Lending

November 2009

$71

Enron

Energy Production

December 2001

$66

Conseco

Insurance

December 2002

$62

Chrysler Corporation

Automaker

April 2009

$39

Thornburg Mortgage Real Estate Investment May 2009 Trust, Mortgage Lender

$37

Pacific Gas and Electric

$36

Utility

April 2001

SUMMARY Bankruptcy offers a fresh start to individuals and companies facing significant indebtedness. The bankruptcy system is a legal process designed to handle the financial affairs of the debtor in an efficient and predictable manner. But the system is based in public policy, and the expectations and requirements for bankruptcy can change over time depending on the nation’s mood and Congress’s actions. Today, the procedures for filing personal bankruptcy have made it tougher for citizens to avail themselves of the traditional “fresh start.” At the same time, the government has strained to assist large corporations, claiming it is for the good of the country. Are the government’s actions consistent? Defensible? These questions will continue to be controversial in the coming years, as individuals and businesses alike struggle with the challenges posed by weakened national and global economies. Further Reading Books: Elias, Stephen. The New Bankruptcy: Will It Work for You? Berkeley, CA: NOLO Press, 2009; Gross, Karen. Failure and Forgiveness: Rebalancing the Bankruptcy System. New Haven, CT: Yale University Press, 2009; Hudson, David L. The American Bar Association Guide to Credit and Bankruptcy: Everything You Need to Know about the Law, Your Rights, and Credit, Debt, and Bankruptcy. Chicago: American Bar Association/Random House Reference, 2006; Kilpi, Jukka. The Ethics of Bankruptcy. New York: Routledge, 2002; Mann, Bruce H. Republic of Debtors: Bankruptcy in the Age of American

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Bioterrorism Independence. Cambridge, MA: Harvard University Press, 2009; Skeel, David A. Debt’s dominion: A History of Bankruptcy Law in America. Princeton, NJ: Princeton University Press, 2003; Sullivan, Teresa A., Elizabeth Warren, and Jay Lawrence Westbrook. The Fragile Middle Class: Americans in Debt. New Haven, CT: Yale University Press, 2000; Vyse, Stuart A. Going Broke: Why Americans Can’t Hold on to Their Money. New York: Oxford University Press, 2008; Warren, Elizabeth and Amelia Warren Tyagi. The TwoIncome Trap: Why Middle-Class Parents Are Going Broke. New York: Basic Books, 2004. Websites: Congressional Research Service, Report to Congress. Consumer Bankruptcy Reform in the 109th Congress: Background and Issues. http://www.abiworld.org/pdfs/ s256/CRS-background.pdf; Cornell University Law School, Legal Information Institute (LII). Bankruptcy. http://topics.law.cornell.edu/wex/bankruptcy; International Debate Education Association. Debate: Pros and Cons of Chapter 13 Bankruptcy. http:// wiki.idebate.org/en/index.php/Debate:_Pros_and_cons_of_chapter_13_bankruptcy; National Public Radio. “Senate Debates Bankruptcy Restrictions.” February 28, 2005. http://www.npr.org/templates/story/story.php?storyId=4515876; NOLO. Bankruptcy, Foreclosure and Debt. http://www.nolo.com/legal-encyclopedia/bankruptcy -foreclosure-debt/;jsessionid=816A83C9B3495F75F34BF1F96A5EDB15.jvm1; United States Courts. Bankruptcy Courts. http://www.uscourts.gov/bankruptcycourts.html; Warren, Elizabeth. “The Changing Politics of American Bankruptcy Reform.” Osgoode Hall Law Journal. 1999. http://www.ohlj.ca/archive/articles/37_12_warren.pdf

Kathleen Uradnik BIOTERRORISM “Bioterrorism” refers to the deliberate release or dissemination of biological agents such as bacteria, viruses, or toxins to cause widespread illness or death. Although biological agents are typically found in nature, concern lies in the possibility that they could be engineered to cause disease or to be made resistant to current medicines. The list of agents that could pose the greatest public health risk in the event of a bioterrorist attack is relatively short, but also rather scary. If properly disseminated, these agents could cause massive suffering and pose a major challenge to the nation’s public health infrastructure in terms of the ability to control an outbreak and limit casualties. Most analysts agree that the potential effects of a bioterrorist attack vary widely depending on its target, as well as how the agent is used and disseminated. The threat of bioterrorism is heightened by the effects of an increasingly globalized world. Advancements in technology and the ease of international travel increase the likelihood that an infectious disease outbreak could cross national borders to infect unprotected populations. The terrorist attacks of 9/11 and anthrax mailings that occurred shortly afterward in 2001 raised concern that the United States is not prepared to respond to bioterrorism attacks. BIOTERRORISM AGENTS The Centers for Disease Control and Prevention (CDC) place bioterrorism agents into three categories—A, B, or C—depending on how easily they can be spread as well as the severity of illness or death they can cause.

Bioterrorism

Category A agents are considered the highest risk and include organisms and toxins that pose the greatest risk to the public and national security. These agents can be easily transmitted from person to person and can cause high mortality rates. The use of Category A agents could have a major public health impact, with the potential to cause public panic and social disruption. Some examples of Category A bioterrorism agents include anthrax, botulism, pneumonic plague, and smallpox. Anthrax and smallpox are the two agents with the greatest potential for mass casualties and civil disruption. Both are highly lethal—the death rate for anthrax if untreated before onset of serious symptoms exceeds 80 percent. Both can be transmitted in aerosol form, and both can be produced on a large scale. According to an estimate by the U.S. Congress’s Office of Technology Assessment, 100 kilograms of anthrax released from a low-flying aircraft over a large city on a clear, calm night could kill one to three million people. An attack using Category A agents obviously poses a tremendous risk to national security. Category B agents include those agents with low mortality rates such as food safety threats, viral encephalitis, and water safety threats. Examples of agents in this category include salmonella, ricin, and typhus fever, among other toxins. In 1984, members of the Rajneeshees cult in Oregon contaminated salad bars in 10 different restaurants and one supermarket with the food-borne pathogen Salmonella typhimurium, which made over 700 people ill with gastrointestinal disease. The cult’s motive was to sicken a significant number of registered voters in The Dalles, Oregon to keep them from voting in an upcoming election. Category C agents include emerging pathogens that could be engineered for mass spread in the future because of a variety of factors including availability, ease of production and dissemination, and the potential for high morbidity and mortality rates as well as major public health impact. Category C agents include emerging infectious diseases such as the Nipah and Hendra viruses. The Nipah virus is a newly recognized virus that causes disease in animals and in humans through contact with infectious animals. The Nipah virus is closely related to the Hendra virus. The biologic properties of these viruses can infect a wide range of hosts and produce a disease causing significant mortality in humans. Small outbreaks in the 1990s in Malaysia and Australia made this emerging viral infection a public health concern. BIOLOGICAL WEAPONS The use of biological weapons during war has occurred for hundreds, perhaps thousands, of years. During the Middle Ages, the bubonic plague killed millions of people across Europe. The plague was primarily a disease of rats. When the rats came in close contact with humans, their fleas transmitted the disease by biting the victims. Residents of some localities were known to throw human and animal corpses containing plague over their city walls to infect adversaries. In North America during the French and Indian Wars (1754– 1767), blankets used in a smallpox infirmary were given to Native Americans, causing an outbreak of smallpox in the Ohio Valley.

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By the beginning of the twentieth century, a more modern biological and chemical warfare program began in Germany. During World War I, Germany used poisonous mustard gas on the battlefield. Mustard gas was a horrific and devastating weapon. Soldiers who breathed it experienced burning and blistering on the skin and in the lungs. The blistering cut off the victim’s air supply, leading to asphyxiation. It could also cause blindness, burned skin, and a host of other respiratory problems. The shocking effects of mustard gas led to the Geneva Protocol of 1925. The Protocol was an international treaty signed by over two dozen nations that banned the use of biological agents to cause fear, illness, or death. It also banned the use of asphyxiating gas as a method of biological warfare. Unfortunately, the Protocol did not end the use of biologic agents in war. The United States and Japan did not sign the Protocol, and many other nations (including Great Britain, Russia, and France) reserved the right to use such weapons if their enemies employed them in an attack. During World War II, Japan experimented on Chinese prisoners in Manchuria using bacterial dysentery, cholera, and bubonic plague, killing thousands. Japan also dropped approximately 15 million plague-infected fleas over Chinese cities from lowflying aircraft. Once intelligence agents learned of the extensive Japanese biowarfare program, the United States secretly initiated its own offensive germ warfare program in the 1940s. Working with Great Britain, it developed and tested anthrax bombs, but did not deploy them. The United States continued to pursue biological weapons research and production in the years after WWII and throughout the Cold War. At the same time, diplomats worked through the United Nations and other channels to write a treaty banning the use of biological agents against humanity. In the early 1970s, President Nixon condemned the offensive use of biological weapons and ordered the U.S. military to destroy its stockpiles. The United States also slowed its research into biological agents, limiting their study to their defensive use. By 1972, nations of the world were called to sign the Biological Weapons Convention (BWC), the first international treaty to ban an entire class of weapons. The BWC prohibits the development, production, stockpiling and acquisition of biological weapons. The United States signed the treaty (and the Geneva Protocol) in 1975. As of June 2000, it had 144 parties, including the five permanent members of the United Nations Security Council, plus a further 18 signatory states. Despite the treaty, research in the offensive use of biological agents has continued. In 1979, for example, the Soviet Union accidentally released anthrax from a military testing facility. During the 1980s, the nation of Iraq took steps to develop and stockpile biological weapons. Fear that Iraqi President Saddam Hussein had and would someday use these weapons against the West became a controversial justification for the U.S. war against Iraq. Today, experts believe that as many as twelve countries are pursuing biological warfare programs. Biological weapons remain attractive to adversaries for many reasons. First, they can be developed in relative obscurity. Compared to other forms of terrorism, bioterror attacks can be relatively low-cost and can be easily duplicated in

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other sites. Recognizing the source of outbreaks and tracing them to terrorists, moreover, can be difficult since there are no immediate and visible casualties. Indeed, a biological attack can unfold gradually; until people arrive at hospitals reporting like symptoms, there may be no sign of an attack at all. Second, the technology used to develop biological weapons is similar to that used by the pharmaceutical industry. Therefore, access to information to develop these weapons has become much more readily available in recent years. With the growth in biodefense research and biotechnology advances made by universities and large corporations, many more individuals have developed an expertise in the area and have secured access to the dangerous germs. Terrorist groups such as Al Qaeda actively recruit biologists, chemists, engineers, and physicists. There is evidence that Al Qaeda leaders have shown interest in using biological weapons against Western nations. In fact, policymakers believe that an Al Qaeda biochemist trained in the United States spent several months in 2001 trying to cultivate anthrax in Afghanistan. Al Qaeda is not the only non-state actor to seek to develop and use biological weapons. The Japanese terrorist cult Aum Shinrikyo was responsible for sarin attacks on the Tokyo subway system in March 1995. Sarin is a deadly chemical nerve agent that can take the form of a liquid or a vapor. In the Tokyo subway attack, packages consisting of plastic bags filled with a chemical mix were placed on five different trains in the Tokyo subway system. Each bag was punctured and the material was allowed to spill onto the floor of the subway car. As the liquid spread out and evaporated, vapors spread throughout the cars. These attacks were carried out on five trains converging on the center of Tokyo, one of the world’s largest cities. As a result of the sarin attacks, twelve people were killed and thousands hospitalized. POST 9/11 ATTACKS After the end of the Cold War, scholars and policymakers began to view terrorism not as disorganized criminal acts, but as well-funded and organized, asymmetric warfare. The increase in the rhetoric of mass destructionterrorism brought more attention to the threat of bioterrorism. Shortly following the terrorist attacks of 9/11, letters laced with anthrax appeared in the U.S. mail in November 2001. Letters containing anthrax were sent to news anchor Tom Brokaw at NBC Studios, the New York Post newspaper, and Senators Tom Daschle (D-SD) and Patrick Leahy (D-VT). Following the discovery of the Daschle letter, hazardous material personnel searched 280 barrels of unopened mail sent to Capitol Hill, where the letter to Senator Leahy was discovered. These anthrax letters killed five Americans and caused widespread panic wherever they were discovered. Preliminary analysis indicated that the powder closely resembled anthrax produced by the U.S. military before it shut down its bio-warfare program. The ongoing FBI investigation into the anthrax letters finally revealed a suspect in the summer of 2008—almost seven years after the attacks. The chief suspect in the case was an Army biodefense scientist who committed suicide a week before he was to be indicted for murder.

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The U.S. government again was a target of bioterrorism in February 2004, when the Senate shut down its three office buildings after a powder identified as the deadly poison ricin was found in the office suite of Senate majority leader Bill Frist (R-TN). Ricin is a deadly poison derived from the castor bean. It has no known antidote. Even a tiny amount of ricin can be deadly if it is swallowed or injected. Prior to the U.S. attack, the most famous case involving ricin poisoning occurred during the Cold War. In 1978, a famous Bulgarian dissident, Georgi Markov, was murdered in London when he was jabbed in the leg with an umbrella containing a ricin pellet while waiting for a bus. Recent attention also has focused on “agroterrorism,” or the potential for terrorist attacks against agricultural targets. Agroterrorism is considered a form of bioterrorism, defined as the deliberate introduction of an animal or plant disease with the goal of generating fear, causing huge economic losses, or undermining social stability. According to the Congressional Research Service, the results of an agroterrorist attack may include major economic crises in the agricultural and food industries, loss of confidence in government, and possibly human casualties. Humans could be at risk in terms of food safety or public health if disease is transmissible to humans. The topic of “food defense” has received increasing attention by the counterterrorism and bioterrorism communities. Because human health could be jeopardized by contaminated food if an animal pathogen is transmissible to humans, agroterrorism has been considered a threat to national security. National response plans now include agroterrorism threats. Nevertheless, experts claim that not enough attention has been paid to protecting the plants and animals in the food supply from biological attacks. A 2003 Rand report, for example, found that vulnerabilities in the agricultural sector (stemming from crowded breeding conditions that make it difficult to contain disease among animals to insufficient surveillance at food processing and packing plants) expose the agriculture industry to potential attack. Experts worry that, because most animal pathogens cannot be transmitted to humans, they are easier for terrorists to work with and to use in an attack. U.S. BIOTERRORISM LEGISLATION The anthrax attacks, although small in scale, raised concern among policymakers that the U.S. public health system was insufficiently prepared to respond to bioterrorist attacks. Unlike a conventional terrorist attack, the public health impact of a biological attack can unfold over time. Depending on the biological agent used, the first signs of symptoms may not be immediate, and therefore, there may be no immediate sign of attack. Speed and accuracy in the reporting of a bioterrorist attack would likely have direct impact on the number of people who become ill or died from it. It has long been recognized that the ability to quickly respond to a bioterrorist attack depends upon preparedness in the medical systems and public health infrastructure. Public health experts argue that the nation needs more medical personnel trained to identify symptoms of biological attacks, an increase in laboratories trained in identifying biologic agents, and a

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greater supply of drugs and vaccines to treat victims. The investment in this type of infrastructure would help the nation address not only the effects of bioterrorism but of infectious disease epidemics and food-borne illnesses, as well. After the events of 9/11, the federal and state governments realized that no one was adequately prepared for the potential of a mass-casualty disaster caused by a terrorist attack, pandemic, or natural disaster. Weaknesses in the public health system were exposed at all levels of government. In response, Congress passed the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act), which President Bush signed into law June 12, 2002. The Bioterrorism Act builds on the programs established in Title III of the Public Health Service (PHS) Act by the Public Health Threats and Emergencies Act of 2000. Under the direction of the Secretary of Health and Human Services, it requires the preparation and implementation of a national preparedness and response strategy. Among many key provisions, it awarded $1 billion in federal grants annually to states to establish public health and medical preparedness strategies. Included in the measure was a separate bill that established the Biomedical Advanced Research and Development Authority (BARDA). BARDA coordinates federal efforts to produce countermeasures against biological weapons and illnesses such as pandemic flu. BARDA manages Project BioShield. On July 21, 2004, President George W. Bush signed the Project BioShield Act of 2004 into law to accelerate the research, development, purchase, and availability of effective medical countermeasures against biological, chemical, radiological, and nuclear agents.

SUMMARY The potential effects of a bioterrorist attack vary widely, from small- to largescale depending on the biological agent used and how it is dispersed. To better respond to different threat scenarios, the United States has begun to invest in more comprehensive planning that focuses on local preparedness and response capacity. It has also recognized the need to enhance disease surveillance, increase laboratory capacity, and coordinate efforts to collect, analyze, and share data. Improved preparedness and response capabilities may not prevent bioterrorism, but they are considered essential for minimizing casualties and controlling contamination, economic loss, and public fear that may accompany a bioterrorist attack. Much work, however, remains to be done to ensure that the nation is fully protected, and the issue of how to prepare and pay for an adequate national defense against biological terrorism will continue to be a contentious public health and policy issue. Further Reading Books: Cirincione, Joseph, Jon B. Wolfsthal, and Miriam Rajkumar. Deadly Arsenals: Nuclear, Biological and Chemical Threats. New York: Carnegie Endowment for International Peace, 2005; Clark, William R. Bracing for Armageddon? The Science and Politics of Bioterrorism in America. New York: Oxford University Press, 2008; Cole,

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Bioterrorism Leonard A. The Anthrax Letters: A Medical Detective Story. Washington, DC: Joseph Henry Press, 2003; Gerstein, Daniel M. Bioterror in the 21st century: Emerging Threats in a New Global Environment. Annapolis, MD: Naval Institute Press, 2009; Grey, Michael and Kenneth Spaeth. The Bioterrorism Sourcebook. New York: McGraw-Hill Professional, 2006; Guillemin, Jeanne. Biological Weapons: From the Invention of State-sponsored Programs to Contemporary Bioterrorism. New York: Columbia University Press, 2004; Morris, Robert D. The Blue Death: Disease, Disaster and the Water We Drink. New York: HarperCollins Publishers, 2007; Ryan, Jeffrey and Jan Glarum. Biosecurity and Bioterrorism: Containing and Preventing Biological Threats. Burlington, MA: Butterworth-Heinemann Homeland Security, 2008; Zelicoff, Alan P. and Michael Bellomo. Microbe: Are We Ready for the Next Plague? New York: American Management Association, 2005; Zubay, Geoffrey. Agents of Bioterrorism: Pathogens and Their Weaponization. New York: Columbia University Press, 2008. Websites: Association for Professionals in Infection Control and Epidemiology, Inc. http:// www.apic.org//AM/Template.cfm?Section=Home1; Brain, Marshall and Susan L Nasr. “How Biological and Chemical Warfare Works.” http://www.howstuffworks.com/ biochem-war.htm; Centers for Disease Control and Prevention, Emergency Preparedness and Response. http://www.bt.cdc.gov/bioterrorism/; Department of Labor. http:// www.osha.gov/SLTC/bioterrorism/index.html; Medline Plus. “Biodefense and Bioterrorism.” http://www.nlm.nih.gov/medlineplus/biodefenseandbioterrorism.html; United States Department of Labor, Occupational Safety and Health Administration “Bioterrorism.” http://www.osha.gov/SLTC/bioterrorism/index.html

Sara Hower

C CAMPAIGN FINANCE REFORM Money has always played an important role in American politics. In the nineteenth century, for example, government officials used the infamous “spoils system” to give party supporters government positions, and then required the supporters to give part of their salaries back to the party. In the twentieth century, the Watergate scandal brought down President Richard M. Nixon, the only U.S. president who resigned from office, and led Congress to implement strict new limitations on financing campaigns. In the twenty-first century, continued uncontrolled spending in federal campaigns signaled that campaign finance reform had not worked, and Congress acted again to try to reduce the influence of money in politics. Indeed, when one talks about politics and elections in America, the discussion of the corrupting influence of money is never far behind. Today, the term “campaign finance” refers to the body of laws that regulate how candidates can raise and spend money in national elections. The federal government limits how much money politicians can receive, and from whom. It also regulates disclosures—the kinds of information that politicians need to tell the public about these donations. Controlling how campaigns are financed is important to many people because of the undue or unethical influence money can have on the political process. If a politician receives a great deal of money from a particular individual or business, he or she could repay that debt by supporting legislation that the donor wants. At the very least, the politician would be tempted to do so. And even if the politician does not yield to the temptation, large donations and high percentages of funding coming from one place create the impression of

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corruption, which in turn can undermine the legitimacy of the government in the eyes of its citizens. HISTORY OF CAMPAIGN FINANCE REGULATION Although there has been controversy, and some efforts at reform, from the very inception of the American political system, wide-ranging campaign finance reform did not being at the national level until 1907 with the passage of the Tillman Act. During his 1904 campaign, Theodore Roosevelt accepted contributions from business interests and was widely criticized as a result. In response, Roosevelt called on Congress to provide funding for federal elections and to prohibit corporate contributions. Congress responded by passing the Tillman Act, which banned direct corporate contributions to political parties and election committees. Of course, business interests quickly found legal ways to avoid this ban. In 1910, Congress passed the Federal Corrupt Practices Act. The act placed campaign spending limits on and required disclosure of campaign expenditures by political parties in U.S. House races. A subsequent amendment in 1911 extended the act to include Senate races. In doing so, it strengthened the provisions of the Tillman Act. However, in the 1920s investigators discovered that federal officials were accepting generous gifts from oil developers in exchange for granting them oil leases on government land. This controversy came to be known as the “Teapot Dome Scandal,” and it led Congress in 1925 to strengthen the Corrupt Practices Act. The amended version placed limits on how much parties could spend on congressional races and created tougher reporting requirements. The act also limited the size of donations. Unfortunately, however, the act did not provide much in the way of enforcement, leaving it up to Congress to punish violations—which it rarely did. With the advent of many New Deal programs, people became concerned that employees of the federal works programs could be subjected to the old system of party spoils and assessments. As a result, Congress followed up on its earlier legislation by passing the Hatch Act of 1939. The act prohibited federal employees from engaging in political activity and banned anyone from asking government employees to make political donations. It also put spending limits on donations made by individual government employees to parties and candidates. Later, the Taft-Hartley Act of 1947 extended this ban by prohibiting labor unions from donating to candidates. It also prohibited corporations and unions from trying to skirt the law by doing things like buying advertisements for candidates rather than providing direct funding. In response, unions began to form related entities called “Political Action Committees” (PACs), using these committees to collect individual contributions (rather than union funds) that they then contributed to parties and candidates. During the 1950s and 1960s, candidates began to assume a larger role in political fund-raising than their parties. During this time, businesses also began to use PACs to collect money and make donations to candidates. It was becoming clear that campaign finance laws as they stood could not deal effectively with

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the changes that were taking place in federal elections. To address these changes, Congress passed the Federal Election Campaign Act (FECA) in 1971. The act imposed limits on how much money an individual could give to a candidate, as well as how much a candidate could contribute to his or her own campaign. It also limited the amount of money that a candidate could spend on television advertisements. Finally, it required candidates, PACs, and political party committees engaged in federal elections to disclose information on all contributions exceeding $100. THE WATERGATE SCANDAL In 1972, Republican President Richard M. Nixon faced reelection. He feared a close race and, whether due to paranoia or bad judgment, decided to spy on and disrupt the campaign activities of the Democratic Party. Specifically, he conspired to have White House and Republican Party aides break into the Democratic National Committee headquarters in Washington, D.C., in part to steal information about its campaign funding and donors. The DNC headquarters were located in the Watergate Hotel, and the break-in became perhaps the most infamous part of the “Watergate Scandal.” Eventually, the extent of Nixon’s duplicity would be investigated and revealed, causing the disgraced president to resign on August 8, 1974. The appalling actions taken by Nixon and his supporters that created the Watergate scandal prompted Congress to reassess the role of money in federal campaigns, and particularly in presidential elections. Shortly after Nixon’s resignation, Congress amended the FECA to provide for more comprehensive and restrictive regulations on campaign financing. Among other changes, the amendments limited the amount of money an individual or a party could spend on a candidate. The new law also created a mechanism for public funding of elections. Taxpayers could now check a box on their tax forms to contribute to the fund; candidates who accepted public funds from this program had to agree not to raise private money for their campaigns. Importantly, the amendments also established the Federal Election Commission (FEC) to enforce the campaign finance laws. The FEC writes regulations and gives advice on interpretation of campaign finance laws. It provides information on candidates to the public, and runs the public funding system for federal elections. It can also enforce campaign finance laws in civil court. By law and in an effort to keep it politically neutral, the FEC is comprised of three Republican and three Democratic commissioners. Commissioners are nominated by the president and confirmed by the Senate. Each commissioner serves a six-year term. A vote of a majority of four commissioners is required to take any action. Collectively, this set of changes came to be known as Congress’s 1974 campaign finance reform legislation. The reforms were not without their opponents, however, and the FECA was quickly challenged in court. In 1976, the Supreme Court decided the case Buckley v. Valeo. The Court held that Congress did possess the power to regulate political contributions to prevent corruption. However, it struck down limits on

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how much an individual could spend on his or her own campaign. The court reasoned that money to an extent was equivalent to speech, and that Congress could not limit the free speech rights of a candidate by restricting the use of his or her personal funds. In the wake of the Buckley decision, Congress amended certain aspects of FECA to bring it into compliance with constitutional requirements. Congress removed the limit on the amount of money a candidate could spend on his or her campaign, but left intact limits placed on a presidential candidate who accepted public campaign funding. FECA Amendments made in 1979 bumped the donation amount at which reporting is required from $100 to $200, and removed any type of spending limit on certain activities like voter registration drives. But Congress’s scheme for reducing the influence of money in national elections still had major loopholes. The most significant one was the fact that the legislation failed to regulate “soft money.” Soft money, as opposed to “hard money,” is money that is not subject to federal regulations such as disclosure requirements, contribution limits, and limits on where the donations can come from. Most soft money came in the form of donations to political parties and from interest groups that were not registered as PACs but still attempted to influence federal elections. The Democratic and Republican Parties proved quite adept at raising—and spending—soft money. In response, Congress debated adding new provisions to the FECA every year between 1986 and 2002. However, it was never able to come to an agreement. Its failure was not surprising, because the members of Congress, along with the presidential candidates, were the primary beneficiaries of all of this soft money; banning it would harm their own chances for reelection. Between 1996 and 2002, the main campaign finance reform bill, the McCainFeingold bill, was debated regularly until it finally became a law in the spring of 2002. Renamed the “Bipartisan Campaign Reform Act of 2002” (BCRA), it banned parties from raising or spending soft money. It also raised contribution limits for individuals from $1,000 to $2,000 per candidate during an election cycle and adjusted this amount for inflation. It placed overall limits on the total amount of money an individual could donate to candidates. Importantly, it also sought to limit the influence of “advocacy advertisements” by interests groups. An advocacy ad is placed not by the campaign but by some individual, party, or group that either supports or opposes the campaign. In recent presidential elections, some well-funded advocacy groups have pursued a strategy of placing extensive radio and television advertisements shortly before Election Day. Often, these ads were criticized as false and misleading, and the candidates did not have an opportunity to respond to them, much less place their own counter ads. To reduce their influence, Congress banned the placement of advocacy ads within 30 days of a primary election and 60 days of the general election. As with the 1974 effort at campaign finance reform, this new round of revisions had its critics. As soon as the act was passed, members of Congress challenged it in federal court. In the 2003 case of McConnell v. Federal Election Commission, a divided Supreme Court upheld the BCRA virtually in its entirety.

Campaign Finance Reform

Although the justices disagreed on individual issues and submitted eight separate opinions on various aspects of the law, a majority held that the ban on soft money and the limit on individual contributions were constitutional. The justices unanimously struck down the ban on political contributions by minors, but preserved all of the major components of the law. WHAT DO CAMPAIGN FINANCE LAWS LOOK LIKE TODAY? Current campaign finance laws are highly detailed and complicated. As many candidates have discovered, the laws are also easy to violate without even knowing that they’ve done so. The same is true for donors—it is easy to run afoul of federal campaign laws simply because they are so complex. For example, a baker might wonder whether he can provide doughnuts at a discount to the office of his favorite candidate. The answer is yes, but with limits—the bakery must charge at least as much as it cost to make the doughnuts. Perhaps a loyal supporter wants to host the candidate at her house. Do the food and beverages she supplies count as a campaign contribution? Maybe. Under current laws, the first $1,000 worth of these items do not count as an “in-kind” (nonmonetary) contribution. The sheer scope and detail of the campaign finance laws is daunting. Consequently, almost all national campaigns today employ lawyers who specialize in campaign finance regulations to ensure that the campaigns remain in compliance with them. The following section describes the basic regulations imposed on individuals, candidates, and national and state party organizations. Current FEC regulations allow individuals to donate up to $2,400 per election to a federal candidate. No more than $100 of this limit can be in cash. Individuals can give $30,400 per year to national parties and a total of $10,000 per year to local or state party committees. Individuals can also give $5,000 per year to PACs that support multiple candidates. And, of course, individuals can continue to spend as much of their own money as they want on their own political campaigns. Because these amounts are indexed to inflation, they may change slightly with each election cycle. Candidates for federal elections can accept up to $2,400 in donations from individuals and individual PACs. Candidates can take $5,000 from national parties per presidential or House election, and $35,000 per Senate election. Candidates can receive up to $5,000 from each state and local party committee, and $5,000 per election from each PAC that supports multiple candidates. Candidates for federal election cannot take any money directly from corporations or unions, and they cannot take money from anyone who is not a U.S. citizen. Importantly, candidates must keep careful records of all the donations they receive of $200 or more and all expenses they incur in an amount of $200 or more. National party committees (the Democratic National Committee and the Republican National Committee) can receive up to $25,000 a year in donations from any single individual or PAC that supports only one candidate. These committees can receive up to $15,000 per year from a PAC that supports more

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than one candidate. The national party committees cannot take any money from corporations or unions. The party committees can give up to $25,000 per election to all federal candidates except those running for the Senate. Senate candidates can receive up to $42,600 per election cycle from the national party. The national party committee can give an unlimited amount of money to state and local party committees, and up to $5,000 per year to a PAC supporting more than one candidate. These limits, like those placed on individuals, are adjusted for inflation. State party committees are required to keep separate accounts for funding for state elections and funding for federal elections since funding for federal elections is subject to federal law. State party committees can receive into their federal accounts $10,000 per year per individual. They can also receive $5,000 per year from a PAC that supports more than one candidate. The state party can give a federal candidate $5,000 per election, and can give a multicandidate PAC up to $5,000 per year as well. A state committee can give an unlimited amount of funding to the national committee or to local committees. It is important to note that federal campaign finance laws place NO restrictions on how much money a candidate ultimately can spend, so long as that candidate does not accept public funds and the money is properly reported and accounted for. A candidate can also donate or loan money to his or her own campaign. PUBLIC FINANCING OF PRESIDENTIAL CAMPAIGNS Federal law provides a program to encourage individuals to run for office who might not have the means to do so on their own, or who might be reluctant to do so because of the arduous task of raising millions of dollars. A candidate for president can choose public financing, whereby the federal government matches the amount of small private donations collected by a candidate. The candidate must qualify for this program by proving his or her viability as a candidate by raising a certain amount of money across the country—a total of at least $100,000 across at least 20 states. Public funding is available for both the primaries and the general election. In exchange for public funding, a candidate must agree to overall limits on how much he or she can spend per state as well as on his or her total spending. In addition, a recipient of public funding must agree to limit his or her personal funds to not more than $50,000. Although the ideas behind a publicly financed system of elections are laudable, the current program has suffered from serious problems, including a lack of support by the public in contributing to the program, a failure to pay the candidates in a timely manner, and perhaps most significantly, a reluctance to use the program by candidates who have been effective in raising private funds. For the 2008 presidential election, Senator John McCain chose public financing for the general election (but not the primaries), while Senator Barack Obama rejected it. Ultimately, Senator Obama raised a whopping $750 million for his campaign—a record amount—and spent most of it. Because he had accepted

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public financing, McCain was limited to spending just $84.1 million. The 2008 presidential election thus went down in history as the most expensive, and also the one with the greatest spending disparity between the candidates.

FEDERAL ELECTION COMMISSION V. WISCONSIN RIGHT TO LIFE Before passage of the BCRA, organizations such as businesses and unions were allowed to engage in an unlimited amount of “issue advocacy.” Issue advocacy is advertising that does not expressly call for the election (or defeat) of a particular candidate. Issue advertising was permitted in part because businesses and unions had been banned from directly contributing to candidates, and their PACs were limited in the amount of donations they could give. As described above, the BCRA banned this advertising in the 30-day period before a primary and the 60-day period before the general election. In June 2007, the Supreme Court dealt a severe blow to the BCRA by ruling that its strict limitations on this kind of advertising were unconstitutional. In 2004, the interest group Wisconsin Right to Life broadcast advertisements before the Wisconsin primary election accusing U.S. senators of engaging in filibuster in order to avoid approving President Bush’s conservative judicial candidates. The ads asked then-Wisconsin Senators Russell Feingold and Herbert Kohl to oppose the filibuster. The group ran these ads until 30 days before the primary, and then sued for the right to continue to broadcast them. The case made its way to the Supreme Court, which decided in Federal Election Commission v. Wisconsin Right to Life that the BCRA’s ban was too broad and unconstitutionally interfered with the First Amendment freedom of speech. Specifically, the Court drew a distinction between “issue ads” and “advocacy ads.” Issue ads, like the name implies, concern particular issues of public policy. Advocacy ads, on the other hand, are characterized by a call to elect or not elect a particular candidate. The Court concluded that issue ads were protected by the Constitution as political speech. Advocacy ads, on the other hand, could be reasonably restricted to ensure fair elections. When in doubt about the nature of an ad, the Supreme Court said, lower courts should err on the side of free speech. Indeed, if an advertisement could be reasonably interpreted to contain a message that was other than an appeal to vote for or against a particular candidate, it was protected by the Constitution. To the extent that its earlier ruling in McConnell v. FEC was inconsistent, it was overruled. Thus the Court opened the door for extensive political issue advertising by groups during all stages of an election.

CITIZENS UNITED V. FEC After FEC v. Wisconsin Right to Life, one might have wondered whether the distinction between an “issue” ad undertaken by an entity and an “advocacy” ad undertaken by an entity would be clear. As it turns out, interest groups did wonder, and another legal challenge to the limits placed on their political speech

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emerged almost immediately. It came before the Supreme Court in the case of Citizens United v. FEC, a landmark case that changed the future of federal election law and expanded the reach of the First Amendment. In January 2008, Citizens United, an interest group, made a documentary film called Hillary: The Movie. It was largely critical of New York Senator Hillary Clinton, who was running for the Democratic Party’s nomination for president. Citizens United showed the movie in theatres, but also planned to run it on cable television and to offer it on “video-on-demand” channels prior to the upcoming election. Believing that its documentary was not an “advertisement”, but rather an artistic work protected by the First Amendment, it set out to challenge the 30-day and 60-day limits on advertisements imposed under the BCRA. Specifically, Citizens United challenged the constitutionality of restraints placed on a corporate entity’s “electioneering communications.” Under thenexisting law, an electioneering communication was defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” that is presented within 30 days of a primary election or 60 days of a general election. If Hillary: The Movie was deemed an electioneering communication, it could not legally be shown on television close to the election. Citizens United sued for a legal determination of whether its movie was such a communication. On January 21, 2010, a closely divided Supreme Court threw in the towel by concluding that it was virtually impossible to decide which kinds of communications constituted electioneering communications and which ones did not. To do so on a case-by-case basis was simply impractical—neither the FEC nor the courts could hope to review every audiotape, video, or movie that might appear on radio or television at the behest of a corporation, interest group, or union. More importantly, the ban on political speech by these entities was improper. The high court concluded that, although the ban had been in place for a long time (and had even been upheld in its previous decisions), it was unconstitutional. As a result, corporations, interest groups, nonprofits, and unions were now legally entitled to participate in the electoral process by independently funding broadcasts—their right to do so was protected free speech under the First Amendment. Response to the decision was immediate. First Amendment advocates hailed the decision as a victory for open and unrestrained political speech; after all, they argued, political speech is critical to the functioning of a democracy and should be encouraged, not restricted. The fact that the speech came from corporate entities should not matter—individual and entities alike deserved the protection of the Constitution. Advocates for campaign finance reform, on the other hand, were appalled by the unexpected scope of the decision. They predicted that corporations and interest groups would have too much influence on elections now that they could spend as much money as they wanted on them; opponents predicted that “big corporations” would “buy” elections by running misleading or negative ads against candidates they did not like. Neither President Obama nor the Democratic Congress appreciated the Supreme Court’s decision, particularly since 2010 was an election year. With

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the congressional midterm elections scheduled for November 2nd, key congressional Democrats sought to pass legislation that would once again restrict the ability of entities to advertise during election cycles. In late June 2010, the House of Representatives passed the “Democracy Is Strengthened by Casting Light on Spending in Elections Act,” more commonly known as the DISCLOSE Act. Under the act, corporate entities would have to meet stricter financial disclosure and reporting requirements for their campaign activities. The act required the leader of each public or private entity (e.g., its president, CEO, etc.) to appear in person on its advertising. It also restricted the political activities of groups who were receiving certain types of federal funds, such as federal bailout monies; all of these entities, of course, were large banks and corporations. The DISCLOSE Act was particularly controversial, however, because House leaders had to strike a deal with a powerful interest group, the National Rifle Association, so that it would not oppose the bill. The authors agreed to exempt the NRA from the act’s disclosure requirements, much to the dismay of other interest groups who remained bound by them. The deal was clearly political and probably unconstitutional, because Congress also exempted unions from many of the requirements it placed on corporations. Under the First Amendment, neither Congress nor any other government entity can “pick and choose” which types of speech to support or punish. Republicans widely condemned the legislation and did not vote for it in the House. Subsequent attempts to bring the bill before the Senate for a vote failed; it proved simply too controversial. The DISCLOSE Act did not become law, despite the best efforts of House leaders to rush it through. It remains to be seen whether the bill will be embraced by the 112th Congress, which commenced in January 2011. Chances for its adoption were made more unlikely by the fact that the 2010 midterm elections resulted in Republicans gaining majority control of the House as well as an additional six seats in the Senate. And, even if the bill were to make it to President Obama’s desk, it is certain to be challenged in the courts. INTERNET CAMPAIGNING The laws governing campaign activities and finances on the Internet are discussed in a separate entry in this volume. It is important to point out that the FEC has issued a number of regulations and interpretations of the BCRA since its passage. Significantly, it determined that Internet campaign activity is not covered by the BCRA except in certain narrow circumstances. The use of the Internet by candidates and their campaign organizations falls under traditional BCRA rules. Persons who seem independent but are paid by a campaign are also regulated, such as bloggers who charge for access to their blogs or who receive money for them. But everyone else who uses the Internet is unregulated and remains free to conduct electioneering and advertising as they wish. For more on this issue, consult the entry entitled “Internet Campaigning” in this volume.

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CONTINUING CONTROVERSY AND SUGGESTIONS FOR REFORM Campaign finance reform remains controversial. Some people believe that campaign finance laws infringe on the rights of free speech and free press. Others charge that campaign finance laws discourage potential candidates from running because they are so confusing and hard to follow. Still others see the reforms as largely irrelevant, because they have not succeeded in limiting the influence of money in campaigns. Future reforms to the system are likely. One well-known proposal for reform is called “clean money” or “clean elections.” This system is already in use in a few states, such as Arizona and Maine, and its supporters would like to see the approach used at the federal level. In a clean elections system, candidates who raise a certain amount of money from small donations can receive public funding as long as they agree not to do any private fund-raising. If a candidate who accepts private funding raises more money than the clean money candidate, public funding would be provided to the clean money candidate to make up the difference. Other proponents of reform focus on overturning part of the landmark Supreme Court decision in Buckley v. Valeo. These reformers want to pass legislation that limits spending amounts on certain aspects of campaigns. The National Voting Rights Institute and The Brennan Center for Justice are the leading proponents of this initiative. Other proposals concern tweaking spending and contribution limits and matching funds or other public financing systems that are already part of today’s campaign finance laws. Organizations like Common Cause and Public Interest Research Group (PIRG) have called for lower contribution limits at both the federal and state levels. However, courts have struck down many low contribution limits, and candidates have argued that lowering limits would just force them to spend more time fund-raising rather than talking to voters about the issues. One creative proposal for reform is called Voting with Dollars. This system would give all voters 50 “Patriot dollars” to give to the candidates of their choice (or to their favorite PAC, which would then pass the money along to a candidate). The number of Patriot dollars given to voters would be set so that private contributions could not account for more than half the donations. This proposal is unique in that it requires all donations to be made anonymously through a trust set up by the FEC so that no political candidate knows where the money funding his or her campaign is coming from. Donations under $200 could be attached to the donor’s name if the donor so requests, but for any donations over $200, the recipient would be told only that the person made a donation exceeding $200. The one exception to this system of anonymity would be that a PAC could advertise the dollar amount of its donations to candidates. From only this brief overview of proposed reforms, it is clear that many in America remain unhappy about how campaigns are financed and about the role money plays in elections. The disagreements are both practical and philosophical, and they run very deep. For this reason, and all those discussed above,

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THE RECORD-SETTING 2008 PRESIDENTIAL ELECTION In mid-June 2008, Democratic presidential candidate Barack Obama announced that he had reconsidered his earlier decision to accept public financing for the general election and would instead rely on money raised from private fund-raising. The move drew immediate criticism from Republicans and supporters of publicly financed elections, who accused Obama of “flip-flopping” and of abandoning public monies only after it became clear that he could raise more money on his own. Under the federal rules governing publicly financed campaigns, a candidate who accepts public financing must agree to limit his or her overall spending during the election. Obama’s record-setting fund-raising proved too tempting, and by privately funding his campaign, the Illinois senator could spend as much money as he wanted in his bid for the White House. Republican nominee John McCain, who coauthored the McCain-Feingold bill that became the Bipartisan Campaign Finance Reform Act of 2002, had fought for years to obtain passage of campaign finance reform legislation. An advocate for publicly funded elections, he originally planned to use public financing during the Republican primary. Before accepting the money, however, he informed the FEC of his decision to rely on private financing instead. For the general election, however, McCain remained committed to using public funds, which by law limited his campaign to spending no more than $84.1 million after his party’s national convention. McCain was outraged by Obama’s decision to reject public funds and questioned whether the Democrat was really reform minded and accused him of breaking his promise to the public. Ultimately, 2008 became the country’s first “billion dollar election.” Barack Obama raised a staggering $750 million, and spent at least $730 million of it on his campaign. He outspent John McCain by such a large amount that, after the election, Republican lawmakers declared public funding of elections to be all but dead. Early in 2011, the new Republican majority in the House of Representatives began to take steps to repeal public funding legislation, noting that, after what happened in 2008, it made no sense to continue it. Thus, whether public funding will be around for the 2012 presidential election remains to be seen.

campaign finance reform will continue to be a battleground issue in this country for years to come. Further Reading Books: Ackerman, Bruce and Ian Ayres. Voting with Dollars: A New Paradigm for campaign Finance. New Haven: Yale University Press, 2002; Corrado, Anthony, Thomas E. Mann, and Trevor Potter, eds. Inside the Campaign Finance Battle: Court Testimony on the New Reforms. Washington, DC: Brookings Institution Press, 2003; Gillon, Steven M. That’s Not What We Meant to Do: Reform and Its Unintended Consequences in Twentieth-Century America. New York: W. W. Norton, 2000; La Raja, Raymond J. Small Change: Money, Political Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press, 2008. Websites: Federal Election Commission. http://www.fec.gov/; National Institute on Money in State Politics. http://www.followthemoney.org/; The Campaign Legal Center. http://

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Lindsey Hanson and Kathleen Uradnik CENSUS AND REDISTRICTING The U.S. Constitution mandates that the federal government conduct a census every 10 years. A census is the counting of the number of individuals living in a nation. To conduct the census, the U.S. Census Bureau mails out questionnaires, and workers go house to house to gather information about the individuals living there. This information is used for a number of purposes, most importantly for determining how many representatives each state is entitled to have in the U.S. House of Representatives. In addition, billions of dollars in federal aid to states and localities are based on their populations; the census allows the government to adjust aid awards according to population shifts. The most recent census was held in 2010. In preparation for it, the federal government hired and trained thousands of workers. The U.S. Census Bureau even held a “dress rehearsal” census: In April 2008, it mailed draft census questionnaires to every household in Fayetteville, North Carolina and San Joaquin County, California. In addition, the Bureau created a website to count down to the census and also to keep Americans informed about what the census would entail. In 2010, the Census Bureau mailed questionnaires to all households in the United States. In the census process, all residents are counted, citizens and noncitizens alike. The census is conducted in all 50 states, the District of Columbia, Puerto Rico, and the U.S. territories. Americans living abroad, including those serving in the military, are also counted. Americans are required by law to complete the census by a certain date. This time, they had to return their questionnaires to the government by April 1, 2010. Those who did not make the deadline were visited by census workers, who conducted questioning in person. This process took several months to complete, but the Census Bureau itself had an absolute deadline. By law, it is required to provide Congress with the results of the census by the end of the year. The most significant results of the current census were made public in a press conference held on December 21, 2010. For most Americans, answering questions for the census is a straightforward process, usually taking 10 to 15 minutes. Basic questions include the number of people in a household and, for each one, his or her name, gender, age, date of birth, and race or ethnicity. The questionnaire also asks about type of relationship among household members and whether they rent or own their home. A copy of the 2010 census questionnaire can be found on the Census Bureau’s website. In previous censuses, the government randomly asked some Americans more detailed questions about their lives, including ones about their education, employment, and marital status. The purpose of these “long form” questionnaires was to gather socioeconomic data for the government’s use. For 2010,

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however, all census questionnaires were the same “short form” version without the detailed questions. The socioeconomic data needed by the government is now gathered on a yearly basis through a different process called the “American Community Survey.” It, too, is administered by the Census Bureau. Because the 2010 census was the same for everyone and relatively short in length, it was hoped that it would be easier for participants to complete and census workers to tally. Leading up to the real thing, however, a number of problems emerged that threatened the accuracy of the census. For example, the Census Bureau decided to give its census workers handheld computers for recording and transmitting data. However, field tests early in 2008 showed that the machines were too complicated for the workers to use and were not programmed to relay large amounts of information. Fixing the problems with the handheld devices would prove costly and time-consuming, so the Bureau scrapped the electronics in favor of the tried-and-true paper-and-pencil method of gathering data. The Census Bureau pledged to make the 2010 census the most thorough and accurate in history. Before that could happen, however, it had a number of other “bugs” to work out. In the spring of 2008, Congress’s Government Accountability Office issued a report identifying a number of potential problems with how the census was going to be conducted. Most concerned the coverage follow-up efforts to be made by census workers. It made specific recommendations for avoiding these problems that the Bureau had to implement. The two main challenges with the 2010 census in obtaining an accurate count of residents were (1) overcounting, which means counting the same person more than once, and the more typical (2) undercounting, where individuals are not counted at all. Every census experiences overcounting and undercounting to some extent. The bipartisan U.S. Census Monitoring Board concluded that, for the last census in 2000, the Census Bureau had committed over 44 million counting errors, broken down as follows: 23.7 million “omissions” (undercounting); 12.5 million “erroneous inclusions” (overcounting); 5.7 million “non-data defined persons” (persons thought to exist as predicted by a computer program but not actually counted); and 2.3 million “reinstated possible duplications” (persons who may have been counted more than once, but the Bureau could not determine whether they actually were). These errors resulted in a net undercount of the population that totaled 3.2 million people. Although this number seems large, the 2000 census was more accurate than the 1990 census, which had undercounted the population by an estimated 4 million people. According to the 2000 census, a total of 281,421,906 people resided in America. By the 2010 census, that total had risen to 308,745,538! That’s a 9.7 percent increase in 10 years. For the 2000 census, state and local governments undertook vigorous efforts to ensure that their populations were not undercounted. The City of Los Angeles, for example, spent nearly $2 million to boost its residents’ participation in the census. Nonprofit organizations, many representing low-income and minority groups, canvassed neighborhoods in an effort to inform residents about the importance of participating in the census. When all was said and

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done, however, Los Angeles concluded that the census had undercounted its population by approximately 76,000 people, most of whom were members of Hispanic and Asian minority groups. The accounting firm of PriceWaterhouse calculated that this undercounting cost Los Angeles County over $600 million in federal aid over the next 10 years. Minority groups commonly complain that census workers do not adequately canvass inner-city neighborhoods, and thus do not obtain an accurate head count of residents. The review of the 2000 census suggests that this was indeed the case. The Census Monitoring Board concluded that African Americans had been undercounted by 2.2 percent and that Hispanic Americans had been undercounted by 2.8 percent. For their part, census officials pointed out that inner-city neighborhoods with high minority populations are difficult to canvass, primarily because they often have a high density of multiunit dwellings such as large apartment houses, which makes it difficult to locate all of the residents. In addition, the Bureau explained that, despite its efforts to employ multilingual workers, it can be challenging to locate and question residents who do not speak English. One way to avoid these problems is to encourage Americans to fill out and return their census questionnaires so that census workers do not have to go into communities to track them down. For the 2000 census, two-thirds (66 percent) of American households complied by filling out and returning their surveys, a tremendous response. For 2010, the Census Bureau as well as state and local governments conducted widespread marketing campaigns in order to convince Americans to complete and return their questionnaires in a timely manner. Their efforts were very successful, as 74 percent of Americans returned their census forms by mail. It is still too early to tell if the 2010 census had any of the errors of previous ones. No census is perfect, and as government and private organizations look into the numbers, they will be able to determine how accurate the most recent census was and how to improve census taking in the future. For now, the Census Bureau can be proud of the fact that the 2010 census was completed on time and came in under budget. REDISTRICTING The “Great Compromise” reached during the Constitutional Convention of 1787 established a bicameral Congress, with the representation of one house based on statehood—two senators per state—and representation in the other house based on a state’s population. Thus, since the nation’s inception, the census has been used to determine the number of representatives each state will have in the House of Representatives. In fact, the United States was the very first country to use the census for this purpose. Because the number of seats in the House of Representatives is set at 435, they must be reapportioned among the states after each census. The 2000 census resulted in 18 changes to representation in Congress, which took effect with the 2002 congressional elections. Four states gained two additional representatives:

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Texas, Arizona, Florida, and Georgia. Obviously these states had seen the largest population gain over the past 10 years. Four more states gained sufficient population to entitle them to one additional representative each: California, Nevada, Colorado, and North Carolina. On the losing side, New York and Pennsylvania gave up two congressional seats each, while eight states—Illinois, Indiana, Michigan, Wisconsin, Ohio, Connecticut, Mississippi, and Oklahoma—each lost one seat. After the 2000 census, the average size of a congressional district was 645,000 persons. Under the Constitution, each state must have a minimum of one representative in the House. Thus Wyoming, with a population of approximately 494,000, was still entitled to one seat. Montana, with a population of 903,000 people, was not quite large enough to qualify for a second seat and remained with one representative in the House. Because population shifts and, with it, representation in Congress, the balance of power changes after every census. For the past several decades, states in the Northeast and Midwest have seen steady declines in population and now have fewer representatives in the House. Southern and, more recently, Southwestern and Rocky Mountain states have seen a substantial increase in population and have thereby become much more powerful. This trend continued into 2010. When the results of the 2010 census were released in late December, the nation learned that southern and western states had continued to grow at a faster rate than their midwestern and northeastern counterparts. California remained the most populous state, with 37,253,956 residents, and Wyoming is still the least populous, with 563,626 residents. Texas gained the most residents since the 2000 census, up a whopping 20 percent to 25,145,581. Overall, 10 states lost seats in Congress as a result of the census, and eight states gained seats. These 18 states now need to adjust their congressional district lines to account for changes in their congressional representation. (In addition, some of the remaining 32 states may have to engage in internal redistricting, depending on whether the state’s population shifted geographically within its borders.) In most states, this job is left to the state legislatures. Sometimes redistricting proves quite difficult and controversial, as the political parties in power seek to draw federal and local district lines to benefit their own candidates. The process of setting legislative district lines for partisan political purposes is called “gerrymandering,” and it has been going on since the nation’s inception. Opponents to gerrymandering do not take it lightly, and often sue to overturn the legislature’s boundary decisions. Among the worst states was California, which gained a reputation for gerrymandering to ensure safe seats for both Democrats and Republicans. Depending on how it is done, gerrymandering can be illegal, and California courts routinely hear cases involving gerrymandering. In fact, court challenges are now typical and expected in states that undertake controversial approaches to redrawing district lines. The situation in California became so bad that critics called for a constitutional amendment to prohibit its legislature from drawing district lines. The amendment’s supporters included then-Governor Arnold Schwarzenegger,

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who complained that the safe seats created for the legislature had undermined the electoral process and led to partisan stalemate among legislators. In 2008, reform advocates placed Proposition 11 on the November ballot, which called for the creation of an eight-person commission to draw legislative district lines. Voters approved the proposition by the narrowest of margins, 50.8 percent. California’s new commission is uniquely constituted. The law calls for the appointment of three Democrats, three Republicans, and two independents. However, anyone associated with professional politicians is excluded, including elected officials and their associates, lobbyists, party officials, major fund-raisers and donors, political consultants, and the like. Volunteers apply to an independent panel empowered to choose the committee members. The panel first selects 20 representatives from each group (Republicans, Democrats, and Independents). These names are presented to legislative leaders from the two political parties, who can eliminate up to eight persons from each group. (This process has been compared to jury selection, where both the defense and the prosecution can strike individuals from the jury pool.) After that, the panel randomly selects the members of the redistricting committee. California’s rather thorough approach to taking politics and political actors out of redistricting may turn out to be a model for other states. One state that might take a good look at its plan is Texas, which had a tumultuous, embarrassing problem with redistricting after the last census. As a result of the 2000 census, Texas gained two seats in Congress. The legislature tried to adopt a redistricting plan, but because one house was controlled by Democrats and the other by Republicans, no deal was reached. Consequently, a federal court imposed a redistricting plan on the state. In 2002, however, Republicans gained control of both houses and wrote their own plan, which they scheduled for a vote. Democratic legislators resisted, believing that the new redistricting plan amounted to political gerrymandering in favor of Republicans and that it violated numerous laws, including the Voting Rights Act. Republicans countered that the district lines should be drawn to reflect the will of the voters as expressed in the 2002 election. The legislators argued for months when, in the spring of 2003, several dozen Democratic legislators left the state to avoid having to vote on a Republican redistricting plan that they opposed. Fifty-one of them set up a “mini” legislature in exile over the border in Oklahoma, while another dozen spent time in New Mexico, all to ensure that the legislature would lack a “quorum,” which is the minimum number of members required to be present to hold a vote. Eventually, however, the legislators returned to their posts and the redistricting plan was approved. As a result, the balance of power in its congressional delegation shifted significantly in the state, going from 17 to 15 in favor of Democrats in the plan imposed by the court to 21 to 11 in favor of Republicans in the plan written by Republican legislators. Opponents immediately sued to have the plan overturned, and in 2006 (six years after the census) the case of League of United Latin American Citizens v. Perry ended up at the Supreme Court. In July, the Court decided by a close and fractured vote that the Texas plan was lawful, except for one part: the

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creation of a geographically huge district in West Texas that the Court concluded had undermined Latino voting power in violation of the Voting Rights Act. The justices voted 5:4 to overturn this part of the plan. However, they refused to overturn the entire plan, with at least seven justices indicating that it was constitutional. The justices could not agree with one another on the reasoning behind these decisions, which lead them to write six separate opinions. The Court’s official opinion, written by Justice Anthony Kennedy, was itself broken up into at least three parts, to which different groupings of justices signed their names. Importantly, the justices did not embrace the argument that the plan should be struck down because it was created to enhance the power of the party in control. Justice John Paul Stevens was alone in concluding that the federal court’s plan should stand. Justice Scalia, for his part, lamented that the Supreme Court should not even be in the business of reviewing these types of cases because it should avoid reviewing inherently political decisions. In varying combinations, the other justices commented on the possible gerrymandering done by the legislature, but they were not able to come to any consensus on what “gerrymandering” actually entailed. After the decision, opponents of the Texas redistricting plan predicted that the Court’s tolerance of the legislature’s action would encourage other state legislatures to draw district lines in a political manner, acting more boldly to do so than they had done in the past. It remains to be seen whether the Court’s ruling will entice elected officials to be more partisan and more political in drawing legislative district lines in response to the 2010 census. The data on state population (and specifically, where its residents are located) was released by the Census Bureau in early 2011, and the redistricting work has begun. Some states may follow California’s lead and place the redistricting power into neutral, apolitical hands. For the rest, difficult battles lie ahead—for better or worse, the two major parties will struggle for control of federal and local legislative districts, a practice as old as American politics itself. Further Reading Books: Anderson, Margo J. Encyclopedia of the U.S. Census. Washington, DC: CQ Press, 2000; Anderson, Margo J., and Stephen E. Fienberg. Who Counts? The Politics of Census-Taking in Contemporary America. New York: Russell Sage Foundation Press, 2001; Bickerstaff, Steve. Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom Delay. Austin: University of Texas Press, 2008; Bositis, David A., ed. Voting Rights and Minority Representation: Redistricting, 1992–2002. Washington, DC: Joint Center for Political and Economic Studies/Lanham, MD: University Press of America, 2006; Counting the Vote: Should Only U.S. Citizens Be Included in Apportioning Our Elected Representatives? December 6, 2005. Hearing before the Subcommittee on Federalism and the Census of the Committee on Government Reform, House of Representatives, One Hundred Ninth Congress, first session. Washington, DC: U.S. G.P.O.; Cox, Gary W. and Jonathan N. Katz. Elbridge Gerry’s Salamander: The Electoral Consequences of the Reapportionment Revolution. New York: Cambridge University Press, 2002; Cunningham, Maurice T. Maximization, Whatever the Cost: Race, Redistricting, and the Department of Justice. Westport, CT: Praeger, 2001; Handley, Lisa

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2010 CENSUS WINNERS AND LOSERS On December 21, 2010, the U.S. Census Bureau announced the overall results of the 2010 census. The total population of the United States reached 308,745,538, a growth of 9.7 percent over the past decade. States in the South and West had the largest increases in population, continuing a two-decade-old trend. California still has the most residents at 37.2 million, while Wyoming has the least, with just 563,626. Despite its recent economic woes, Nevada took top position as the nation’s fastest-growing state. Only one state actually lost population during the last decade—Michigan—due in large part to the recession and near-collapse of its automobile industry. The Census Bureau also detailed the changes to the House of Representatives that would occur because of the nation’s population shift. Eight states gained representatives to the House, while 10 states lost them. Texas was the overall winner, gaining four more seats in Congress. The winners and losers are: Gaining Seats

Losing Seats

Texas +4

Ohio –2

Florida +2

New York –2

Arizona +1

Illinois –1

Georgia +1

Iowa –1

Nevada +1

Louisiana –1

South Carolina +1

Massachusetts –1

Utah +1

Michigan –1

Washington +1

Missouri –1 New Jersey –1 Pennsylvania –1

The other 32 states had no change to the number of representatives they will have in Congress. However, if the population shifted within its borders, the state will still need to undertake redistricting to ensure that each of its congressional districts contains approximately the same number of residents.

and Bernard Grofman, eds. Redistricting in Comparative Perspective. New York: Oxford University Press, 2008; Mann, Thomas E. and Bruce E. Cain. Party Lines: Competition, Partisanship, and Congressional Redistricting. Washington, DC: Brookings Institution Press, 2005; Nobles, Melissa. Shades of Citizenship: Race and the Census in Modern Politics. Stanford, CA: Stanford University Press, 2000; Smith, Norris, ed. Changing U.S. Demographics. New York: H. W. Wilson Co., 2002. Websites: Anderson, Margo J. and Stephen E. Fienberg. 2001. Who Counts? Census Controversies for the Millennium. http://www.amstat.org/sections/SRMS/Proceedings/papers/ 1998_015.pdf; Common Cause. Redistricting. http://www.commoncause.org/site/ pp.asp?c=dkLNK1MQIwG&b=196481; National Conference of State Legislatures.

Childhood Obesity | Redistricting. http://www.ncsl.org/programs/legismgt/elect/redist.htm; News Hour Extra. “Counting People.” February 28, 2001. http://www.pbs.org/newshour/extra/features/jan-june01/census.html; USC/Annenberg Center. The ReDistricting Game. http:// www.redistrictinggame.org/; U.S. Census Bureau. Redistricting Data. http:// www.census.gov/rdo/; Voting and Democracy Research Center. Fair Vote: Redistricting Reform Watch. http://www.fairvote.org/?page=1389

Kathleen Uradnik CHILDHOOD OBESITY Talk about childhood obesity is commonplace these days. The news is full of accounts of its dangers. Prominent medical experts warn of severe consequences to come from the staggering rise in the number of obese Americans between the ages of 2 and 19. First Lady Michelle Obama has made childhood obesity one of her key policy issues. But is childhood obesity really a political issue? The answer is yes. If current trends continue, the sheer cost of treating children with childhood obesity as they grow older should cause Americans to pay attention to this public health crisis. According to the Centers of Disease Control (CDC), obesity, which was once rare in children, has progressed at an alarming rate. Nearly 20 percent of the nation’s children and adolescents are now medically obese, and the percentage is increasing. Obesity in children and adults is determined primarily by using a measure called the “body mass index,” or BMI. The BMI essentially compares a person’s weight to his or her height. Doctors have established ranges in BMI scores that take into account other factors such as gender and age group. In children, a BMI number is not dispositive in diagnosing obesity because it does not actually measure body fat. It is, however, an important tool for doctors to use in the diagnostic process. Obesity in children is dangerous for the same reasons as obesity in adults. Obesity can lead to serious illness and disease, including diabetes and heart disease. Until recently, Type II diabetes in children was relatively rare, but no longer. Doctors are seeing the disease in even the youngest children, an alarming fact given the progression of the disease. Diabetes can lead to complications with eyesight (retinal degeneration that can result in blindness), nerve damage in the feet (which can in severe instances lead to amputation), poor circulation (resulting in pain upon exertion), kidney damage and failure (necessitating a transplant), hypertension, and stroke—among others. These symptoms can be managed, but there is no cure for diabetes. Other problems brought on by obesity include asthma, which is already a major children’s health concern; sleep disorders; liver damage; and high blood pressure. In addition, many overweight children suffer from social stigma that can contribute to various behavioral disorders such as depression. Studies further indicate that obese children tend to become obese adults. The onset of complications from obesity has begun to show up earlier in the lives of adults than ever before, necessitating aggressive and ongoing medical care and lifestyle changes to combat them.

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WHAT CAUSES CHILDHOOD OBESITY? Because childhood obesity is a relatively new phenomenon, studies are still being done to reveal its causes. However, early indicators are not surprising—a poor diet combined with a sedentary lifestyle seem to be the major contributors. Indeed, many of the nation’s children consume large amounts of fat and carbohydrates as well as processed foods and fast food. This type of diet is more common in low-income households, with frightening results: the CDC recently determined that one in seven pre-school-aged children from low-income households is obese.

FOOD POLITICS Few challenge the idea that American children are getting fatter and are less physically active now than were previous generations. In placing blame for this reality, politicians and medical professionals alike can create highly charged political controversies. For example, in November 2010, the City Council of San Francisco voted 8:3 to pass the “Healthy Meals Incentive,” an ordinance that banned toys from the children’s meals served at fast food restaurants. The council reasoned that the toys enticed children to consume food that is high in sodium, fat, and calories. The council created an exception to the ban for any restaurant that served a “healthy” child’s meal—upon adoption of the ordinance, only Subway restaurants qualified. “Happy Meals” thus became less so for the children of San Francisco. The mayor threatened to veto the ordinance as overly intrusive into parents’ dining choices, but the city council had more than enough votes to override a veto. At the same time, the State of New York, with the full support of its governor David Paterson and New York City Mayor Michael Bloomberg, proposed a ban on the purchase of sugary drinks by low-income individuals receiving food stamps. Certain items have always been off-limits to those using this form of federal public assistance, including alcohol, cigarettes, pet food, and certain prepared foods. This proposed ban targeted a wide range of beverages including soda, energy drinks, bottled water, and any other product containing more than 10 calories in an eight-ounce serving. Milk products and natural fruit juices were exempted from the ban. In supporting the ban, New York officials argued that such sugary drinks had no nutritional value. They pointed to the high obesity rate in the state and the growing medical and social costs associated with it. Mayor Bloomberg noted that about half of New York City’s residents are obese, along with 40 percent of its children. The rate of Type II diabetes in low-income households, moreover, is double that of wealthier ones. The attempted ban, however, may be purely symbolic. New York has no authority to decide how federal food stamps are used; the regulations governing food stamps are set by the U.S. Department of Agriculture. New York simply requested that the federal government allow it to experiment with such a ban for a limited period of time (two years) so that the state could study its impact.

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The Department of Agriculture is unlikely to approve the request; in 2004 it turned down a request by the state of Minnesota to ban the use of food stamps for “junk food.” Opponents of the ban argue that it singles out low-income individuals for disparate treatment. They believe that the government should not dictate paternalistically how food stamp recipients should spend their money. They also point out that recipients would be subjected to embarrassment and stigma in the use of their food stamps. Supporters of the ban counter that because sugary drinks have no nutritional value, little is lost in banning them. They reject the argument that other types of sugary groceries (like candy and ice cream) are not part of the ban, arguing that beverages (and particularly sodas) do the greatest amount of nutritional damage. Finally, they contend that, because food stamps are paid for by taxpayers, the government has the right to dictate how they are used. The food and beverage industry has not taken any of the recently proposed bans lightly. During the 2010 midterm elections, industry interest groups ran television advertisements across the country to argue against government intrusion into citizens’ private lives. Some ads depicted middle-aged, middleclass women shopping at the grocery store and complaining about the government’s attempt to regulate everything, including the groceries they buy for their families. Industry interest groups have also run aggressive informational campaigns against the proposals in San Francisco, New York, and other locations. The industry argues that it should be allowed to make changes voluntarily, rather than have them imposed by government regulators. They point to efforts to remove sugary drinks from school lunches and vending machines and to develop less caloric versions of their beverages. In late 2010, facing increasing pressure from the federal government, industry leaders agreed to adopt new “front of package” labeling on food and drinks. The new labels, which began to appear in early 2011, are intended to be easy to find and read so that consumers can be informed about the content of the grocery items that they purchase. Food is clearly a political issue, as evidenced not only by the childhood obesity issue but also continuing debates over food safety and production. (The food safety debate is included in this volume in a separate essay.) Indeed, Americans seem to be paying much more attention these days to the process by which food is provided. Food, Inc., the popular book turned movie documentary, for example, argues that the corporatization of U.S. family farms, the mechanization and governmental subsidization of food production, and Americans’ demand for cheap and readily accessible foods have led to a host of undesirable consequences. These include control of food production by a small number of multinational corporations; an emphasis on profitability at the expense of food safety; the proliferation of processed, chemically based food products; and a reduction in the taste, quality, and nutritional value of food. Activists have embraced the “local food,” or “locavore,” movement, which encourages people to consume locally grown fruits and vegetables and meat from locally raised animals. They also support consuming foods only when they are in season and growing one’s own food when possible.

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HEALTH OR BEAUTY? Some critics have argued that the campaign against childhood obesity is driven in part by the belief that “fat people” are ugly and are responsible for their condition. Obese individuals can be stigmatized in school and at work, in public accommodations, and in their personal relationships by those who view them as weak-willed or food-addicted. A number of interest groups have emerged to assert the rights of obese people in society and to counter discrimination based on body type. They point out that obesity is a complicated medical issue, and that studies have indicated a possible genetic component to obesity. Advocates hope to educate society to treat obesity not as a choice, but as a disease. At the same time, they encourage acceptance of and compassion for all persons regardless of weight and appearance. Body image issues in America go far beyond the medically obese, of course, and are particularly relevant in adolescence. Some adolescents (primarily girls) resort to extreme measures in an attempt to appear thin or to achieve an “ideal” body type. Their drive to be thin can lead to a host of physical and psychological problems, including anorexia and bulimia. Given this fact, those fighting childhood obesity must be careful in how they motivate young people to change their lifestyle. The message is that weight loss is not about physical appearance, but about physical fitness and proper nutrition. For her part, Michelle Obama firmly denies that White House actions are based on achieving popular conceptions of beauty. The goal is a healthy body, not a thin one. In early 2010, the first lady launched the “Let’s Move” initiative aimed at fighting obesity through family, community, and government efforts. She also announced that the long-established President’s Council on Physical Fitness would be overhauled to make it more relevant to the challenges faced by children and families today. Her efforts are being duplicated across the nation, as more and more experts conclude that childhood obesity is an epidemic that must be addressed immediately. FOR THE FUTURE Experts agree that prevention is the key to combating childhood obesity. But in encouraging healthy diet and exercise, child advocates find themselves up against well-financed and deeply entrenched political forces. They also find themselves faced with a generation of children for whom computers and video games are a way of life. Convincing children to swap soda for milk or to put down their game controllers in favor of outdoor play can be a hard sell. Although everyone wants the United States to have healthy children, reasonable people disagree about whether the responsibility for creating them lies with the parents, the government, fast food restaurants, the food industry, or some combination thereof. Americans value their privacy and staunchly defend the right to raise their children as they see fit. At the same time, the effects of childhood obesity are a national cause for concern, and not just because rising health care costs are borne by all of us. Many express concern for America’s future competitiveness if its children are not healthy and engaged.

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In sum, there is little doubt that childhood obesity is a significant public health concern, and that political solutions to combat it often prove too controversial to implement. Until politicians and parents alike can find common ground to address them, childhood obesity and its related problems will get only get worse. Further Reading Books: American Psychological Association. Obesity in Youth: Causes, Consequences, and Cures. Washington, DC: American Psychological Association, 2009; Bagchi, Debasis. Global Perspectives on Childhood Obesity: Current Status, Consequences and Prevention. Burlington, MA: Academic Press, 2010; Hawkes, Corinna, ed. Trade, Food, Diet, and Health: Perspectives and Policy Options. Ames, IA: Blackwell Publishers, 2010; Kessler, David A. The End of Overeating: Taking Control of the Insatiable American Appetite. New York: Macmillan, 2009; O’Dea, Jennifer A. and Michael Eriksen. Childhood Obesity Prevention: International Research, Controversies and Interventions. New York: Oxford University Press, 2010; Popkin, Barry M. The World Is Fat: The Fads, Trends, Policies, and Products That Are Fattening the Human Race. New York: Avery, 2009; Smolak, Linda and J. Kevin Thompson, eds. Body Image, Eating Disorders, and Obesity in Youth: Assessment, Prevention, and Treatment. Washington, DC: American Psychological Association, 2009; Waters, Elizabeth, Boyd Swinburn, Jacob Seidell, and Ricardo Uauy, eds. Preventing Childhood Obesity: Evidence Policy and Practice. New York: Wiley Blackwell, 2010. Websites: American Academy of Pediatrics. “Prevention and Treatment of Childhood Overweight and Obesity.” http://www.aap.org/obesity/index.html; Centers for Disease Control. “Childhood Overweight and Obesity.” http://www.cdc.gov/obesity/childhood/ index.html; KidsHealth.org. Overweight and Obesity. http://kidshealth.org/parent/ general/body/overweight_obesity.html; Obesity Society. “Childhood Overweight.” http://www.obesity.org/resources-for/childhood-overweight.htm; Robert Wood Johnson Foundation. “Childhood Obesity.” http://www.rwjf.org/childhoodobesity/

Kathleen Uradnik CHINA: ECONOMIC EMERGENCE Almost three decades ago, the Chinese government launched extensive economic reforms that led to a significant increase in affluence for millions of Chinese citizens. These economic reforms involved greater openness to the rest of the world and increased foreign trade and investment. The growing economy meant a growing middle class that came to possess previously unheard of control over their economic lives. In the old China, citizens participated in organized work units that controlled not only their promotions and wages but also major life decisions such as whether to marry and have children. The economic reforms of the new China have resulted in many Chinese citizens now working for themselves or for companies based outside of China. The standard of living for many in China has risen steadily over the past three decades, and Chinese citizens enjoy more freedom and can purchase more goods than ever before. However, despite the economic improvements in the nation, the Chinese government continues to deny its citizens basic human and political rights that are taken for granted in countries like the United States. This failure has made

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human rights abuses in the country a very contentious issue in U.S.-China relations. China’s failure or refusal to look out for the welfare of its citizens, moreover, has led U.S. businesses to complain that they cannot compete fairly against China in the world’s markets. They point primarily to wages that are terribly low by U.S. standards and an almost complete absence of a governmental regulatory framework to develop and enforce health, safety, and environmental standards. U.S. businesses lament the loss of production facilities and jobs to China, which does comparatively little to protect its workers and to ensure the quality of the goods it exports. Environmentalists and business leaders also agree that China’s lack of environmental regulations means that much of its economic success has come at the expense of the nation’s land, water, and air, much of which is heavily polluted. China is a challenge to U.S. policy makers not only in the area of human rights and business competitiveness, but also because China is the largest creditor of the United States. As of January 2011, China held almost $900 billion in U.S. debt, in the form of U.S. Treasury bills, notes, and bonds. Owing so much money to China has caused both Republicans and Democrats to argue that America’s national security and financial stability are at risk. Because China is critical to U.S. government and politics in so many ways, its influence is discussed in two separate essays in this volume. This essay examines the economic growth of China and its impact on the U.S. and global economy. The next essay considers China’s troubling history of human rights abuses and the challenges facing the United States as it pressures Chinese leaders to implement reform. Because these two issues are inextricably linked, China poses a particularly difficult challenge for U.S. policy makers. CHINA’S HISTORY China was ruled by a series of royal dynasties for most of its history. The last dynasty, called the Qing dynasty, began to lose power when China’s economy soured at the same time its population grew. Two rebellions and a Muslim separatist movement further weakened the dynasty. During the mid-to-late-nineteenth century, China engaged in a series of opium wars with Britain during which it ceded Hong Kong to the British for a period of 99 years. Once the British took control over Hong Kong, the Western influence became greater in the country, but the Qing dynasty was not interested in Western-style political reform. Hong Kong grew and prospered into one of the world’s premier business and financial centers. Over time, its residents became successful professionals who enjoyed wealth and status and were thoroughly integrated into the modern world. Mainland Chinese citizens, however, were not so fortunate. Young people in the country became frustrated with their sparse, largely agricultural existence and began to call for the overthrow of the Qing dynasty and the formation of a republic. In October 1911, a military uprising did indeed overthrow the dynasty, but in an effort to prevent civil war the revolutionaries kept Qing officials in high

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positions. General Yuan Shikai became the first president of the new republic, which he unsuccessfully attempted to govern. After his death, China was in shambles and, as a result, it was ruled by various warlords for the next several decades. The Chinese Nationalist People’s Party and the Chinese Communist Party struggled for power over the country until October 1949, when Mao Zedong announced the founding of the People’s Republic of China (PRC). Zedong instituted a centralized political system and economy that closely resembled those in place in the Soviet Union. In 1958, however, Zedong turned from the Soviet system and instituted a program he called the “Great Leap Forward.” This program was designed to quickly increase production in China’s agricultural and industrial sectors. To that end, Zedong established farming communes all across China. But the Chinese continued to be governed by dictatorial Zedong and the Communist Party, who imposed oppressive rule. The result of the Great Leap Forward was not an increase in production, but rather a decrease, and China’s people experienced one of the worst famines in history. In an effort to alleviate the starvation and desperation of the people, the Communist government instituted the “Cultural Revolution” in the 1960s. Chinese President Liu Shaogi and Party General Secretary Deng Xiaoping implemented new economic policies that conflicted with Zedong’s. Tensions between the two factions continued for years, until Zedong died in 1976. Zedong was replaced with new leadership that introduced economic policies designed to reduce centralized governmental control of the economy and increase foreign investment. The old commune system was replaced by a household-based system that gave individual citizens more power to make decisions related to their farming. The Chinese government also encouraged growth in areas such as art, literature, and journalism during this time. These reforms resulted in impressive annual growth rates during the 1980s. At the end of the decade, however, inflation rates rose and the Chinese government slowed its economic reform efforts. Some Chinese citizens, especially students, began calling for quicker and more comprehensive economic and political reform. Others disagreed, arguing that reform was occurring too quickly and that Western influence had become too pervasive. This debate culminated in the 1989 Tiananmen Square protest, where students and others gathered to mourn the death of a party leader, to challenge the slow rate of reform, and to call for increased freedoms. The Chinese government used armed forces to clear the demonstrators, killing hundreds. Tiananmen Square proved a human rights disaster for China. The government’s actions in firing upon and killing its own people caused an uproar in the international community. Governments and human rights advocacy groups alike decried the use of force against unarmed demonstrators. For a time, the economic and political future of China seemed uncertain, as dissenters went into hiding or left the country. Economic reforms were limited until the beginning of 1992, when the government once again began to move toward a more market-based economy.

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CHINA’S ECONOMY TODAY China’s commitment to opening itself up to the rest of the world and to a more market-oriented economy remains firm. The country joined the World Trade Organization (WTO) in 2001, became a full trading partner of the United States in 2002, and hosted the 2008 Summer Olympics in Beijing. All of these events signal that China is making strides in its goals of openness and economic reform. In 2010, most economists ranked China the second-largest economy in the world (behind the United States) as well as the country with the largest population. Despite the fact that only 10 percent of the nation’s land is appropriated for agriculture, over 40 percent of China’s laborers work in this industry. Agriculture accounts for around 13 percent of China’s gross domestic product (GDP), the total value of goods and services produced by the nation each year. China’s largest crops include grains such as rice, corn, and wheat; soybeans; vegetables; cotton; and tea. Almost half of China’s GDP comes from heavy industries such as mining and ore processing; the production of iron, steel, and aluminum; and the manufacturing of chemicals, paper, automobiles, and ships. China is, in fact, the world’s largest producer of steel, aluminum, cement, and coal. It also produces much of the world’s consumer goods, including textiles and clothing, footwear, toys, and consumer electronics. Because the Chinese economy is so diverse and exports so many different kinds of goods, its influence is ubiquitous. Indeed, it would be difficult for an average American to avoid purchasing Chinese products, because they permeate the U.S. marketplace.

ECONOMIC CHALLENGES FOR THE UNITED STATES The United States might consider itself the world’s leading economic superpower, but China is catching up fast. Scholars describe the growth of the Chinese economy as similar to the growth experienced by Western democracies such as Great Britain and the United States during the Industrial Revolution in the late nineteenth century. China’s economy continues to expand rapidly, which is both good news and bad news for the United States. First, the good news. With approximately one billion people, hundreds of millions of whom are becoming steadily wealthier, China ranks as the world’s largest untapped consumer market. American manufacturers see tremendous potential for selling their goods and services to the Chinese. Indeed, U.S. trade with China has more than doubled since it joined the WTO in 2001, and it only continues to increase. Almost all of the “Fortune 500” companies are already invested in China, and many like Walmart have a heavy presence there. The sheer size of the Chinese market promises significant opportunities for companies that produce their goods in China or export them to China. China is also a major importer of U.S. raw materials and food. Although it has made progress toward feeding its own people with locally produced commodities, China is by no means self-sufficient. It is a major importer of U.S. grain, including especially soybeans. It is also a leading importer of cotton, wood, and recycled paper. As its citizens become more affluent, their tastes

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change, which has made China an increasingly significant importer of meat. U.S. farmers and ranchers, like U.S. manufacturers, have an important new market in China. Another attraction for U.S. businesses is China’s relatively cheap labor force. China has surpassed the United States as the world’s largest manufacturing nation, in part because U.S. companies have relocated their manufacturing facilities overseas to China. Even countries like Mexico, which were for years the beneficiaries of U.S. plants because of a ready supply of cheap labor, are losing their facilities to China. When goods are cheaper to produce, they can be sold more cheaply to U.S. consumers. On the downside, the quality of Chinese goods, particularly its consumables, has come under fire in the past several years. As described in the “Food Safety” entry in this volume, the United States and other importing nations have experienced a number of frightening incidents of tainted food products from China, including milk, candy, chocolate, seafood, toothpaste, and pet food. In late 2008, China itself suffered when powdered baby formula contaminated with melamine was sold to its consumers. The tainted formula sickened hundreds of thousands of infants. Over 50,000 required hospitalization, and at least six of them died from ingesting the toxic formula. After the incident, the United States halted imports of all Chinese dairy products and called for testing of any product containing even small quantities of milk. Traces of melamine, a chemical used in making plastics and fertilizers, turned up in many different goods. Unscrupulous Chinese manufacturers had used the melamine as “filler” in their food products in order to save money and enhance their profits. Melamine was also the culprit in 2007, when thousands of dogs and cats were sickened and many died when the chemical was used as filler in wheat gluten, a major ingredient in pet food. The contaminated food was sold in the United States under a number of popular brand names. The incident led to the largest recall of pet food in U.S. history. In early 2008, two Chinese companies and an American importer were indicted in this scandal. U.S. consumers also suffered when significant amounts of lead were discovered in Chinese consumer goods intended for children, including jewelry and toys. In addition, hundreds of thousands of truck and van tires made in China were recalled in 2008 because they lacked an important safety feature. All of these incidents have led the American people to question the quality of Chinese goods and to call for stricter inspection of them. In response, the Food and Drug Administration in late 2007 opened its first office in China, in the hope of working with Chinese officials to improve inspection processes. Problems with Chinese imports have not been limited to food and toys. In 2009, and continuing through the present, problems began to emerge with Chinese drywall. Drywall is used in construction to create the walls of homes and businesses. Although drywall is produced in the United States, many contractors purchased Chinese drywall in the wake of Hurricane Katrina, when domestic supplies were low and Chinese drywall was cheap and readily available. By some estimates, over half a billion tons of this drywall was imported and installed in thousands of homes across America.

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Starting around 2009, residents of new homes began to complain about various ailments, including coughing, sinus problems, and other respiratory disorders. They noticed strange smells in their homes, resembling that of rotten eggs. Finally, they saw their wiring, pipes, and air conditioning units corrode and turn black. The problem was traced to Chinese drywall, which contained high levels of sulfurous gases that were being released into the homes. The problem was particularly acute in warm and humid states in the Gulf region, especially Florida. Federal and state governments began investigations into the drywall that are still continuing today. Although they have not been able to explain the exact cause of the problem, it is clear that the drywall is emitting dangerous gases that react with metal structures and products in homes where it has been installed and that cause a variety of adverse health reactions. Some contractors have voluntarily removed Chinese drywall from the homes they built, and many homeowners have entered into a class-action lawsuit to recover for the damages they suffered as a result of the product. Americans have a seemingly insatiable appetite for affordable consumer products, which has contributed to a growing trade deficit with China. In November 2008, the United States reported that its trade deficit, the amount of money this nation spends on imports from other countries, was approximately $56.5 billion. Nearly $28 billion of that was for goods imported from China, meaning that United States purchases and imports far more goods from China than China purchases and imports from the United States. The growing trade deficit with China is due in large part to the fact that American companies manufacture their goods in China, and then bring them back to the United States as imports. While the goods might ultimately be cheaper for the American consumer, the fact that they are manufactured abroad means the loss of hundreds of thousands of American manufacturing jobs and a predictable rise in unemployment. In addition to companies and consumers owing China billions of dollars for imported goods, the U.S. government is also heavily indebted to China. For many years, China has been purchasing U.S. debt instruments such as Treasury bills. In 2010, China became the United States’ largest creditor; America owes it nearly $900 billion. And, unlike the United States, which is spending nearly a trillion dollars to bail out participants in its troubled financial markets, the Chinese government is saving money in significant amounts. By some estimates, China has almost $2 trillion in cash reserves at its disposal. IS IT A GOOD IDEA TO OWE SO MUCH MONEY TO ONE NATION? Economists and politicians from across the political spectrum warn that U.S. indebtedness to China poses a significant risk to the health of the American financial system and to national security. One reason for this is that China, like most nations, can to some extent control the value of its own currency. If China undervalues its currency, the U.S. dollar looks good by comparison; this fact in

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turn entices Americans to buy even more Chinese goods. Some have accused the Chinese government of manipulating its currency in this manner to encourage Americans to purchase Chinese goods while discouraging the Chinese from purchasing American goods. When this happens, trade becomes one-sided, and more American money pours into China. If China were to do the opposite and overvalue its currency, the result could be just as bad or worse for the United States. If China’s currency is suddenly worth more, then U.S. currency would suddenly be worth less. A weak U.S. dollar makes U.S. goods more affordable to our trading partners, which is a benefit, but it could also lead to higher inflation and interest rates in the United States as well as a lower return on government debts, making them less attractive to investors. None of this would be good news for American consumers or for the government. Right now, the United States and China are financially interdependent. The United States owes so much money to China that, ironically, China has a vested interest in seeing that the U.S. economy does not collapse—and its investments in the United States along with it. While financial experts fear U.S. dependence on and overexposure to Chinese investments, the Chinese might fear overexposure as well, given that they have such a large financial stake in the American economy and in American consumers, who lately have cut back significantly in their spending. In any event, few would argue that it is healthy for America to have such a large trade deficit with China and to have nearly half of its foreign debt owed to China. China, after all, is not a democracy. It does not share basic political principles with the United States, and has only in recent years come to share economic ones. China might no longer be a strictly communist regime, but it is still a totalitarian state that severely limits the civil rights and liberties of its people. Moreover, China is a nuclear power with a tremendous army. China has been using its newfound economic wealth to bolster its military. China produces a significant quantity of military armaments and has been steadily increasing its military spending in recent years. In fact, China is in the process of developing a navy that some estimate will soon be among the largest in the world. And it goes without saying that, strategically, China is located in a region plagued by political unrest. Among other countries, China shares a border with Russia, North Korea, Afghanistan, India, and Pakistan. It is a very influential neighbor whose national security interests differ significantly from those of the United States. The United States has strong incentive to cooperate with the Chinese on policy in the region, but its ability to do so can be compromised by the fact that, financially, the Chinese hold significant sway over the U.S. government. To further complicate relations, China and the United States, as the world’s leading manufacturing nations, compete over the same raw materials used in manufacturing processes. Chief among these is petroleum. China is now the world’s second-largest importer of crude oil, right behind the United States. Its economy, like America’s, was hit hard when the price of crude oil skyrocketed

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during the spring and summer of 2008. But China proved adept at handling the crisis, bolstered by its healthy economy, positive balance of trade, and cash reserves. Further, as China gains economic strength, it out of necessity reaches out to more of the world. It needs raw materials such as crude oil to maintain its economy, meaning that it must develop relationships with countries possessing those raw materials. China will not be able to remain isolated, but instead will continue to increase its international financial interests and, with them, its national security interests. Unlike in the United States, a number of major Chinese companies are state owned. The government controls them and rises or falls on their success. Thus continued growth and improvement of these companies, and of the Chinese economy generally, will depend in part on its relations with its supplier nations. The financial relationship between the United States and China raises more questions than it answers. U.S. policy makers are split over how to view the “new” China. Debate centers on whether China is emerging as a free market nation with a slowly developing democracy or whether it remains committed to communist political, if not economic, rule. Hard-liners believe that U.S. corporate and government interests place too much emphasis on the benefits of the growing Chinese economy, forgetting that China remains a dictatorial regime shrouded in secrecy and generally opposed to U.S. interests. Others argue that, as China becomes more prosperous, its people will demand increased liberties and will pressure their government to provide them. Proponents of cooperation with China consider a free market economy the key to its democratization, seeing that outcome almost as inevitable. Consequently they favor a more flexible, less dogmatic approach to relations with China, while hard-liners remain suspicious of China’s intentions and urge U.S. policy makers to proceed with caution. The ongoing debate between those who believe that China is becoming politically more open and those who believe it is democratizing only its economic system is particularly compelling in the area of human rights. Everyone agrees that China has an abysmal human rights record, but no one agrees on what to do about it. China’s oppression of its own people poses a serious challenge to U.S. lawmakers, who want the nation to adopt civil rights and democratic reforms, but who also fear upsetting their major trading partner and largest creditor, not to mention the most powerful player in Asian politics and one of only a handful of the world’s nuclear nations. Just how tough to be on China in the face of its substantial human rights violations is yet another battleground issue that will be around for years to come. See also China: Human Rights Further Reading Books: Denoon, David B. H., ed. China: Contemporary Political, Economic, and International Affairs. New York: New York University Press, 2007; Fishman, Ted C. China, Inc.: How the Rise of the Next Superpower Challenges America and the World. New York: Scribner, 2006; Harney, Alexandra. The China Price: The True Cost of Chinese Competitive Advantage. New York: Penguin Press, 2008; Kynge, James. China Shakes the World:

China: Human Rights | 113 A Titan’s Rise and Troubled Future and the Challenge for America. New York: Mariner Books (Houghton Mifflin), 2007; Naughton, Barry. The Chinese Economy: Transitions and Growth. Cambridge, MA: MIT Press, 2007; Redding, Gordon and Michael A. Witt. The Future of Chinese Capitalism: Choices and Chances. New York: Oxford University Press, 2008; Shirk, Susan L. China: Fragile Superpower. New York: Oxford University Press, 2008; Winters, L. Alan and Shahid Yusuf, eds. Dancing with Giants: China, India, and the Global Economy. Washington, DC: World Bank, Institute of Policy Studies, 2007; Zhang, Li and Aihwa Ong, eds. Privatizing China: Socialism from Afar. Ithaca: Cornell University Press, 2008. Websites: China Economic Net. http://en.ce.cn/; EconomicsHelp. “China Economy 2008.” http://www.economicshelp.org/country/china.html; Economist.com. China’s Economy. http://www.economist.com/research/articlesBySubject/display.cfm?id=478048; Economy Watch. China Economy. http://www.economywatch.com/world_economy/ china/; Hu, Zuliu and Kahn, Mohsin S. Why Is China Growing So Fast? International Monetary Fund, Economic Issues No. 8. http://www.imf.org/EXTERNAL/PUBS/FT/ ISSUES8/INDEX.HTM; Tkacik, John J. China’s Superpower Economy. The Heritage Foundation, Web Memo #1762. December 28, 2007. http://www.heritage.org/research/ asiaandthepacific/wm1762.cfm; The 2011 CIA World Factbook. China Economy 2011. http://www.theodora.com/wfbcurrent/china/china_economy.html; World Bank. Fighting Poverty: Findings and Lessons from China’s Success. http://econ.worldbank.org/ WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/0,,contentMDK:20634060~page PK:64165401~piPK:64165026~theSitePK:469382,00.html

Lindsey Hanson and Kathleen Uradnik CHINA: HUMAN RIGHTS China has emerged as an economic superpower, one that continues to grow and prosper as Western governments and industries look on in awe. Of course, one reason why China can prosper is because the Chinese government still exercises tight control over its people. China has seen liberalized economic policies, but that has not been matched with a concomitant loosening of the government’s tight grip on its citizens. Virtually every human rights organization in the world criticizes China for the treatment of its citizens. Allegations of human rights abuses in China center on its criminal justice system, its treatment of dissidents and minority groups, and its practice of censorship. The ongoing pressures on China to implement reforms in the face of continuing government resistance create a significant challenge for policy makers in the United States. CRIMINAL JUSTICE VIOLATIONS The legal system in China, such as it exists, does not resemble that of the United States or any other developed nation. The Chinese approach to criminal justice exists in stark contrast to the United States. In China, individuals are routinely taken into custody and placed in detention without charges or a trial. Corruption is widespread among Chinese police officers and judges, who can arrest

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and imprison individuals simply on their own word. Amnesty International estimates that as many as 500,000 people are currently jailed without charge in the country. Many of these detainees were picked up by the government for voicing opposition to the Chinese government or its policies. Prior to the 2008 Summer Olympics in Beijing, for example, human rights groups protested what it considered to be a “roundup” of dissidents who might protest at the games or otherwise present the nation in a bad light and also the harassment of lawyers who tried to free them. But even when the international spotlight is not on China, the seizure and imprisonment of citizens is commonplace. Chinese officials spy on their citizens and subject many to harassment or house arrest. Chinese police officers beat “confessions” out of citizens they have arrested. Detained individuals are often harshly punished. One of the most controversial punishments is forced labor. The government embraces a policy called “Reeducation through Labor,” where prisoners are required to work in government labor camps. By some estimates, China has over 1,000 such camps, where workers are essentially enslaved. Prior to the Beijing Olympics, the government forced detained individuals to clean the city streets and undertake other jobs to beautify the city in advance of the arrival of foreign tourists. More commonly, the detainees produce cheap goods for export. Reeducation through Labor is commonly imposed on persons who have not been charged with a crime, or, as discussed below, whose only “crime” is belonging to a banned group or religion. Another commonly imposed punishment is torture. Theoretically, the Chinese government banned the use of torture in 1996, but that has proved a hollow act. Human rights groups including the United Nations continue to document extensive use of torture in China’s criminal justice system. Prisoners are subjected to physical and psychological abuse. These include beatings, electric shocks, deprivation of food and sleep, exposure to extreme hot and cold conditions, and extended periods in solitary confinement. Sadly, torture is practiced not only by police and judges in the criminal justice system, but also by Chinese authorities generally, including tax collectors, village officials, party leaders, security guards, and even “birth control officers.” In order to control population growth, China limits the number of children a couple can have to one. Local towns and villages enforce this policy by employing officials to ensure that family size limits are maintained. Women who become pregnant may be forced to have an abortion or give their babies up for adoption. Human rights advocates continue to document other types of grievous assaults against Chinese families, including forced marriages and divorces. China is also controversial because of its continued and extensive use of the death penalty. China can impose death for nearly six dozen different crimes, including nonviolent offenses. Just how many people are executed in the country each year is difficult to determine, both because the government is secretive about its executions and because the families of the executed often have little or no information about their loved ones. Groups like Amnesty International and the World Coalition against the Death Penalty estimate annual executions to

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number in the thousands. They point out that China annually executes more people than the rest of the countries of the world combined. TREATMENT OF DISSIDENTS Much of the wrath of Chinese governmental officials and its corrupt criminal justice system is directed toward opposition and religious groups that are banned in the country or are viewed as a threat to it. China has five officially recognized religions: Buddhism, Taoism, Islam, Protestantism, and Catholicism. These religions are carefully monitored by the government. While members of religious groups might be recognized by Chinese law, government authorities often treat them harshly, especially when the group is perceived as too large or too popular with the people. Reports abound of priests and ministers being tortured or arrested and of churches and mosques being shut down. China also has a number of underground religious organizations that are banned by the government. While preaching a message of religious tolerance, Chinese officials largely view membership in religious organizations as a threat to their own power and to the stability of the nation, because members may be more loyal to their religious organization than to the government or the nation and because organized religious groups challenge their authority. Thus, members of religious groups are routinely harassed or taken into custody without charge. Chief among these is the “Falun Gong,” a popular but outlawed spiritual movement. Mere belief in its principles is sufficient to subject a member to punishment, for the government views it as a cult. Consequently, its members, and particularly its leaders, have been killed, tortured, raped, beaten, sent to psychiatric institutions, and subjected to “reeducation” at labor camps. In an effort to “reeducate” members or at least to compel them to revoke their membership in the group, Chinese officials also take actions to disrupt their families, including expelling their children from school, denying their elderly retirement benefits, and firing members from their jobs. TIBET AND TAIWAN In 1949, China invaded the autonomous country of Tibet. The invasion resulted in the deaths of one million of Tibetan citizens and the destruction of Tibet’s historical, cultural, and religious landmarks. The Dalai Lama, Tibet’s political and religious leader, fled the country in 1959 and remains in exile today. Tibetans still consider the Dalai Lama the leader of the Tibetan government in exile. The Chinese, for their part, consider Tibet to be a part of China and do not recognize either the Dalai Lama or any independent or separate status for Tibet or the Tibetan people. In March 2008, approximately 300 Buddhist monks began a peaceful protest to commemorate the anniversary of a failed attempt by Tibetans to free themselves from Chinese rule. The Chinese government, which did not want attention brought to this issue or any other that would reflect poorly on it before

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the Summer Olympics, responded harshly by sending in police forces, who beat and arrested the monks and other protestors. Although China banned media from the areas of unrest, video footage surfaced of the violence, bringing international condemnation upon China. American political leaders urged China to commence talks with the Dalai Lama in an effort to stem the violence and to negotiate reforms. One meeting between government officials and representatives of the Dalai Lama was held, but the parties agreed on nothing more than to meet a second time—a meeting that has yet to be held. Tibetans continue to fight for a free and independent Tibet. Because most Tibetans are Buddhists and follow the Dalai Lama’s practice of nonviolence, their “war” for independence has been largely one of appeal to international conscience through the use of diplomacy. At the same time, Tibetans continue to be denied basic human and political rights. Dissidents and protestors who call for an independent Tibet are imprisoned for their “political crimes.” Religious leaders such as monks and nuns are also imprisoned and denied the ability to practice their religion. Officials commonly inflict torture upon prisoners in custody and residents who sympathize with the independence movement. Many dissidents have died in prison from beatings or from the harsh conditions imposed upon them. The Chinese government’s continuing oppression of Tibetans has been well documented by organizations such as the United Nations and Free Tibet. It includes not only actions against the people, but the systematic destruction of Tibetan culture in an attempt to impose Chinese influence on the region. Opponents also argue that the Chinese have exploited the natural resources of Tibet without regard for the environment in order to enrich China at the expense of the local inhabitants. The plight of Tibetans has led to a powerful, but as yet unsuccessful, international movement to wrest Tibet from Chinese control. Prospects for a free Tibet in the near future are dim despite the call from the United States and numerous other nations for its independence. The island of Taiwan was founded on October 1, 1949 as the result of years of struggle between Mao Zedong and the Communist Party against opposition leader Chiang Kai-Shek and his Nationalist Party. Starting in the 1930s, these two groups fought for control of China. When it became clear that the communists on the mainland would prevail, Chiang Kai-Shek and approximately two million troops and supporters fled to the island of Taiwan and established what they believed to be a government in exile. Neither Mao Zedong nor any Chinese leader thereafter has accepted Taiwan as an independent nation. Rather, they view Taiwan as a kind of breakaway province, one that belongs to China and will one day be reincorporated into it. The Taiwanese, for their part, initially considered Taiwan to be the “real” China; after fleeing to Taiwan, Chiang Kai-Shek and his supporters hoped to regroup and retake the mainland in a subsequent military effort. Chiang Kai-Shek died in 1975. In subsequent decades, the idea that Taiwan would once again assert itself as the rightful China has faded. But it has been replaced by its residents’ strong belief in an independent Taiwan.

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Although Taiwan remained under martial law during Chiang Kai-Shek’s reign, subsequent leaders took a more open and democratic approach to governance. Supported by foreign investment and aid from abroad, and particularly from the United States, Taiwan today is an economically vibrant, highly successful democracy. For that reason perhaps more than historical ones, China continues to insist that Taiwan properly belongs to it, while the government and people of Taiwan view themselves as autonomous. This debate has caused significant conflict not only between the two, but also between China and the United States, given that the United States has been one of Taiwan’s staunchest allies. The controversy over Taiwan’s statehood, like Tibet’s, continues to loom over U.S.-Chinese relations. CENSORSHIP China does not allow freedom of expression as known and enjoyed by citizens of Western democracies. Media outlets are owned and tightly controlled by the government, which dictates virtually all of their content. Reports on sensitive subjects such as Tibet and Taiwan are prohibited or strictly limited, as are reports that could prove embarrassing to the government. Foreign television and newspaper correspondents must obtain permission to work in China and are carefully monitored in their access to news stories and in their reporting. Typically, they are escorted by government officials who determine what they will be able to see and whom they will be allowed to interview. Because of its widespread practice of censorship and control of the media, the advocacy group Reporters without Borders rated China a dismal 171 out of 178 countries in its 2010 assessment of freedom of the press. China has media that are not government owned—newspapers, magazines, filmmakers, and the like—but they are all licensed by the government and monitored to ensure that they produce “appropriate” content. The government censors these sources through a series of intimidating measures that encourage conformity with government-approved content and messages. These include fining or firing reporters and others who produce objectionable material; bringing libel lawsuits against those who defame the government; and, more dramatically, shutting down media outlets and imprisoning journalists. A major concern to Chinese officials has been the Internet. They understand the benefits of having the Internet, but they fear that its content will undermine their authority and control. The government has struggled to figure out how it might allow its people some access to the Internet while prohibiting access to information that it considers unacceptable. The Chinese government monitors and restricts not only search engines and websites, but e-mail blogs as well. The government has worked with prominent American Internet companies to obtain access to their services while restricting the nature of that access. Microsoft, Yahoo, and Google have come under fire from human rights groups for cooperating with China in designing and providing their search engines in a way that severely censors content. Cisco Systems, Nortel, and Sun Microsystems

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have similarly been criticized for providing the software and other expertise required to block Internet content. Generally, these companies have denied that they are complicit in Chinese government censorship, arguing that they cannot control how their products are used. But in early 2010, Google announced publicly that it had been the target of spying and theft of intellectual property that had originated in China. (It stopped short of actually naming the Chinese government as the perpetrator, although the implication was clear.) Moreover, it discovered that at least 20 other companies had also been spied upon, along with individual users—specifically, those who were engaged in human rights activities in China. As a result of this incident, Google announced that it would reevaluate its business interests, stop censoring any of its content, and if necessary pull out of China completely. CHALLENGES FOR U.S. FOREIGN POLICY As China opens up its economy to the world, it inevitably also opens itself up to criticism from the world. China has perhaps received no greater criticism than for its human rights record. The U.S. State Department has condemned the Chinese government for its failure to protect its citizens’ basic freedoms and its punishment of political and religious dissenters. China’s economic growth, however, has led to a measurable increase in personal freedoms for average citizens, who now have a greater ability to travel, become educated, gain employment, purchase a house, and access information. Economic reforms have also led to a significant reduction in the number of Chinese citizens living in poverty. These factors bolster the government’s view that it should be allowed to regulate the pace at which freedoms are introduced to its people, to preserve both the prosperity and the stability of the nation. For its part, the U.S. State Department in 2007 commended China for making criminal and judicial reforms that allowed for judicial review by higher courts in death penalty cases. It also applauded the Chinese government’s temporary rules allowing foreign journalists to conduct interviews without prior governmental approval. Most notably, the State Department removed China from its list of worst offenders and instead listed it as among those countries that remain politically authoritarian but that have experienced significant economic reform. Although the State Department’s commendation was by no means a wholesale endorsement of China’s human rights record, many were critical of it. Some claimed that the United States was motivated to show support for China because of the impending 2008 Summer Olympics in Beijing; others claimed the United States was motivated by its desire to improve relations with China on issues like the nuclear threat posed by Iran and North Korea. Activists pointed out that, while China promised to reform its policies, it did not deliver on those promises, even during the Olympics, where international correspondents complained of limitations on their access to the Internet, retribution against Chinese dissidents, and the denial of visas to advocates who opposed Chinese policies. In the face of China’s continued human rights violations, no matter how bad one thinks those violations may be, the question remains as to how the U.S.

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government should structure its relations with China. Moderates believe that the United States must continue to trade with China and invest in the country because these actions are likely to continue to advance the economic prosperity of the country, and, it follows, an economically prosperous China is more likely to expand the rights of its citizens. Proponents of continued, or even increased, engagement with China on an economic and diplomatic level also argue that the more the United States fosters a close relationship with China, the more pressure it can bring to bear on its leaders to implement human rights reforms. Human rights activists and political hard-liners, on the other hand, argue that it’s wrong to continue to trade with a country that tortures and abuses its citizens and denies them basic freedoms. They call for sanctions against China as well as for more direct diplomatic expressions of disapproval of its human rights violations. They do not believe that China, even as it becomes prosperous, will come to protect human rights on its own, and that its advancements in that regard have been few in number and slow in coming. For practical reasons, the United States and other nations often overlook China’s abysmal record on human rights in formulating their foreign policy toward the nation. In recent years, the United States has completely normalized its economic relations with China, supporting its entry into the World Trade Organization (WTO) in 2001 and granting it “permanent normal trading relations” status in 2002. Government officials and business leaders widely agree that, because of its sheer size and emergence as an economic superpower (not to mention its status as America’s largest creditor), China cannot be punished, boycotted, or otherwise ignored because of its human rights abuses. American industries and consumers simply rely too heavily on goods and materials produced in China. In fact, many scholars and experts on China argue that the United States has overexposed itself to China in its monetary and trade policies and in its dependence on China’s cheap imports and raw materials, putting America’s national security at risk. But the reasons for American inaction toward Chinese abuses involves more than its symbiotic economic relations with the country. In addition, good relations with China are essential to the United States because of China’s military might and status as a nuclear power and because of its association with other nations that possess or are developing nuclear capabilities, especially North Korea and Iran. Because China has a veto on the United Nations Security Council, it can block international efforts to impose sanctions on these nations for developing their nuclear programs. The veto, in fact, allows China to stop any action of the Security Council. China wields significant power over foreign affairs across the world, but particularly in Asia, which has been plagued by political instability in many nations. China looms large over the entire region. LIU XIAOBO WINS NOBEL PEACE PRIZE In October 2010, the Norwegian Nobel Committee awarded the 2010 Nobel Peace Prize to Chinese dissident Liu Xiaobo. The Committee cited his “long and non-violent struggle for fundamental human rights in China” as the basis

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of the award. The Committee noted that China had made significant progress economically that had lifted millions of its people out of poverty. But, it concluded, the nation needed to honor the human rights of its citizens, particularly those of free speech, press, and assembly and allow political opposition and demonstration. Liu Xiaobo did not travel to Stockholm to receive his prize: he was locked up in a Chinese prison in 2009, sentenced to eleven years for “subversive” activities. It is possible that he still does not know that he won the award. Internationally, critics of China’s oppressive policies heralded his selection; in China, the government announced that it would sponsor its own award to counter the Nobel Committee’s, which it condemned as interfering with China’s internal affairs. PRESIDENT OBAMA WARMS TO CHINA As a candidate and now as president, Barack Obama urged closer and more cooperative relations with China. In mid-January 2011, President Obama hosted Chinese President Hu Jintao on a three-day visit that included lengthy meetings with U.S. business leaders as well as an official state dinner at the White House. Business leaders participating in the discussions were a virtual “Who’s Who” of American industry, including the CEOs of Intel, Microsoft, Boeing, Motorola, and General Electric. Those in attendance at the state dinner included former presidents Jimmy Carter and Bill Clinton, along with four current and former Secretaries of State, a Supreme Court justice, and other high-ranking federal officials. During the meetings, the two leaders discussed economic, defense, and human rights issues. President Hu declared the talks to be productive; on the issue of human rights, he argued that differences among nations were inevitable, but that he expected to continue to lead China forward in following a path toward democracy and the rule of law. Whether China will do so remains to be seen; any progress made is likely to be slow, measured in years or perhaps even decades. SUMMARY Some have argued that, historically, the United States has never really figured out how to deal with China. Now that China is changing so rapidly, it is even more difficult for America’s foreign policy experts and elected officials to know what approach to take when dealing with the Chinese. The fact remains that China is already an economic superpower, but it is also most assuredly not a democracy and does not embrace democratic principles. It has the world’s largest population at over one billion people, and one of its largest militaries. China’s economic success has enabled it to expand its military significantly; it shows no signs of slowing this process. Thus China is a formidable foe in all respects, and the United States finds itself in the position of having to delicately manage its relationship with it. Because China continues to evolve economically, politically, and militarily, U.S. relations will need to keep pace. China

China: Human Rights | 121 GOOGLE FACES OFF WITH CHINA On January 12, 2010, Google announced on its corporate blog that it had been the victim of a highly sophisticated electronic attack originating in China. The company, which had once cooperated to bring its Internet search engine and related services to that country, reacted strongly and publicly. It posted a press release to its official website in which its chief legal officer explained that Google had discovered “a highly sophisticated and targeted attack on our corporate infrastructure originating from China that resulted in the theft of [its] intellectual property. . . .” More significantly, however, Google was able to determine that the attack had been launched against at least 20 other major corporations. The press release continued by noting that it appeared the “primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists.” At the time Google launched its operations in China in 2006, it had agreed to partial censorship of its services in cooperation with the Chinese government. At the time, the company believed that the benefits of bringing its search engine to China outweighed the concerns over censorship. Now, in light of the attacks on the companies and its users, Google was ready to reconsider whether to continue its relationship with the Chinese government. “We have decided,” the company explained, that “we are no longer willing to continue censoring our results on Google.cn. . . . We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China.” Shortly thereafter, Google began redirecting users of Google.cn (China) to the uncensored Google.com.hk (Hong Kong). Still, a population of 1.2 billion people is hard for any company to ignore. As Google’s market share in China fell during 2010 as a result of its pullout, the market share of its Chinese Internet rival Baidu increased. That fact, plus the reality of China’s huge Internet market, will likely lead the company back to China sooner rather than later, assuming it can come to some (probably uneasy) agreement with the Chinese government regarding its censorship and spying.

undoubtedly will be a formidable challenge and concern not only for the Obama administration, but for generations to come. See also China; Economic Emergence Further Reading Books: Angle, Stephen C. Human Rights and Chinese Thought: A Cross-Cultural Inquiry. New York: Cambridge University Press, 2002; Cavalli, Dimitri, ed. China. New York: H. W. Wilson, 2002; Ching, Frank. China: The Truth about Its Human Rights Record. London: Ebury Press, 2008; Fewsmith, Joseph. China since Tiananmen: The Politics of Transition. New York: Cambridge University Press, 2001; Svensson, Marina. Debating Human Rights in China: A Conceptual and Political History. Lanham, MD: Rowman & Littlefield Publishers, 2002; Weatherley, Robert. The Discourse of Human Rights in China: Historical and Ideological Perspectives. New York: St. Martin’s Press, 1999; Worden, Minky. China’s Great Leap: The Beijing Games and Olympian Human Rights Challenges. New York: Seven Stories Press, 2008. Websites: Carnegie Endowment of International Peace. “Reframing China Policy Debate 4: U.S. Engagement and Human Rights in China.” March 5, 2007. http://www.carnegieen

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College Funding and Debt dowment.org/events/index.cfm?fa=eventDetail&id=961; Embassy of the People’s Republic of China in the USA. “Human Rights Issues.” http://www.china-embassy.org/eng/zt/zgrq/ default.htm; Free Tibet. http://www.freetibet.org; Human Rights in China. http:// www.hrichina.org/public/index; Human Rights Watch. http://china.hrw.org/

Lindsey Hanson and Kathleen Uradnik COLLEGE FUNDING AND DEBT Ingrained in American political culture is the belief that hard work and a good education are the keys to personal and financial success. Today, a college degree is a prerequisite to even an entry-level professional position, just as the high school degree once was for generations past. But while more Americans are attending college than ever before, they are not necessarily having an easy time of it. Tuition continues to rise as cash-strapped states cut higher-education budgets and instructed their universities and community colleges to become more self-reliant. Private colleges have been hit hard by the recent downturn in the stock market, which decimated their own investments and endowments as well as those of their major donors. At the same time, enrollments at colleges and universities have increased, as more unemployed Americans look to finish old degrees or learn new skills in anticipation of a job change. Everyone in higher education is trying to do more with less. PAYING FOR SCHOOL Most institutions of higher education in America have money set aside, either in an endowment fund or an alumni foundation fund, to use for scholarships. This money is called “school-based aid,” and it is administered differently from place to place. Each school sets its own priorities in awarding its scholarship aid: recipients might be selected for their high school grades, accomplishments, test scores, or other factors. Typically these scholarships are based on the financial need of the recipients as well. Most undergraduate students do not receive school-based aid, however, or at least do not receive enough to pay for all of their tuition and living expenses. Instead they rely on their own savings and income from work and, most importantly, on federal and state financial aid programs. The U.S. government is far and away the largest provider of student aid in the nation, if not the world. Its financial aid programs are administered by the Federal Student Aid Office, which is located in the Department of Education. Nearly 14 million students each year participate in one or more of the federal student aid programs, which are divided into the categories of “loans,” “grants,” and “work study jobs.” The annual budget for the aid administered through this office exceeds $100 billion. In order to be eligible for aid, the student must attend a qualifying public or private community college, university, trade school, or career college. The student must be enrolled at least part-time and can use the funds for tuition, fees,

College Funding and Debt

books, and living expenses. The student must remain academically eligible as well. The application process is based on the government’s “FAFSA” form, which stands for “Free Application for Federal Student Aid.” The FAFSA is available online each year starting on January 1st. It must be filled out for each year the student attends school, although the process has been streamlined in recent years and is now almost completely online. The primary federal student loans for college and graduate school are called “Direct Loans” because they are distributed under the William D. Ford Direct Loan Program. They can also be called “Direct Stafford Loans.” Direct loans are made with government funds. In the past, either the government or a private lender (bank) would process a student’s loan request and oversee the repayment process. As of July 1, 2010, however, all of the federal loan programs (e.g., Stafford, PLUS, and Consolidation loans) that had been handled by the private sector were brought under the government’s control and put into the Direct Loan Program. Private lenders thus no longer handle federal government loans. This change was included in, of all things, the health care reform legislation that Congress passed in the spring of 2010. Student loans do not really have anything to do with health care, but the Democrats in Congress wanted to end what they felt was exploitation of students by private banks, so they committed to a significant overhaul of the federal college financial aid system. A cornerstone of their reform was terminating the programs that allowed private financial institutions to issue government-sponsored student loans. Of course, private lenders still can create their own loan programs with private funds, and many of them do. These loans are not federal student loans; they are more akin to consumer loans, which tend to be much harder to obtain and costlier to hold. A Direct Loan can be either “subsidized”—meaning that the government pays the accruing interest on a loan while the student remains in school—or “unsubsidized”—meaning that the student has to pay the accruing interest throughout school or have it added to the loan balance. The unsubsidized loan is awarded without regard to financial need. However, it can become pretty costly. If a student cannot afford to make the quarterly interest payments while in school, they will be added to the loan balance. Over the years of college or graduate school, those interest amounts could add up to several thousand dollars to the loan balance, depending on how much was borrowed, and for how long. The current lending caps for undergraduates are based on the student’s status in school. The majority of college students are still considered “dependents” of their parents or guardians. A dependent freshman can borrow up to $5,500 for the first year; $6,500 for the second year; and $7,500 for the third year and beyond. These yearly totals reflect subsidized and unsubsidized loans added together; in other words, they are the total maximum yearly amounts a student can borrow. The overall total amount borrowed for one’s undergraduate education cannot exceed $31,000. Interest rates for the loans change on a yearly basis; they are set on July 1st of each year and are at 3.4 percent for 2011–12.

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For graduate and professional students, all of whom are considered independent, the amount that they can borrow each year is up to $20,500, for a maximum of $138,500. In every case, the exact amount an undergraduate or graduate student can borrow is based on the actual cost of tuition and living expenses. Each college or university calculates an average annual cost of attendance for its students; one cannot borrow more than that amount. Another common type of federal loan is called the “PLUS” loan. This loan is taken out by the undergraduate student’s parent or guardian on the student’s behalf. The parent remains responsible for paying back the loan, and the terms are not as generous as those of a Direct Loan. Graduate students can also apply for “PLUS” loans. Finally, “Perkins” loans are available to qualifying lowincome students. They are similar to Direct Loans but do not have the associated fees, and they are only available to the neediest students. The U.S. government provides financial assistance in other forms, too. It sponsors six grant programs. Generally, federal grants are targeted toward lowincome students and do not have to be repaid. The most well-known of these programs is the “Pell Grant,” named after Claiborne Pell, the six-term senator from Rhode Island who wrote the legislation creating it. Other grants include the Federal Supplemental Educational Opportunity Grant (FSEOG); Academic Competitiveness Grant; National Science and Mathematics Access to Retain Talent Grant (SMART); Teacher Education Assistance for College and Higher Education Grant (TEACH); and, the Iraq and Afghanistan Service Grant. Finally, many students obtain jobs on campus through the “Federal Work Study Program.” Eligibility is based on a student’s financial need, enrollment status, and the cost of attendance at his or her school. The federal government distributes funds to the educational institutions that are used to pay student salaries; generally each institution identifies suitable jobs for its students and sets the hourly wage they receive. DEBT CRISIS HITS HOME The theory behind student loans is that, once the recipients graduate, they will obtain good jobs and be able to pay them back. Increasingly, however, this theory is being tested by the realities of a bad economy. Unemployment across the nation remains around 10 percent; for young people, though, the rate is much higher. College graduates in 2009 faced the toughest job market in two generations, and many of them are still unemployed or underemployed. The number of college graduates moving back home to live with their parents has been increasing steadily over the past several years, a sign that they either cannot get jobs or cannot obtain ones that pay enough to allow them to live on their own. Once a student graduates from college, his or her student loan debt must be paid back. Generally government programs offer a short “grace period” to allow a student to find a job and save some money; after that, however, repayment begins. Typically, a student loan is repaid over a ten-year period, although that limit can be extended in certain cases.

College Funding and Debt

What can a student do if he or she does not find a job? The federal government will allow a student to temporarily postpone payments, either through “deferment” or “forbearance.” But neither of these is unlimited, and the debt remains to be paid. It is very difficult to avoid paying student loans. They are not dischargeable in bankruptcy—meaning they are still owed even after a person files for and emerges from bankruptcy. The average college debt for those attending a four-year college is around $22,000. For those attending a two-year college, it is $10,000. Students who go on to professional or graduate school can expect this debt load to increase exponentially. In 2010, the annual Law School Survey of Student Engagement sponsored by Indiana University revealed that almost one-third of the nation’s law students expected to graduate with law school debt of more than $120,000. The average law school debt is around $80,000 and rising. These astonishing figures are due to the fact that, because of the rising cost of attendance (and particularly tuition), almost every American law student must rely at least in part on student loans. The situation is no better in America’s medical schools, where by some estimates nearly 80 percent of students have taken out loans to pay for school. These debt loads have nearly doubled over the past 10 years. Several factors account for the significant rise in student indebtedness at all levels of postsecondary education. First, the economic downturn drove more and more unemployed Americans to return to school to prepare for other careers. These “nontraditional” students had not expected to go back to school, so they had to rely on government loans to pay their way. For high school graduates, the bad economy resulted in parents being laid off and no longer able to help with college bills. To go to college or remain in college, these students had to borrow. And, at the same time students were coming to rely more on loans, their schools were facing massive budget cuts. To make up for lost revenue, virtually all of them raised tuition—many institutions did so for several years in a row. Students had to borrow even more money each time the cost of attending their school went up. Part of the problem lies with the educational institutions themselves. For many, raising tuition proved the easiest way to resolve budget deficits. The federal government did not help matters, because as the cost of education increased, it responded by raising the amount of money a student could borrow under its loan programs. The government’s response, ironically, provided a perverse incentive to colleges and universities to continue to hike tuition—after all, their students could just borrow more money each time the federal loan cap was raised. In February 2009, Forbes magazine ran an article written by Kathy Kristof entitled, “The Great College Hoax.” It accused the higher education system and those who funded it of perpetuating a giant lie: that a graduate of college or graduate/professional school will earn enough money to pay off his or her high student loan debt. Higher education tuition increases and student borrowing, the article concluded, had created an “unfolding education hoax on the middle class,” one that was “just as insidious, and nearly as sweeping, as the

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[nation’s] housing debacle.” In short, it argued that a college or graduate school degree is not worth the amount that students pay for it, because the majority of them will not earn enough money after graduation to have made their investment worth it. Forbes, of course, was not alone in this argument. Many public officials and education experts have begun to worry about ever-increasing amounts of debt. Some pointed fingers at the educational institutions, not only for raising tuition, but for misrepresenting the value of their degrees and the salaries that their students were likely to earn upon graduation. Public and private institutions alike were accused of slick marketing aimed at keeping enrollments high while downplaying the cost of attendance. In addition, critics today try to assess the value of college by comparing it to someone who does not go. Studies have raised questions about whether a college degree really leads to increased income over one’s lifetime. While it is true that college contributes to better job prospects and higher salaries for many, one cannot simply focus on that side of the equation. Instead, today’s students also have to look at how much their education is going to cost them over the long haul, and compare that to the type of salary they could have expected with a high school diploma. Stated another way, it takes a period of time for a college graduate to “make up” for the income that he or she could have earned if they had started working full-time after high school; it also takes a long period of time to pay off the student loans that high school graduates do not have. This approach looks at college or graduate school as a financial investment. As the cost of school skyrockets and students become more indebted to pay for it, the question of whether a student gets a “good return” on that investment becomes increasingly unclear. THE “FOR-PROFIT” CONTROVERSY Public and private colleges and universities are typically funded through a combination of resources: endowments, investments, tuition, alumni donations, federal grants, and the like. They are not “owned” by investors or stockholders; they are nonprofit institutions. Recently, however, a number of new schools, particularly online schools, have been created according to traditional business models. Investors or stockholders fund the schools with the expectation that they will make a profit and receive a return on their investment. These are called “for-profit” colleges and universities, and the number of students enrolling in them has skyrocketed in the past 10 years. For-profit colleges and universities have come under increasing scrutiny by the government, consumer groups, and their students. While all institutions of higher learning have to generate revenue to continue their operations, these for-profit institutions are expected to perform like private corporations by increasing in value. Their profits are based almost entirely on low overhead and high student tuition, which means that the schools must continually enroll students. For an online school, the number of students can be huge—the school has no physical limitations such as the number of chairs in their classrooms.

College Funding and Debt

As a result of this tuition-driven business model, for-profit institutions have been accused of using high-pressure tactics to enroll students. Specifically, critics allege that their recruiters and admissions personnel defraud students by misrepresenting the cost of their education, the quality of the academic program (including whether it is accredited by a professional body), and the prospects for employment upon graduation. In short, they promise much more than their institutions can deliver. More significantly, these schools tend to aggressively target students who are particularly vulnerable to their sales pitch. Low-income individuals, minorities, single parents, the unemployed, and “nontraditional” middle-aged students make up the majority of students at for-profit institutions. The institutions actually use this fact in their marketing campaigns: they are the only choice for those who want to further their education but cannot attend a traditional school. The problem is that these schools charge very high tuition compared to their traditional counterparts, and they encourage their students to borrow the money necessary to pay for it. They also collect billions of dollars each year in federal Pell grant funds that are awarded to low-income students. The only way low-income Americans can afford such high tuition is to borrow it from the federal government and, if that is not enough, from private lenders. Because federal loans are easy to obtain, the schools know that the money will be forthcoming. They do not expect the students to pay for their education, but rather count on the federal government to do so. Opponents of for-profit schools characterize this process as a kind of Ponzi scheme, where the schools simply use their students to obtain government educational loans knowing that the students will not be able to repay them. In the fall of 2010, the Education Trust, a nonprofit education policy and advocacy group funded by many of the nation’s top private foundations, released the results of its research into for-profit educational institutions. Its report painted a bleak picture for the graduates of these institutions, and warned of an economic collapse similar to the recent crash in the U.S. housing market. Education Trust compared the student loans given to low-income students to attend for-profit schools to the government housing loans that for the past two decades were given to low-income individuals—so-called “subprime mortgages.” Starting in 2007, millions of Americans defaulted on their subprime mortgages and lost their homes to foreclosure. The foreclosures created a disastrous ripple effect: housing prices tumbled, banks stopped lending, financial firms failed, and the national housing market bottomed out. Education Trust predicts a similar result with respect to student loans, with millions of students defaulting on their obligations and leaving the government to fix the mess. To support this theory, Education Trust pointed to the fact that, according to its research, for-profit schools spent much less on their students than did traditional ones. These institutions tended to have much lower graduation rates than their nonprofit counterparts. Their students also carried much higher debt loads—typically two to four times that incurred at nonprofit schools. Most significantly, perhaps, students from for-profit schools tended to default on their loan obligations at a much higher rate than students at traditional schools.

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Critics of for-profit schools reject the idea that they are providing opportunities for students who would not otherwise have them. They argue that the promised opportunities are not real, or at the very least are not justified by the high prices these schools charge for a chance at academic and career success. Congress, for its part, has begun investigating for-profit schools, which in the past have been largely unregulated. Many elected officials acknowledge that the for-profit model creates skewed incentives for enrollment and abuses the federal financial aid system. It is likely that the for-profit industry will come under greater regulatory supervision by Congress and the states in the coming years. In the meantime, reform advocates urge students to be very careful in considering where they want to attend school and how they will pay for it. PRESIDENT OBAMA’S COMMUNITY COLLEGE INITIATIVE In October 2010, President Barack Obama announced a major initiative aimed at expanding the role of the nation’s community colleges. He called for billions of dollars in federal spending targeted at increasing the size and scope of community colleges so that they could enroll more students. Pointing out that jobs for individuals with two-year degrees would be growing at twice the rate of jobs for high school graduates, the president hoped to encourage millions more Americans to attend community college to prepare for those jobs. He acknowledged that many community college systems across the nation were not equipped to handle the recent onslaught of applicants from the ranks of the unemployed—persons who wanted to obtain a credential in their field or pursue a different career path entirely. Increasing the capacity of community colleges, he argued, would assist these students, encourage more people to attend college, and keep American workers competitive. Obama set a high bar, calling for America to have the highest percentage of college graduates in the world by 2020. But calling for a major educational initiative and obtaining the money to pay for it are two different things. At this point, the Congress has not funded this new initiative. Some money for higher education was supposed to come from the reform of the federal student loan program. Now that the government is the sole lender, it can keep the loan origination fees imposed with each student loan. These fees theoretically would be invested in improving higher education and funding various governmental efforts like those set out by the president for community colleges. The Democratic Congress succeeded in reforming the student loan system to make this happen; they did not, however, succeed in holding onto the House of Representatives, the house of Congress where all federal spending bills originate. In January 2011, Republicans gained a majority in Congress, allowing them to block any effort by Democrats to use monies obtained in their student loan reform. In fact, the Republicans in the House and Senate have announced that their priority lies in creating jobs, reducing discretionary spending, and paying down the national debt. There is no guarantee that any additional funds will be forthcoming for higher education improvements, or for financial aid programs for that matter.

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WHAT’S NEXT? Many Americans consider the government’s financial aid program a “sacred cow,” a term applied to federal entitlement programs that the citizenry and its elected officials consider to be off-limits from budget cuts. It is true that the federal loan and grant programs have been and are being used by millions of Americans, which creates a natural constituency who wants to protect them. But the United States is facing severe economic problems, the most critical of which is the growing federal debt. Currently the United States owes over $14 trillion, and each year it spends $1.3 trillion more than it takes in. Given these facts, government programs cannot simply be allowed to grow; to the contrary, they are likely to be reduced or eliminated if America is going to get its massive debt under control. In 2010, President Obama appointed a bipartisan commission to study the nation’s debt problem and to make recommendations about how to fix it. In its report, the commission detailed spending cuts or revenue-generating changes for virtually every significant government program, including the student loan program. The commission’s recommendations were not binding (indeed, even its members could not agree on all of them), but they do indicate that, realistically, every government program will have to be scrutinized if America is serious about fiscal reform. Americans can probably continue to count on the availability of student loans and other forms of aid, but they need to be savvy consumers. Today, prospective students would do well to investigate a number of institutions and compare their financial aid offers. They might also consider working for a while before starting college or graduate school. They should shop around for the best loan deals—particularly if the government has to become less generous in its lending terms in order to save or make money. Finally, it behooves those who have used the government financial aid programs to make their voices heard on how best to manage them through the nation’s current economic downturn, so that they can be preserved for future generations. Further Reading Books: Ansell, Ben W. From the Ballot to the Blackboard: The Redistributive Political Economy of Education. New York: Cambridge University Press, 2010; Archibald, Robert B. Redesigning the Financial Aid System: Why Colleges and Universities Should Switch Roles with the Federal Government. Baltimore: Johns Hopkins University Press, 2002; Bok, Derek. Universities in the Marketplace: The Commercialization of Higher Education. Princeton, NJ: Princeton University Press, 2004; Ehrenberg, Ronald G., ed. What’s Happening to Public Higher Education? Westport, CT: Praeger Publishers, 2006; Ehrenberg, Ronald G. Why College Costs So Much. Cambridge, MA: Harvard University Press, 2002; Hacker, Andrew. Higher Education? How Colleges Are Wasting Our Money and Failing Our Kids—and What We Can Do about It. New York: Times Books, 2010; Hess, Frederick M. Footing the Tuition Bill: New Developments in the Student Loan Industry and How They Are Changing the Way We Pay for Higher Education. Washington, DC: AEI Press, 2007; Johnstone, D. Bruce. Financing Higher Education Worldwide: Who Pays? Who Should Pay? Baltimore: Johns Hopkins University Press, 2010; McMahon, Walter W. Higher Learning, Greater Good: The Private and Social

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Congress, U.S. Benefits of Higher Education. Baltimore: Johns Hopkins University Press, 2009; Vedder, Richard K. Going Broke by Degree: Why College Costs Too Much. Washington, DC: AEI Press, 2004; Wilkinson, Rupert. Aiding Students, Buying Students: Financial Aid in America. Nashville, TN: Vanderbilt University Press, 2008. Websites: Dovarganes, Damian. “Student Loan Debt Exceeds Credit Card Debt in the U.S.” USA Today. September 10, 2010. http://www.usatoday.com/money/perfi/college/2010 -09-10-student-loan-debt_N.htm; Department of Education. Federal Student Aid. http://studentaid.ed.gov/PORTALSWebApp/students/english/index.jsp; Education Quest. “The College Funding Estimator.” http://www.educationquest.org/estimator.asp; FinAid. “Student Loans.” http://www.finaid.org/loans/; Glee, Holton. “Lessons Learned: Lifting the Burden of Student Debt.” March 19, 2010. http://www.pewtrusts.org/news _room_detail.aspx?id=57880; Haley, Jen. “Student Loan Debt: How to Get Relief.” CNN. March 5, 2008. http://articles.cnn.com/2008-03-05/living/student.loans _1_private-loans-student-loan-justice-direct-loan-program?_s=PM:LIVING; Hawley, Jacob. “Debate Starts on College Debt Reform.” Higher Ed Morning. June 2010. http:// www.higheredmorning.com/debate-starts-on-college-debt-reform; The Institute for College Access and Success. http://ticas.org/; “How Much Student Debt Is Too Much?” New York Times, June 14, 2009. http://roomfordebate.blogs.nytimes.com/2009/06/14/ how-much-student-debt-is-too-much/; The Project on Student Debt. http:// projectonstudentdebt.org/

Kathleen Uradnik CONGRESS, U.S. Congress, the legislative branch of the U.S. government, is quite unpopular these days. Public opinion polls indicate that its approval rating among voters is around 10 to 15 percent, a dismal showing by any measure. At the same time, however, voters widely express favorable views of their own particular senator or representative, resulting in an incumbency re-election rate that typically exceeds 95 percent. What explains this apparent paradox between hating Congress and loving one’s member of Congress? To a large extent, distrust of Congress is sown in the structure of the body itself. CONGRESS UNDER THE ARTICLES OF CONFEDERATION During the 1787 Constitutional Convention in Philadelphia, the framers engaged in extensive debates about what the new legislature should look like and what powers it should hold. The current governing document, called the “Articles of Confederation,” had been in use since the Revolutionary War but only became official upon its ratification in 1781. Under the Articles, Congress had little authority over the states. It consisted of from two to seven representatives from each state who were selected by their state legislatures. Each member served a one-year term and was paid by his state. Regardless of the number of representatives it sent to Congress, each state had only one vote on proposals. The unicameral Congress was alone, because the Articles did not create an executive or judicial branch of government. Congress’s power was severely limited because the states would not surrender their autonomy. The states retained

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the power to coin their own money, maintain militias, and conduct relationships with each other and foreign powers. The Congress held the power to declare war, undertake relations with foreign governments, and resolve disputes between the states. Congress assumed responsibility for the debt incurred by the states in fighting the Revolutionary War, but was to pay it by imposing taxes that it had no power to collect. Instead, the states were responsible for collecting the taxes that Congress imposed on it. In short, the Articles of Confederation created little more than a “league of friendship” among the states. It focused on joining the states together in a mutual defense pact should any of them be attacked. Domestically, the Articles did not really empower the government to act for the common benefit of the states, and the states themselves had little reason to cooperate with each other or the national government. In fact, the Articles unequivocally stated that each state retained its “sovereignty, freedom, and independence, and every power, jurisdiction, and right, which [was] not by this Confederation expressly delegated.” After its ratification, the shortcomings of the Articles quickly became apparent. One by one, states called for a joint effort to improve the Articles, culminating in the Constitutional Convention in the summer of 1787. Twelve of the 13 states sent delegates to Philadelphia, 55 in all, for the purpose of reworking the Articles. Only Rhode Island did not participate. Once gathered, the delegates determined that the Articles were not worth saving, and they abandoned their original task in favor of creating an entirely new system of government. Thus the state delegates became the framers of the Constitution. CONGRESS OR PARLIAMENT? The framers were familiar with the failings of the Articles; they were also familiar with the parliamentary form of legislature in use in Great Britain. A parliament differs from a congress in numerous respects. First and most important, the chief executive of a parliamentary nation (usually called its “prime minister”) is chosen from among the members of the parliament. There is no separate election for the executive as there is in America; instead, the winning party or coalition of parties selects someone from their ranks to lead the government. Once in power, the prime minister and his or her party are in control and can pretty much count on being able to pass any legislation that it wants. That’s because, in order to rule in a parliamentary democracy, a party must win with a majority of votes cast, generally referred to as “50 percent + 1.” If it does so, the opposition is powerless to stop the implementation of its rival’s agenda, because it does not have enough votes to do so. In addition, the parliamentary majority does not have to worry about whether the executive will sign or veto a piece of legislation, because the executive is one of them. As a result of this structure, parliamentary governments in Western democracies tend to be much more efficient at passing legislation than their American counterparts. Opposition is relegated to a secondary position where it can argue against proposals but not block them. Individual members of parliament are not

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required or even expected to introduce legislation—that is not in their job description. The party assumes responsibility for the policy agenda, and the bills that parliament votes on are, in Britain at least, written by a professional civil service whose employees are experts in that field. By contrast, the American Congress is much more independent of the party structure of its members. Representatives and senators almost unanimously belong to the Democratic or Republican Parties, but their loyalty is first to the district and state that elected them. Because the major parties in this country are relatively weak and decentralized, they do not have the ability to force their members into lockstep compliance with party initiatives. Instead, the members of Congress have to find their own common ground in order to pass legislation. Even if they succeed, they still have to worry about what the president will do with it. The U.S. Congress, it seems, was designed to be slow. The framers’ most important concern in crafting the Constitution was to ensure that the new central government was powerful enough to be effective, but limited enough that it would not become tyrannical. The framers achieved this balance by spreading out the government’s political power. It created three branches of government, called “separation of powers.” Each branch—the legislative, executive, and judicial— had its own area of expertise and responsibility. The legislature would write the laws, the president would enforce them, and the judiciary would review them. But the framers, who feared concentrating too much power in a single branch, chose to intermingle the powers of each branch, thereby making the branches dependent upon one another to get things done. This “intermixing” of powers came to be known as “checks and balances.” When one looks at the checks and balances placed on Congress, it is no wonder why it functions slowly. The Congress itself is divided into two parts, both of which have to agree on the exact same wording of a bill before it can be sent to the president. Each branch has its own unique character. The Senate consists of two senators from each state. It tends to be the more formal of the two houses. The makeup of the House of Representatives is based on the population of the states. Each state is entitled to a minimum of one representative, and is assigned more depending on its size. The number of representatives a state has is determined by the U.S. census, which is held once every 10 years. Senators are elected to six-year terms, which are staggered so that only onethird of the Senate is up for re-election at any given time. House members serve two-year terms and all of its 435 members face re-election every two years. There are no limits on the number of terms a person can serve in Congress. Efforts to adopt “term limits,” either by legislation or constitutional amendment, have consistently failed. Because members of Congress are viewed primarily as representatives of the people, they can be quite independent of their parties. While the parties can offer some rewards to loyal members, their cooperation on controversial issues is not assured. In Congress, parties exercise control over members through their ability to make committee assignments. Rising stars in the party might be assigned to prestigious committees, while disloyal party members might be reassigned or stripped of their committee leadership positions.

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Getting the parties in Congress to stay unified is itself a task, because party organizations in America differ in character from state to state. In most parliamentary democracies, the parties are organized in a top-down, hierarchical fashion. In the United States, parties are very much creatures of their state and location. They are held together loosely by the Democratic National Committee (DNC) and Republican National Committee (RNC), national organizations whose primary responsibility is to run the presidential election every four years. The federal government does not employ a crack staff of bill writers to serve whatever party happens to be in power. Instead, legislation is written and proposed by individual members of Congress. Voters expect their representatives to be active, and one way to demonstrate that is to author and present bills. Every member is expected to do so, a fact that explains why so much legislation is drafted for Congress’s consideration. It is not uncommon for members to offer multiple similar bills on the exact same issue and to have all of them considered by the appropriate committee. At the same time, almost none ever make it past the first step or two in the legislative process—they are said to “die in committee,” and they never come before the House or Senate for a vote. Unlike Britain, whose parliament passes virtually every piece of legislation proposed, the Congress proposes countless pieces of legislation that go nowhere. Indeed, there are numerous opportunities for a bill to “die” anywhere along the legislative process. Even if a bill makes it out of a particular subcommittee, it is unlikely to be considered by the full committee. At any point, members of a committee might table consideration of a bill or send it back for more study. If a bill does obtain full committee approval, it needs to be scheduled for debate before the House or Senate. Scheduling is an acutely political process, and depending on the topic of the bill and the popularity of its authors, it might receive quick attention. More typically, it lingers unscheduled for months. In the unlikely event that a bill makes it through the process and is approved by a vote of the House or Senate, it still has to be consistent in language with its counterpart from the other chamber. This is done by “reconciliation,” a process by which members appointed by both the House and the Senate meet in conference committee to change, or “reconcile,” the language of the House and Senate versions to come up with a single bill that both houses can vote upon. If the reconciled bill is passed by a majority of both houses, it finally goes to the president for signature. If the president approves and signs the bill, it immediately becomes law. If he vetoes it, the bill goes back to the Congress, which can vote again in an attempt to override the president’s veto. Because a successful override requires a two-thirds vote in each house, it is rarely successful. Even after enormous legislative effort, the bill still fails. WHY WOULD THE FRAMERS ADOPT SUCH A SYSTEM? To reiterate, the framers were terribly (and perhaps excessively) concerned with the concentration of political power. They took numerous measures to ensure that all types of political power, including the legislative power, were dispersed and restricted in tangible, effective ways. By spreading out lawmaking

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power to a bicameral Congress and a separately elected president, the framers virtually ensured that the legislative process in America would be long and complicated and that no one would gain control over it. This process has its benefits. The framers clearly wanted to avoid tyranny, and the system of checks and balances they invented has worked quite well to that end. In addition, the framers valued the “representative” nature of Congress. They did not want the legislature to be beholden to political parties (which they did not trust), but rather responsive to the people and the states. That belief was demonstrated in the “Great Compromise” of the Constitutional Convention, when the delegates combined the plans proposed by large and small states in a historic compromise. The combined plan called for representation in the Senate to be based on statehood—two senators per state—and representation in the House to be based on a state’s population. The Senate representation scheme satisfied the small states; House representation scheme satisfied the large ones. As representatives, one of the main duties of Congress is to respond to constituents’ needs. Every member has an office at the Capitol and at least one back home. The member’s staff is responsible for helping constituents solve problems they may have with government programs or the government itself. Typical examples of assistance may include tracking an individual’s application for government benefits or investigating why an individual’s benefits were terminated. The staff helps citizens to navigate the complicated rules and regulations of various government agencies. The representative or senator might even be asked to intervene in an international matter, such as when a constituent’s loved one runs into trouble in a foreign country. Almost any conceivable matter could be brought to the attention of the representative, and he or she is expected to do something about it. Because no one party or faction dominates Congress, members have to work together to get things done. No piece of legislation passes unscathed because the process encourages compromise. The American legislative process is continually accessible to the people, who can seek to influence Congress individually or through interest groups. From the writing of a bill through its passage, Americans compete in support or opposition to legislation, a key feature of American democracy. Many argue that interest groups, called “special interests” by critics, wield too much influence in the legislative process, especially when it comes to stalling or putting obstacles in the way of pending bills. On the one hand, it is undemocratic when a well-funded or highly effective group possesses disproportionate power. That situation can amount to minority tyranny, which the framers sought to avoid. The framers’ solution to this possibility may strike many as counterintuitive: in order to keep interest groups in check, the nation must allow them to flourish. The framers believed that the sheer number of interest groups in America (called “factions” back in colonial times) would guard against any one of them becoming too powerful, because the various groups would always be in competition with each other.

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James Madison famously made this argument in Federalist Paper No. 10, one of a series of essays written to convince Americans to ratify the new Constitution. Federalist 10 ranks as one of the most profound statements of American political philosophy (as well as political propaganda) ever written. Madison starts by explaining the framers’ view of human nature. It is rooted in Judeo-Christian beliefs about the uniqueness of the individual and about human imperfection. Each person, Madison argues, possesses distinct capabilities, interests, and skills. At the same time, all humans are flawed, and an individual cannot be expected to always follow the right course or act with good intentions. Because anyone has the potential to become corrupt during his or her lifetime, human frailty has to be accounted for in structuring a successful society or government. Human nature encourages individuals to seek out others like themselves and to form into groups. Individuals and the groups they joined would be selfinterested; that is, they would pursue their own goals and ambitions and take care of their concerns. Because no two individuals were alike, and no two groups were alike, the interaction of individuals and groups in society would be based on competition and conflict. Opposing groups would fight over scarce resources, including access to government. They would, in essence, “check and balance” each other. Historically, political philosophers had understood this interaction, but they viewed it as fatal to a democracy, which they predicted would collapse into anarchy. The conventional wisdom held that at best democracy could work only in a geographically small and homogenous country—one where citizens shared almost everything in common and where there was little dissension. The framers, on the other hand, contended that a large-scale democracy would not only survive but thrive when its diverse citizenry enjoyed the liberty to pursue all varieties of interests. In short, Madison argued that a large representative republic where factions were free to act was the best approach to implementing democracy on a large scale. This approach had never been tried before, but the philosophical engineers behind the Constitution predicted that bigger would be better. Today, when reporters, pundits, or even average Americans decry the seemingly disproportionate influence of interest groups who lobby before Congress (and who donate heavily to members’ campaigns), they might step back and consider that the system was designed to give a tremendous amount of freedom to these groups. Individuals can associate with whomever they want, and human nature tells us they will. The groups they form are expected to be free and active—in fact, they are encouraged to be. While it is possible for a single group to have significant political power, chances are that it will not always be successful in using it, because the group will face continual criticism and competition from others. And, if a group were to gain control over a member of Congress, that member has no independent ability to do anything—laws must be passed by majority vote. The framers reasoned that, given the complexity of the interactions in society, no group would be able to monopolize enough members of

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Congress (or government generally for that matter) to have their way with the legislative process. CURRENT CONTROVERSIES AND CHALLENGES Congress received a major wake-up call from the 2010 midterm elections. In an unusual show of force, voters took out their frustrations on incumbents, including many long-serving members of the House and Senate. Upset about the stagnant economy, continued high unemployment, and an anemic housing market, voters made clear that they wanted Congress to become more fiscally responsible in a hurry. They expected Congress to cut spending, address the cancerous federal debt, and reconsider expensive programs passed into law in the previous two years, including the health care reform bill. Republicans gained over 60 seats in the House, the biggest turnover in party control in nearly 70 years. They also gained 6 seats in the Senate, falling just short of the majority necessary to control it. Republicans won eleven gubernatorial races and lost four, for a net gain of seven. Unexpectedly, they gained control of several state legislatures as well. The 112th Congress was sworn in on January 5, 2010. Representative John Boehner (R-OH) replaced Nancy Pelosi (D-CA) as Speaker of the House. Boehner has announced ambitious plans to address current economic challenges and longterm fiscal problems. But, in keeping with the framers’ design, the House Republican majority cannot accomplish anything by itself. Republicans do not control the Senate, although they are likely to have sympathizers among conservative Democrats and Independent Senator Joe Lieberman (I-CT). Even with a favorable Congress, Republicans will not necessarily see legislative success because Democratic President Barack Obama can always use his veto pen. For this reason, plans by some members to undo Obama’s stimulus spending measures and to “repeal and replace” the health care reform bill are unlikely to succeed, given that the president supports them. Republicans have almost unanimously called for an end to “earmarks.” An earmark is a spending provision introduced by a member of Congress for the benefit of his or her own district. Earmarks differ from traditional expenditures because they are typically slipped into legislation unbeknownst to others and approved without debate. Earmark projects are criticized for being used by members to reward loyal supporters or bolster their own bids for re-election. Earmarks are often derogatorily referred to as “pork” (where representatives “bring home the bacon” for their districts) or “pork barrel spending.” While earmarks constitute only a tiny portion of the federal government’s overall budget, they are important symbols of government’s secret and often irresponsible spending habits. Although the voters sent a clear signal to forego wasteful spending shenanigans, it remains to be seen whether the 112th Congress will have the will and the votes to do so. In the short term, Congress and the president will have to find a way to work together to address the nation’s immediate economic challenges. Doing so requires bipartisan cooperation, another demand made by voters in the

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midterm elections. For a host of reasons, true bipartisanship in Congress, or between Congress and the president, is elusive. When it occurs, it is difficult to maintain. Many members of Congress have claimed that the institution has changed in recent years; it is “not like the old days,” where members could argue vehemently with each other all day but still share a meal and a beverage together that night. Instead, long-serving members characterize their colleagues as increasingly partisan and less willing or able to separate political issues from personal ones. Unfortunately, little can be accomplished in Congress if its members do not trust or respect one another. Healthy interpersonal relationships and friendships are necessary to facilitate compromise on legislation and to usher it through to completion. Without these relationships, bipartisan cooperation has become increasingly difficult to achieve, and Congress may be suffering for it. Indeed, the issue of bipartisanship is so significant that it is discussed as a separate topic in this volume (“Divided Government and Bipartisanship”); the reader is encouraged to review it to further understand how Congress operates. In the long term, they will have to take bold action to fix what may be the nation’s greatest threat, the burgeoning national debt. On November 10, 2010, the chairmen of President Obama’s National Commission on Fiscal Responsibility and Reform announced the results of a six-month study of the dangers posed by the national debt and the commission’s recommendations for eliminating it. The 18-member commission was bipartisan, headed jointly by former Republican Senator Alan Simpson (R-WY) and former Clinton chief of staff Erskine Bowles. The chairmen’s picture of America’s future was not pretty, and their suggestions for reducing the debt were, to put it mildly, offensive to many. The commission report recommended reducing, changing, or eliminating almost every significant government program. As Simpson put it, “we have harpooned every whale in the ocean.” Its plan left nothing untouched, including entitlement programs such as Social Security and Medicare that were widely thought to be sacred. Among other things, the commission proposed raising the retirement age, curbing the growth of Medicare, freezing the salaries of federal employees, cutting farm subsidies, and eliminating popular tax breaks such as the home mortgage deduction. It also called for raising some types of taxes (e.g., the federal gasoline tax) while cutting others (corporate income taxes). It called for deep cuts in defense spending and a significant reduction in foreign aid. Finally, it proposed aggressive spending reductions to be implemented over the next several years. Importantly, these recommendations were released before the entire commission had a chance to vote on them. According to the commission’s rules, each recommendation must be approved by 14 of its 18 members, a supermajority. Although bipartisan in makeup, the commission included staunch partisans from both political parties, meaning that agreement among them was unlikely. And, indeed, when the vote finally came, the commission decided 11:7 to approve its recommendations—a strong sign of support, but less than

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the 14 members necessary to ensure that the proposals went immediately to Congress for an “up or down” vote. Still, the commission has received praise from some circles for its “take no prisoners” approach to reducing the debt as well as for the sheer breadth of its reform plan. Members of the 112th Congress did not embrace the commission’s approach; many rejected it immediately because it targeted their favored programs. Those on the left complained that the provisions were too hard on vulnerable Americans who depend on Social Security and Medicare; those on the right worried about cuts to national defense and increases in certain taxes. Everyone had something to be upset about, and for that reason the debt-reducing recommendations are unlikely to be addressed until mid- to late-2011. The almost visceral reaction to the debt commission’s report suggests that Congress will not have an easy time coming to an agreement on debt reduction. It will take tremendous fortitude for members to vote for reforms that are guaranteed to alienate all of their important constituencies. Comprehensive reform might not be achieved until Congress has a critical mass of members who are willing to sacrifice their own re-election to achieve real reform. Madison’s predictions about human nature, as well as past experience, suggest that members of Congress will not act against their own self-interest. Then again, Madison might point out that humans have the capacity to join together and act for the good of the whole. For all of its failures, Congress historically has overcome its challenges to respond to crises and to correct major societal and governmental wrongs. Congress is not a perfect institution, but no human institution is. The challenge for Americans who want a “better” Congress is to try to understand not only how Congress operates, but also the values and assumptions behind its creation. SUMMARY Congress is a complicated institution that has always proven a favorite subject for scholarly debate. There are endless books examining it from every conceivable point of view. It is simply impossible to address it fully in a single essay. And, because this volume concerns today’s most controversial political issues, almost every entry in it is relevant to Congress! Some are particularly relevant, and the reader is encouraged to refer them in order to gain a more comprehensive view of the workings of America’s legislative branch. These entries include: “Divided Government and Bipartisanship,” “Campaign Finance Reform,” “Earmarks,” “Federalism,” “Lobbying,” “Primaries and Caucuses,” and “Term Limits.” Further Reading Books: Binder, Sarah A. Stalemate: Causes and Consequences of Legislative Gridlock. Washington, DC: Brookings Institution Press, 2008; Evans, Diana. Greasing the Wheels: Using Pork Barrel Projects to Build Majority Coalitions in Congress. New York: Cambridge University Press, 2004; Green, Matthew N. The Speaker of the House: A Study of Leadership. New Haven, CT: Yale University Press, 2010; Grynaviski, Jeffrey D. Partisan Bonds: Political Reputations and Legislative Accountability. New York: Cambridge University Press, 2010; Koger, Gregory. Filibustering: A Political History of Obstruction in the House and Senate. Chicago: University of Chicago Press, 2010; Peters, Ronald M. Speaker Nancy

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THE NOT-SO-LAME DUCK CONGRESS Congress is seated every two years. For example, the Congress serving from 2008 to 2010 was known as the “111th Congress”. A “lame duck” Congress refers to the short period of time between the November midterm or presidential election and the seating of the next Congress in early January. Many members of a lame duck Congress will not be returning, either because they retired or because they lost their bid for reelection. Typically, a lame duck Congress does not accomplish very much. Weary from their reelection battles or defeated in their efforts to stay in Congress, members are content to spend their last month in office quietly, enjoying extensive Thanksgiving and Christmas breaks back in their home districts. But from time to time, a lame duck Congress can accomplish a lot— and that’s exactly what happened, to almost everyone’s surprise, with the 111th Congress. It had a busy December, passing several significant pieces of legislation. First, the Congress and the Obama administration reached an agreement about extending the “Bush tax cuts” for another two years, ensuring that Americans’ income taxes would not go up in the midst of the nation’s economic recovery. At the same time, they extended unemployment benefits to the nation’s long-term unemployed. Next, Congress passed a significant overhaul of the nation’s food safety laws, the first such legislation in decades. Congress also passed legislation providing health coverage for 9/11 first responders. It also approved repeal of the “Don’t Ask, Don’t Tell” policy that banned openly gay and lesbians from military service. Finally, the Senate ratified the new START nuclear arms treaty with Russia. Given what President Obama called the “shellacking” experienced by Democrats during the midterm election just a month earlier, it is perhaps surprising that the Congress was able to come together on these major legislative issues. Many political pundits deemed the lame duck session a victory for President Obama, who had promised the repeal of Don’t Ask, Don’t Tell during his campaign and who had labeled the START treaty the most important component of his foreign policy agenda. In agreeing to extend the Bush tax cuts, moreover, Obama positioned himself as a centrist who showed that he was willing to work with Republicans toward solving America’s continuing economic crisis. In doing so, he was able to deflect attention from the midterm elections and toward his own policy goals. The 111th Congress is now in the books. Its members can take pride in the fact that, for its last two weeks at least, it was one of the most productive congresses in history.

Pelosi and the New American Politics. New York: Oxford University Press, 2010; Saeki, Manabu. The Other Side of Gridlock: Policy Stability and Supermajoritarianism in U.S. Lawmaking. Albany: State University of New York Press, 2008; Smith, Steven S. The American Congress. New York: Cambridge University Press, 2007; Smith, Steven S. Party Influence in Congress. New York: Cambridge University Press, 2007; Zimmerman, Joseph Francis. Congress: Facilitator of State Action. Albany, NY: State University of New York Press, 2010. Websites: Congress.org. http://www.congress.org/; C-SPAN. http://www.c-span.org/; The Hill. http://thehill.com/; The Library of Congress, THOMAS. http://thomas.loc.gov/; Project Vote Smart. http://www.votesmart.org/; Public Citizen, Congress Watch. http://

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Kathleen Uradnik CYBERTERRORISM In April 2007, computer systems in Estonia, a small but increasingly high-tech Baltic country, began to experience cyber attacks on its electronic infrastructure. For over a month, a series of these attacks penetrated Estonian websites including government ministries, banks, telecommunications companies, and Internet service providers. In one of the attacks, a flood of bogus messages shutdown the e-mail server of the parliament. The cyber attacks were “distributed denial-ofservice” (DDOS) attacks, which happen when multiple computer systems overload a website with so many incoming messages that it shuts down, denying service to users. In Estonia, the attacks were magnified by the infiltration of computers around the world with software known as “bots,” which were banded together in networks (or “botnets”) to perform the attacks. Botnets are computers infected with malicious code that can be controlled from remote locations from the Internet. Technology analysts believe that up to one million computers may have been involved in the botnet used to bring down Estonian websites. The cyber attacks in Estonia coincided with the removal of a Soviet-era World War II monument from the center of Estonia’s capital, Tallinn, to a military cemetery. The move triggered protests, riots, and looting from several thousand people, in particular by ethnic Russians in Estonia. At the beginning of the crisis, Estonian officials blamed the Russian government for the attacks, asserting that an Internet address involved in the attacks belonged to an official who works in the administration of Russia’s president, Vladimir Putin. The Russian government denied involvement. Analysts later concluded that the cyber attacks targeting Estonia came from separate attackers living worldwide. In January 2008, a court in Estonia convicted a 20-year-old man for bringing down the government with his home PC. As a response to the crisis, officials from the United States, NATO, Israel, and European Union (EU) nations traveled to Estonia to learn more about the cyber attacks. To many, the cyber attacks in Estonia illustrated the vulnerability of a country’s dependence on information technology. Cyberterrorism poses a major threat because the infrastructure of many countries, from online banking to electrical power grids, is networked through computers. Many believe that if computer hackers can penetrate computer systems, terrorists could do the same. Analysts and policy makers recognized the threat of cybercrime or cyberterrorism at the onset of widespread Internet use. During the Clinton Administration, reports warned of new “cyber-vulnerabilities” and the growing threat of “cyberterror” with the increasing dependence on electronic information. President Clinton set up an organization within the FBI to enhance national computer network security. Later, the Bush administration made cyber security a part of the new, cabinet-level Office of Homeland Security. In

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January 2008, President Bush signed two presidential directives calling for the creation of a comprehensive national cyber security initiative. There is no universal definition for “cyberterrorism,” and disagreement exists over the use of the term. The FBI considers cyberterrorism a premeditated, politically motivated attack against information, computer systems, computer programs, or data that results in violence against noncombatant targets; a cyberterrorist attack is designed to cause physical violence or extreme financial harm. For some, cyberterrorism is distinguished from other terms, such as “cybercrime,” by its use of a malicious code. Most experts agree that the difference between these terms lies in the intent of the attacker(s), and whether or not they have political motivations. Security experts also differentiate between “cyberterrorism” and “hacking.” Hacking is conducted online to manipulate or exploit vulnerabilities in computer operating systems and other software. Hacker groups are numerous and have different skill levels. Membership in some hacker groups may be global, with political interests that go beyond country borders. Individual hackers may be willing to sell their computer skills regardless of the political interests involved. Some experts fear that countries and terrorist groups could rent high-tech computer-savvy individuals, such as “botmasters,” for large amounts of money. This fear became reality in 2006, when a 20-year-old California man named Jeanson Ancheta was arrested and convicted for using malicious software to seize control of 400,000 computers and then selling that access to spammers and hackers. Hackers tend not to have political agendas and typically use tactics such as e-mail attacks, computer break-ins, and computer viruses and worms. Viruses can have a global impact. The “I Love You” virus, which originated in the Philippines in the spring of 2000, spread worldwide in one day, infecting 10 percent of all computers connected to the Internet. The attack caused billions of dollars in damage. The virus spread quickly among users of Microsoft Outlook and corporate networks that use the Microsoft Exchange e-mail server because it sent a copy of itself to every e-mail address in a recipient’s Outlook address book. Other cyber assault techniques include the use of “spyware,” which records keystrokes and collects information, such as passwords, without the user’s knowledge. Spyware software often goes undetected as it collects various types of personal information and Internet searching habits. Malicious codes disrupt normal computer functions and can open a back door for a remote attacker to take control of the computer without the owner knowing that his or her computer has been compromised. Some of the worst-case scenarios involve cyber attacks aimed at key national infrastructure sites such as nuclear-power-plant control systems, dams, and power grids. Although hackers have yet to cause serious damage to power grid systems (except in Hollywood movies), the threat is disturbing because most electric companies are unprepared for a catastrophic strike. The fear is that terrorists could engineer an attack that results in prolonged blackouts and damage to power plants, which would seriously disrupt the U.S. economy. Security consulting firms have hacked into power company networks to highlight the weaknesses in their systems. In 2007, an experiment was

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conducted at the Department of Energy’s Idaho Laboratory to determine whether a power plant could be compromised by cyberterrorists. The controlled experiment resulted in the disabling of a generator, causing experts to worry that a similar attack could be used against even larger generators. In 2002, Al Qaeda documents suggested possible cyber attacks on targets including the electrical grid. Laptops recovered by U.S. troops also revealed that Al Qaeda members spent time on websites offering programming instructions for digital switches that run a number of grids, including ones for power, water, and communications. These devices are now connected to the Internet, making them even more vulnerable to a cyberattack. One computer seized at an Al Qaeda office contained models of a dam made with structural architecture and engineering software that enabled the planners to simulate its catastrophic failure. The information did not show that Al Qaeda was planning a cyber attack, only that its members were accessing online information about the programming of critical infrastructure. To this point, the most damaging attacks in the United States have not been carried out by cyberterrorists, but rather by corporate employees or by individual hackers. A recent government report concluded that the barrier set for widespread and serious computer attacks is quite high. Terrorist groups currently lack the capability to mount a meaningful operation against the United States. Concern lies, however, in the ability of terrorist groups to access new technology to recruit members and raise money from illegal activities. THE APPEAL OF CYBERTERRORISM Cyberterrorism or cybercrime is appealing to terrorists for several reasons. First, it is considered cheaper than traditional terrorist methods that require recruits and may involve explosives and weaponry. In terms of hardware, all a cyberterrorist may need is a personal computer and access to the Internet. As one analyst noted, cyberterrorism requires less physical training, psychological investment, risk of mortality, and travel than traditional forms of terrorism. Second, cyberterrorism can be practically anonymous. Terrorists use screen names that make it very difficult for security agencies to detect the terrorists’ real identity. They can also coordinate attacks remotely on various targets from various countries around the world. The ability to identify a cyber attacker, and to determine whether the attack was state-sponsored or simply the work of individuals or groups, is especially challenging. Government experts believe that only 5 percent of cybercriminals are ever apprehended. Finally, the disruption caused by a cyberterror attack can directly impact a large number of people in a very short period of time. Although most policy analysts and scholars argue that the potential for cyber attacks is a serious issue, they disagree on how widespread the attacks are, who is behind them, and how disruptive they might prove to be. One Washington, D.C. think tank reported that in 2007, the Department of Homeland Security estimated roughly 37,000 attempted breaches of private and government computer systems and over 80,000 attacks on Pentagon systems. The greatest threat,

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however, remains economic. Some estimate that a shutdown of electric power to any sizable region of the country for more than 10 days would interrupt over 70 percent of all economic activity in that region. Despite the potential for tremendous damage from a cyberattack, scholars point out that there has been no recorded instance of a terrorist cyber attack on U.S. public facilities, transportation systems, nuclear power plants, power grids, or other key components of the national infrastructure. Cyber attacks are common, but they have not been conducted by terrorists and they have not sought to inflict the kind of damage that would qualify them as cyberterrorism. FEDERAL ACTION IN THE FACE OF CYBER THREATS The United States has responded to the threat of cyberterrorism with the passage of legislation to address its own computer security. In 2002, Congress enacted the Federal Information Security Management Act (FISMA), giving the Office of Management and Budget (OMB) responsibility for coordinating information security guidelines developed by federal agencies. The following year, the Bush Administration published the National Strategy to Secure Cyberspace to encourage the private sector to improve computer security for critical infrastructure. The report also called for the federal government to help detect, monitor, and analyze attacks, and to expand cyber security research. More recently, the Bush administration called on the National Security Agency to coordinate with the Department of Homeland Security to protect government and civilian communication networks from hackers. In 2008, President Bush signed two presidential directives calling for the creation of a comprehensive national cybersecurity initiative. Many security experts believe that the probability of a well-coordinated, serious cyberterror attack in the near future is low. Yet experts in both government and private sectors realize the need to address vulnerabilities in the electronic infrastructure of the United States. Most agree that a cyberterrorist attack could bring a devastating blow to the U.S. economy. Evidence that terrorist groups communicate via the Internet is seen in their ability to create websites for recruitment and fund-raising activities. Furthermore, there is growing concern that criminals and terrorist groups will work together, giving extremists the technical know-how to launch attacks. The increasing ability of terrorist groups to access cyberattack services available for hire from criminal organizations or individuals are deemed an ever-growing threat to national security. WIKILEAKS Unknown just a few short years ago, in 2010 WikiLeaks became the most controversial website on the Internet. The masterminds behind WikiLeaks do not consider themselves cyberterrorists, but the United States and other governments around the world would beg to differ. WikiLeaks claims to be a new kind of media organization that is committed to making government transparent. Its approach to creating open and honest

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government, however, is to publish classified, confidential, or otherwise secret documents and videos that it obtains from anonymous sources. Almost all of the documents provided to WikiLeaks were stolen from government agencies; whether WikiLeaks was involved in taking them, rather than just publishing them, remains to be determined. Spokesmen for the website deny any criminal behavior in gathering the documents that it publishes. Not much is known about the individuals behind the website, which was first launched in 2006. Its main spokesman is Julian Assange, an Australian who is a self-proclaimed “Internet activist.” Other computer scientists, journalists, and, dissidents have been associated with the group, but whether and to what extent they are involved is unclear. Since WikiLeaks exists on the Internet, there is no known headquarters or physical space for it. Assange, for his part, moves surreptitiously from place to place, keeping a low profile. Often he grants interviews in electronic form so that his whereabouts remain unknown. Early on, WikiLeaks released government documents about government atrocities in Kenya. Exposing police brutality in the African nation initially won the praise of human rights activists around the world. But the website quickly turned its attention to the United States, and set off a firestorm of debate after a series of “document dumps” on the Internet. In April 2010, WikiLeaks posted approximately 60 minutes of video showing a U.S. missile attack on buildings in Baghdad, Iraq. The series of airstrikes occurred in July 2007 and resulted in the deaths of two reporters affiliated with the Reuters news agency and several others believed to be civilians. This video footage had been classified by the U.S. government; how WikiLeaks obtained it has yet to be determined. Shortly after the videos appeared on the Internet, a 21-year-old U.S. Army intelligence analyst named Bradley Manning allegedly bragged about downloading the video from government computers, along with an undetermined number of other classified videos and documents. He was arrested and is currently being held in a military prison pending charges. WikiLeaks continued to release classified information about U.S. military activities. In July, it posted to the Internet nearly 77,000 pages of secret documents about U.S. war efforts in Afghanistan. In October, it published another 400,000 documents about the Iraq War. While some hailed the release of these documents, the U.S. government contended that it put U.S. operations in those two wars in jeopardy and threatened the lives of undercover operatives and informants whose names were made public. Then, in November 2010, WikiLeaks escalated its efforts by beginning to publish U.S. diplomatic cables. Diplomatic cables are confidential discussions between the U.S. State Department and the equivalent agencies in foreign countries. They are highly sensitive, because they constitute a detailed and often highly frank and personal record of how the various nations conduct foreign policy. Some of the cables were from Secretary of State Hillary Clinton herself; others were from foreign leaders and diplomats. Prominent newspapers around the world decided to publish selections of the WikiLeaks diplomatic cables dump. These included the New York Times in the United States, the Guardian in Great Britain, Le Monde (“The World”) in

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France, and Der Spiegel (“The Mirror”) in Germany. Wikileaks claimed to have several hundred thousand cables, which it planned to release in stages. Release of the diplomatic cables outraged governments around the world, which responded by pressuring the companies whose computer servers supported WikiLeaks, including Amazon, to stop hosting the website. In addition, MasterCard and Visa blocked the use of their credit cards for the purpose of supporting WikiLeaks, and PayPal also stopped processing donations to the organization. As traditional corporate Internet servers became unavailable, however, the WikiLeaks website was picked up by “mirror sites” around the globe. Backers of Assange and the website launched cyberattacks on Mastercard, Visa, and PayPal in retribution for their actions. The self-proclaimed “hacktivists” called their assault “Operation Payback”; just how many hackers were involved, and their identities, remains undetermined. On December 7, 2010, British officers arrested Julian Assange at the request of Swedish prosecutors, who wanted to question him in connection with rape and molestation charges arising from an incident in Stockholm. Assange had been placed on Interpol’s most wanted list when he failed to appear in court in Sweden. Shortly after his arrest, hackers retaliated by bringing down the website of the Swedish prosecutor’s office who had levied the charges against him. Assange remains in Britain, released on bail but restricted in his movements, as his attorneys fight extradition to Sweden. At the same time, U.S. Attorney General Eric Holder announced that the government was undertaking an extensive criminal investigation of the leak of the U.S. diplomatic cables aimed at bringing its perpetrators to justice. As of July 2011, however, no charges have been filed. CYBERHERO OR CYBERVILLAIN? Julian Assange is probably the most controversial figure in the world today. There isn’t much middle ground in the way he is perceived: he is a hero to some and a terrorist to others. Some nations and organizations have suggested he should win the Nobel Peace Prize; others want him executed for treason. He and his WikiLeaks supporters are polarizing governmental, media, human rights, and civic organizations around the globe. Prosecution of Assange in the United States is likely, but it will be tricky. He cannot be charged with treason because he is not a U.S. citizen. If he is a terrorist, he resembles the “enemy combatants” currently being detained at Guantanamo Bay, Cuba. Enemy combatants are not entitled to full protection by the Constitution or by any treaty, such as the Geneva Convention, because they attacked the United States as members of terrorist organizations with no governmental affiliation. (That is why enemy combatants are not given the same protections as prisoners of war, who are covered by treaties entered into by their governments.) Characterizing Assange as a terrorist, however, is likely to create an uproar from those who support freedom of speech and press, as well as from segments of the legal community who continue to fight to obtain full constitutional rights for the Guantanamo detainees.

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Charging Assange with criminal acts is complicated by the fact that, at least at this time, there is no evidence he actually stole any documents or computer files from the United States. Authorities are likely to charge Private Manning for illegally obtaining classified documents, and they will pursue any other military or government employees who may have done so. But in the United States, it is not necessarily illegal to publish stolen documents as long as the publisher did not participate in stealing them. The First Amendment of the U.S. Constitution protects both the freedom of speech and the freedom of the press. In fact, America extends these protections further than any other country, believing them essential to keeping Americans free and their government honest. Several decades ago, in a case called Near v. Minnesota, the U.S. Supreme Court determined that government could not censor the press by stopping it from publishing embarrassing or controversial information about government officials. The decision set forth what became known as the “prior restraint doctrine,” which means there can be no prior restraint by government on the publication of information. Later, in 1971, the Supreme Court was called upon to determine whether the New York Times and Washington Post could be stopped from publishing classified military documents about the Vietnam War. In the Pentagon Papers case, the Supreme Court held 6:3 that the government could not interfere with the publication of those materials. The right to publish is not absolute. If the government wants to prohibit publication of sensitive material, however, it bears the difficult burden of proving that release of the material will cause “grave and irreparable” danger. Claiming that a document must remain secret because it is “vital to national security” is not sufficient to meet this burden. According to the Supreme Court, the government is not entitled to simply assert that publication of certain materials would damage its interests. Rather, the government must demonstrate that a tangible, serious harm would arise from publication. The example most commonly given as showing imminent harm is the publication of troop movements or the hidden strategic locations of U.S. forces—in that case, it is reasonable to assume that publication could lead to attacks on these men and women. Short of that, however, the government under current First Amendment law is not allowed to stop the publication of materials, even if they have been stolen and given to media outlets. The United States and its citizens often pay a high price for its unparalleled commitment to freedom of speech. Many democracies place restrictions on what citizens can say in an effort to protect not only the government, but certain minority groups who might be targeted by hatred from others. Americans are free to offend others in the name of the First Amendment even though their speech may be particularly cruel. Similarly, Americans are free to target their government to express their opposition to its practices. Federal, state, and local governments have often been embarrassed by publication of information that shows ineptness, corruption, or deceit by its officials. Americans support these acts because it keeps government honest and facilitates open, informed debate about government policies. Americans’ unwavering belief in

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the right to oppose government dates back to the American Revolution, when the colonists rejected Britain’s attempts to censor their growing dissatisfaction with British rule. There is no doubt that the framers of the Constitution intended to protect speech, and especially political speech. Freedom of speech and press were historically considered a cornerstone of democracy, and support for these rights has never waned. Today, Americans continue to view the First Amendment as inviolate. Still, no right is absolute. Government can place certain limits on free speech, and in some circumstances speech can amount to criminal behavior. The line between protected speech and criminal behavior is not always clear, a fact that WikiLeaks knows and has exploited to its advantage. At this time, it is difficult but not impossible to access WikiLeaks on the Internet. U.S. and foreign governments have successfully forced it from large corporate servers, but supporters have managed to keep it online through various devices around the world. Tracking down the leaders and supporters of WikiLeaks is a daunting task, because they are sophisticated users of the Internet who act anonymously and cover their tracks. As supporters of Assange respond to his opponents, the Internet is experiencing a kind of “cyber war.” Unfortunately, the reach of this war potentially extends to anyone who uses the Internet. Millions of customers were affected by the attacks on MasterCard and Visa; even former Alaska Governor Sarah Palin’s website was hacked, presumably because she expressed outrage at WikiLeaks’ activities. Things may get worse. Assange announced that he and his supporters had created a huge, hidden cache of secret files that was attached to WikiLeaks’ previous Internet postings. Anyone who downloaded information from WikiLeaks unwittingly also downloaded this cache, which means it is sitting unopened on hundreds of thousands of computers worldwide. Calling it his “insurance policy,” Assange has threatened to open the cache and release the documents if WikiLeaks is forced off the Internet. He claims that a 256-character password will unlock the files, and if anything should happen to him, individuals are in place who know how to use it. Computer experts agree that such a lengthy password would be virtually impossible to identify. To date, no such files have been released, but early indications are that they do exist. One particularly disconcerting problem is that these hidden files many not be limited to government documents, but may also contain records from one or more of the world’s largest corporations. Assange claims to have files from a major U.S. bank (yet unnamed but thought to be Bank of America) and from BP and other energy companies. SUMMARY The use of the Internet to inflict chaos on governments, businesses, and even consumers is in its infancy. But it has come a long way in a short period of time. The days of hacking into websites for fun or thrills is over; WikiLeaks has raised the stakes to levels that were once only imagined in science fiction or spy novels. The scope of WikiLeaks’ activities is not even known, and the full

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WORM WARFARE For years, Iran has been developing nuclear technologies. Although it claims to be building power plants to produce energy for the country, few nations in the world believe that Iran’s nuclear intentions are peaceful. The United States and its allies have long opposed Iran’s nuclear program, concluding that Iran is constructing nuclear weapons. The United Nations has tried to investigate Iran’s motives, without success. Consequently, it has imposed a series of sanctions on the nation for failing to cooperate with its nuclear weapons inspectors. Frustrated with Iran’s intransigence and unconvinced that diplomacy will work, many observers have called for the elimination of the nuclear facilities by any means necessary, which was a thinly veiled way of saying that someone should bomb them. But why bomb a nuclear facility when you can “worm” it? Recently, some nation or group struck a decisive blow against Iran’s Natanz nuclear facility without dropping a bomb or firing a shot. In what has been characterized as the first use of a computer virus as a weapon of war, someone created a highly sophisticated, virtually undetectable worm called “Stuxnet” that infiltrated the computers that controlled Iran’s nuclear centrifuges. Once there, it instructed the centrifuges first to spin rapidly and then to stop immediately, which caused tremendous damage to them and corrupted the plant’s uranium supply. The fact that the worm was able to operate and destroy the centrifuges was remarkable in itself, because it required extensive information about how they worked. More amazing is that none of the computers inside Iran’s nuclear facilities was even connected to the Internet. They were deliberately isolated to prevent attacks from the outside. Although the details are not exactly clear, it appears that the creators of Stuxnet counted on the fact that someone in the Natanz facility would eventually use an external device like a flash drive on his home computer or some other public computer and then take it to the worksite. Once there, the worm made its way into the site’s computers. It then infiltrated the Windows 7 operating system by exploiting previously unknown vulnerabilities. After that, it inserted itself into the software that operated the nuclear centrifuges, where it directed them to spin wildly and stop. All of these activities were hidden from the nuclear and computer scientists at the site, because the worm went completely undetected. Even when the centrifuges failed, scientists were at a loss to explain it because all of their computer systems seemed to be working normally. The worm changed and replicated itself to remain undetected, and by some estimates it remained in the Iranian computers for more than a year. Eventually, a Belarusan company working at an Iranian utility plant detected the worm and sent out a warning about it. However, the creators of the worm anticipated its eventual detection and managed to crash all of the computers that received the alert, buying them time to destroy all traces of it. As the circumstances surrounding the Stuxnet worm came to be known, governmental and computer experts were astounded. No one had ever seen such a meticulously planned, precisely executed, and carefully concealed attack. Those who studied the worm concluded that it had taken some of the best minds in the world to conceive and implement it, implying that only a government, and not a sophisticated hacker, would have the resources to create it. For that reason, the Stuxnet worm has been deemed by many to be the first use of a computer virus as a weapon to attack and destroy an enemy’s key infrastructure.

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No one has claimed responsibility for launching the Stuxnet worm, although it is speculated that the United States and/or Israel created it. While its damage was limited to Iran’s nuclear facility, the repercussions of the attack continue to be felt around the globe. Governments, corporations, and private parties are reeling from the realization that this latest computer worm is light years ahead of the ones they have seen in the past. They are frantically reassessing their computer security measures in the hope of guarding against anything like it that should appear in the future. The Stuxnet worm did its job in Iran, but it also succeeded in unnerving the rest of the world, which must now figure out how to defend against similar worms.

impact of its activities has yet to be felt. One thing is certain, however: even if WikiLeaks is stopped, other self-professed Internet activists are sure to create new websites to take its place. Cyberterrorism is a threat to anyone who uses a computer, one that is likely to get worse before it gets better. Further Reading Books: Arquilla, John and Davide Ronfeldt, eds. Networks and Netwars: The Future of Terror, Crime, and Militancy. Santa Monica, CA: RAND, 2001; Gerdes, Louise I. ed. Cyber Crime. Detroit: Greenhaven Press, 2009; Erbschloe, Michael. Information Warfare: How to Survive Cyber Attacks. New York: Osborne/McGraw-Hill, 2001; Libicki, Martin C. Conquest in Cyberspace: National Security and Information Warfare. New York: Cambridge University Press, 2007; Rice, David. Geekonomics: The Real Cost of Insecure Software. Upper Saddle River, NJ: Addison-Wesley, 2008; Sherman, Mark. Cyber Crime and Cyber Terrorism. Washington, DC: Federal Judicial Center, 2002. http:// purl.access.gpo.gov/GPO/LPS114804; Verton, Dan. Black Ice: The Invisible Threat of Cyber-terrorism. New York: McGraw-Hill, 2003; Weimann, Gabriel. Terror on the Internet: The New Arena, the New Challenges. Washington, DC: The United States Institute of Peace, 2006; Wilshusen, Gregory C. Federal Information Security Issues. Washington, DC: U.S. Govt. Accountability Office, 2009. Websites: Center for Strategic and International Studies. Securing Cyberspace for the 44th Presidency. http://csis.org/files/media/csis/pubs/081208_securingcyberspace_44.pdf; Computer Crime Research Center. http://www.crime-research.org/news/18.04.2004/ 222/; Cyberterrorism Defense Initiative. http://www.cyberterrorismcenter.org/; Symantec Security Response. Cyberterrorism? 2003. http://www.symantec.com/avcenter/reference/ cyberterrorism.pdf; Wilson, Clay. Botnets, Cybercrime, and Cyberterrorism: Vulnerabilities and Policy Issues for Congress. 2008. Congressional Research Service. http://www.fas .org/sgp/crs/terror/RL32114.pdf

Sara Hower and Kathleen Uradnik

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D DEATH PENALTY As of December 1, 2010, 3,261 convicted criminals sat on death row across 36 states and before the federal government. California has the most inmates on death row (697), followed by Florida (398) and Texas (337). Perhaps surprisingly, Pennsylvania is fourth on the list with 222 death row inmates. (Unlike the others, however, it does not perform executions on a regular basis because the state’s Supreme Court imposed a moratorium until officials could determine whether race was a factor in death penalty convictions.) The federal government, which reinstated the death penalty in 1988, has approximately five dozen prisoners on death row. Since reinstatement, only three federal criminals have been executed, the most famous of whom was Timothy McVeigh, convicted of the 1995 bombing of the Murrah Federal Building in Oklahoma City that killed 168 people. The U.S. military, too, uses the death penalty. Today, nine men are on its death row, although the military has not performed any executions since 1961. Opponents of capital punishment in the United States have challenged it in the courts and in the court of public opinion for at least the past 100 years, and they continue to do so vigorously today. The earliest court cases challenged specific methods of execution, largely unsuccessfully. Later cases challenged the fundamental principles underlying capital punishment, asking whether a civilized society should be allowed to execute individuals, whether it could do so fairly, and whether doing so acted as a deterrent to other criminals. Discontent with capital punishment grew and reached its pinnacle in this country in the late 1960s and early 1970s. Polls from that time show that many Americans believed capital punishment to be immoral. Today, the public remains deeply divided on

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the issue, and the Supreme Court has shown renewed interest in the debate, as well. THE 1970S: DEATH PENALTY REFORM In 1972, the Supreme Court held in the case of Furman v. Georgia that capital punishment violated an individual’s constitutional rights under the Eighth and Fourteenth Amendments. Prior to Furman, the Supreme Court had largely deferred to the individual states, which were allowed to set their own legal procedures for criminal cases. But in this decision, the Supreme Court recognized that the methods and standards used to impose capital punishment in the states were inconsistent and often afforded minimal protections for criminal defendants. Due to these inconsistencies, the Supreme Court held that capital punishment constituted “cruel and unusual punishment” under the Eighth Amendment. The Court required the states and the federal government to examine their capital punishment statutes to ensure that defendants’ rights to equal protection and due process were being upheld. For a time, then, the use of the death penalty was suspended across the nation as the states worked to reform their procedures and practices. Four years after Furman, the Supreme Court heard arguments in Gregg v. Georgia and the subsequent companion cases of Jurek v. Texas, Roberts v. Louisiana, Proffitt v. Florida, and Woodson v. North Carolina. In response to the Furman ruling, the states had proved eager to make the reforms necessary to bring capital punishment into compliance with the Constitution and make it available again for use against violent offenders. In these cases, the Supreme Court made several important rulings. First, the Court decided that the death penalty if properly undertaken did not constitute “cruel and unusual” punishment. Second, the Court upheld the new capital punishment statutes and sentencing procedures in Georgia, Texas, and Florida. Third, the Court struck down mandatory death sentences for certain crimes. Today, capital punishment is no less controversial than it was during the Furman era. Parties continue to petition the Supreme Court in the hope that it will further limit or ban the practice. The most recent cases have challenged the practice of executing minors, rapists, and the developmentally disabled as well as the constitutionality of the administration of lethal injection. The opinions produced by the Court regarding these legal challenges have produced some restrictions on capital punishment. However, the post-Furman Court appears reluctant to rule that capital punishment itself automatically constitutes “cruel and unusual” punishment. CONSTITUTIONAL JUSTIFICATIONS FOR CAPITAL PUNISHMENT According to current Supreme Court interpretation, capital punishment is constitutionally permissible. The framers understood it and had experienced it—the signers of the Declaration of Independence, for example, knew that they

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were committing treason against Great Britain and would be killed if captured. They did not outlaw capital punishment in writing the Constitution. To the contrary, the Fifth Amendment of the Constitution seems to allow for the death penalty under appropriate circumstances. It provides that no individual “shall be deprived of life, liberty, and property without due process of law.” (Emphasis added.) The Supreme Court has consistently held that, when due process is provided, government can take a life through capital punishment. Language in the Eighth Amendment protects individuals from “cruel and unusual punishment.” Opponents of the death penalty argue that imposing a death sentence is, by definition, cruel and unusual. In addition, they argue that it is impossible for states to impose the death penalty in a fair and unbiased manner. For a time, the Supreme Court agreed with the latter argument by requiring the states and the federal government to adopt procedures that would help to eliminate biases, to improve protections for criminal defendants, and to make imposition of the death penalty less arbitrary. Over the years, these decisions have resulted in a list of restrictions placed on death penalty prosecutions. First, the death penalty is reserved for use in only the most heinous crimes. Mere murder does not warrant a sentence of death; instead, the Court must consider whether the murder was intentional and should weigh “aggravating” and “mitigating” circumstances in determining whether death can be imposed. “Aggravating circumstances” are facts that show why a crime is particularly egregious—they typically include such things as the murder of a police officer, multiple murders, or particularly cruel or violent murders. “Mitigating circumstances” are those facts that tend to show that a crime is not horrific or that the defendant might merit a lesser sentence. These can include a defendant’s mental or physical illnesses, childhood abuse, remorse for the victim, and so on. Because each state under federalism runs its own criminal justice system, the exact approach will vary from state to state. The federal government, for its part, reserves the death penalty for treason, espionage, genocide, and numerous forms of murder such as the murder of a federal elected official or law enforcement official, murder during hijacking or kidnapping, and the like. Second, a sentence of death cannot be automatically imposed by statute for a crime. The nature of the crime must always be taken into account, as noted above. In most states, the legal process in a death penalty case is separated into two stages, the conviction stage and the punishment stage. The jury first decides the question of guilt or innocence and then meets again to decide the punishment. A jury must number at least twelve members and must unanimously recommend death for that sentence to be imposed. Further, a convicted criminal sentenced to death must be given an automatic appeal. PHILOSOPHICAL JUSTIFICATIONS FOR CAPITAL PUNISHMENT The basic premise of modern social contract theory states that in order to escape the “state of nature” and to preserve and maintain social order, individuals must surrender some of their rights to a sovereign power. Members of

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society are bound to this social contract. In order to maintain order, the sovereign may impose whatever laws it sees fit. When an individual breaks the social contract (now in the form of law), the sovereign, under the social contract, has full justification when punishing an offender. Social contract theorists such as Thomas Hobbes and John Locke argued that the justice administered to criminals must be swift and severe and the penalty imposed must be proportionate to the crime committed. This particular view of social contract, however, does not take into account the motives or background of the perpetrator. According to Hobbes, Locke, and Jefferson, capital punishment is an appropriate penalty for crimes against society after due process occurs. John Stuart Mill and Immanuel Kant have a similar approach in their social contract theory, but they begin to consider other factors when deciding punishment. In the tradition of utilitarian philosophy, Mill seeks to provide the greatest good for the greatest number while inflicting the least harm. This is known as the “least harm principle.” For Mill, capital punishment becomes a tool used by the government not only to punish an individual, but to influence his and others’ behavior. The sovereign operates on deterrence rationale. The penalty for a crime against the state is made steep enough—yet still in proportion to the crime—to discourage a rational person from breaking the law. For example, if the penalty for all murder were death, a rational person would not commit murder unless the circumstances were extraordinary, such as in the case of self-defense. A high punishment for one, in short, deters bad behavior in others. Kant supports capital punishment as well, but for different reasons. An individual is considered an autonomous, moral agent by the state. The state has the obligation to recognize and respect the worth of each individual. Because the state must recognize the worth of an individual, if a crime is committed that warrants capital punishment, the sentence must be imposed. In administering proportional punishment, the state demonstrates its respect for an individual’s actions and therefore the offender—according to Kant’s theory—must be punished in accordance with his or her actions. By using a universal approach when imposing capital punishment, the state then becomes free from placing the values of “right” and “wrong” on actions of an individual. Universal law applies regardless of time, place, and circumstance. In this instance, for example, if the penalty for all murder were death, all who committed murder would be executed—even those committing it in self-defense. Social contract theory, therefore, provides grounds for capital punishment for a variety of reasons. Whether for the state’s power and benefit; the least harm principle; the deterrence rationale; or for the preservation of self-worth and personhood, many theorists at least historically accepted the merit and imposition of capital punishment in society. INTERNATIONAL OPPOSITION Support for the death penalty, however, is far from worldwide. For many years, foreign governments and international advocacy groups such as Amnesty

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International have pressured the United States to outlaw the death penalty. According to Amnesty International statistics, 137 nations have outlawed the death penalty in its entirety or have limited its use to extraordinary situations. The United States is not among them. Critics point out that the United States is virtually alone among developed nations in maintaining the death penalty. Over the past 40 years, almost every European state has banned it, save for one or two postcommunist countries in Eastern Europe. Canada and Mexico have also banned it. The fact that America’s allies have banned the death penalty has caused practical problems for law enforcement officials and prosecutors who seek the return of fugitives who have escaped overseas. Many countries refuse to return fugitives to the United States unless the prosecuting authority pledges not to seek the death penalty at trial. In 2008, for example, Americans were shocked by the murder of 20-year-old Marine Lance Corporal Maria Lauterbach, who was stationed at Fort Bragg, North Carolina. Lauterbach had accused fellow Marine Corporal Cesar Laurean of rape and was eight months pregnant when she disappeared. Her remains were found in Laurean’s backyard, and Laurean fled to Mexico. He hid for three months before he was located and arrested by U.S. and Mexican authorities. However, Mexico refused to extradite Laurean to North Carolina until the prosecutor in his murder case agreed not to pursue the death penalty against him. After consulting with the victim’s family, the prosecutor did agree, reluctantly. CHALLENGES TO THE JUDICIAL SYSTEM Although death penalty opponents failed to convince the Supreme Court that the death penalty was cruel and unusual punishment under the Eighth Amendment, they continued to challenge the way it was being administered by the states. After states changed their procedures in response to Furman, defendants’ counsel turned their attention to the makeup of death penalty juries and the race and gender of the individuals being sentenced to death. Attorneys argued that peremptory challenges—the legal device used by trial lawyers to excuse certain prospective jurors that they do not want on their case—were being used in a racially biased manner, with minority defendants being convicted by all-white juries. In addition, death penalty opponents argued that juries were sentencing minority defendants to death far more often in cases where the victims were white. Opponents also pointed out that female criminals hardly ever received the death penalty. In short, they argued that, even with improved procedures, the states could not ensure fair trials in death penalty cases. Finally, opponents of the death penalty pointed out that it was impossible not to make mistakes, and that innocent people would be wrongly sentenced to death. Recent advances in DNA and other types of forensic evidence have indeed led to freedom for many individuals on death row. In 2000, then-Illinois Governor George Ryan issued a moratorium on the death penalty in his state. Ryan, who had previously favored the death penalty, had been embarrassed by the release of 13 death row inmates in the state after newly discovered evidence

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had cleared them. The 13 included one man who, after 15 years on death row, was within two days of execution when he was exonerated. The governor noted that since the state had reinstated the death penalty in 1977, it had executed twelve individuals while exonerating 13, a clear sign that something was wrong with its judicial system. He convened a high-level commission to review the 13 cases and the procedures used in death penalty cases. Ultimately, before he left office, Governor Ryan commuted the sentences of all of Illinois’ death row inmates to life in prison. Subsequent governors have continued his state’s moratorium on the death penalty. PERMISSIBLE FORMS OF EXECUTION Aside from arguing whether the state can be justified when taking the life of an individual, methods of execution have also been challenged extensively in the courts. The framers—whether intentionally or not—left the interpretation of the Eighth Amendment to future generations. The notion of “cruel and unusual” punishment has evolved since the framers’ era. The original intent behind cruel and unusual probably meant to prohibit “drawing and quartering” or “tarring and feathering” as well as other archaic and uncustomary forms of punishment, while punishment in the form of hanging and the firing squad remained acceptable. As time and society evolves, so do the standards and ideas of what is considered cruel and unusual. Today, most states impose the death penalty by lethal injection because other methods are considered, or have been found by the courts to be, inhumane. Currently, lethal injection is used by 36 states and the federal government in capital punishment. Opponents have challenged the administration of lethal injection, arguing that it is not painless, that the prisoner does not fall asleep right away, and that death can take some time. In 2008, however, the Supreme Court held in Baze and Bowling v. Rees that Kentucky’s use of a four-drug cocktail for lethal injection did not violate the Eighth Amendment. In their case, the inmates conceded that, when administered correctly, the drugs are in fact humane in nature. The Court held that lethal injection is designed specifically so that it does not inflict lasting torture and pain. The defendants ultimately failed to show that lethal injection is cruel and unusual. Other forms of execution such as hanging, electrocution, and the gas chamber remain on the books in some states, but as a practical matter they are not used because it is unlikely that they would survive a court challenge. RECENT CASES CREATE EXCEPTIONS In recent years, the Supreme Court has limited the scope of the death penalty by exempting certain classes of citizens from it, namely minors and developmentally disabled individuals. In 2005, the Court decided in the case of Roper v. Simmons that no perpetrator under age 18 when the crime was committed could be sentenced to death, thus protecting all minors from execution. In ruling 5:4 for Simmons, an offender who had committed murder when he was

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17, the justices concluded that “modern standards of decency” had evolved to the point where national and international opinion disfavored the execution of all minors. The Court cited acts of several state legislatures in its decision. The opinion also stated that capital punishment was disproportionate punishment in the case of minors. Evolving standards of decency and disproportionate punishment also explain why the Supreme Court protected mentally challenged individuals from execution in the 2002 case of Atkins v. Virginia. Atkins was convicted by a jury on abduction, armed robbery, and capital murder charges and was sentenced to death. A forensic psychologist testified to the fact that Atkins suffered from mild mental retardation. Due to a misleading verdict form, Atkins needed a second sentencing. Again, the jury sentenced him to death, but this time the state rebutted his intelligence claims. The Virginia Supreme Court affirmed the sentence, which was then appealed to the Supreme Court. By a 6:3 vote, the Court held that the execution of developmentally disabled persons violates the Eighth Amendment. Death, they held, is not an appropriate punishment for mentally challenged persons due to their diminished culpability. Citing “evolving standards of decency,” the majority of the Court ruled that “such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” Importantly, however, the Court did not define what it meant by a “mentally retarded offender,” leaving it to the lower courts to determine how mentally limited or incapacitated a convicted criminal has to be in order to avoid the death penalty. The courts continue to struggle with this issue today. RAPE AND CAPITAL PUNISHMENT Social contract theory and constitutional doctrine hold that the punishment must be proportionate to the crime. In the past, the Supreme Court has held that imposing capital punishment for rape is disproportionate to the crime and constitutes an excessive punishment. (Criminal justice scholars point out that, in addition, imposing capital punishment for rape is a bad idea because it removes the incentive for the offender to keep the victim alive.) For these reasons, the Court has held capital punishment for rape unconstitutional. That fact, however, did not deter some states from trying to punish certain types of rape with the death penalty. In Louisiana, the legislature passed a law permitting the death penalty for cases in which a child under the age of twelve is raped. In 2003, a Louisiana jury convicted Patrick Kennedy of child rape and sentenced him to death. The Louisiana Supreme Court affirmed the jury’s sentence. They reasoned that the Supreme Court’s previous cases had applied only to the rape of an adult and did not limit capital punishment for the rape of a child. The Louisiana Supreme Court also reasoned—similar to Atkins and Roper—that a national consensus affirmed this sentiment because the states in the last several years had become much more vigilant about protecting children and much harder on child predators. The Supreme Court disagreed. In a 5:4 vote, the majority held in the case of Kennedy v. Louisiana that, despite the fact that child rape is a terrible crime,

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the punishment of death is disproportionate to it. The Court struck down the Louisiana law and similar laws passed in four other states. Reaction to the decision was mixed: opponents of the death penalty heralded the decision for limiting its scope; proponents of the death penalty and, more broadly, members of child advocacy groups criticized the Court for failing to protect children from what many argued was the most heinous crime that could be committed on a child short of murder. Both Republican presidential candidate John McCain and Democratic presidential candidate Barack Obama disagreed with the decision—Obama because he believed that child rape was, in fact, one of the few crimes serious enough to be punished by death, and McCain because he believed both that the crime was heinous and that the Supreme Court should not interfere with the states’ legislation on this issue. SUMMARY Public opinion polls show that most Americans today favor the death penalty as the ultimate punishment for those who commit society’s worst offenses. Considering case law and the current composition of the Supreme Court, the death penalty will most likely remain constitutional barring an overwhelming amount of evidence proving that it cannot be administered in a constitutionally sound manner. The issue of whether the death penalty constitutes cruel and unusual punishment seems settled—so long as the states implement the punishment in a careful and humane manner. But serious issues over whether the death penalty can be fairly administered remain, and likely always will. For its part, the Supreme Court seems reluctant to take on the death penalty itself, preferring to chip away at it periodically when it senses that national opinion seems to have changed. The states, therefore, remain the primary battleground for debate on the efficacy and legitimacy of the death penalty. States decide for themselves whether to adopt it and how best to ensure that it meets the requirements of the Constitution. Because of the state autonomy guaranteed by federalism, the punishment for identical crimes can vary from state to state, with some imposing death and some not. Those who oppose the death penalty will continue to make legal arguments, but at this point it is perhaps more practical for them to address the voters, who through their elected legislative officials determine whether the death penalty can and should be used. Further Reading Books: Allen, Howard W., Jerome M. Clubb, and Vincent A. Lacey. Race, Class, and the Death Penalty: Capital Punishment in American History. Albany, N.: State University of New York Press, 2008; Banner, Stuart. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2003; Beck, Elizabeth, Sarah Britto, and Arlene Andrews. In the Shadow of Death: Restorative Justice and Death Row Families. New York: Oxford University Press, 2007; Bedau, Hugo Adam, and Paul G. Cassell, eds. Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford University Press, 2004; Foley, Michael A. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. Westport, CT: Praeger, 2003;

Divided Government and Bipartisanship Mulvey-Roberts, Marie, ed. Writing for Their Lives: Death Row U.S.A. Urbana: University of Illinois Press, 2007; Gershman, Gary P. Death Penalty on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, CA: ABC-CLIO, 2005; Sharp, Susan F. Hidden Victims: The Effects of the Death Penalty on Families of the Accused. New Brunswick, NJ: Rutgers University Press, 2005. Websites: American Civil Liberties Union, Capital Punishment Project. http://www.aclu .org/capital-punishment; Amnesty International USA. http://www.amnestyusa.org/ death-penalty/page.do?id=1011005; Death Penalty Information Center. http://www .deathpenaltyinfo.org/; Hall, Charlene. Pro-Death Penalty.Com. http://www.pro deathpenalty.com/; Messerli, Joe. BalancedPolitics.org. “Should the Death Penalty Be Banned as a Form of Punishment?” http://www.balancedpolitics.org/death _penalty.htm; PBS Online. Frontline: Angel on Death Row. “The Death Penalty Pro/ Con.” Frontline: Angel on Death Row. http://www.pbs.org/wgbh/pages/frontline/angel/ procon/; Youdebate.com. “Death Penalty Debate: Is the Death Penalty Good for Society?” http://www.youdebate.com/DEBATES/death_penalty.HTM.

Kathleen Uradnik DIVIDED GOVERNMENT AND BIPARTISANSHIP “Divided government” refers to the situation where the United States’ two major political parties control different branches of government. The term is most often used when the president is from one political party and the majority in Congress is from another. It can also apply when the House of Representatives has a majority of members from one party and the Senate is controlled by a majority from the other. The same concept applies to state legislatures as well. For example, when former pro-wrestler Jesse “the Body” Ventura served as governor of Minnesota (1999–2003), one house of its legislature was Democratic, the other was Republican, and Ventura himself was an Independent. Divided government is widely considered a problem in the United States. Scholars argue that it is more difficult to pass legislation and to accomplish the duties of governing when power is divided between the two major parties. Some further contend that overcoming the challenges of divided government is more complex here than in other democracies because the United States has a deeply ingrained two-party system. Voters decry the fact that elected officials of different parties cannot seem to come together to work for the benefit of the country. Americans want their representatives to acknowledge their common interests and goals. This spirit of cooperation between members of different parties is called “bipartisanship,” where elected officials overcome their differences and work across party lines to get things done. In a divided government, bipartisanship is often elusive and sometimes nonexistent. Why do elected officials from the Democratic and Republican parties find it so hard to get along? They are called to represent the citizenry in tackling complicated and divisive issues that would seem to require respect and civility among legislators. Instead, members of Congress seem engaged in endless finger pointing, blaming one another for legislative stalemates. Is there something about the American two-party system that makes this bickering inevitable?

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One way to look at this question is in a comparative context. Unlike the United States, which has always been dominated by two major political parties, almost all other democracies have multiparty parliamentary systems where the parties are accustomed to bargaining and compromising among themselves. In a parliamentary system, the nation’s chief executive (typically called the “prime minister”) is selected by the party that wins the majority of the votes in the parliamentary election. Unlike the United States, where citizens vote for president, there is no separate election for prime minister in these countries. Instead the prime minister comes from the parliament and typically retains a seat there while serving as the nation’s chief executive. Having multiple parties on the ballot vying for power often means that no one party wins enough votes to control the parliament. If no one party has a majority, it is difficult to form a working government. The various parties have to find a way to cooperate in governing, which they do most commonly by forming a “ruling coalition.” Like the name suggests, a ruling coalition is an agreement among two or more parties to rule cooperatively. Parties work together to garner the majority of votes necessary to implement their policies and ensure that their legislation passes. As long as the parties cooperate in governing, they can always get their way because they have enough votes to ensure that their proposals are approved. Opposition party members can do little more than watch and argue against the majority—they do not have the votes to stop them. Typically, if a ruling coalition falls apart, the government collapses and elections must be held again. Thus in parliamentary democracies, political leaders may in fact be more accustomed to working with members from other parties; they are forced to do so if they want to participate in governing. In the United States, however, political parties do not have to cooperate to form a government. Elected officials are seated in Congress, and the president is inaugurated, no matter what political affiliation they hold. In short, government goes on. Whether that government actually accomplishes anything is the main issue in the American political system. In recent decades, divided government at the federal level has been the norm rather than the exception. Presidents Bill Clinton and George W. Bush faced Congresses controlled at least in part by the opposite party. For his first two years in office, President Obama enjoyed a Democratic Party majority in both houses of Congress, but that ended with the 2010 midterm election. On first glance, it is true that a president facing a divided government cannot count on Congress to support his policies. Members of Congress constitute the opposition, after all. The president needs to convince members of the other party to support his initiatives, and likewise the members of Congress need the president to sign off on any legislation that they want. If the members of each party dig in their heels, nothing gets done. Unified party rule, however, often proves just as challenging. Although President Obama had Democratic majorities in both houses of Congress, he faced significant obstacles in pursuing his policy agenda. The most obvious reason for this difficulty was (and is) that simply being a “Democrat” or a

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“Republican” is usually not enough to make an elected official loyal to his or her party, or even to the president. In this country, these party labels mean very different things to different people. What makes a good, loyal Democrat? Even Democrats would disagree on the answer to this question. Must a member be pro-choice, or can he or she be pro-life? Support the death penalty or oppose it? Raise taxes or lower them? Vote for or against funding the Iraq War? Most party members would concede that there is no one right set of answers to these questions, and that reasonable party members might differ on some of them. In the United States, party loyalty simply is not as strong as it is in other democracies. In Europe, party membership is very high and party loyalty is quite intense. Party affiliation stays the same from generation to generation. This is due in large part to the fact that European political parties tend to represent certain economic classes in society. A person born into a workingclass family in Britain, for example, will grow up to become a member of the Labour Party and will remain in it for life. There is a direct connection between the historical class systems common in the nations of Europe and the emergence of their political parties. As monarchy and aristocracy gave way to democracy across that continent, each social and economic class formed its own party according to its particular beliefs and values. Parties thus tend to be more narrowly focused and to more closely represent the social and economic character of their members. As a result, most democracies in Europe have several parties (Conservative, Labour, Socialist, etc.) that compete for elected offices. Candidates in these parties are expected to be completely loyal to the party; crossing party lines is rare, and is met with swift and decisive punishment by party leaders. In America, on the other hand, a significant percentage of citizens do not even consider themselves as members of a political party. Most who do are either Democrats or Republicans; third-party membership among Americans is limited. Those who do not affiliate with a political party identify themselves as “independents.” Independent voters are unusual in parliamentary democracies. One does not need to belong to a political party to vote in U.S. elections. The only exception is in the primaries and caucuses, where party members get together to select their candidates for office. In the majority of states, selecting candidates from among party members is reserved for the party. In some states, however, independent voters are permitted to participate in primary elections and caucuses. These states consider it more democratic to allow independent voters the opportunity to help choose candidates, particularly the presidential candidates. But participation by independents can also skew the results of a primary election. In the 2000 Michigan primary, for example, former Texas Governor George W. Bush was the candidate of choice of most Republican voters, but he lost the election to Arizona Senator John McCain, who was popular among independent voters. McCain became Michigan’s Republican choice for president despite the fact that its registered Republicans preferred Bush, who ultimately won the party’s nomination later in the national convention. Such a scenario would never occur in a European democracy. Unless a party insists on strict requirements for membership, which none does, it does not take much for an American voter to declare himself a member

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of a political party or to later drop out of a political party. There is no “litmus test” to measure party loyalty or to ensure that a voter supports all of the party’s issues. If a party were to impose one, it would likely lose members, because Americans do not like being told what to do or how to think. Thus parties from time to time experience a kind of predictable “identity crisis,” where members disagree on the party’s core values or policies. Keeping party members loyal and active can be a real challenge. Participation in party events is entirely voluntary, and most persons who consider themselves party members do not attend its functions or undertake any party activities. Their main form of participation in politics is voting. A small percentage of Americans, about 10 to 15 percent by most estimates, can be considered party “activists.” They are the most loyal and most motivated to undertake party work, whether it is supporting a candidate or contributing money to a cause. Activists tend to be intellectually committed to their particular party, in that they embrace and believe in the party’s political and economic philosophy. That is true for activists in both the two major parties and in third parties: “true believers” are the most loyal party members, and they tend to come from the more extreme sides of the parties. A final problem in attracting people to parties is that America is such an open democracy that it provides almost countless ways for individuals to become involved in politics and the shaping of public policy. Most Americans belong to one or more interest groups and act through them to influence issues that they consider important. Americans often take direct action, too, by writing letters to the editor, e-mailing their representatives, or even running for office. They do not necessarily need parties to provide access to government or to provide support for their political views. “WINNER TAKES ALL” ELECTIONS Historically, America has always been dominated by two political parties. One reason for this fact was explained above: American parties are not based on economic or social class, and Americans do not identify with parties as closely as their European counterparts. But there’s another fundamental reason for the continuing domination of the two-party system: America’s approach to running elections. The American system is known as “Winner Takes All,” because the candidate who wins the most votes wins the election. In the vast majority of American elections, it does not matter how many votes the winning candidate actually receives—collecting the most votes determines the winner. It is possible, therefore, for a candidate to be elected by a minority of voters in any given election. This result occurs most often when a number of candidates compete for an office. Because multiple candidates run, they tend to split the vote among themselves, making it difficult for any one candidate to gain a majority of votes. For example, Jesse Ventura became Minnesota’s governor because he won the most votes in a close race with three strong candidates. At the same time, far more voters cast a ballot for someone other than for Ventura. Despite the fact that, taken together, the Republican and Democratic candidates

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in that race received far more votes than Ventura, he was elected because he received the most among the three. In a European election, this result would not occur. In order to rule, a party must be able to control the legislature, which means winning a majority of its seats. A candidate for prime minister who received only one-third of the vote would not be elected unless and until he or she could forge enough support to gain that majority. Some states and localities recognize that having numerous candidates on the ballot can dilute the number of votes that any one candidate receives. In a large city like San Francisco, for example, it is common to have a dozen or more candidates run for mayor. The top vote-getter in such a race might only achieve 15 percent of the vote because it is split so many ways. It is problematic to follow a strict “winner takes all” approach in that case, because the top vote-getter hardly can claim support of the citizens that he or she will represent. Therefore certain localities have adopted a “run off” election format, whereby the top two vote-getters in a large field of candidates run against one another in a subsequent election. This approach ensures that a candidate in a large field is not elected with a minimal percentage of voter support. THE MIDDLE CLASS Unlike Europe, where numerous parties have emerged over the years to reflect economic class structure and distinct political philosophies, America has always been dominated by two major political parties. American has never been dominated by social or economic classes—it simply does not have that history, which in Europe dates back to the feudalism of medieval times. Instead, America has been dominated by a large middle class that considers itself politically centrist. The sheer size of the American center has reinforced the idea of two large and somewhat generic political parties. If a candidate needs the most votes to win, he or she has to appeal to where the most voters lie along the political spectrum. Here, that means the middle. Naturally there is a range to “the middle.” Some voters are right of center, and some are left of center. Few, however, fall to the extreme right or left. Those who do might be more apt to join a third-party that more closely represents their views. The modern Democratic and Republican parties, therefore, fight consistently over the same gigantic pool of centrist voters. These persons are referred to by various labels including “moderates,” “independents,” “undecideds,” and the like. If a party strays too far away from the middle, it will lose these potential voters. That is why, to some extent at least, the two major political parties in this country often seem similar, especially at election time. Voters complain that it is hard to tell their candidates apart. That’s true because those candidates are hoping to win over the same group of voters without alienating their traditional party supporters. BIPARTISANSHIP Once elected, is it possible for candidates from different political parties to come together and agree on legislation for the betterment of the nation? After

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all, if the parties go after the same voters, maybe there is much they can agree on. The reality is somewhat different. Even though representatives share common interests and policy positions, party loyalty and unity play a significant role after the election. Members are under tremendous pressure to conform and to embrace legislation written and approved by party members. A member of Congress who crosses party lines can face retribution. His or her colleagues might strip away prize committee appointments or seniority rankings. The party could threaten to withhold money and support in the next election. Loyal party voters back home can threaten to run another candidate against him or her in the next primary. Crossing party lines is taken very seriously in most cases. When one party controls both houses of Congress, there is little incentive to engage in bipartisan negotiations over policy matters. On the campaign trail and during his first year in office, President Obama promised that the congressional debate on health care would be open and bipartisan. His Democratic colleagues in Congress had a different idea, however, and conducted most of the health care debate and negotiations among themselves in meetings that were closed not only to Republicans but to the public as well. Bipartisanship is an easy concept to embrace, but a much more difficult one to implement. The American people have registered high levels of disgust with their elected officials, and particularly Congress. Going into the 2010 midterm elections, polls showed that voters wanted their representatives to find a way to work together to pass legislation on a host of important issues such as health care and national security. The sentiment of the people may be clear, but Congress persists in arguing and blaming one another for sabotaging the legislative process. Is this kind of behavior inevitable? The voters have the ability to punish their elected officials for policy stalemate, and perhaps they will do so in the 2012 presidential election. Until then, it might be helpful to think about the benefits of partisan bickering—they might not be sufficient to outweigh the voters’ call for cooperation, but some benefits do exist. It’s important to remember that bickering among political parties and their elected officials is as old as the nation itself. The framers were not fans of political parties; George Washington famously warned against them in his 1796 farewell address. Parties were perceived then, as now, as run by selfish partisans who would act for their own benefit and enrichment rather than that of the nation as a whole. Parties struggle to elect their members to office and, when successful, feel entitled to have their way. The idea that parties would be out for their own self-interest is perfectly consistent with the framers’ beliefs about human nature and predications about human behavior. In Federalist Paper Number 10, perhaps the most famous of all of the essays written to explain and encourage ratification of the Constitution, Madison argued that all humans were uniquely created and self-interested, and that society would inevitably be made up of factions pursuing different interests. Traditionally, factions were seen as the greatest threat to democracy. It was feared that too many factions would make a country impossible to govern, either because one faction

Divided Government and Bipartisanship

would rise to the top and seize despotic power (minority tyranny) or that the factions would not be controllable and the nation would fall into massive civil unrest and hysteria (majority tyranny). Madison rejected both visions, arguing instead that because factions were inevitable, this nation might as well embrace them and allow them to act freely in society. Under his theory of a large representative republic, the sheer multitude of interests in this society would make it very difficult for one to gain too much political power. The fact that voters elected representatives would ensure that cooler heads prevailed and would guard against unruly majorities. Parties, therefore, can be seen as factions in Madison’s grand vision of how America would work. Parties, like all human institutions, have the potential for good and evil. Having two parties is a benefit, because they oppose one another and keep each other honest. After all, perhaps the quickest road to tyranny is governance by a single, unchallenged political party that can do whatever it wants. Parties are not supposed to get along. They are supposed to fight for their principles and policies. They are not designed to cooperate freely and to achieve compromise easily. They are obliged to represent the viewpoints of their constituencies, and that fact only reinforces their differences across legislative districts and geographic regions. The end result is a national history that has been characterized by partisanship rather than bipartisanship. Animosity among the parties, especially in Congress, is nothing new. But the country has not collapsed yet. When it really matters, the two parties have shown their ability to agree—particularly when it comes to declarations of war. They can also point to major legislative accomplishments that were negotiated in a bipartisan manner, and that received broad bipartisan support. One example is the Americans with Disabilities Act (1990), which received nearly unanimous support in Congress; another is the Bipartisan Campaign Finance Reform Act (2002), which was passed after an extensive and hard-fought battle by its authors, Senators John McCain (R-AZ) and Russ Feingold (D-WI). It might also be helpful to point out that partisan legislation can be beneficial for the nation. Few Americans today even remember that the New Deal legislation that created popular entitlement programs such as Social Security were passed in a highly partisan fashion. President Franklin D. Roosevelt governed with a Congress that was overwhelmingly Democratic; he had no problem obtaining its approval on virtually every piece of New Deal legislation that his administration sought. In fact, the major obstacle to the success of FDR’s reforms came not from the Congress but from the Supreme Court, which struck down many pieces of legislation as unconstitutional—until, that is, FDR and Congress forced the High Court to stand down. Americans’ frustration with a bickering Congress is understandable. But it might have less to do with their desire for civility and cooperation and more to do with the fact that they are suffering in uncertain economic times. They want their political leaders to act quickly and decisively to bring about the changes necessary to improve the economy, create jobs, ensure that people have access to at least basic medical care, and get the population feeling good about the nation’s prospects again. To the extent that partisan bickering and

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dissension seems to be standing in the way, voters want it gone, just as they want all other obstacles removed so that progress is made. Government officials do not have to hold hands, but they do have to move forward on legislation that the people want and need. Given the framers’ obsession with ensuring that no one person, party, office, or branch becomes too powerful, it is easy to see that the American legislative process was designed to be slow. Sometimes that fact is okay with the voters; sometimes, like now, it is not. Those who call for increased bipartisanship see it as a way to grease the wheels of America’s slow-moving legislative train. With any luck, their representatives will understand the need to do so, if not for the long term, then at least for now, until anxious voters feel more secure and the nation returns to a path of prosperity. Further Reading Books: Black, Earl and Merle Black. Divided America: The Ferocious Power Struggle in American Politics. New York: Simon & Schuster, 2007; Hilley, John L. The Challenge of Legislation: Bipartisanship in a Partisan World. Washington, DC: Brookings Institution Press, 2008; Fiorina, Morris P. with Samuel J. Abrams. Disconnect: The Breakdown of Representation in American Politics. Norman: University of Oklahoma Press, 2009; Garfinkle, Norton and Daniel Yankelovich. Uniting America: Restoring the Vital Center to American Democracy. New Haven, CT: Yale University Press, 2005; Lee, Frances E. Beyond ideology: Politics, Principles, and Partisanship in the U.S. Senate. Chicago: University of Chicago Press, 2009; Levendusky, Matthew. The Partisan Sort: How Liberals Became Democrats and Conservatives Became Republicans. Chicago: University of Chicago Press, 2009; Nivola, Pietro S. and David W. Brady, eds. Red and Blue Nation? Characteristics and causes of America’s Polarized Politics. Hoover Institution on War, Revolution, and Peace, Stanford University; Washington, DC: Brookings Institution Press, 2006; Rosenblum, Nancy L. On the Side of the Angels: An Appreciation of Parties and Partisanship. Princeton, NJ: Princeton University Press, 2008; Sinclair, Barbara. 2006. Party Wars: Polarization and the Politics of National Policy Making. Norman: University of Oklahoma Press, 2006. Websites: American Enterprise Institute for Public Policy. Civility in American Politics. http://www.aei.org/EMStaticPage/1510?page=Summary; GovSpot. Political Parties. http://www.govspot.com/categories/politicalparties.htm; Institute for Education. Civility: The Politics of Common Ground. http://www.instituteforeducation.org/civility.htm; Haselby, Sam. Boston Globe. “Divided We Stand: The Problem with Bipartisanship.” March 22, 2009. http://www.boston.com/bostonglobe/ideas/articles/2009/03/22/divided_we_stand/?page=2; Partnership for a Secure America. Bipartisanship. http:// www.psaonline.org/index.php; http://www.psaonline.org/article.php?list=type &type=104; Schneider, Bill. “The Deepening Partisan Divide: Hyperpartisanship Is Making American Government Dysfunctional.” National Journal. January 9, 2010. http://www.nationaljournal.com/njmagazine/pl_20100109_3294.php

Kathleen Uradnik DON’T ASK, DON’T TELL POLICY On October 27, 1992, U.S. Navy Petty Officer Third Class Allen R. Schindler, Jr. was stomped to death in a public bathroom in Sasebo, Nagasaki, Japan. He was

Don’t Ask, Don’t Tell Policy

killed by a shipmate, Terry H. Helvey, because he was gay. Helvey had beaten Schindler so savagely that his body was unrecognizable. Helvey was charged with murder. Evidence presented by the prosecution during his military trial demonstrated that he had a deep hatred of homosexuals. Faced with a potential death sentence, Helvey entered into a plea bargain and received a sentence of life in prison. Today, he remains incarcerated in the U.S. military prison at Fort Leavenworth, Kansas. Schindler’s heinous murder commanded major headlines in Japan and in America. Many people responded with outrage, both at the fact of Schindler’s killing and because certain officers on his Navy ship tried to hide the fact that Schindler had complained of continuing harassment and had feared for his life. Democratic presidential candidate Bill Clinton addressed the killing in his campaign, arguing that anyone who wanted to serve in the U.S. military should be able to do so regardless of their sexual orientation. After Clinton won the 1992 presidential election, he sought to enact a policy allowing gays and lesbians to serve in the Armed Forces. He faced stiff opposition on many fronts, particularly from the Department of Defense and Joint Chiefs of Staff. Historically, the government’s position had always been that homosexuality was incompatible with military service; it was grounds for dishonorable discharge. Many in the military and in Congress held fast to the policy banning homosexuals, and public opinion, at least at the time, supported that ban. Faced with a looming policy defeat, Clinton agreed to compromise legislation that became known as “Don’t Ask, Don’t Tell.” Under the new law, the government could not question military personnel about their sexual orientation. At the same time, members of the military could not talk about it. As its name implies, Don’t Ask, Don’t Tell tried to ignore the issue of homosexuality in the armed forces by forbidding any discussion of it. If a U.S. serviceman or servicewoman did reveal their status as gay or lesbian, or if they tried to act on it, the military would charge them with violation of the law, perform an investigation, and discipline them by discharging them from military service. Typically the discharge included loss of rank and accrued benefits. The law is now nearly two decades old; during that time, over 13,000 gay, lesbian, and bisexual military personnel have been discharged under it. As the years passed, however, Americans came to be more tolerant of homosexuality in society and more accepting of the idea of gays and lesbians in the military. At the same time, military personnel who had been discharged for being homosexual or who faced discharge filed lawsuits challenging the constitutionality of Don’t Ask, Don’t Tell. Initially the policy was upheld in the federal courts, and the U.S. Supreme Court refused to accept appeals on the issue. In 2004, the Log Cabin Republicans, a nonprofit advocacy group representing the views of homosexuals in the Republican Party, filed a federal lawsuit in California challenging the constitutionality of the policy. Specifically, the plaintiffs alleged that Don’t Ask, Don’t Tell violated the due process clause of the Fifth Amendment and the speech, assembly, and petition guarantees of the First Amendment. It took nearly six years of legal wrangling before the case was

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finally ready for trial. In the summer of 2010, the trial was held before Judge Virginia Phillips of the U.S. District Court for the Central District of California, a Clinton appointee. On September 9, 2010, Judge Phillips issued an 86-page opinion in the case of Log Cabin Republicans v. United States. In it, she struck down Don’t Ask, Don’t Tell. She concluded that because the policy was so broad, it compromised the rights of homosexual service members. While she acknowledged that the government had a substantial interest in preserving cohesion in the ranks and assuring military readiness, its policy went too far. The government failed to prove that the policy was necessary to achieving its military goals; the policy did not justify the burden placed on the constitutional rights of service members. Predictably, Phillips’s opinion was met with high praise and bitter criticism. In a particularly controversial section of the opinion, she concluded that the Don’t Ask, Don’t Tell policy was actually harmful to the U.S. military and interfered with its goal of military readiness. Critics immediately charged that Phillips had no business substituting her judgment about what was good for the military for that of the military itself. PRESIDENT OBAMA’S DILEMMA During the 2008 presidential campaign, Barack Obama promised to end Don’t Ask, Don’t Tell. He reiterated that promise in his 2010 State of the Union Address, telling the Congress and the American people that he would “work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.” Given his clear position on Don’t Ask, Don’t Tell, President Obama should have been pleased by the district court’s decision to strike it down. But the decision actually put the president in a difficult position. Although he was personally committed to ending the policy, he was still Commander-in-Chief of the Armed Forces, and as such he represented the losing side in the lawsuit. Moreover, Judge Phillips had forced the administration’s hand by issuing an injunction that prohibited the military from relying on or enforcing the policy anywhere in the world. The administration had to decide whether to authorize the Justice Department to appeal the case. On the one hand, an appeal would contradict the president’s position and undermine his credibility with the gay and lesbian community. On the other hand, the failure to appeal would set the highly undesirable precedent of allowing a lowly federal district court judge to overturn a long-standing act of Congress. It would be virtually unheard of for a major governmental policy to be struck down at the lowest level of the federal judiciary— and without a fight. Ultimately, the Justice Department appealed Judge Phillips’s decision to the U.S. Court of Appeals for the Ninth Circuit, where it is currently pending. The government also asked for a stay of the judge’s injunction pending its appeal. Judge Phillips denied that request, but it was later granted by the Ninth Circuit. The plaintiffs made an emergency appeal to the Supreme Court in an effort to

Don’t Ask, Don’t Tell Policy

keep the injunction in place, but the High Court refused to intervene. Legally, this means that Don’t Ask, Don’t Tell would remain valid policy during the pendency of the appeal. THE MILITARY CHANGES ITS MIND In November 2010, U.S. Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen appeared before Congress to ask it to repeal Don’t Ask, Don’t Tell. They argued that the policy was not necessary, and that the inclusion of gays, lesbians, and bisexuals in the military was no longer considered harmful or disruptive to its mission. In support of their position, they presented the results of a comprehensive survey of military servicemen and women and their families conducted by the Pentagon. The survey contained responses from approximately 115,000 active duty military personnel and 44,000 family members. Seventy percent of those surveyed stated that repealing Don’t Ask, Don’t Tell would have either no effect or a positive effect on their mission. Sixty-nine percent of respondents indicated their belief that they had already worked with a gay service member; 92 percent of them stated that the service member’s sexual orientation had either no impact or a positive impact on that working relationship. Among the Armed Services, opposition to homosexual service was greatest in the Marine Corps; the Navy was the most accepting of it. Of those surveyed, almost 75 percent said that a repeal of Don’t Ask, Don’t Tell would have no effect on their decision to re-enlist in the military. The prospects for immediate change were not favorable: Gates and Mullen spoke to the 111th Congress after the midterm elections, which meant that it was a lame duck session. The lame duck Congress already had a number of crucial items to address in its final weeks, including whether to extend the Bush tax cuts and whether to approve the START nuclear arms treaty with Russia. Given its full agenda, most pundits predicted that Congress would not have the chance to consider a repeal of Don’t Ask, Don’t Tell. This time, however, the pundits were wrong. On December 15, 2010, the House of Representatives voted 250–175 to repeal the policy. It was followed three days later by the Senate, which approved the measure by a vote of 65–31. Under the legislation, the ban on gays and lesbians in the military did not end immediately; rather, the Department of Defense was given a period of time to develop a plan to educate military personnel about the policy change and to prepare them for it. The DOD was also required to certify that its plan would not interfere with the nation’s combat readiness. Actual implementation of the repeal is set to begin within 60 days after the plan and certification are completed. Most of the lawsuits over Don’t Ask, Don’t Tell will remain pending at least until Congress’s directive is implemented. Typically, when Congress has taken some action that appears to make a legal issue obsolete, the judge and the parties agree will to a “stay,” which means to put the lawsuit on hold for a period of time. In this instance, if something should go wrong in the integration of gays and lesbians into the military, or if certain branches of the Armed Services were

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to drag their feet, the lawsuits could be revived. At this point, no one knows exactly how long it will take to actually bring Don’t Ask, Don’t Tell to an end. Some suggest it could be as long as a year; others argue that it should only take a few months. At this point, it looks as though gays and lesbians will be fully integrated into the U.S. Armed Forces by the end of 2011. Further Reading Books: Belkin, Aaron and Geoffrey Bateman. Don’t Ask, Don’t Tell: Debating the Gay Ban in the Military. Boulder, CO: Lynne Riener Publishers, 2003; Burg, B. R. Gay Warriors: A Documentary History from the Ancient World to the Present. New York: New York University Press, 2002; Cammermeyer, Margarethe with Chris Fisher. Serving in Silence. New York: Viking, 1994; Embser-Herbert, Melissa Sheridan. The U.S. Military’s “Don’t Ask, Don’t Tell” Policy: A Reference Handbook. Westport, CT: Praeger, 2007; Estes, Steve. Ask & Tell: Gay and Lesbian Veterans Speak Out. Chapel Hill: University of North Carolina Press, 2007; Herek, Gregory M., Jared B. Jobe, and Ralph M. Carney, eds. Out in Force: Sexual Orientation and the Military. Chicago: University of Chicago Press, 1996; Koppelman, Andrew. The Gay Rights Question in Contemporary American Law. Chicago: University of Chicago Press, 2002; Pinello, Daniel R. Gay Rights and American Law. New York: Cambridge University Press, 2003; Shilts, Randy. Conduct Unbecoming: Lesbians and Gays in the U.S. Military Vietnam to the Persian Gulf. New York: St. Martin’s Press, 1993. Websites: CBS News. “Allies Are Example in ‘Don’t Ask’ Debate: An Examination of Other Countries That Allow Gays to Openly Serve in the Military.” July 13, 2009. http://www.cbsnews.com/stories/2009/07/13/politics/main5155591.shtml; Cloud, David S. and David Savage. “Legal Scholars Debate Judge’s Ruling on ‘Don’t Ask, Don’t Tell.’ ” Los Angeles Times, October 14, 2010. http://articles.latimes.com/2010/ oct/14/nation/la-na-dont-ask-20101014; “Debate over ‘Don’t Ask, Don’t Tell’ Set to Take Center Stage.” The Atlantic, November 30, 2010. http://www.theatlantic.com/ politics/archive/2010/11/debate-over-dont-ask-dont-tell-set-to-take-center-stage/67209/; The Palm Center, University of California, Santa Barbara: “A Leader in Commissioning and Disseminating Research in the Areas of Gender, Sexuality and the Military.” http:// www.palmcenter.org/; “Pro & Con: Should Congress Repeal ‘Don’t Ask, Don’t Tell’ in U.S. Military?” Atlanta Journal & Constitution. http://www.ajc.com/opinion/pro-dont -ask-dont-340272.html

Kathleen Uradnik DRINKING AGE Young adults often wonder why they can drive a car at age 16 and vote at age 18, but cannot consume alcohol until they reach age 21. America does not have a national drinking age. Despite that fact, all 50 states somehow ended up setting their drinking age at 21, and their legal blood alcohol limit at .08. How did that happen? Principles of federalism dictate that each state is free to run its own affairs, including setting its own drinking age. And, in fact, each state is free to do so. For many years, states had different drinking ages, usually varying from 18 to 21. Oklahoma even experimented with a gender-based drinking age of 18 for

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women and 21 for men, a practice that was eventually deemed unconstitutional discrimination by the Supreme Court! But by the late 1980s, all states had come to embrace age 21 as their legal drinking age. Many did so reluctantly. Under pressure from interest groups such as Mothers Against Drunk Drivers, Congress came to support 21 as the drinking age. It did not claim to possess the authority to impose this requirement on states, but it did have the ability to make its aid to states contingent on their behavior. In 1984, Congress passed a law requiring all states receiving federal highway funds to set 21 as their drinking age in order to remain eligible to receive those funds. States that refused would lose a percentage of their allocation. For most states, this federal aid amounted to millions of dollars each year, money that would be difficult if not impossible to replace from their own coffers. South Dakota reacted indignantly when Congress placed this new condition on federal highway funding. It believed that the new requirements were unconstitutional, and sued the federal government for the right to retain its autonomy in decisions such as where to set its drinking age. In 1987, the case of South Dakota v. Dole came before the U.S. Supreme Court, so named because Elizabeth Dole was U.S. Secretary of Transportation at that time. South Dakota offered numerous arguments in support of its position. First, it contended that the right to define the drinking age was a core power that, under the Tenth Amendment, was reserved exclusively to the states. In addition, Congress’s attempt to limit state power by placing conditions on aid violated its own spending powers as set forth in Article I of the Constitution. Finally, South Dakota argued that Congress’s restriction violated the Twenty-first Amendment to the Constitution, which provided in part that “[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” In short, the power to make laws regarding alcohol belonged to the states, which could choose to ban it or, given the failure of prohibition, to regulate its use by setting their own drinking age. But in a 7:2 decision, the Supreme Court rejected all of South Dakota’s arguments. It held that Congress was within its authority to impose restrictions on the receipt of federal funds. South Dakota, like all of the states, remained free to set its drinking age where it wished. But if it wanted federal funds, it had to meet the requirements for those funds. The conditions attached to the highway funds were constitutional and, as the Court noted, not even that severe: South Dakota faced losing a mere 5 percent of its highway funding. Congress was well within its right to use this penalty as a means of encouraging states to meet its policy goals. Justices Sandra Day O’Connor and William J. Brennan dissented from the majority. O’Connor argued that, by imposing this restriction on funds, Congress had violated the Twenty-first Amendment. Moreover, Congress had enacted a de facto constitutional amendment through its highway funding legislation, because all states came to adopt the national standard for the drinking age. She further argued that Congress’s desire to set a higher drinking age had little to do with its highway funds program. Conditions on receipt of

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congressional funds, she noted, had to be reasonably related to the purpose of the particular program at issue. Although Congress had the authority to seek safer federal highways and to reduce drunken driving deaths on them, it had to do so through constitutional means. For O’Connor and Brennan, the relationship between making interstate highways safer by withholding federal highway funds from noncompliant states was far too tenuous to pass constitutional muster. Thus South Dakota lost its lawsuit and, like the other 49 states, raised its drinking age to 21, where it still stands today. WHAT ABOUT .08? The lowering of the legal blood alcohol content in the states to .08 occurred for much the same reason as the rise in their drinking age. (The .08 limit means that, for every 1,000 milliliters of blood, the body contains eight-tenths of a milliliter of alcohol.) In 1992, the National Highway Transportation Safety Administration issued a report recommending that all states lower the legal limit to .08. At the time, approximately 18 states had already embraced that limit. By 1998, President Clinton and Congress worked together to create a plan for bringing the rest of the states into the fold. In legislation entitled “The Transportation Equity Act for the 21st Century,” Congress offered a total of $500 million in transportation funding grants to be awarded over the next six years. To be eligible to receive the grant money, states had to lower their blood alcohol content to a maximum of .08 and make it the limit for illegal intoxication. In addition, any amount in excess of the .08 limit must be considered a crime under the states’ DWI laws and prosecuted accordingly. This approach was different from that used to raise the drinking age, in that the states were given an incentive to comply with Congress rather than being punished for failure to comply. Some states changed their laws quickly to become eligible for their share of the half-billion dollar grant, which could be used as they saw fit for highway safety and construction projects. Other states signed on reluctantly, just before they were to become ineligible for the money. By 2003, however, all 50 states had met the requirements of the grant by lowering their BAC (blood alcohol count) to .08, which is where it stands today. CONGRESS FLEXES ITS MUSCLES AGAIN The ability of Congress to impose conditions on aid and penalties for those who choose not to comply with its rules is a significant source of power. This power has been used extensively by Congress as it distributes federal funds. Placing conditions on aid has been and remains quite common. It is not nearly as controversial as the threat to withdraw federal funds. Recently, hundreds of colleges and universities across American felt Congress’s wrath when they decided to ban military recruiters from their campuses. The colleges and universities embraced the ban to protest Congress’s “Don’t Ask, Don’t Tell” policy that allowed homosexuals to serve in the U.S. military so long as they kept their

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UNIVERSITY PRESIDENTS FOR A LOWER DRINKING AGE? In mid-August 2008, just before the start of another school year, over 100 college chancellors and presidents signed and published an open statement urging the nation to engage in a renewed debate about whether the drinking age should remain at 21. While they did not actually endorse lowering the drinking age to 18, they argued that “[o]ur experience as college and university presidents convinces us that [a drinking age of 21] is not working.” The presidents contended that making alcohol consumption illegal for younger adults has contributed to an unprecedented and dangerous rise of binge drinking on the nation’s college campuses. They also repeated the well-known arguments that young people are attracted to alcohol specifically because it is illegal and that individuals who are old enough to vote should be considered old enough to make a mature decision about alcohol consumption. The institutions represented in the provocative statement were large and small, public and private. They included some of the most prestigious in the nation: Duke University, Dartmouth College, the University of Massachusetts-Amherst, Ohio State University, Mount Holyoke College, Colorado College, and Johns Hopkins University, among others. Response to the administrators’ announcement was swift. Mothers Against Drunk Drivers (MADD) pointed out that the number of deaths and injuries from alcohol-related drunk driving had dropped significantly since imposition of the 21-year age requirement. Its national president urged parents to rethink whether to send their children to the signatories’ schools, suggesting that the presidents were uninformed and would not enforce the existing drinking age. Other critics accused the presidents of seeking an easy solution to college drinking problems because they had failed to control underage consumption at their institutions. The statement had its desired effect: for a time, at least, it brought the issue of the drinking age to the nation’s attention. There has not been a subsequent groundswell of support for the cause, however, and given the legislative success of organizations such as MADD, it is unlikely that Congress or the state legislatures will reverse course in the foreseeable future.

sexual orientation to themselves. The policy had come under fire first from prominent law schools, and then from wide sectors of academia, which considered it unfair and discriminatory. In response to the institutions’ refusal to allow military recruiters to visit campuses and participate in career fairs, Congress passed the “Solomon Amendment,” which required colleges and universities to grant equal access to recruiters and other military representatives such as ROTC. Failure to treat military recruiters the same as nonmilitary recruiters would mean the loss of important federal funds for these schools, including student aid. Undeterred, a coalition of law schools and law professors formed a group called “FAIR” (Forum for Academic Institutional Rights). They filed a lawsuit arguing that the Solomon Amendment violated their institutions’ free speech rights. Congress, they argued, should not be allowed to force its views on campuses by requiring them to accept military recruiters who defended the Don’t Ask, Don’t Tell policy. The Supreme Court thought otherwise. In 2006, in a unanimous 8:0 decision written by Chief Justice John Roberts, it held in Rumsfeld v. F.A.I.R. that

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Congress was well within its authority to place requirements on the receipt of federal education funds. The Court concluded that, contrary to the institutions’ claims, the congressional restrictions did not limit the speech of the institutions, which remained free to voice their opposition to Don’t Ask, Don’t Tell, but rather their conduct in restricting access to military recruiters. Today, the power of Congress to punish states and institutions that refuse to comply with its directives is well established. Congress controls significant amounts of money that it distributes widely, but always with strings attached. Any state or institution is free to refuse federal money, but that is a decision few if any of them are actually willing or able to make, no matter the cause. Further Reading Books: Kiesbye, Stefan, ed. Should the Legal Drinking Age Be Lowered? At Issue Series. Farmington Hills: Greenhaven Press, 2008; Uradnik, Kathleen. Student’s Guide to Landmark Congressional Laws on Youth. Westport, CT: Greenwood Press, 2002; Wechsler, Henry and Bernice Wuethrich. Dying to Drink: Confronting Binge Drinking on College Campuses. New York: Rodale Books, 2003; Zimmerman, Robert and William DeJong. Safe Lanes on Campus: A Guide for Preventing Impaired Driving and Underage Drinking. Newton, MA: Higher Education Center for Alcohol and Other Drug Prevention, 2003. Websites: Amethyst Initiative. www.amethystinitiative.org; Balko, Radley. “Back to 18? A New Chorus of Critics Says It’s Time to Lower the Drinking Age.” Reason.com, April 12, 2007. http://www.reason.com/news/show/119618.html; Information on Both Sides of the Drinking Age Debate. http://inst.sfcc.edu/~hfl/speech/drinkage.htm; National Clearinghouse for Alcohol and Drug Information. http://ncadi.samhsa.gov; National Youth Rights Association. http://www.youthrights.org/drinkingage.php

Kathleen Uradnik

E EARMARKS The term “earmarks” is typically used to refer to benefits that members of Congress secure for their own home states or districts, usually by a quiet, unnoticed process of adding specific items to comprehensive spending bills. These benefits can take many forms. For example, a representative might secure a federal research grant for his or her college alma mater or funding to improve an airport or build a road. Placing a federal program in a particular state is another form of earmark, because it brings money and jobs to the location. Basically, any form of monetary benefit that a member brings home for a specific project can constitute an earmark, depending on how it is obtained. Earmarks are derogatorily referred to as “pork” or “pork barrel spending,” and the process of obtaining them is often called “bringing home the bacon.” Some in Congress have proven very adept at securing money for their home states. Senator Robert Byrd (D-WV), who was the longest-serving member of the Senate before his death in 2010, had been called the “King of Pork” for securing over $1 billion (yes, billion) for the state of West Virginia. Representative John Murtha (D-PA) and Senator Ted Stevens (R-AK) (both of whom also died in 2010), and others have been similarly labeled because of their success in securing hundreds of millions of dollars in federal funds for their respective states. Many in Congress see earmarks as improper and harmful, viewing them as gifts secured irresponsibly by members in order to improve their chances for re-election. Arizona senator and former 2008 presidential candidate John McCain, for example, has consistently refused to engage in pork barrel spending, making earmarks a central issue in his 2008 bid for the presidency. The

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voters of Arizona have returned McCain to office despite the fact that he has brought zero dollars in pork spending to his state. But while many in Congress are willing to criticize earmark spending in principle, few are willing to completely refrain from it in practice. There are two primary criticisms of earmarks. The first concerns the propriety of using earmarks to improve one’s chances of being re-elected to Congress. It is ironic that, at a time when Congress’s approval rating is at an all-time low, public opinion polls show that Americans still positively view the job performance of their own representatives. That is, voters like their individual congressman or congresswoman but do not like Congress itself. How can this seemingly inconsistent attitude be explained? Some scholars argue that individual members of Congress gain popularity because of the various favors and “perks” (perquisites) they undertake for constituents. An influential member of Congress can secure millions of dollars per year in special funding for his or her home state and district, a practice that does not go unnoticed come election time. In fact, voters overwhelmingly return incumbents to Congress at a rate of more than 90 percent! Save for a career-ending scandal or criminal indictment, it is rare for a sitting member to be removed from office. Knowing this, interest groups and lobbyists on all sides of the political spectrum tend to donate to the campaigns of incumbents, because they know that the incumbents are mostly likely to win. Undoubtedly some of these donors expect their candidate to remember them, and to find the federal money to fund their special projects. The second complaint against earmarks is that members of Congress secure them secretly, without considering the interests of the nation as a whole—and specifically without considering their impact on the national budget. Typically, members of Congress will add language to a spending bill to fund their special projects. Because spending bills are often hundreds of pages in length, these last-minute additions go unnoticed. They are not discussed or debated and can be approved without anyone even knowing that they are included in the bill. The idea of “slipping in” a few million dollars in extra spending here and there might seem sneaky and outrageous, but it is such a common practice that members of Congress tend to simply look the other way when it happens. For that reason, earmark spending is largely unregulated and unrestrained. Members submit spending requests at will, and they add up. Over the past 40 years, this practice has contributed significantly to the national debt, which currently stands at over $14 trillion! Many earmarks are approved for projects of questionable merit. The most infamous recent example of this problem is the 2005 approval of the “Bridge to Nowhere,” a $225 million project proposed by Alaska Senator Ted Stevens and Congressman Don Young. The enormous bridge would link the small town of Ketchikan (population 9,000) with the Island of Gravina (population 50), where the Ketchikan airport is located. In addition to that bridge, Young secured another 200 million dollars in funding for a bridge linking Anchorage to the tiny towns of Port McKenzie and Knik, which between them have about two dozen residents.

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When news of the “Bridge to Nowhere” came out, embarrassed members of Congress found themselves suffering the ire of the American people, who could not understand why one of the least populous states in the nation received almost a quarter of the transportation funds in that year’s mega transportation bill. Eventually Congress was forced by public pressure to withdraw the funding that it had previously approved, and the bridge project was abandoned. But this change of heart was far from typical. Each year Congress approves hundreds of millions of dollars in earmarks, many of disputed value. ALL’S FAIR IN LOVE AND DEMOCRACY Isn’t it one of a member’s job duties to take care of the folks back home? Congress is, after all, made up of representatives of all 50 states and 435 individual legislative districts. One can legitimately argue that representation includes taking care of the needs of the citizens back home. The federal government spends billions of dollars on projects every year, and this money should be distributed among the states and various local constituencies. The allocation of these monies naturally becomes a political process, and some representatives prove better at it than others. What’s wrong with that? This argument is not without merit. The framers understood that representatives would indeed be responsible for representing the interests and meeting the needs of their constituents. In creating the Constitution, they favored a strong central government and strong Congress over the weak and ineffective legislature of the Articles of Confederation. The framers gave Congress the power to coin money, levy taxes, regulate interstate commerce, and make appropriations for all of the federal government’s needs. They gave special power to the House of Representatives by requiring that all appropriations bills originate there. Representatives are well used to spending government money as part of their legitimate job duties. But earmarks are different. The political watchdog group “Citizens Against Government Waste” has identified seven criteria that distinguish earmarks from traditional government spending. Specifically, earmarks meet one or more of the following criteria: They are requested by only one chamber of Congress; They are not specifically authorized; They are not competitively awarded; They are not requested by the president; They greatly exceed the president’s budget request or the previous year’s funding; They are not the subject of congressional hearings; and/or They serve only a local or special interest. The framers knew that political officials could be corrupt or corrupted, and they created a system of checks and balances to guard against the concentration of power in a few hands. What checks exist to stop the kings and queens of pork, who spend taxpayer money with reckless abandon?

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THE LINE-ITEM VETO One potential check touted by advocates of fiscal responsibility is the lineitem veto. The line-item veto allows the chief executive to reject certain portions of a bill while keeping the remainder of it intact. Forty-three governors enjoy some form of line-item veto allowing them to strike out portions of laws enacted by their legislatures. But a federal line-item veto is a different matter: as it turns out, it’s unconstitutional. The line-item veto was long favored by Republicans on Capitol Hill, who until the mid-1990s were consistently the minority party in Congress. President Ronald Reagan asked Congress to pass a bill giving him the line-item veto, but it wasn’t until the Republicans took control of both houses of Congress in 1994 that the idea finally came to fruition. The line-item veto was a major component of the “Contract with America,” a list of policymaking pledges the Republicans promised to implement if they were elected. In 1996, the Republican Congress kept its word by passing into law the Line Item Veto Act. Democratic President Bill Clinton supported the act and signed it, knowing that its legality would be challenged immediately by fellow Democrats in Congress—which it was. President Clinton used the veto 11 times to strike out portions of legislation before it was ruled unconstitutional by a federal district court. Eventually the case of Clinton v. City of New York was appealed to the U.S. Supreme Court, which decided in a 1998 decision that the line-item veto was indeed unconstitutional. In an opinion written by Justice John Paul Stevens, a 6:3 majority concluded that the line-item veto impermissibly changed the president’s veto power as outlined by the Constitution and violated the principle of separation of powers. The Constitution provides that, once presented with a bill, the president has two— and only two—options: sign it or veto it. There is no provision for approving only the “good parts” of a bill. Creating the line-item veto by legislation was an illegal and unconstitutional shortcut, because the only way to change the Constitution is through the amendment process. Some legislators hailed the Supreme Court’s decision as a victory for the Constitution. Others lamented the fact that the president could not rein in congressional spending by redacting items on an individual basis. Undeterred, President George W. Bush proposed a new, watered-down version of the lineitem veto in 2006. Under the new proposal, Congress could override a line-item veto by a simple majority vote of both houses, rather than by the two-thirds majority required to override a standard veto. Proponents believed that making the override easier might save the line-item veto from another constitutional challenge, but ultimately the legislation went nowhere. Others have proposed a constitutional amendment creating the line-item veto, but it, too, has failed to pass through Congress. NO END IN SIGHT Meanwhile, pork spending continues to increase. Citizens Against Government Waste compiles an annual list of pork projects and issues a publication called the “Pig Book.” The 2010 Pig Book listed 9,129 earmarks costing a total of over

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THE 2010 “OINKER” AWARDS FOR WASTEFUL GOVERNMENT SPENDING, ISSUED BY CITIZENS AGAINST GOVERNMENT The Dunder-head Mifflin Award to Senator Arlen Specter (D-PA.) and Representative Paul Kanjorski (D-PA) for $200,000 for design and construction of a small business incubator and multipurpose center in Scranton, Pennsylvania. The Thad the Impaler Award to Senator Thad Cochran (R-MS) for $490 million in pork. The Hal Bent on Earmarking Award to Representative Harold “Hal” Rogers (R-KY) for $10 million for the National Institute for Hometown Security. The Little Engine That Couldn’t Award for $465 million for the Joint Strike Fighter alternate engine. The Narcissist Award to Senator Tom Harkin (D-IA) for $7,287,000 to continue the Harkin Grant program and to Senator Robert Byrd (D-WV) for $7,000,000 for the Robert C. Byrd Institute of Advanced Flexible Manufacturing Systems. The Steak Through the Heart of Taxpayers Award to Senator Kay Bailey Hutchison (R-TX) and Representative Ciro Rodriguez (D-TX) for $693,000 for beef improvement research. The Sapping the Taxpayers Award for $4.8 million for wood utilization research in 11 states requested by 13 senators and 10 representatives. The Jekyll and Hyde Award to Representative Leonard Lance (R-NJ) for his ever-changing stance on earmarks; first signing a no-earmark pledge, then receiving $21 million in earmarks, then supporting the Republican earmark moratorium. The Kick in the Asp Award to Delegate Madeleine Bordallo (D-GU) for $500,000 for Brown Tree Snakes control and interdiction in Guam. The Plane Waste Award to Senators Sam Brownback (R-KS) and Pat Roberts (R-KS) and Representative Todd Tiahrt (R-KS) for $3,500,000 for the National Institute for Aviation Research. The Do You Want Fries with That Award for $2,573,000 in potato research in four states requested by five senators and five representatives.

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The Putting on the Pork Award to Representative Maurice Hinchey (D-NY) for $400,000 for restoration and renovation of the historic Ritz Theater in Newburgh, New York. The Lights! Camera! Earmark! Award for Representative Diane Watson (D-CA) for $100,000 for career exploration and training for at-risk youths for jobs in filmmaking at the Duke Media Foundation in Hollywood. The An Earmark Grows in Brooklyn Award to Representative Yvette Clarke (D-NY) for $400,000 for construction and renovation for safety improvements at the Brooklyn Botanic Garden.

$16.5 billion. These were spread across 12 spending bills for the 2010 fiscal year. The CAGW website allows voters to track each piece of pork by member, state, and political party. The group also gives out “Oinker Awards” to the members of Congress it identifies as the most egregious pork spenders. Numerous public interest groups actively oppose earmarks, and some members of Congress have actively advocated for an end to, or at least a limit on, this kind of spending. Various bills have been introduced, including one placing a one-year moratorium on pork, another limiting the total amount of pork appropriations, and yet another requiring pork spending to be done in full view of the Congress and the public. To date, none of these bills has passed, and earmarks continue to consume millions of taxpayer dollars, especially in election years. What will it take to stop wasteful government spending on the pet projects of these elected officials? It may be that, as voters tighten their pocketbooks during tough economic times, they may finally insist at the polls that their representatives do the same. After the 2010 midterm elections, many Republicans promised to adhere to a ban on pork, but efforts to have all members of Congress sign a petition to do so were unsuccessful. Ultimately, the voters decide whether to return members to Congress or to punish them for their spending habits. Until the voters say “enough is enough,” earmarks will undoubtedly remain a controversial and divisive component of federal appropriations bills. Further Reading Books: Evans, Diana. Greasing the Wheels: Using Pork Barrel Projects to Build Majority Coalitions in Congress. Cambridge, UK: Cambridge University Press, 2004; Gotlfried, David V., ed. Earmarks: Budgetary Pork or Butter? Hauppauge: Nova Science Publishers, 2008; Mann, Thomas E. and Norman J. Ornstein. The Broken Branch: How Congress Is Failing America and How to Get It Back on Track. New York: Oxford University Press, 2006; Savage, James D. Funding Science in America: Congress, Universities, and the Politics of the Academic Pork Barrel. Cambridge, UK: Cambridge University Press, 2000; Stein, Robert M. and Kenneth N. Bickers. Perpetuating the Pork Barrel: Policy Subsystems and American Democracy. Cambridge, UK: Cambridge University Press, 1997. Websites: Citizens Against Government Waste. http://www.cagw.org; Engber, Daniel. “What’s an Earmark? No One Knows for Sure.” Slate.com, April 6, 2006, http://

Ecoterrorism www.slate.com/id/2139454; U.S. Office of Management and Budget. http://earmarks .omb.gov/

Kathleen Uradnik ECOTERRORISM Terrorism involves the use of force or violence against a government or its people to intimidate or coerce them to do something that the terrorists want. Terrorists are commonly motivated by political, religious, or ideological goals. “Ecological terrorism,” often called “ecoterrorism,” is simply a form of traditional terrorism with an environmental slant. Although the Department of Defense does not separate ecoterrorism from other forms, the Federal Bureau of Investigation does. It defines ecoterrorism as “the use or threatened use of violence of a criminal nature against innocent victims or property by an environmentally oriented, sub-national group for environmental-political reasons, or aimed at an audience beyond the target, often of a symbolic nature.” Ecological terrorism itself can be broken into two primary categories: environmental terrorism and ecoterrorism. Environmental terrorism involves the exploitation of biological materials for traditional terrorist purposes. These terrorists use nature for destructive purposes by, for instance, releasing viruses or bacteria into the atmosphere. Environmental terrorists can also target the environment itself by contaminating water sources or agricultural resources to cripple an enemy in wartime. Environmental terrorism in warfare is a serious political issue that illustrates the power of nature as a tool of destruction. The second area of ecoterrorism (also called “ecotage” or “monkeywrenching”) is quite different. It covers acts of terrorism spurred by a group or individual’s desire to protect the environment and the earth against some perceived human threat. This emerging type of terrorism raises a plethora of political issues and challenges. The first is the need to identify terrorist sects and activities in order to recognize and prevent terrorism before it occurs. To do this, one must understand the mission and goals and messages of ecoterrorist groups.

FORMS AND TACTICS OF ECOTERRORIST GROUPS Ecoterrorist groups exist in many forms, including individuals, small group conspiracies, and larger terror cells. This last form of organization is commonly referred to as the “leaderless resistance” model. There is no traditional hierarchy or organization of command, and the group is generally self-motivated and privately funded. Regardless of organizational structure, ecoterrorist groups are destructive. Since 2003, the FBI has credited ecoterrorists with $200 million in property damage. Over 1,100 acts of ecoterrorism have been performed in the United States in the past decade, and incidents of ecoterrorism have been documented all over the world. A comprehensive list of actual and alleged ecoterrorist acts involving animals can be found on the website of the Fur Commission USA, a

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trade organization that represents hundreds of mink farmers across the United States. Tactics employed by ecoterrorist groups vary widely. Typical activities include arson, car bombing, and firebombing. In August 2008, ecoterrorists firebombed the home of a professor at University of California, Santa Cruz, forcing him and his family to escape their burning home though a second-floor window. At the same time, another bomb went off in the automobile of his faculty colleague. Earlier that year, masked gunmen tried to invade the home of a UC, Santa Cruz biomedical researcher. A UCLA animal researcher, similarly, found an incendiary device on her porch and, in a separate incident, her house flooded with a garden hose. All of the targeted individuals engaged in animal research at their jobs. The recent spate of criminal activities against individuals prompted counter-protests by university administrators, faculty, and staff in the University of California system. Outraged public officials vowed to find and prosecute those who were responsible. Santa Cruz Mayor Ryan Coonerty spoke for many in calling the attacks in his community “shocking and abhorrent.” He said: “We as a community are unambiguous in our condemnation of these actions. Let me be clear, this is not protest. This is terrorism.” These brazen attacks on individuals may signal a new and more ominous approach by ecoterrorists. Historically, their actions have been directed largely at property. In 1994, a Cal Tech physics student named William Jensen Cottrell conspired to firebomb a number of sport utility vehicles in Southern California. He was convicted and ordered to pay $3.5 million in restitution. In 1998, ecoterrorists set fire to a luxury ski resort in Vail, Colorado, causing $12 million in damages. Also in 1998, the Earth Liberation Front (“ELF”) took credit for setting fires that destroyed two U.S. Department of Agriculture buildings near Olympia, Washington. More recently, in January 2006, Eric McDavid of Foresthill, California, along with two others, were arrested and charged with conspiracy to burn down or blow up numerous targets, including the Nimbus River Dam in northern California; U.S. Forest Service’s Institute of Forest Genetics in Placerville, California; cell phone towers; and various other structures. In 2008, an ecoterrorist group in Seattle, Washington set fire to five luxury homes in a “built green” environmental subdivision. A message spray-painted on a bedsheet near the wreckage taunted, “Built Green? Nope, black!” The message was signed “ELF,” the initials of the Earth Liberation Front, a group connected with multiple acts of ecoterrorism across the nation for over two decades. THE GROUPS Organizations labeled as ecoterrorists in the United States include the Earth Liberation Front (ELF), the Animal Liberation Front, (ALF), and the Animal Liberation Brigade, (ALB). In 2001 the FBI first named ELF one of the most active extremist elements in the United States, and a “terrorist threat.” By 2005, ELF and ALF were considered among the most serious domestic terror threats in the United States. But just what do these groups stand for, and what do they hope to accomplish through their terroristic activities?

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The Earth Liberation Front, also known as “The Elves,” is the collective name for anonymous and autonomous individuals or groups that promise to defend and protect the Earth for future generations through direct action. ELF was founded in London, England, in the early 1990s and quickly spread throughout Europe. It is now an international movement that claims to have members and activities in several countries, including the United States. Using the leaderless resistance model, it proclaims itself an ecodefense group dedicated to taking the profit motive out of environmental destruction by causing economic damage to businesses through its actions. In its guidelines, ELF promises to take a high moral approach to its environmental mission. However, its activities belie its supposedly peaceable mission. ELF members often resort to economic sabotage and guerrilla warfare. ELF guidelines require that individuals or groups acting on its behalf “take all necessary precautions against harming any animal—human and nonhuman.” But its illegal activities, and especially its acts of arson, always threaten both. The Animal Liberation Front (ALF) is often regarded as linked to ELF in both structure and activity. ALF purports to act only for the benefit of animals. Its mission statement declares that its purpose is to liberate animals from places of abuse, such as laboratories, factory farms, and fur farms, and place them in good homes where they may live out their natural lives in peace. ALF’s mission entails inflicting economic damage upon “those who profit from the misery and exploitation of animals, to reveal the atrocities committed against animals by humans, and to take all precautions against harming any animal, human or non-human.” In 2008 alone, ALF was responsible for at least seven attacks on mink farms, resulting in the release of thousands of mink. ALF’s actions are just as economically damaging as those of ELF. ALF targets commercial farms, slaughterhouses, and animal research facilities, while ELF targets retail institutions, business and residential structures, and technology. ALF’s illegal activities have included, for example, the release of mink from fur farms worldwide and the release of hundreds of horses at a slaughterhouse in Oregon before they burned the facility to the ground. A third ecoterrorist organization, the Animal Liberation Brigade, or ALB, bears mention because it has been at the forefront of one of the most destructive terrorist attacks in the United States. This organization proclaims itself a savior of animals and the earth. Its actions, however, are among the most violent and brutal in the ecoterrorist movement. In 2003, ALB took credit for placing two pipe bombs filled with an ammonium nitrate at Chiron‘s corporate offices in Emeryville, California. Chiron apparently was targeted because of its relationship with Huntingdon Life Sciences, an animal testing company. A group calling itself the Revolutionary Cells of the Animal Liberation Brigade e-mailed a statement to reporters taking credit for the bombing. Other violent attacks included an office bombing in 2003 at the offices of Shaklee Inc. in Pleasanton, California. Shaklee was targeted because its parent company, Yamanouchi Pharmaceutical, also does business with Huntingdon Life Sciences. Again, the group released a statement, this time including their manifesto. ALB struck again in 2007, when it placed an explosive device under

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a physician’s car. The doctor participated in animal experimentation with cats and rhesus monkeys at the Jules Stein Eye Institute at UCLA. Thankfully, the device failed to explode. UCLA offered a reward for information leading to the arrest of the bomber. WHAT ABOUT PETA? People for the Ethical Treatment of Animals, or “PETA,” is the world’s largest and best-known animal-rights advocacy group. It disavows violence and terrorist activities, but admits that every activist movement has factions that believe in the use of force. It does not expressly condemn the actions of these factions, but rather points to their accomplishments. Some PETA members have engaged in illegal actions to protest for animal rights, but by and large these have been nonviolent. PETA activists have been known to take over buildings by, for example, handcuffing themselves to entrance doors on retail establishments that sell fur. More extreme acts allegedly performed by PETA members included throwing fake blood on persons wearing fur and interrupting public and private events by protesting. PETA is famous for secretly videotaping animal abuse at farms, slaughterhouses, and laboratories. It has released its films to the public to document cruelty and mistreatment and has been quite successful in obtaining reforms. PETA is not an ecoterrorist organization. Its tactics resemble those of any public policy interest group: educating the public, lobbying public officials, and exposing abuses in industries that use animals. It lawful, peaceful approach has undoubtedly contributed to its unmatched success in the animal rights movement. However, for PETA to retain its reputation and credibility, it must be careful to distance itself from advocacy groups that resort to violence and destruction and must reject such tactics in the strongest terms. INDIVIDUAL ECOTERRORISTS Ecoterrorism is not limited to organized groups. In September 2010, James Jay Lee, who had been engaged in a long-standing dispute with the Discovery Channel, entered its corporate office in Maryland with bombs strapped to his body. He took three hostages and engaged in a lengthy standoff with police until he was eventually shot and killed by a SWAT team. Lee was already well known to the Discovery Channel from previous environmental protests at the site, one of which resulted in him being placed on probation. Lee had created an environmental website called “Save the Planet Protest” where he posted messages advocating protection of numerous endangered species and arguing that humans were ruining the world. Lee also claimed to have been inspired by former Vice-President Al Gore’s global warming documentary, An Inconvenient Truth. Exactly what turned his formerly peaceful protests into such a violent act is unclear. Media accounts of his attack did not label him an ecoterrorist, but rather portrayed him as a loner who was probably mentally ill with a strange grudge against a cable television station.

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The same might be said of Ted Kaczynski, better known as the “Unabomber.” For 20 years the reclusive terrorist eluded capture while sending sophisticated mail bombs to seemingly unrelated targets. He killed three people in these attacks and maimed nearly two dozen more. He also tried to blow up commercial airliners. In 1995, two major U.S. newspapers published parts of his “manifesto” when he threatened to blow up another airplane. The 35,000-word document, called Industrial Society and Its Future, ultimately led to his capture, because upon reading it, his family members became suspicious and turned him in. Kaczynski was not widely labeled an “ecoterrorist” in the media. But a review of his manifesto shows that he was motivated by rage against industrialization and modern technology. In it, he spoke favorably of “eco anarchy” while arguing that reformers could go further in their efforts. Kaczynski himself was a survivalist: when he was finally arrested in 1996, he was famously living as a hermit in a remote shack in Montana that had no electricity or running water. He is currently serving a life sentence without parole in the federal “Supermax” prison in Florence, Colorado. ACTIVISM OR HYPOCRISY? Although radical ecoterrorist groups attempt to elicit change through extreme and violent acts, they generally do not succeed. Their tactics do not win support from mainstream environmental groups, the vast majority of which are law-abiding. The general public as well as political officials condemn acts of violence that destroy property and threaten human life. Moreover, critics point out that incendiary devices used for bombings and arson do not protect the environment. In fact, these activities appear to have the opposite effect. Structural arson releases carbon into the atmosphere, contributing to the problems of greenhouse gases and global warming. Furthermore, destroying large commercial enterprises with deep pockets does not halt their activities; the companies simply rebuild, using twice the precious natural resources. In addition, the animal rights groups that believe they are acting for the benefit of animals do not always foresee, or choose to ignore, the tragic consequences of their actions. For example, the release of 5,000 farm mink into the wilderness may free the mink from captivity, but it does not provide them a better or longer life. Farm mink are nearly tame and are fed by humans. They do not have the skills or instinct to survive on their own in the wild. Consequently, most of the released mink died from accidents, predation, and starvation. The commitment to avoid harming people or animals seems empty indeed when the effects of these animal releases are analyzed objectively. Ecoterrorist groups like the ones described above have specific goals in mind when they lash out in violence. However, more diplomatic (and legal) alternatives are readily available. Because of recent and growing interest in the field of environmental and animal rights, careers are emerging in education, advocacy, and community action. These alternative routes are effective and nonviolent, and may effect great change in a legal manner.

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Educational opportunities are a strong tool for environmental and animal advocacy. The remarkable recent growth of animal law courses in United States and international universities parallels a similar growth in environmental law a generation ago. Animal rights is now firmly on the agenda for serious policy consideration. Ten years ago, an attorney who practiced animal law likely would not have been taken seriously. Today, animal welfare and animal rights movements and recent high-profile events have conferred legitimacy on this emerging field. Cases like pro football player Michael Vick’s 2007 dog-fighting prosecution are garnering far more attention than a random car bomb or even an act of arson. Clearly, there are nonviolent methods to gain the attention and interest of the public and the government. Further, many careers in environmental advocacy create alternate, nonviolent channels for animal and environmental advocates’ passions. Lobbying for legislative change, for example, heads straight to the source. The Horse Slaughter Legislation of 2007 is just one example of a political movement that culminated in actual and significant change. Today, horse slaughter is banned in the United States, a result achieved without violence or harm to people, animals, or the environment. Still, critics point out that the legislation was illconceived, because it did not anticipate what would become of animals that previously were slaughtered. Overpopulation of horses has become a serious problem in parts of the country, made worse by recent economic conditions. More and more Americans are finding that they cannot afford to feed and care for their horses (and other pets), placing a significant burden on animal shelters. Finally, mainstream environmental advocates point out that small-scale transformation can be undertaken right in one’s own backyard. Corporate and civic groups have joined together to urge consumers to be more environmentally aware in their everyday lives, and to insist on “green” products and services. As more individuals and local communities become aware and active, change is achieved in a peaceful manner, without any environmental or human casualties. In the coming years, ecoterrorist groups will continue to try to impose their own brand of environmental reform on the United States and across the world. No one doubts the need to care for both the earth and its animals. However, terror tactics have not achieved this goal in the past, and are unlikely to do so in the future. As with all forms of advocacy, some who espouse change are willing to resort to any means to achieve it. The challenge for the future is to ensure that cooler heads continue to prevail, recognizing that success depends on the balancing of complex social, economic, and environmental interests. Further Reading Books: Best, Steven and Anthony J. Nocella, eds. Terrorists or Freedom Fighters? Reflections on the Liberation of Animals. Brooklyn, NY: Lantern Books, 2004; Best, Steven and Anthony J. Nocella. Igniting a Revolution: Voices in Defense of the Earth. Brooklyn, NY: Lantern Books, 2006; “Eco-terrorism Specifically Examining the Earth Liberation Front and the Animal Liberation Front.” Hearing before the Committee on Environment and Public Works, United States Senate, One Hundred Ninth Congress, first

Electoral College | 187 session, May 18, 2005. U.S. G.P.O. For sale by the Supt. of Docs., U.S. G.P.O. 2007; Liddick, Donald R. Eco-Terrorism: Radical Environmental and Animal Liberation Movements. Westport, CT: Praeger, 2006; Singer, Peter. The Animal Liberation Movement: Its Philosophy, Its Achievements, and Its Future. Nottingham, England: Old Hammond Press, 1985. Websites: Anti-Defamation League. http://www.adl.org/Learn/Ext_US/Ecoterrorism.asp; Bite Back magazine (online version). http://www.directaction.info; Earth Liberation Front. http://www.earth-liberation-front.org; Science.com. “How Ecoterrorism Works.” http://science.howstuffworks.com/eco-terror.htm

Kandace Hartneck and Kathleen Uradnik ELECTORAL COLLEGE The Electoral College is one of the most controversial institutions created by the framers of the Constitution. It serves as a buffer between the people and the election of their president by acting as their intermediary. It, not the people, possesses the actual legal authority to choose the president. Thus even though the citizens across the nation cast their ballots for president, the Electoral College actually determines who becomes president. This fact raises a number of interesting questions for students of American politics: How does this system work? Why do we have it? Most importantly, is the Electoral College still necessary today? ELECTORAL COLLEGE PROCEDURES The Electoral College is described in Article II, Section One of the Constitution. In short, it is a special group of individuals chosen to represent their states during a presidential election. These individuals meet in each state after the election to cast the state’s electoral votes for president. Under the Constitution, the person who receives the most electoral votes becomes the president. The number of electors in each state is based on a formula set in the Constitution: it is equal to the number of members a state has in the House of Representatives plus its number of senators (which is always two). The total number of electors is 538, representing the 50 states and the District of Columbia, which is entitled to 3 electors under the Twenty-third Amendment. To win the presidency, the successful candidate must gain a majority of the electors: the “magic number” is 270. Given that a state’s total of electors is based on the number of representatives it has in Congress, that number will vary over time as the population shifts. The Constitution requires the federal government to conduct a census every 10 years in order to set the number of representatives that each state is entitled to send to the House of Representatives and, with it, the number of electors the state is entitled to have in a presidential election. The last census was conducted in 2010 and will change the makeup of Congress and the allocation of electors beginning with the 2012 presidential election. States that have lost population

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(particularly in the Northeast) will lose electors, while states that have gained population (in the Sun Belt) will gain some. Electors are selected by political and party leaders in the state during each election cycle. There are no permanent electors, and there is no actual “college” where they meet. The criteria for being an elector vary. The Constitution provides that an elector cannot be a federal officeholder or have committed treason. After that, there are no special requirements. Historically, electors acted independently and could cast their votes for whomever they preferred. As a general practice, though, these individuals did not become electors unless they pledged loyalty to the political party that appointed them, making their votes fairly predictable. Still, it was possible for presidential candidates to attempt to sway electors, particularly in close elections. Today, however, electors are bound in some way to cast their ballots according to their state’s election results. State law controls how its electors are chosen and how they are allowed to vote. In most states, the law provides that an elector must follow the state’s election results. That means the presidential candidate who wins the popular vote in the state is entitled to all of its electoral votes. Other states take a slightly different approach by retaining the ability to punish or remove an elector that does not follow the popular vote of the state. Regardless of the approach, the reality is that in 48 of the 50 states, the candidate who wins the popular vote is entitled to all of that state’s electoral votes. The only exceptions occur in Maine and Nebraska, which use a kind of proportional approach to determining what their electors must do. Currently Maine has two Congressional districts and a total of four electoral votes. It awards one electoral vote per Congressional district, for a total of two. The other two votes are awarded to the winner of the state as a whole. Nebraska takes a similar approach with its five electoral votes. Under this approach, there could be a split of electoral votes between the candidates. Even though their role is merely a formality, the chance to serve as an elector can still be considered an honor. Although approaches differ among the states, generally the party of the winning presidential candidate selects individuals to be electors, and they travel to the state capitol on the appointed day to cast the state’s official electoral votes for president. One can be selected as a reward for loyal party service, or for being a decorated military veteran, or for being an outstanding citizen in the state. Often electors are folks that no one has ever heard of, and that no one will ever hear from again. As mentioned above, there really is little for electors to do, as the result of their vote is a foregone conclusion. WHAT IF NO ONE WINS THE ELECTORAL VOTE? In any election, it is possible that no one candidate will win a majority of electoral votes. In fact, it has happened. In 1824, for example, a number of candidates split the popular vote, and no one of them could garner enough electoral votes to win the presidency. When this occurs, the Constitution provides that

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the election is to be determined by the House of Representatives in a special procedure. The 1824 election was decided in this manner. The House selected John Quincy Adams despite the fact that Andrew Jackson won the popular vote. (Jackson ended up winning the presidency four years later.) It is also possible that the winner of the popular vote loses the election by failing to obtain enough electoral votes. This occurred three times: in the Hayes/ Tilden election of 1876 (won by Hayes) and the Harrison/Cleveland election of 1888 (won by Harrison). Most recently, the election of 2000 saw Republican George W. Bush inaugurated president even though he received fewer popular votes than Al Gore Jr. Bush gained 50,456,062 votes nationwide to Gore’s 50,996,582. Third-party candidate Ralph Nader received 2,858,843 votes, causing many in the Democratic Party to blame him for Gore’s election loss. Indeed, a popular third-party candidate can draw votes away from other candidates, leading to a split in the popular vote and potentially, as in 1824, a split in the Electoral College as well. Obviously the 2000 election was very close. Less than 600,000 votes nationwide separated the major party candidates. Many states saw tight races, with some being “too close to call” when the polls closed. In 2000, Florida was one of those races, and its results ultimately determined the outcome of the election. At the time, Florida had 23 representatives in the House of Representatives and was entitled to 25 electoral votes: 23 representatives + 2 senators = 25 electors. As the election results came in across the country, the race in Florida remained undetermined. As the hours passed and the rest of the nation’s votes were tallied, it became apparent that the candidate who received Florida’s electoral votes would win the election. But who would that be? The day after the election came and went, and Florida’s election results were not finalized. Then the days turned into weeks with no declared winner. Attorneys for Bush and Gore filed dueling lawsuits across the state, alleging voter fraud and improper counting of ballots. While state election officials recounted presidential ballots in some Florida counties under the watchful eyes of both parties and the courts, the rest of the nation waited to find out who their president would be. Eventually the U.S. Supreme Court received and decided the controversial case of Bush v. Gore. Attorneys for the candidates had appealed from the Florida Supreme Court, arguing for different reasons that it had misunderstood and misapplied Florida election law and had violated the intent of the Florida legislature. Although the case was very complex, in essence the Bush team argued that recounting votes in only a few Florida counties (ones that were heavily Democratic and favored Al Gore) violated the Equal Protection clause of the Constitution because votes are supposed to be counted in the same, uniform fashion. The Gore team disagreed, but it was willing to see all of the state’s ballots recounted, a process that would have taken an extended period of time, a fact that, depending on whom one believed, was not anticipated or allowed by Florida law. The Supreme Court rarely intervenes in a matter involving a state court interpreting state law, but in this case it had no choice since the presidency hung in the balance. A majority of seven justices determined that Florida had violated

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the equal protection clause of the Constitution in conducting its selective recount, but they were deeply divided on what to do about that fact. A bare majority of five justices concluded that the Florida ballot recounts should stop because the state’s legal deadline for certifying the results of the election had been reached. Nevertheless, the Supreme Court kept the case open pending further action by the parties. After the decision was announced, Al Gore addressed the nation in a televised speech. He told Americans that, while he was disappointed in the Court’s ruling, he would abide by it and would honor the nation’s legal process. He instructed his attorneys to end legal proceedings. Florida’s Secretary of State certified its election results and awarded all of its electoral votes to George Bush, who was inaugurated the nation’s 43rd president. The 2000 election was exceptional in numerous respects, not the least of which was the fact that Al Gore won the most votes nationwide but lost the election. Such an event had not occurred in this nation since the nineteenth century. The Supreme Court had never been called upon to intervene in such a direct manner in a presidential election by reviewing a state’s election procedures and decisions. Most political pundits considered the election a “once in a lifetime” event. Not so fast. When one looks into the Electoral College system, it is easy to see how complications might emerge. There are seemingly countless combinations of state results that could produce 270 electoral votes. There are also numerous ways where neither one of the major party candidates would win a majority of electoral votes. And it would not take much to complicate things further—if a strong third-party candidate were to win one or more states, the electoral vote count would be split three ways, making it difficult for any one person to reach the 270 vote total and throwing the presidential election into the House of Representatives. Although recent presidential elections appear straightforward with respect to Electoral College voting, it does not necessarily have to proceed that way. RATIONALE FOR THE ELECTORAL COLLEGE U.S. elections are pretty easy to understand: the person with the most votes wins. But that is NOT true when it comes to electing the president. In that case, the candidate with the most votes usually wins, but not always. Over the nation’s history, at least a few candidates won the most popular votes but did not become president. Is this fair? One might ask why the framers would complicate the election for president by using the Electoral College. The answer lies at least in part in their overwhelming desire to guard against tyranny. The framers knew that they needed to create a strong central government, and that was the central purpose of the Constitution. But they also understood that government could become too strong and would have to be kept in check. Consequently they adopted a series

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of instruments to guard against the concentration of governmental power in too few hands—we know this approach today as “checks and balances.” But the framers were not just concerned with tyranny from the government. They understood that tyranny could come from the people as well. In the Federalist Papers, which were written in support of the Constitution to explain it and encourage its ratification, James Madison recognized that abuse of power could come from majorities or minorities. A large group could be oppressive, a small group or special interest could obtain too much power, or even an individual could abuse his or her authority. Thus the framers had to guard against tyranny in every potential form. The Electoral College was their answer to the potential abuse of power by the masses. At the time of the founding, many people believed that a majority of Americans could potentially be swept up into political hysteria or political meanness and use their voting power to send a tyrant to the Oval Office. This notion was not far-fetched: traditionally, philosophers believed that the main threat to any democracy was a mass uprising that would destabilize that nation. The masses were not to be trusted with the power to choose their leader or to vote on the issues of the day. For this reason, political philosophers considered democracy unworkable, or at least undesirable. The prevailing wisdom held that, to have any chance at success, a democracy should be set up on a small scale, in a nation where the citizens were very homogeneous. The idea of creating a democracy on a large scale had never been tried before, and the framers showed their boldness and audacity in proposing it for the United States. But the framers were also realistic about the prospects for abuse of power by the majority, so they created an institution to stand between the people and the election of the president—the Electoral College. Interestingly, the Electoral College was not the only example of the framers’ caution in this regard: initially, the people could not vote for their senators, either. In the original Constitution, senators were chosen by the state legislatures. This approach changed in 1913, when the states ratified the Seventeenth Amendment to the Constitution to provide for the direct election of senators by the people. A second explanation for the Electoral College, discussed in more detail below, recognizes that it was designed to ensure that each state mattered in the presidential election, because the electors would be chosen by the states to represent their interests. It is not surprising that the power to elect the president was vested in the states; the framers were careful not to make the states too weak, lest they lose support for ratifying the Constitution. Under the Articles of Confederation, small states had felt somewhat threatened by their larger neighbors, which had more population, wealth, and resources. How could small states be assured of a lasting role in the new republic? In part, the framers did so by granting them a say in the election of the president, one that was proportional to their size but that nonetheless ensured that their voters would be counted. Large states would be less likely to elect the president on their own because popular vote was not the measure of success; the states were.

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WHY RETAIN THE ELECTORAL COLLEGE? Throughout the nation’s history, lawmakers have introduced legislation aimed at removing the Electoral College from the Constitution. The only way to change the Electoral College system is through a constitutional amendment, and at times advocates for direct election of the president have made a good case. But if the 2000 election did not provoke sufficient support for such an amendment, it is unlikely that one will ever be ratified. An amendment requires two-thirds approval from both houses of Congress; thereafter it must be ratified by three-fourths of the states. No proposals to change or eliminate the Electoral College have ever passed Congress to be voted on by the states. Upon closer inspection, there’s a good reason why states would be unwilling to give up the Electoral College. Even though, on occasion, a president may win the Electoral College vote while losing the popular vote, many states are willing to live with that result if they continue to matter in presidential politics. If the presidential election relied solely on the popular vote, this approach would heavily favor populous states in the presidential election because that’s where most of the voters reside. States such as California, Texas, New York, and Florida would attract candidates in search of the biggest “bang for their buck” on the campaign trail. Small states with few voters would be less attractive to campaigns, which have to allocate their scarce resources carefully. Candidates might not even visit states like Iowa and New Hampshire, which are critically important today in presidential primaries. There simply are not enough voters in small states to make them worthwhile stops on the campaign trail. It is true, too, that the Electoral College continues to guard against the prospect of majority tyranny, as it always has, by making state election results more important than the results of the nation as a whole. It might be more democratic to allow the population to elect the president, but that approach raises a different set of concerns. The framers chose to value state input and to avoid the potential for a massive mistake by the voters; their reasons for doing so are arguably just as relevant today as they were when the nation was founded. Proponents of the Electoral College also argue that more democracy is not necessarily better democracy, and that the current system takes into account voters from across the nation rather than favoring those who live in its most populated areas. They also point out that the right to vote has been extended in numerous ways over the past century—through, for example, the Fifteenth, Nineteenth, Twenty-third, and Twenty-sixth Amendments—and that voting is more open and democratic than it has ever been. Still, reform advocates argue that direct election is preferable, believing the Electoral College to be antiquated and the risks of removing it overstated. While proponents and opponents continue to make persuasive arguments, the fact remains that only 27 amendments have been added to the Constitution over its entire history. The fact that no proposed Electoral College amendment has met with any success suggests that the political will has not been and is not in favor of this change.

Emergency Preparedness/Federal Emergency Management Agency (FEMA) | Further Reading Books: Bennett, Robert. Taming the Electoral College. Palo Alto, CA: Stanford Law and Politics, 2006; Dover, E. D. The Disputed Presidential Election of 2000: A History and Reference Guide. Westport, CT: Greenwood Press, 2003; Edwards, George C. Why the Electoral College Is Bad for America. New Haven, CT: Yale University Press, 2004; Fortier, John C. ed. After the People Vote: A Guide to the Electoral College. Washington, DC: AEI Press, 2004; Gregg, Gary L. Securing Democracy: Why We Have an Electoral College. Wilmington, DE: ISI Books, 2001; Ross, Tara. Enlightened Democracy: The Case for the Electoral College. Dallas: Colonial Press, 2005; Schumaker, Paul D. and Burdett A. Loomis, eds. Choosing a President: The Electoral College and Beyond. Washington, DC: CQ Press, 2002; Shaw, Daron R. The Race to 270: The Electoral College and the Campaign Strategies of 2000 and 2004. Chicago: University Of Chicago Press, 2006; Streb, Matthew. Rethinking American Electoral Democracy (Controversies in electoral Democracy and Representation). New York: Routledge, 2008. Websites: 270 to Win. http://www.270towin.com/; How the Electoral College Works. http:// www.howstuffworks.com/electoral-college.htm; Kimberling, William C. The Electoral College. Federal Election Commission. 1992. http://www.fec.gov/pdf/eleccoll.pdf; Linder, Doug. Exploring Constitutional Conflicts. “The Electoral College.” 2009. http:// www.law.umkc.edu/faculty/projects/ftrials/conlaw/electoralcoll.htm; MITworld. The Electoral College Experts Debate. http://mitworld.mit.edu/video/631; National Archives Experience. Electoral College: The Debate Continues. http://www.archives.gov/nae/ news/featured-programs/electoral-college/080521ElectoralCollegePanel.pdf; United States National Archives and Records Administration. U.S. Electoral College. http:// www.archives.gov/federal-register/electoral-college/

Kathleen Uradnik EMERGENCY PREPAREDNESS/FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) In late August 2005, Hurricane Katrina ripped through the Gulf states of Florida, Alabama, Mississippi, Louisiana, and Texas, killing over 1,800 people and causing damage estimated at over $80 billion. The most severe damage and loss of life occurred in New Orleans, where 80 percent of the city flooded as its extensive levee system, designed to prevent major flooding, catastrophically failed. Hurricane Katrina thus became the most destructive and costliest natural disaster in the history of the United States. The storm damaged over 850,000 homes and displaced hundreds of thousands of people, leaving many of them homeless and unemployed. The scale of the destruction and the criticism of the federal government’s response to the disaster continue to be dealt with and debated today. Politically, the disaster raised concerns about the sufficiency of current preparedness measures and the soundness of governmental policies about emergency management. The storm’s devastation prompted a congressional investigation, which placed responsibility for the disaster at many levels of government. Eight years after the storm, much of the affected region remains in ruins. Some evacuees still live in temporary housing, and others have never

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returned to the area. Policymakers grapple with how to best learn from the Katrina experience, and debate continues regarding how to undertake disaster planning, relief, and reconstruction. In the aftermath of 9/11 in 2001 and Hurricane Katrina in 2005, the term “emergency management” or “disaster management” became more prominent in U.S. policy discussions. Emergency management broadly refers to the support of individuals and communities that might be affected by a range of disruptive incidents, including those caused by natural disasters such as earthquakes, flooding, or disease outbreaks. It also includes incidents that might result from human activity such as terrorism or other criminal acts. Emergency management includes the study, training, and preparation for disaster responses such as evacuation, decontamination, and the rebuilding of critical infrastructure after natural disasters have occurred. It involves the coordination of individuals, groups, and communities in formulating emergency plans at all levels of government. Because disasters can vary from a local disruption to a national catastrophe, all levels of government, multiple agencies within each level of government, and the private sector may contribute to a response, particularly when confronted with a catastrophic incident. FEMA Typically in the United States, disaster response and planning are a local government responsibility. If local government exhausts its resources it can request additional resources from the county level. The process continues from the county to the state and finally to the federal government as the need for additional resources grows. The Federal Emergency Management Agency (FEMA) is the lead agency for emergency management. FEMA provided direct assistance to victims of the 9/11 terrorist attacks and currently works with communities to prepare for, and respond to, possible other attacks in the United States. Its mission is to reduce the loss of life and property from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading a system of preparedness, protection, response, and recovery. Two years after the 9/11 disasters, FEMA became a part of the U.S. Department of Homeland Security (DHS) in order to better organize and allocate resources between the tasks of managing both natural disasters and national security threats. The statutory authority for FEMA is the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which permits the president to issue a major disaster or emergency declaration before or after major disasters occur. An emergency declaration triggers aid to communities in an attempt to lessen or avert the threat of an incident becoming a catastrophic event. A major disaster declaration allows federal agencies to provide assistance to individuals, families, and local and state governments affected by the incident. Aid to families and individuals can include loans to help the uninsured; assistance to state and local governments is typically directed toward rebuilding or replacing damaged infrastructure.

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Analysts have pointed out that there are potential natural events that could conceivably produce many of the same challenges presented by the Gulf Coast hurricane season of 2005. For example, in November 2008, a FEMA report warned that a serious earthquake along the New Madrid fault line could result in an enormous disaster in the United States. The New Madrid fault system is a 150-mile fault that extends into five states—Illinois, Missouri, Arkansas, Tennessee, and Kentucky. Although there has not been a major earthquake along the fault in almost 200 years, many experts warn the chances of a major quake in the next 30 years is relatively high. FEMA received widespread criticism for providing a slow and ineffective response to Hurricane Katrina. Indeed, within days of Katrina’s landfall, public debate arose about the local, state, and federal governments’ role in the preparations for and response to the hurricane. Criticism was prompted by televised images of residents stranded by floodwaters without water, food, or shelter. Deaths from thirst, exhaustion, and violence, days after the storm had passed, fueled the criticism, as did the dilemma of the evacuees at facilities such as the Louisiana Superdome and the New Orleans Civic Center. Some alleged that race, class, and other factors could have contributed to delays in government response. The storm’s devastation also prompted a congressional investigation, which found that FEMA and the Red Cross lacked a logistics capacity sophisticated enough to meet the needs of the massive number of victims. The criticisms of the government’s response to Hurricane Katrina primarily consisted of allegations of mismanagement and lack of leadership in the relief efforts in response to the storm and its aftermath. An investigatory report found that one of FEMA’s problems was focusing too much on planning for possible terrorist attacks rather than for natural disasters. The report also found confusion over the roles and responsibilities of officials in responding to disasters. At the time of Hurricane Katrina, Michael D. Brown served as the head of FEMA. Brown, a lawyer and former commissioner of the International Arabian Horse Association, took over FEMA in 2003 with little experience in emergency management. While Katrina was unfolding, media rumors surfaced that Brown’s only previous experience in emergency management was in an intern-like position as an assistant city manager of a town of 60,000 residents. It was later revealed that at the time of the hurricane, five of eight top FEMA officials had come to their jobs with virtually no experience in handling disasters. The agency’s top three leaders, including Brown, had ties to Bush’s 2000 presidential campaign or to the White House. This fact led the media and general public to openly question the selection of a political appointee with little emergency management experience to lead the nation’s top disaster agency. Brown was criticized not only for his lack of experience in emergency management, but also for his mismanagement and lack of empathy in regard to the situation in New Orleans. Several days into the Katrina crisis, Brown acknowledged in a CNN interview that he was not aware that thousands of New Orleans residents were huddled in the city’s convention center under terrible circumstances. To make matters worse, a Louisiana congressman claimed

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that e-mails written by Brown showed a lack of concern for the unfolding tragedy and a failure in leadership. Within a couple of weeks after the storm, Brown resigned, a mere 10 days after President Bush famously told him he was doing a “heck of a job.” In an interview after the storm, Brown suggested that President Bush, or at least his top aides, were informed early and repeatedly by the top federal official at the scene that state and local authorities were overwhelmed and that the overall response was going badly. Although senior officials at the White House recalled the conversations with Brown, they did not believe the communications had the urgency or desperation as Brown had described. Brown’s version of events raised questions about whether the White House and the director of Homeland Security acted aggressively enough in the response, especially in regard to the looting and violence in New Orleans after the hurricane. Troops did not arrive in force to restore order until five days later. POST-KATRINA In order to reform FEMA and make it more effective, Congress passed the Post-Katrina Emergency Management Reform Act in 2006. Among its many provisions, it placed restrictions on possible reorganizations by the DHS and provided the administrator of FEMA with a direct line to the president. The act also required that the president establish a “national preparedness goal” and national preparedness system (NPS) to ensure the nation’s ability to prevent, respond to, recover from, and mitigate against disasters of all kinds, including acts of terrorism. Additionally, the president, through the FEMA Administrator, was directed to establish a national preparedness system to enable the nation to meet the national preparedness goal. The act also integrated preparedness and response functions that were missing during the time of Hurricane Katrina into FEMA. The Post-Katrina Act met with approval from many who argued that FEMA should remain within the DHS. Those who support FEMA being located in DHS argued that the Post-Katrina Act has strengthened FEMA by speeding up response time, the development of plans, and collaboration with state and local governments since. In addition, many argued that the Homeland Security secretary, as a permanent member of the president’s cabinet, would serve as a powerful advocate for FEMA and would be able to gather resources for its management during an emergency. Others, however, have argued that FEMA should have been left as an independent cabinet-level agency, believing that it was a successful model in the mid-1990s. When an earlier catastrophic disaster, Hurricane Andrew, hit Florida in 1992, President Bill Clinton appointed the first professional emergency manager to run the agency. With a serious eye toward reducing the cost of natural disasters in both economic impact and lives disrupted, FEMA was reoriented to focus on natural disaster preparedness and mitigation. FEMA was then elevated to a cabinet-level agency, in recognition of its important responsibilities coordinating efforts across departmental and governmental lines. Ultimately these arguments proved unsuccessful, and FEMA remains part of the Department of Homeland Security.

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Other significant provisions in the Post-Katrina Act included the establishment of a family registry and locator system. As designed, this system would be accessible by Internet and a toll-free number and would assist family members and law enforcement in reuniting families. The Post-Katrina Act also calls for a housing strategy that includes a review of housing resources, including those departments and agencies with existing housing inventory and a list of housing resources available for disaster victims. THE FUTURE OF FEMA In May 2009, President Barack Obama appointed W. Craig Fugate, a former emergency manager in Florida, to lead FEMA, hoping a nominee with experience in natural disasters would help restore credibility to an agency whose reputation suffered by its response to Hurricane Katrina. In 2004 and 2005, Fugate headed state emergency operations when Florida was hit by four hurricanes each year. He also oversaw sending Florida emergency workers to Louisiana and Mississippi to help out in the days after Hurricane Katrina struck land. Many feel that Fugate’s appointment signaled that the administration was considering restoring FEMA to a cabinet-level department, a change called for by many Democrats critical of the agency’s response to Hurricane Katrina and other disasters. President Obama has not officially declared his intentions regarding any reorganization of FEMA. On a brighter note, it is important to look at potential disasters successfully averted. In early 2009, America’s disaster management system faced another test. Improved communications and emergency response plans that were put in place after 9/11 helped to save many lives when a U.S. Airways passenger plane ditched into the Hudson River outside Manhattan, New York after losing power in both of its engines. After the plane landed in the river, local ferries and tugs began almost immediately to rescue passengers. Many commercial ferries quickly made their way to the sinking aircraft and removed passengers for further evaluation and treatment. Within minutes, the New York City Fire and Police Departments and the U.S Coast Guard were on hand to help with the rescue and recovery effort. An incident command post was quickly established, and all local, state, and federal agencies responded as planned. Using the New York Harbor Observation and Prediction System (NYHOPS), which gives a real-time assessment of ocean, weather, environmental, and vessel traffic conditions for various New York Metropolitan area waterways, the New York Office of Emergency Management (OEM) was able to give accurate information that helped rescue workers on the scene. To a certain extent, FEMA’s future success depends on the disasters that America will face. FEMA responded well to the criticism it received after 9/11, which forced it to prepare for future terrorist attacks on U.S. soil. But Hurricane Katrina reminded FEMA that its traditional role has always been to assist state and local governments after natural disasters. Today, FEMA is expected to respond equally well to both. Regardless of the type of disaster, affected populations expect a quick and effective response from the federal government. FEMA

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is in the unenviable position of being the federal government’s first responder, ready to act at a moment’s notice to address whatever disaster man or Mother Nature inflicts upon America. Further Reading Books: Birkland, Thomas A. Lessons of Disaster: Policy Change after Catastrophic Events. Washington, DC: Georgetown University Press, 2006; Coppola, Damon P. and Erin K. Maloney. Communicating Emergency Preparedness: Strategies for Creating a Disaster Resilient Public. New York: Routledge, 2007; Haddow, George, Jane Bullock, and Damon P. Coppola. Introduction to Emergency Management. Burlington, MA: ButterworthHeinemann, 2007; Hutton, David. Older People in Emergencies: Considerations for Action and Policy Development. Geneva: World Health Organization, 2008; Miskel, James. Disaster Response and Homeland Security: What Works, What Doesn’t. Palo Alto, CA: Stanford University Press, 2008; Prasad, Neeraj. Climate Resilient Cities: A Primer on Reducing Vulnerabilities to Disasters. Washington, DC: World Bank, 2009; Posner, Richard A. Catastrophe: Risk and Response. New York: Oxford University Press, 2004; Radvanovsky, Robert and Allan McDougall. Critical Infrastructure: Homeland Security and Emergency Preparedness. Boca Raton, FL: CRC Press, 2009; Sylves, Richard. Disaster Policy and Politics: Emergency Management and Homeland Security. Washington, DC: CQ Press, 2008; United States Congress. A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina. Washington, DC: Government Printing Office, February 19, 2006. Websites: Centers for Disease Control and Prevention. Emergency Preparedness and Response. http://www.bt.cdc.gov/; Centers for Disease Control. “A New Era of Preparedness.” http://www.cdc.gov/CDCTV/EraOfPreparedness/index.html; Congressional Research Service report to Congress. 2003. Emergency Preparedness and Response Directorate of the Department of Homeland Security. http://www.fas.org/sgp/crs/RS21367.pdf; Federal Emergency Management Agency. http://www.fema.gov/; http://www.ready.gov/; Lundin, Cody. “10 Ways to Prepare for Disaster.” Newsweek, December 28, 2009. http:// www.newsweek.com/id/228429; United States Department of Labor, Occupational Safety and Health Administration. http://www.osha.gov/SLTC/emergencypreparedness/ index.html; United States Department of Education, Office of Safe and Drug-Free Schools. http://www2.ed.gov/admins/lead/safety/emergencyplan/index.html

Sara Hower ENEMY COMBATANTS In 1864, leaders from over a dozen European nations gathered to discuss how warfare among them might be regulated for humanitarian reasons. Their efforts led to the first Geneva Convention, a treaty among nations providing certain ground rules for the treatment of injured soldiers, prisoners of war, and their caregivers. Specifically, the Geneva Convention provided that medical personnel and hospitals would not be targeted in warfare, that persons who assisted sick or injured soldiers would be deemed neutral and nonmilitary, and that prisoners would be returned to their home nations if they were disabled or otherwise incapable of returning to combat. The convention also established the now universally recognized Red Cross symbol as indicating the neutrality of medical personnel.

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The United States ratified the Geneva Convention (properly but less commonly called Geneva Conventions, given its multiple parts) in 1882. In subsequent years, the original agreement was redrawn and reratified numerous times to further delineate the protections for medical workers and civilians and the rights of prisoners of war. A version of the convention has been approved by Congress and has been in place for all of the United States’ subsequent wars. The most recent version of the Geneva Convention protects the health and welfare of four groups: sick and wounded soldiers on land; sick, wounded, and shipwrecked soldiers at sea; prisoners of war; and civilians caught in war. The rules governing these groups require that all be treated humanely and with dignity. Injured soldiers are to receive medical assistance; civilians are not to be targeted by the warring sides. Prisoners of war are guaranteed food, shelter, and medical care as well as certain basic human rights such as respect for religious practices. In addition, prisoners should be free from violence or reprisal by their captors. THE UNIQUE STATUS OF ENEMY COMBATANTS Providing the captured soldiers with basic humanitarian rights has been a goal of civilized nations for nearly 150 years. But what happens when an enemy soldier is not acting on behalf of any nation, or if a country is attacked by an organization rather than by a nation? Traditional warfare has been undertaken between nations, and the treaties governing those wars have been negotiated and approved by nations. What if there is no nation, no official body to enter into an international treaty? How do you treat its soldiers when they are captured? This question has proved one of the most difficult in America’s foreign policy in the twenty-first century. On September 11, 2001, the United States was attacked by a group of professional, highly organized, and well-funded international terrorists. The terrorists hijacked four civilian aircraft, flying two of them into the Twin Towers of the World Trade Center in New York City, one into the Pentagon in Washington, D.C., and crashing the last one into a field in Pennsylvania. Nearly 3,000 innocent civilians were killed in these attacks, including not only Americans, but citizens from dozens of countries around the world. This assault was undertaken by a terrorist group called Al Qaeda, headed by a radical Muslim named Osama bin Laden. The planners and perpetrators of the attack did not act on behalf of any nation, and they were not sponsored by any nation. Rather, they acted on behalf of their own organization, which is dedicated to eliminating the influence of the West (and particularly the United States) in the Middle East, destroying the nation of Israel, and imposing Islamic rule in the region. Its members come from over a dozen countries—Bin Laden was a Saudi citizen—and have engaged in terrorist activities all over the globe. Al Qaeda seeks to fight a holy war—not a war between nations, but a war of fundamentalist Islamic believers against nonbelievers.

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Al Qaeda did not sign the Geneva Convention; indeed it could not, given the fact that it is not a nation. Even if it were eligible, Al Qaeda has not shown itself to be willing to acknowledge, much less afford, basic human rights to those with whom it has engaged in conflict. Given that Al Qaeda and related terrorist organizations do not follow long-established rules of combat, U.S. military officials and policymakers have had to determine how to fight against this new kind of enemy. THE BUSH ADMINISTRATION RESPONSE As the United States began to fight its “War on Terror” in the wake of 9/11, it had to decide what to do with the Al Qaeda fighters that it had captured in Afghanistan, Iran, and throughout the world. Were these individuals to be treated as prisoners of war, and thus receive the protections of the Geneva Convention? Did it make sense to give them guarantees previously reserved for the soldiers of nations who had agreed to provide basic human rights and follow international law? The Bush administration said “no.” Captured terrorists would not be considered prisoners of war. They were given a new designation: “enemy combatants.” Enemy combatants were not entitled to invoke the Geneva Convention, or any other international agreement for that matter. Since almost all of them were not Americans, they could not seek the protections of the Constitution, either. This hard line on captured terrorist soldiers deeply divided American policymakers and the American people. On the one hand, terrorists had no right to expect the protection of any international treaty, given that they did not act for any nation. On the other hand, America has traditionally prided itself on providing basic humane treatment and some level of due process to all within its borders, including illegal immigrants, who enjoy some limited protections under the Constitution. Critics of the Bush Administration argued that the Geneva Convention provided basic guidelines for the treatment of all captured soldiers, regardless of whether they had acted on behalf of a particular nation. President Bush forcefully countered that the war on terrorism was a very different kind of war that nations did not contemplate when entering into the Geneva Convention. Because they were not signatories on the agreement, they were not entitled to its protections. President Bush had a point: one of the basic tenets of the Geneva Convention is the protection of civilians during warfare, and specifically the rule that civilians should not be targeted or drawn into a conflict. The 9/11 terrorists violated all of the basic rules of humanitarian warfare by intentionally attacking civilian targets and imposing unspeakable damage on individuals without regard for their nationality, race, religion, gender, or any other characteristic for that matter. The barbaric nature of the attacks did nothing to incline the Bush administration to go easy on captured terrorists or to ensure their humanitarian treatment.

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CONSTITUTIONAL CONCERNS AND CHALLENGES That being said, certain problems arose immediately with the Bush approach. First, how could the military be certain that it had actually captured terrorist soldiers, instead of persons who may have been in the wrong place at the wrong time? Under American law, a criminal defendant must be charged with a specific crime and is entitled to a speedy trial to determine their actual guilt or innocence. Other guarantees attach when one has been arrested and jailed— notably the right to an attorney, the right to present evidence, and the right to cross-examine witnesses. An incarcerated individual is entitled to contact family and friends in the outside world, to receive basic nutrition and medical care, to be free from torture, and to engage in their religious practices. Initially, enemy combatants did not receive these basic rights. Many were moved to an army base at Guantánamo Bay, Cuba, where they were held without charges, in some cases for several years. The identities of many of the enemy combatants were kept secret; the government would not confirm or deny their incarceration. The combatants were prohibited from contacting anyone, including attorneys. No attorneys were provided to them, and no hearings, let along trials, were held on the nature of their incarceration. The captured individuals were kept under tight security while military officials questioned them for information about their activities. Sometimes this questioning involved torture, or at a minimum the infliction of physical and emotional distress on the inmates. When relatives suspected or discovered that their loved ones were being held in secret at Guantánamo, many hired American attorneys. The attorneys were charged with securing legal rights and process for their clients. Many filed suit immediately to challenge the indefinite detention of their clients as well as the absence of any procedures for establishing that they were not enemy combatants. The first of these cases reached the Supreme Court in 2004. Yaser Esam Hamdi was taken into custody during a battle in Afghanistan. He was labeled an enemy combatant and eventually taken to Guantánamo. When the government discovered that Hamdi was both a Saudi Arabian and an American citizen, it transferred him to a facility in the United States. Because it still considered him an enemy combatant, however, it did not extend to him any due process protections or other constitutional rights. Hamdi’s father sued on his son’s behalf, arguing that he son was acting as a relief worker, not a terrorist fighter, when he was captured. In June 2004, a deeply divided Supreme Court concluded that Hamdi’s detention was lawful, but that he was entitled to certain minimum protections as an incarcerated enemy combatant. The decision was a plurality, meaning that there was no majority for its reasoning. Justice O’Connor wrote the opinion on behalf of herself and three other justices (Rehnquist, Kennedy, and Breyer). She argued that Congress had authorized the detention of enemy combatants, and that American citizens could be considered enemy combatants. The government could not, however, detain combatants indefinitely or deny them the ability to challenge their enemy combatant status. Justice O’Connor often took a centrist approach to constitutional decision making; her jurisprudence

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was characterized by balancing competing interests in controversial cases. Her decision in Hamdi v. Rumsfeld was no different. She observed: Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. The Supreme Court went on to hold that an enemy combatant is, at a minimum, entitled to challenge the factual basis of his confinement at a proceeding before a neutral arbiter, and that the detainee had the right to counsel for the proceeding. Just how this proceeding would work, however, was left to be determined. Justice Scalia, never a fan of O’Connor’s centrist balancing with respect to constitutional rights, disagreed vehemently with her decision. He argued that the Constitution required the government either to suspend the writ of “habeas corpus” (the constitutional procedure that Hamdi had used to bring his lawsuit) or grant the detainees full access to and the protections of the federal courts. In sum, five of the Hamdi justices had agreed enemy combatants could be held by the U.S. government for the duration of a conflict—in Hamdi’s case, the war in Afghanistan. But the government was required to give them the opportunity to prove that they had been wrongfully or mistakenly detained. The Bush administration responded by creating military tribunals, called Combatant Status Review Tribunals, to hear the detainees’ cases, an action that it believed brought it into compliance with the Supreme Court’s ruling. Congress, for its part, passed the Detainee Treatment Act of 2005. The act required humane treatment of the detainees, especially during their interrogation. In addition, the act sought to limit the jurisdiction of the federal courts to hear habeas corpus and other claims filed by the Guantánamo detainees. But it did not take long for the attorneys representing the enemy combatants to challenge the government’s plan as inadequate. By 2006, the Supreme Court again was called upon to determine whether the Bush administration had acted properly and had granted the enemy combatants sufficient legal protections. In Hamdan v. Rumsfeld, a deeply fractured Court determined that the system of military tribunals was not authorized by Congress as required by law and, moreover, did not conform to the rules of either the Geneva Convention or the Uniform Rules of Military Justice. For that reason, it was insufficient and illegal. Justice John Paul Stevens wrote the opinion of the Court, which was joined in some parts and rejected in other parts by his colleagues. In all, the case had six separate opinions among the eight justices that heard it. (Chief Justice Roberts recused himself and did not participate in the decision.) Again, however, that was not the end of the issue. Yet another enemy combatant case reached the Supreme Court in 2007. This case concerned whether

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Congress had acted properly in trying to deny the federal courts (including the Supreme Court) the ability to hear cases brought by the Guantánamo detainees. In June 2008, the Court struck down Congress’s attempt to limit the courts’ power. It ruled 5:4 in the case of Boumediene v. Bush that, while Congress does have the power to suspend the writ of habeas corpus, it can only do so in certain narrow and compelling circumstances, and it must make its intention to do so perfectly clear. Justice Kennedy wrote the majority opinion, making it clear that the writ of habeas corpus is a fundamental right guaranteed by the Bill of Rights, and that enemy combatants are entitled to its protections. Under the Constitution, Congress is entitled to suspend this right only if the nation faces a rebellion or an invasion. This ruling cleared the way for detainees to avail themselves of the writ to continue to challenge the propriety and terms of their confinement. HAMDAN GOES TO TRIAL The summer of 2008 was important for another reason: the government completed its first criminal trial of enemy combatants by prosecuting Salim Ahmed Hamdan, the same individual whose case had been decided by the Supreme Court in 2006. Hamdan had served for a time as the personal driver for Al Qaeda leader Osama bin Laden. He was captured and moved to Guantánamo Bay and eventually charged with two war crimes: conspiracy to commit terrorist acts and providing material support to terrorists. A six-judge military jury acquitted Hamdan of the more serious conspiracy charge and convicted him on the material support charge. In a separate proceeding, the same jury concluded that Hamdan should be sentenced to five and one-half years in prison. Because Hamdan had already been confined at Guantánamo for five years and one month, he had only five more months of the sentence to serve. The sentence came as a surprise to many, given that prosecutors had asked that Hamdan receive a sentence of 30 years to life in prison. When Hamdan heard the sentence, he thanked the military court for treating him fairly and expressed happiness that he would soon be free. Pundits and bloggers jumped on the story, arguing that it was an embarrassment for the Bush administration and a sound rebuff of its policies toward the detainees. Others pointed out that, in the scheme of things, Hamdan had played a relatively small and limited role in contributing to terrorism and had received a proper sentence, thus establishing that the system of military justice had worked properly. THE OBAMA ADMINISTRATION’S APPROACH By late 2008, nearly 800 detainees had passed through the detention center at Guantánamo. The treatment of the detainees became a campaign issue in the 2008 presidential election. During his campaign, Barack Obama vowed to close Guantánamo and reject the Military Commissions Act, the 2006 law underpinning the ongoing Guantánamo tribunals. Two days after he was sworn in as

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president, Obama signed an executive order to suspend the military commissions and to close the Guantánamo Bay facility within a year. Republicans criticized the move, saying it would lead to the release of dangerous terrorists. Obama supporters welcomed the news. However, closing Guantánamo proved easier said than done. The administration proposed moving the detainees to the United States and placing them in federal prisons as they awaited trial before federal courts. In fact, the administration proposed holding the trial of alleged 9/11 mastermind Khalid Shaikh Mohammed in New York City. This proposal caused immediate outrage among New Yorkers, who viewed it as pouring salt in the wounds of 9/11 families. Almost all city and state officials demanded that Obama reconsider the proposal, pointing out that, in addition to the perceived insult, they could not afford to pay for the level of security that would be required during the trial. Attorney General Eric Holder then announced that no decision had been reached on where to try Khalid Shaikh Mohammed, and that the issue was “under consideration.” Many months later Holder gave up on the idea of a New York trial. Treating the most dangerous Guantánamo detainees as if they were typical federal prisoners in the criminal justice system proved more difficult than it perhaps seemed. Realizing this fact, President Obama reinstated the controversial military tribunal system for some Guantánamo detainees, citing their new legal protections as justification. About 180 detainees remain at the base today. Of that group, approximately 48 have been identified for continued and indefinite detention without trial. These prisoners are considered too dangerous to release and may or may not eventually go to trial. For Obama supporters, this change in policy has been a tremendous disappointment; Democrats had sharply criticized the policy when the Bush administration created it, and Obama had campaigned to undo it. In the fall of 2010, the administration brought to trial in New York City a Tanzanian citizen named Ahmed Ghailani who had been held at Guantánamo. He was charged with bombing two American embassies in Africa in 1998, resulting in the deaths of hundreds of people. The trial was a test of whether a Guantánamo detainee could be processed through the federal court system. Under the Constitution, any evidence obtained against a criminal defendant by illegal means must be excluded from the trial. The “exclusionary rule,” as it is called, helps to ensure that police and government officials do not coerce confessions, steal evidence, or otherwise gather evidence in an illegal manner. However, many of the detainees at Guantánamo had been subjected to coercion and forms of treatment that would not be allowed in other contexts. Many feared that if a detainee came to trial in a U.S. federal court, the judge would have no choice but to exclude key evidence because of the way it was obtained. That, in fact, is what happened. Early in the trial, federal Judge Lewis Kaplan ruled that the government’s key witness could not testify, because his identity had been obtained by the government when it coerced Ghailani. The witness was to testify that he supplied explosives to Ghailani; without that testimony, the government’s case fell apart. After a month-long trial, the federal jury

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convicted Ghailani of only 1 (yes, one) of the 286 charges brought against him— conspiracy to destroy federal property, an offense carrying a sentence of 20 years to life. The Ghailani trial confirmed what many had feared: that trying Guantánamo detainees in federal courts would put the government at a distinct disadvantage, because much of its evidence had been previously obtained by illegal means. At the time, the Bush administration justified the use of coercion as necessary to gather timely intelligence to fight the war on terrorism. The Bush administration was more concerned about obtaining information on Al Qaeda operatives, and had not intended to hold federal trials for these prisoners anyway. President Obama may have wanted to take a different approach, but his administration inherited a great deal of coerced testimony and tainted evidence that make federal court trials extremely difficult to win. WHAT DOES THE FUTURE HOLD? The past several years have been marked by hard-fought legal and moral battles over whether, and to what extent, enemy combatants are entitled to the protection of U.S. laws, and particularly to the rights guaranteed to criminal defendants by the Constitution. In a series of seminal cases, the Supreme Court managed to provide guidelines to Congress and the president, but the Court showed itself to be deeply divided over these issues. The Court managed to preserve the judiciary’s right to hear the combatants’ legal challenges, and it set minimum standards that the government must meet to confine them. As a result, detainees continue to challenge the terms of their imprisonment in the federal courts. A few have been successful and obtained their release, and many cases remain pending. Of all the detainees at Guantánamo Bay, only two—Hamdan and Ghailani—have been brought to trial, with decidedly mixed results for the government. Subsequent trials will reveal whether the government acted properly in detaining the combatants and whether it has adapted its policies to meet legal and constitutional standards. Because the war on terrorism continues, the United States will undoubtedly continue to capture and detain enemy combatants, virtually guaranteeing that the controversial issues surrounding their treatment will continue to be hotly debated both in the courts and in the court of public opinion. Further Reading Books: Berkowitz, Peter, ed. Terrorism, the Laws of War and the Constitution: Debating the Enemy Combatant Cases. Stanford, CA: Stanford University, Hoover Institution Press, 2005; Greenberg, Karen J. and Joshua L. Dratel, eds. The Enemy Combatant Papers: American Justice, the Courts and the War on Terror. New York: Cambridge University Press, 2008; Linnan, David K. Enemy Combatants, Terrorism and Armed Conflict Law: A Guide to the Issues (Contemporary Military, Strategic and Security Issues). Westport, CT: Praeger Security Intl. 2008; Mahler, Jonathan. The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power. New York: Farrar, Straus and Giroux, 2008; Margulies, Joseph. Guantánamo and the Abuse of Presidential Power. New York: Simon & Schuster, 2006; Smith, Clive Stafford. Eight o’clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay. New York: Nation Books, 2007.

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Energy Policy Websites: Citizen Joe. “Enemy Combatants and Terrorist Trials.” http://www.citizenjoe .org/node/235; Elsea, Jennifer K. “Detention of American Citizens as Enemy Combatants.” Congressional Research Service, 2004. http://www.fas.org/irp/crs/RL31724.pdf; Haynes, William. “Enemy Combatants.” Council on Foreign Relations. http://www.cfr .org/publication/5312/enemy_combatants.html; Human Rights Watch. http://hrw.org/ english/docs/2002/06/12/usdom4040.htm; Silverglate, Harvey. “Civil Liberties and Enemy Combatants: Why the Supreme Court’s Widely Praised Rulings Are Bad for America.” Reason Online, January 2005. http://www.reason.com/news/show/ 36440.html

Kathleen Uradnik

ENERGY POLICY On April 20, 2010, the Deepwater Horizon oil platform exploded off the Gulf of Mexico, killing 11 workers and injuring another 17. What followed was the largest accidental oil spill in history: oil began gushing up from the bottom of the ocean and continued to do so for the next three months. The federal government estimates that, by the time the well was capped, nearly five million barrels of oil had spilled into the Gulf, creating a natural and economic disaster of immense proportion. What happened to the oil? Reviews of the incident show that approximately 25 percent of it was skimmed off of the surface in recovery efforts by BP, the corporation that owned the well. Another 25 percent was broken up into small particles that dissipated. The next 25 percent went ashore from Texas to Florida, hitting coastal towns in Louisiana and Mississippi particularly hard and killing fish, birds, and wildlife. The final 25 percent probably dissipated and sank to the bottom or moved down Gulf currents, threatening sea life below the surface. To break up the oil slicks and allow wind and wave action to better evaporate oil droplets, BP received permission from the federal government to use a chemical dispersant at the site called Corexit 9500. Although BP claimed that the dispersant was safe, a number of biologists and chemists disagreed, arguing that it was more dangerous to sea life—and especially to the basics of the food chain such as phytoplankton and zooplankton—than the oil itself. Scientists still do not know the extent of the damage caused to the natural world by the Gulf oil disaster; it may take years, or even decades, to fully analyze and assess the impact of the spill on marine life, migratory birds, and the area’s fisheries. The economic cost of the spill might be somewhat easier to measure, because those affected by it are in the process of filing claims to document their losses. In August 2010, the Obama administration appointed Boston attorney Kenneth Feinberg to manage the compensation fund set up by BP after the disaster. Feinberg was experienced, because he had previously implemented the fund to compensate victims of the September 11, 2001 terrorist attacks. By November, Feinberg had received almost one-half million claims for emergency relief from over 150,000 claimants who had been harmed by the spill. These included individuals and businesses in the region, particularly from the fishing and tourism industries, as well as state and local first responders. The fund had already paid out over $2 billion of a $20 billion initial amount that the

Energy Policy

government had required BP to set aside for victims of the disaster. It is important to note that the $2 billion was just for emergency purposes—a stopgap measure to compensate those whose livelihoods had been destroyed by the spill. Long-term claims are still being filed, and it is quite possible that the $20 billion fund will not be sufficient to pay them. OIL DEPENDENCY In the mid-1970s, the United States experienced two significant oil crises. In 1973, President Nixon ordered the rationing of gasoline during an oil shortage. A few years later, in 1979, President Jimmy Carter was faced with the prospect of rationing a second time when the government of Iran was overthrown and its oil output was reduced to virtually nothing. He told a nationwide television audience that the oil crisis was equivalent to “war”; he urged Americans to conserve gasoline and seek energy alternatives to reduce the nation’s dependence on foreign oil. Thirty years later, America remains more dependent than ever on foreign oil. For many Americans, the Deepwater Horizon disaster served as a stark reminder that, despite the repeated warnings from experts of the economic and national security threat inherent in the nation’s dependence on foreign oil, the United States had not learned its lesson. The U.S. Energy Information Administration estimates that, in 2009, the nation imported 51 percent of its oil from abroad. Seventeen percent of the imported oil and related petroleum products came from the Middle East, 20 percent from Mexico and Venezuela, and 23 percent from Canada. The United States used over 18.8 million barrels of oil per day, making it by far the largest consumer of oil in the world. Many elected officials and national security experts believe that America’s continued reliance on foreign oil exposes it to potential economic disaster. Much of the world’s oil supply is controlled by the Organization of the Petroleum Exporting Countries (OPEC), a cartel representing 12 nations. OPEC members meet periodically to determine the per barrel price of oil. When oil prices go up, virtually every form of transportation in the United States becomes more expensive to operate. Americans see the results instantaneously: it is not uncommon for gas prices at the pumps to increase 10 or 20 cents overnight, and the price of airlines tickets rise because jet fuel costs more. The United States does not influence the price of foreign oil, and does not know when prices or production will increase or decrease. This fact makes it difficult for the government, businesses, and even individuals to know and plan for their energy costs. Beyond OPEC, the fact is that many oil-producing nations are politically unstable. The 1979 oil crisis was precipitated by a bloody civil war in Iran that resulted in the overthrow of its government and the interruption of its oil flow. Iran has one of the largest reserves of crude oil in the world, but for the past 30 years political unrest has made its production sporadic and uncertain. Similarly, during the first Persian Gulf War (1990–91), oil was used as a strategic

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target, both by American and coalition forces and by Iraqi troops. American forces targeted power plants and oil production facilities as a way to cripple Iraq’s war-making ability; the Iraqi Army deliberately released around 400 million gallons of oil into the Persian Gulf in order to stop an Allied land invasion. (This event still ranks as the largest deliberate oil spill in history.) In addition, Iraqi forces upon retreat from Kuwait set fire to over 700 oil wells in an attempt to punish Kuwait and slow the march of Allied forces into their country. The Middle East is not the only area of domestic unrest, of course. The United States imports a significant percentage of its foreign oil from Venezuela. In recent years, that country has experienced several constitutional crises, the most recent of which resulted in a change to the constitution that removed presidential term limits. As a result, Venezuela’s current controversial president Hugo Chavez is allowed to run for re-election indefinitely. Chavez is an outspoken critic of the United States, and the feeling is mutual. The United States views him as a dictator because of his manipulation of his country’s constitution and his silencing of political and media critics. The United States also considers Chavez to be impulsive and unpredictable, two qualities that can potentially threaten his nation’s oil exports. It is beyond question that the United States needs to reduce its dependence on foreign oil. The two major political parties agree on that, but not much else. Just how to accomplish the reduction has been the crux of political debate for the past three decades. While the debate does not always break down along strict party lines, Democrats generally favor the development of alternative energy sources such as solar and wind power. Republicans are willing to support alternatives but question their affordability. In addition, they argue that the nation should increase its domestic production of oil by drilling off of the U.S. coast and in northern Alaska, among other places. Democrats reject the idea of more oil wells, even as a stopgap measure, because of concerns for the environment. They are more willing to make a dramatic shift to other energy forms by subsidizing their development with government funding. Republicans counter that the private sector is in a better position to offer realistic and profitable energy alternatives, and that the federal government simply cannot afford to pay for a paradigm shift in energy production. And so it goes. On May 12, 2010, Senators John Kerry (D-MA) and Joe Lieberman (I-CT) introduced a sweeping energy bill favored by the Obama administration. President Obama had made energy policy a key issue in his 2008 presidential campaign, but his efforts to pass comprehensive reform did not get through the Congress in 2009. The House of Representatives managed to pass its version of an energy bill, but the Senate did not act on it. This time, proponents of the Senate bill believed that they could garner more support, particularly since oil from the collapsed Deepwater Horizon platform was continuing to spill into the Gulf of Mexico. Its backers thought that the disaster only reaffirmed the need to enact energy reform measures. In less than three months, however, the Senate bill was dead. In fact, it never really got going in the first place. Senate Majority Leader Harry Reid (D-NV) indicated his preference that the Senate tackle other major issues before dealing

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with the energy bill, particularly immigration reform. Republicans opposed the bill from the start, believing it to constitute a Multi-billion dollar tax on businesses and individuals that the country could not afford. Perhaps the most controversial section of the bill became known as “Cap and Trade.” The “Cap” proposal referred to the government’s ability to set limits, or “caps,” on the nation’s annual production of greenhouse gases to reduce its carbon footprint. Utility companies and businesses that produced greenhouse gases would each be assigned a limit that they could not exceed unless they engaged in “trade” with other producers. The idea behind Cap and Trade was to limit emissions by making it more expensive to produce them. If a company needed to emit more greenhouse gases than it was legally allowed, it would have to purchase someone else’s leftovers. Competition for these unused limits would create increased demand, and the price of purchasing them would rise. On the surface, the Cap and Trade plan sounded like a free market approach to achieving a reduction of harmful emissions into the atmosphere. But Republicans argued that, if utilities and businesses had to pay more to produce energy, they would simply pass on that cost to consumers. They pointed to a study released by the Congressional Budget Office (CBO) that concluded Cap and Trade would cause businesses to lay off workers, thus increasing the unemployment rate in an already bad economy. Moreover, the CBO predicted that the plan would cause employment income to shrink and would damage the economy as a whole. Republicans thus labeled the plan “Cap and Tax” and vowed to defeat it. Over the summer, the Democrats backed off of the Cap and Trade section of the energy bill. But by then, momentum to pass anything was lost because the economy remained deeply troubled and the midterm congressional elections were looming. There was little support to pass any kind of comprehensive legislation, particularly if it would increase costs to taxpayers. Many political pundits argued that President Obama and the Democratic Congress had simply run out of steam after successfully passing the massive health care reform legislation into law in March. Indeed, opposition to “Obamacare” grew over the summer, with an increasing number of Americans concerned over revised reports that showed the program would cost more than originally anticipated as well as over the provision requiring all individuals to purchase health insurance. Americans were not in the mood for another expensive government program. The midterm elections resulted in significant gains for Republicans in the House and Senate; in fact, they won control of the House starting in January 2011. The lame duck Congress that convened after the election had plenty to do before the end of the year, but energy reform was no longer on the list. OIL DRILLING DILEMMA To drill or not to drill? Americans remain deeply divided over whether drilling more oil wells on its soil and off its coastline is a good idea. During the 2008 presidential election, Alaska Governor and Republican vice-presidential candidate Sarah Palin encouraged increased domestic oil production with her famous

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phrase, “Drill baby! Drill!” Like many Republicans, Palin supported drilling in a vast, 20-million acre region of northern Alaska known as “ANWR” (pronounced “anwar”), which is short for the “Arctic National Wildlife Refuge.” ANWR had been the topic of heated debate for years as some members of Congress sought to make it off-limits to oil and natural gas drilling, while others wanted to open it up to drilling. The government’s own estimates reveal that drilling in ANWR could produce one million barrels of oil per day and 150 million cubic feet of natural gas per year. Alaskans overwhelmingly support drilling in ANWR, given that it would significantly benefit the state’s economy. Environmentalists almost universally oppose drilling, arguing that the region is one of the few pristine, untouched wilderness ecosystems left in America. It had been established by Congress to preserve indigenous wildlife including polar bears, caribou, grizzly bears, and muskox as well as migratory birds and arctic fishes. Drilling opponents also claim that it would take at least 10 years to develop the infrastructure (wells, pipelines, etc.) necessary to bring the oil to the surface and transport it to end users. ANWR was a hot political issue throughout the presidency of George W. Bush. President Bush supported drilling in a 1.5-million-acre section of ANWR, at least on an experimental basis, as a way to reduce the nation’s dependence on foreign oil. Congress considered the issue several times, with momentum for drilling shifting repeatedly back and forth; ultimately it was never approved. ANWR is not the only potential source for domestic oil, however. Although few Americans have heard of it, the Bakken oil field has the potential to exceed ANWR’s oil and natural gas reserves. The Bakken field is located primarily in western North Dakota and stretches into Montana and Canada. Although geologists have known about it for many years, the consensus was that it would be too expensive to extract natural resources from the site, as much of the oil is trapped in dense rock. Recently, however, with the rise in oil and gas prices and uncertainty about foreign supplies, the site has become more attractive. Technological advancements have made it somewhat cheaper to recover the oil and gas, causing many to hail Bakken as the next great oil-producing region of the world. To date, Bakken has not generated the kind of emotional environmental protests that have surrounded ANWR, and scientists believe that its oil and gas can be produced in a much shorter period of time (perhaps five years) because of existing infrastructure in the area, including major gas pipelines from Canada. A number of oil companies that have been on the site for years have ramped up efforts there, while new ones have arrived to stake claims in the vast territory. If Bakken is relatively uncontroversial, oil drilling off of America’s coasts is exactly the opposite. President Obama surprised and angered many of his supporters on March 31, 2010, when he announced a plan to allow increased drilling off of significant portions of the nation’s East Coast. Members of his party along with environmentalists decried the plan, arguing that it would do little to enhance oil production while placing the oceans and sensitive coastal ecosystems at risk. Republicans viewed the plan cautiously, observing that it left far more coastal territory protected from drilling than opened up to it: the entire

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Pacific coast, most of Alaska’s coast, and the eastern seaboard from New Jersey northward would remain off-limits to drilling. In what might be the worst case ever of presidential timing, the Deepwater Horizon oil platform exploded less than a month after President Obama’s announcement. Obama reacted by placing a moratorium on deepwater drilling in the Gulf of Mexico until all of its existing oil platforms could be inspected. His administration backed off of the drilling plan, noting that in light of the Gulf oil disaster, it would need to be reexamined. Given the extent of the economic and environmental damage caused by the spill, one might think that expanded oil drilling in the region will never be approved. On the other hand, thousands of residents of Texas, Louisiana, and the other Gulf states owe their livelihood to oil production. They actually opposed the drilling moratorium, which put them out of work and caused their companies to proceed with drilling in other parts of the world instead. Oil drilling has been a divisive issue for decades as America struggles to strike a balance between the use and the protection of its own natural resources. No comprehensive policy has emerged; rather, Congress has only been able to muddle through with pieces of legislation addressing certain areas of the country or certain drilling proposals. In the wake of the Deepwater Horizon catastrophe, it is unlikely that Congress will be willing or able to resolve the ongoing debate about the need for and the risks posed by domestic drilling for oil and natural gas. NUCLEAR ENERGY The United States has 104 operating nuclear power plants spread across 31 states. Together, they generate about 20 percent of America’s electricity. However, it has been decades since a new nuclear power plant was built in America; nuclear energy, although always controversial, fell out of favor after the Chernobyl nuclear power plant disaster in 1986 in the Ukraine. Today there is a renewed interest in nuclear power. Nuclear energy has advantages over oil and fossil fuels such as coal: it does not produce any carbon emissions, making it a green energy source. Opponents to expansion of nuclear facilities argue that nuclear energy cannot be considered “green” because of the danger posed to society and the environment in the case of a nuclear leak; moreover, no one has yet figured out what to do with nuclear waste, most of which is contained in spent radioactive tubes. The waste has to be stored somewhere, but no one wants it. Proponents counter that nuclear energy is the cheapest and cleanest fuel to produce. They also argue that it is the safest. Nuclear accidents are rare, and ones on the scale of Chernobyl have never occurred in the West, which uses a different type of reactor technology than the Soviet Union employed. The most significant accident in the United States occurred in 1979, when the nuclear reactor at Three Mile Island near Harrisburg, Pennsylvania experienced a partial core meltdown. The accident resulted in the release of a very small amount of radioactive gases. A government commission investigating the site concluded that there was little actual contamination outside of the facility. The

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Environmental Protection Agency conducted studies of the soil, water, and plant life around the facility and found no contamination. Nearby animals such as cows and goats were also tested and came up clean. Opponents of nuclear power have always questioned these results. But the fact remains that no similar incidents occurred before or since Three Mile Island; moreover, today’s nuclear technology is greatly improved, making the likelihood of a similar accident in the United States highly unlikely. Arguably, the most significant issue in the debate over nuclear energy is not its safety, but rather the perception of its safety. Nuclear energy is such a polarizing and emotional issue that most of those who have an opinion about it are able to marshal their own set of facts for or against it. Opponents of nuclear energy believe that its risks outweigh its benefits, and that it is simply too dangerous to implement on a wider scale. Proponents counter that nuclear energy historically is safer than other forms, both for the employees who work in nuclear facilities and for the public at large. While American argue about nuclear fuel, their energy needs continue to grow. By some estimates, the nation will need to produce 30 percent more energy in the next 30 years just to keep up with rising demand. Nuclear industry experts explain that America’s aging plants cannot be overhauled; new plants must be brought online to meet current needs and to keep pace with expected growth. President Obama took a limited step toward facilitating the construction of new power plants in February 2010, when he proposed over $8 billion in federal loans to help the industry build new reactors. He also called for a significant increase in federal spending for nuclear power in the 2011 federal budget. The president deflected criticism from critics, arguing that America needs a multifaceted energy policy, and that all forms of domestic energy must be developed to meet the country’s needs and reduce its dependence on foreign energy sources. Congress, however, never got around to passing a budget for 2011. The 2011 fiscal year started on October 1, 2010 without one in place. The task of passing that budget was deferred to the 112th Congress, which convened in January 2011. It took the threat of an imminent government shutdown to bring lawmakers together to pass that budget, which the president was finally able to sign into law on April 15, 2011. The budget contained $38.5 billion in cuts to federal spending, including cuts to the Energy Information Administration, the arm of the Energy Department responsible for gathering and analyzing data on, among other things, oil production and gasoline prices. Consideration of funding for new initiatives was put off until the 2012 budget debate. Just as it seemed Americans were willing to accept the expansion of the nation’s nuclear energy capabilities, Japan was struck by a devastating earthquake and tsunami on March 11, 2011 that destroyed the Fukushima Daiichi nuclear power plant near the towns of Okuma and Futaba in the Fukushima Prefecture. Although the plant, which was located on the Pacific coast, had been well secured against natural disasters, the enormous size of the earthquake and tsunami rendered those defenses useless. What resulted was, after Chernobyl, only the second “Category 7” nuclear accident in history, the worst type possible.

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Although the Fukushima plant operated as it was designed to do after the earthquake struck—it shut down automatically—the tsunami waves poured over the top of the protective seawall around the plant and flooded it. The earthquake had already taken out the plant’s electricity, and the water subsequently knocked out the plant’s backup generators. That left the nuclear reactors to be cooled by a third backup system—batteries—that were designed to last only a short time. When the battery backup failed, the plant’s nuclear reactors began to fail, resulting in a meltdown. (A “meltdown” refers to a breach of the nuclear reactor core, typically from overheating, that results in the release of radioactive material into the environment.) Despite heroic efforts by plant employees to cool the reactors by pumping water on them from the Pacific Ocean, eventually three of the five reactors at the site experienced a meltdown. High levels of radiation were released into the atmosphere and into the ocean. The Japanese government issued a mandatory evacuation for everyone within a 12-mile radius of the plant, and warned individuals to stay at least 18 miles away. The site is considered a total loss, and Japanese officials and nuclear energy experts are still considering what to do to contain the plant. They may seek to entomb it in cement, which was the approach taken by the Soviet Union after the Chernobyl disaster. Proponents of nuclear energy argue that, like Chernobyl, the type of nuclear disaster experienced in Japan would not occur in the United States. Although many nuclear reactors are located along earthquake fault lines, this fact was taken into consideration during their construction. Moreover, there is effectively no chance of tsunami damage to U.S. nuclear plants. Opponents counter that U.S. nuclear plants were not made to withstand enormous earthquakes with the very high magnitudes like those experienced in Japan and in other countries such as Chile and Indonesia. They argue that, despite high levels of preparedness and training, Japanese energy companies could not respond to the Fukushima disaster, which was unprecedented in scale. No amount of planning would have been sufficient to avert that disaster, leading opponents to conclude that nuclear energy cannot be made safe. Those supporting an expansion of nuclear energy believe that no energy form is perfectly safe—they note that many more people have died in the production of other energy sources, such as oil and coal. Finally, they believe that the lessons learned from Japan’s event will make the already safe nuclear industry even safer in the future. The nuclear disaster in Japan is ongoing. Even the most positive assessments still believe it will take months to contain the reactors, which will remain radioactively hot for hundreds of years. Not surprisingly, early polls indicate that Americans are not likely to support an expansion of nuclear facilities in the United States in the short term, despite assurances from the industry that a similar incident will not happen here. Only time will tell whether Americas will be willing to tolerate the building of new nuclear power plants as a way to overcome the nation’s dependence on foreign oil.

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NATURAL GAS Natural gas has been used as a fuel in America for over 100 years. Typically it is pumped up from the ground and distributed through pipelines. Natural gas is a fossil fuel, but it is considered cleaner burning than oil or coal. Proponents of increasing the nation’s natural gas production argue that the United States has vast reserves that will meet its energy needs for decades, during which time nonfossil fuel alternatives can be developed. Opponents of natural gas point out that, like oil, it has to be extracted from the earth, which means drilling in locations like ANWR that should be off-limits. Natural gas can be obtained in another manner—one that is even more controversial than drilling. The method is called “hydraulic fracturing,” nicknamed “fracking.” Fracking involves pumping large amounts of water, usually with sand and lubricant chemicals added to it, deep into the ground under high pressure in an attempt to break open rock formations and release trapped natural gas deposits. Although the companies that engage in fracking claim it is safe, communities located near fracking sites have experienced unusual and often dangerous side effects that they attribute to the procedure. In Texas, for example, the state tested the air around the town of DISH, which is a center of fracking activity. It found unsafe levels of multiple chemicals including benzene and xylene. In Pennsylvania, residents of the town of Dimock grew concerned when their drinking water became cloudy, bubbly, and even flammable. One resident’s well exploded due to a buildup of methane gas. Methane can leak from the ground at fracking sites and ignite; it can also contaminate water supplies. Homeowners in Dimock have sued the Cabot Oil & Gas Corporation for drilling faulty wells that they allege contaminated their drinking water and made them sick. Moreover, the fracking procedure releases volatile chemical compounds into the air, many of which are from the fracking liquid itself. Fracking companies refuse to reveal the ingredients in their lubricants, citing proprietary interests. Testing at various sites has revealed discharges of known carcinogens and neurotoxins that are dangerous even in small amounts. Residents near fracking sites across the country have complained of illnesses and have pointed out examples of sick or dead wildlife. On December 13, 2010, New York Governor David Paterson issued an executive order that placed a seven-month moratorium on fracking in the state. He issued the order as an alternative to a more sweeping bill passed by the legislature that would have placed a temporary statewide ban on all oil and gas drilling. The moratorium was adopted in response to concerns from citizens about fracking in their communities, and also because the U.S. Environmental Protection Agency announced plans to undertake a comprehensive study of the safety of the procedure starting in January 2011. Proponents of fracking point out that it has been used successfully for decades. They blame new, inexperienced energy companies for improper drilling procedures that might have caused isolated problems. Opponents of fracking argue that enforcement by federal and state authorities is too lax, and that the

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fracking companies are not cooperative. They also point out that the scale of fracking activities is greater than it has ever been, which in turn threatens wide-scale disruption to aquifers that supply drinking water to several states. Opponents are realistic in acknowledging that the potential supply of natural gas from fracking is tremendous, which means that the government is unlikely to prohibit it. Rather, they seek to have the process fully regulated and carefully monitored to guard against potential health threats to humans and the environment. ALTERNATIVE ENERGY SOURCES There are too many alternative energy sources to discuss in an introductory essay, but it is possible to focus on the political controversies that they have in common. “Alternative fuel sources” typically refers to harnessing solar and wind energy and using common plants for biofuel. While virtually everyone agrees that it is a good idea to develop alternatives to fossil fuels, experts and government officials do not agree on which source of energy is the most promising and which can be fully developed in the shortest amount of time. For a while, it looked as if ethanol fuel was the way of the future. In Midwestern states, ethanol fuel is combined with gasoline to create a blended product called “E-85.” Ethanol burns cleaner than gas and is cheaper to produce; it seemed a promising approach to reducing the amount of petroleum used to run the nation’s automobiles. Unfortunately, there is a problem with ethanol fuel—it is made from corn. That fact is of no consequence when corn is cheap and plentiful, but it becomes extremely important when the corn crop is damaged and prices increase. In recent years, the diversion of corn toward the production of ethanol has created a shortage of corn in the food supply. As a result, corn prices rose significantly and created a ripple effect throughout the nation’s grocery stores. Consumers may not have been aware of how many products actually contain corn or by-products like corn syrup, but rising prices showed that they appear in a wide array of processed and prepared foods. The fact that using corn for fuel can cause food prices to rise seems obvious enough now, but that does little to assuage those in the ethanol industry who staked their futures on this now suspect alternative fuel. Seeing the potential problems posed by the continued use of corn, the ethanol industry has turned to other common plants—inedible ones—as potential sources of fuel. While certain ones have proved promising, including plentiful weeds like kudzu, these cellulose-based fuels are still in their scientific infancy, and will not help to meet America’s energy needs in the short term. The same can be said for solar and wind energy. Both technologies hold great promise, and politicians and pundits alike clamor for them. But detractors point out that neither energy source can be produced on a large scale, at least not in the near future, making them unrealistic choices to meet the nation’s shortterm energy needs. Moreover, much of the technology for these industries was developed overseas, and almost all of the equipment and materials have to be imported. Skeptics of solar and wind power argue that it is unrealistic to expect American producers to get up to speed quickly in providing solar panels and

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wind turbines, and it would be too costly to subsidize their efforts to do so. Thus, ramping up solar and wind efforts for their own sake would provide an economic boon to foreign companies and contribute little to America’s own energy independence. The controversy surrounding alternative energy sources, then, is not over their desirability—virtually everyone supports the idea of developing options—but rather their practicality, particularly in the next decade. Those who argue that America must act quickly to end her dependence on foreign oil embrace wellknown and established energy technologies such as oil and gas drilling. Those who argue that America must adopt a long-term energy strategy tend to favor newer, cleaner, but less well-developed technologies. Because they are emerging technologies, they require a serious commitment of financial capital. Energy entrepreneurs seek government assistance to perfect these emerging alternative energy sources, and some incentives have been forthcoming in the form of subsidies and loans to the industry. But for alternative fuels to make a significant and immediate impact, funding must be increased dramatically. Alternative energy sources such as electric cars or solar panels on homes exist, but they remain unaffordable for the average American. Until the cost of purchasing these products comes down, they will not be widely accepted. The likelihood of a major infusion of federal government cash into the industry is unlikely, given that the government itself is broke and the American economy continues to struggle with a massive national debt and the aftermath of a deep recession. Interestingly, the national debt and the national energy crisis have some important things in common. Everyone understands that both issues need to be addressed immediately. At the same time, Americans are deeply divided about how to approach them. Many people have a visceral reaction to proposals to, say, drill for oil in the case of energy policy or cut Social Security in the case of debt reduction. Sacred cows abound in each area, and proponents and opponents have been unable or unwilling to bridge the gap that separates them; consequently, both situations remain in stalemate. For both debt reduction and energy policy, pragmatists have proposed that all possible solutions be put on the table and implemented in some fashion. For the national debt, that means making cuts to every government program, no matter how painful. For energy independence, that means embracing every possible means of creating energy independence, be it established or experimental. A comprehensive approach to problem solving in these areas would mean that no one gets what they want, but also that the burdens of these problems are shared by all. Whether Americans and their elected officials are willing to adopt a holistic approach to debt reduction, energy policy, or any other of a host of divisive political issues remains to be seen. For now, these issues will continue to cause fits for various corporate, political, and advocacy groups and will challenge policymakers for years to come. Further Reading Books: Committee on America’s Energy Future, National Academy of Sciences, National Academy of Engineering, and National Research Council of the National Academies. America’s

Executive Compensation | 217 Energy Future: Technology and Transformation. Washington, DC: National Academies Press, 2009; Gallagher, Kelly Sims. Acting in Time on Energy Policy. Washington, DC: Brookings Institution Press, 2009; Gore, Albert. Our Choice: A Plan to Solve the Climate Crisis. Emmaus, PA: Rodale, 2009; Griffin, James M. A Smart Energy Policy: An Economist’s Rx for Balancing Cheap, Clean, and Secure Energy. New Haven, CT: Yale University Press, 2009; Montgomery, Scott L. The Powers That Be: Global Energy for the Twenty-first Century and Beyond. Chicago: University of Chicago Press, 2010; Nersesian, Roy L. Energy for the 21st Century: A Comprehensive Guide to Conventional and Alternative Sources. Armonk, NY: M. E. Sharpe, 2007; Richter, Burton. Beyond Smoke and Mirrors: Climate Change and Energy in the 21st Century. New York: Cambridge University Press, 2010; Shaffer, Brenda. Energy Politics. Philadelphia, PA: University of Pennsylvania Press, 2009; Sperling, Daniel. Two Billion Cars: Driving Toward Sustainability. New York: Oxford University Press, 2009; Weiss, Charles. Structuring an Energy Technology Revolution. Cambridge, MA: MIT Press, 2009. Websites: Bipartisan Policy Center. National Commission on Energy Policy. http:// www.bipartisanpolicy.org/projects/national-commission-energy-policy; Centers for Disease Control and Prevention. 2010 Gulf of Mexico Oil Spill. http://www.bt.cdc.gov/ gulfoilspill2010/; Energy Policy Information Center. http://energypolicyinfo.com/; National Geographic Channel. “Gulf Oil Spill.” http://channel.nationalgeographic.com/ episode/gulf-oil-spill-5488/Overview; Nordhaus, Ted and Michael Shellenberger. “Freeing Energy Policy from the Climate change Debate.” Environment 360. Yale University. http://e360.yale.edu/feature/freeing_energy_policy_from_the_climate _change_debate_/2257/; National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling. “Decision-Making within the Unified Command.” 2010. http:// permanent.access.gpo.gov/gpo186/Working%20Paper.Unified%20Command.For%20 Release.pdf; National Oceanic and Atmospheric Association. “Gulf of Mexico Oil Spill: Fact Sheet.” 2010. http://permanent.access.gpo.gov/lps126371/1885_General_FACT _SHEET.pdf; PBS: Newshour. “Miller Center Debate Focuses on Energy Policy.” May 20, 2009. http://www.pbs.org/newshour/bb/environment/jan-june09/miller energy_05-20.html; Renewable Energy Policy Project. http://www.repp.org/; RestoreTheGulf.gov. http://www.restorethegulf.gov/; Science Daily. Energy Policy News. http://www.sciencedaily.com/news/matter_energy/energy_policy/

Kathleen Uradnik EXECUTIVE COMPENSATION How much compensation is too much? Americans have always debated whether certain individuals are really “worth” the money paid to them to perform their jobs. Each time a star athlete obtains multimillion-dollar contract, for example, fans argue about whether he or she really deserves such a generous salary for playing a “game.” Team owners justify paying their superstars not only because of their high level of performance in the sport, but also because of the attention they bring to the team and the revenue they generate from their broad fan base. It is no secret that star athletes like LeBron James or Kobe Bryant in basketball, Peyton Manning in football, or Danica Patrick in auto racing can deliver huge crowds to their events and generate significant excitement about their sport. Similarly, cinemagoers might be astonished when a top actor or actress earns millions of dollars for a single film. But attractive and talented stars like George

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Clooney or Sandra Bullock almost guarantee a huge turnout at the box office and can single-handedly command enormous salaries for their projects. It is no wonder that Hollywood’s most sought-after actors command significant amounts of money for their efforts, given their ability to draw millions of people to the theaters. Americans are well familiar with famous athletes and actors making very large sums of money. But is it possible to be a corporate superstar? Recent media attention has been directed to the corporate world, and specifically to Wall Street, where the top executives of major companies earn salaries that seem obscene by comparison to a sports or Hollywood superstar, much less to an average American worker. In 2008, for example, Forbes magazine reported that executives of the nation’s 500 largest companies received compensation totaling $5.7 billion, or an average of $11.4 million each. The list was led by Oracle founder and Chief Executive Officer (CEO) Larry Ellison, who earned a whopping $557 million. Coming in second was Ray Irani, CEO of Occidental Petroleum, who earned $223 million. Third place was held by John Hess of the energy giant Hess Corporation, who made $155 million. Still, the editors of Forbes’ annual list were quick to point out that these huge paydays came mostly in the form of stock options rather than salary, and that overall the executives’ compensation had actually declined 11 percent in 2008. Does anyone deserve this level of compensation, or is the money paid to the nation’s top executives simply absurd? The debate over executive compensation has been raging for well over a decade, but in the last several years it has taken on a new sense of urgency with the collapse of the U.S. housing market, the bankruptcy and bailout of General Motors and Chrysler, the failure of Washington Mutual, and the government’s financial support for giant Wall Street investment firms facing economic collapse. As U.S. unemployment climbs and more Americans face serious financial stress, the issue of whether a single individual at an investment bank or brokerage firm deserves millions of dollars in compensation takes on a new relevance. Many Americans question the fairness of a system that rewards so few with so much. THE PHILOSOPHICAL QUESTION The controversy surrounding executive compensation usually generates two lines of debate. The first is a philosophical one. It asks whether any individual, regardless of their status or performance, should earn millions of dollars in salary, bonuses, stock options, and other forms of compensation. Opponents of large executive compensation schemes contend that, as a matter of principle, such compensation is illegitimate. No one is worth so much, regardless of his or her contribution to society. It simply isn’t fair to concentrate so much wealth in an individual, particularly when those working beneath the executive do not share in the same level of reward. Very few U.S. companies restrict the compensation of their executives as a matter of corporate principle. In Sweden, however, this approach is common. Swedish companies tie the rate of compensation for the top official in a

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company to the rate of compensation for its lowest-paid worker. If the chief executive is to enjoy the benefits of the company’s success, so too must everyone down the chain of command. A handful of American companies have experimented with this approach, only to abandon it. One was the ice cream maker Ben & Jerry’s, whose socially conscious founders believed in recognizing the talents of all within the company, not just those at the very top. For a time it capped the salary of its chief executive at seven times the salary of the company’s lowest-paid employee. But it became difficult for the company to attract the best talent when it came time to replace founder Ben Cohen, who stepped down in 1994, and eventually it backed down from a strict cap. The company remains active in social and charitable causes, but has taken a different approach toward responsible corporate citizenship. Another company that embraced capping executive salaries is Whole Foods, where the board of directors tries to keep executive pay in check by setting it in proportion to that earned by its lowest-paid worker. But Whole Foods has had to adjust the proportion upward over the years; currently, executive salaries cannot exceed 19 times that of the company’s lowest-paid workers. In addition, its claim of social responsibility has come under fire from those who point out that salary is only part of total compensation. Critics note that Whole Foods CEO and cofounder John Mackey has made millions of dollars in stock options in addition to his salary. Capping executive compensation, or tying it to the compensation levels for workers within a company, is difficult to accomplish in America because of its social and political culture values independence and entrepreneurship. Nevertheless, some elected officials and pundits argue that a large gap in wealth between the very rich and the very poor is not only immoral, but also potentially destabilizing to a democracy. They contend that if the majority of the population perceives itself as stuck in poverty or unable to take advantage of opportunities for economic improvement, it will become increasingly agitated and will demand changes to the political and economic system. As long ago as the 1830s, Alexis de Tocqueville warned Americans that love for equality, including economic equality, could prove dangerous to its democracy because complacent citizens could come to value equality over all else, including their own freedom. The argument that compensation can be excessive is also made by religious and social reformers, who view it as unjust and immoral. Religious leaders point to biblical teachings and stories about the evils of money to support the principle that excessive wealth should not be encouraged or tolerated in any society. For them, wealth disparity can become so great as to be considered sinful. They therefore encourage individuals to be cognizant of the less fortunate and to adopt a more moderate approach toward living their lives. THE PRACTICAL APPROACH The second debate over corporate compensation is not philosophical, but practical. It does not reject large compensation packages out of hand, but rather

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seeks to inquire whether the person receiving the money “earned” it or is “worth” it because of their performance and accomplishments. Generous compensation is nothing new in this country. The United States has always been committed to a free market economy where, the theory goes, an individual who works hard and becomes successful is entitled to keep and enjoy the fruits of his or her labor. American history is replete with examples of individuals who rose from poverty to wealth based on their own talents and ambitions. Previous generations learned the stories of the Carnegies, the Rockefellers, and the Mellons. Today’s youth are more familiar with Bill Gates, who dropped out of college to form Microsoft Corporation and become the world’s richest person, or the founders of Google, who started their fledgling company as college students in a garage. American culture tends to be very tolerant of self-made individuals, even when they make extreme amounts of money. America values entrepreneurism and rewards it. However, people usually perceive entrepreneurs as inventors who come up with a new product, process, or other innovation that society values. Sometimes, as in the case of Microsoft and Google, the product transforms not only American society, but the entire world. The economic and societal impact of companies such as Microsoft and Google are virtually impossible to measure. However, if one were to base executive compensation on the contributions of certain individuals and the company as a whole, it would be helpful to develop some criteria as a means of valuing individual effort. These might include the number of jobs created by the company, the value of its product to a community, the novelty of the product, the prospects for future useful products from the company, and the like. By these measures, the founders and executives of such highly successful companies might be worth quite a bit, indeed. Forbes magazine, which issues an annual list of America’s highest-paid executives, has developed a tool for comparing executive salary to executive performance. It considers a number of criteria in developing what it calls an “efficiency rating” for the executives it ranks. It compares the total compensation of a CEO to his or her efficiency rating, an undertaking that has demonstrated that the best-paid chief executives are not necessarily the most valuable or productive ones, at least by Forbes’ criteria. Forbes measures the relative value of chief executives to their companies based on a number of factors. First, it only includes executives who have been with their publicly traded company for at least six years. Once that list is established, Forbes’s staff reviews four specific factors to determine which executives deliver the most to shareholders compared to their level of compensation. Forbes compares six-year compensation totals with six-year measures that include the company’s stock performance compared to other companies in the same industry, its annualized stock performance, and its performance relative to the Standard & Poor’s 500 Stock Index. There are, of course, other ways to determine an executive’s “worth” to a company. Keeping shareholders happy and stock values high are one valid measure, but if too much emphasis is put on stock value, then executives may have

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an incentive to cheat or otherwise manipulate his or her company’s earnings and prospects in an effort to make it appear more successful than it really is. During the past decade, numerous seemingly healthy companies, including Bear Stearns and Lehman Brothers, have failed suddenly. Corporate autopsies revealed that their executives defrauded shareholders by rigging the corporate books to make their companies appear profitable and to hide these lies from auditors, the SEC, and other neutral investigators. Expanding the idea of worth to include factors beyond stock price might help to reward executives who, say, run their company in a conservative manner to ensure its long-term health or to minimize the need for employee layoffs. Executives might be compensated for increasing the public’s perception of the company, its corporate goodwill, or its ability to respond to changing economic times. Acquisitions and expansion once measured the strength of a company and its CEO; today, companies that expanded in too many directions are suffering the consequences of such aggressiveness. Since its bankruptcy in the spring of 2009, for example, General Motors has closed several of its signature automobile lines, including Pontiac, Saturn, and Hummer. Longevity and stability, rather than rising stock price, might be a more accurate measure of corporate success, particularly in troubled economic times. CONGRESS CAPS EXECUTIVE COMPENSATION Sometimes the highest-paid executives lead companies that have performed quite poorly. In 2010, prominent leaders from both political parties called for an end to excessive executive compensation for struggling companies receiving federal assistance. It passed legislation restricting the amount and types of compensation given to the highest-paid executives of companies receiving money under the government’s Troubled Assets Relief Program (TARP). Congress limited salaries to no more than $500,000 per year. It also banned “golden parachutes,” a controversial type of compensation typically not based on performance that is given to executives who leave a company. It gave the Secretary of the Treasury the ability to set regulations regarding executive bonuses and incentives and to curtail “luxury” expenses such as corporate aircraft and entertainment. Finally, the legislation required each of these companies to set up an independent board for determining executive compensation levels and to develop policies limiting luxury goods. Typically, compensation for a company’s top executives is set by its board of directors. Sometimes, however, the board runs the risk of either becoming too cozy with the leaders of the company or not knowing enough about the company to determine how salaries should be set. Using a neutral board can help to avert the types of problems that arise when the regular board of directors makes compensation decisions. The restrictions on executive compensation were applied retroactively to companies receiving bailout funds. Perhaps for this reason, a number of them repaid their government loans in a speedy fashion. Some companies, like General Motors and Chrysler, remain under the government’s compensation restrictions.

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INVESTMENT FIRMS’ COMPENSATION CONTINUES TO SHOCK The collapse of the housing market in 2007 and the economic downturn that accompanied it were in large part precipitated by investment banking firms that had made risky bets on mortgage-backed securities. In particular, the firm of Bear Stearns blazed the trail for the creation and sale of these securities. Importantly, Bear Stearns also manipulated large insurance companies to write policies against the failure of these securities. Because they were, in a sense, “guaranteed” by the insurance companies, Bear Stearns was able to convince investors of the desirability and safety of these securities, and sales soared. So too did the compensation awarded to Bear Stearns’ executives. Eventually, however, the scheme became unsustainable, and when hundreds of thousands of risky mortgages failed, the value of the mortgage-backed securities plummeted. Investors who now held worthless securities turned to their insurance companies seeking compensation for their losses. The insurance companies, particularly AIG, one of the world’s largest, found themselves unable to pay their policyholders. In what seemed like an instant, the U.S. housing market, the nation’s largest brokerage houses, its largest banks, and its largest insurance companies faced financial annihilation. Congress stepped in to avert a financial disaster of unprecedented proportions. It allocated over $700 million to prop up large banks and to oversee the purchase of Bear Stearns by its competitor, JP Morgan Chase. In some cases, the federal government refused to act. The brokerage firm Lehman Brothers, an institution on Wall Street, failed. Mega-bank Washington Mutual became insolvent and was taken over by the FDIC. The impact of these events, now several years old, are still reverberating through the American and global economies. American unemployment remains at double-digit levels, the housing market is still depressed, and the hoped-for effects of the government’s economic stimulus efforts have yet to be felt in most areas of the country. As this scenario was unfolding, top executives at the major investment houses on Wall Street did not cut back on their earnings. To the contrary, they continued to enjoy significant salaries and bonuses generated by the very transactions that would soon wreak havoc on the financial markets. In December 2006, the CEO of Bear Stearns received a $14.8 million bonus in addition to his salary, a salary justified by the firm’s fifth year of record profits. Fifteen months later, the firm collapsed. Within a week it was gone, purchased by rival JP Morgan Chase for a bargain basement price. Bear Stearns had been worth $170 a share just a year earlier; JP Morgan purchased it for only a few dollars per share in March 2008. JP Morgan Chase was not unscathed by the economic downfall precipitated by the housing crisis. It borrowed $25 billion in bailout funds in the fall of 2008. The investment firm used the money to make more money. It paid off its government debt in 2009, and in January 2010 announced record bonuses for its employees totaling $9.3 billion. This sum meant an average bonus of nearly $380,000 for its employees, up more than $100,000 from the previous year. Many of the bonus recipients were former employees of Bear Stearns

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who had been hired by JP Morgan in the wake of its purchase of their former employer. Bear Stearns was not the only Wall Street investment firm to hand out huge bonuses shortly before its collapse. In March 2008, the CEO of Lehman Brothers, Richard Fuld, was awarded a bonus of $22 million, which reflected the firm’s tremendous performance and record profit in 2007. In total, Fuld received over $480 million in compensation from 2000–2008. As it turned out, most of that growth and profit was based on a risky array of financial transactions and investments—so risky, in fact, that a mere six months after the firm awarded Fuld’s bonus, it collapsed. It filed for bankruptcy in September 2008 and, when no buyer was found, the company was liquidated. It, like Bear Stearns, no longer exists. The firms that weathered the financial storm, albeit with a serious infusion of cash from the federal government, have recovered quickly—so quickly, in fact, that they have returned to their old practices of awarding themselves significant bonuses. In early 2010, the CEO of Goldman Sachs received a $9 million bonus in the form of stock; JP Morgan Chase’s CEO Jamie Dimon received a $17 million bonus. Dimon holds the record for the largest bonus in Wall Street history, having received nearly $68 million in bonus money in 2007. WHAT’S NEXT? President Obama, members of Congress from both parties, the SEC and other agency regulators, business law professors, Wall Street insiders, and of course everyday Americans have expressed incredulity and outrage at the level of greed demonstrated by Wall Street investment banking firms, as well as the level of incompetence demonstrated by Fannie Mae and Freddie Mac and other entities that contributed to the nation’s current economic crisis. (Top executives at Fannie and Freddie received generous compensation, too, even as their lending practices were precipitating the collapse of the housing market.) Cries for reform have never been louder, but just what form it will take remains to be seen. Almost everyone agrees that placing a government cap on executive salaries is not a long-term solution, and as it stands the cap only applies to companies receiving federal bailout money anyway. Many scholars have argued persuasively that companies need to do a better job of tying compensation to performance, with performance measured not simply by the increase in a company’s stock price, but by a longer and more sophisticated list of indicators. Bear Stearns and Lehman Brothers show the absurdity of awarding compensation based on the previous year’s stock performance. “Here today, gone tomorrow” is no way to run a company. THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT On July 21, 2010, President Obama signed into law sweeping legislation aimed at reforming Wall Street in the wake of the 2008 financial crisis, the

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catastrophic effects of which were still being felt across the American economy. The Dodd-Frank Act, named after co-sponsors Senator Chris Dodd (D-CT) and Representative Barney Frank (D-MA), is perhaps the most comprehensive financial reform legislation to come out of Congress since the Great Depression. It contains 16 separate titles, each addressing specific regulatory needs made clear during the collapse of the financial services industry. The act is designed to create greater stability in the financial markets and to provide more protection to investors and consumers. To this end, it gives broad new powers to the federal government to regulate brokerage houses, banks, and other types of financial institutions. It puts in place a series of mortgage lending reforms and bans certain predatory mortgage practices. It also requires increased transparency in the way Wall Street companies do business. Title IX of the act is aimed at protecting investors from corporate greed and mismanagement. It contains numerous subsections. Subtitle E deals directly with executive accountability and compensation. It requires all public corporations (that is, those traded on a public stock exchange, such as the New York Stock Exchange) to present its executives’ compensation scheme to their shareholders at least once every three years for their approval. Any company that fails to do so risks being “delisted” by the Securities and Exchange Commission— that is, its name will be removed from the stock exchange and its shares can no longer be traded. In addition, the subtitle requires that, once every six years, a company’s shareholders must be given the opportunity to vote on whether they want to consider executive compensation schemes more frequently than every three years. The act also gives shareholders the right to express their disapproval of golden parachutes. Significantly, the subtitle also requires that shareholders be informed about the relationship between the level of compensation given to executives and the actual financial performance of the company. This provision is aimed at protecting against corporate managers who earn tremendous amounts of money shortly before their companies fail, as was the case with Bear Stearns. Making this comparison between compensation and performance is not straightforward; Congress left it to the SEC to promulgate rules regarding how each would be measured. It also required each company to disclose this information to the SEC. FOR THE FUTURE The Dodd-Frank legislation was not universally embraced upon its passage. Many in Congress and on Wall Street believe its provisions to be overly complicated and excessive; they argue that the act gives too much control over private enterprise to the federal government. Supporters of the law, on the other hand, point out that they had to take action in the face of corporate greed and intransigence: corporate America, and particularly Wall Street firms, had the ability to do the right thing, but they didn’t. Now it will be imposed upon them by Washington, with serious consequences for those who fail to comply. Despite the new law, executive compensation remains a divisive issue, particularly since the unemployment rate for Americans in early 2011 continues

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to hover around 10 percent. Given the nation’s ongoing economic struggles, American companies hopefully will not rely solely on the government, but will take it upon themselves to reflect on the nature and amount of compensation awarded to their top executives, to ensure that the compensation is justified, and that their leaders are contributing to the companies’ health rather than their demise. Further Reading Books: Bebchuk, Lucian and Jesse Fried. Pay without Performance: The Unfulfilled Promise of Executive Compensation. Cambridge, MA: Harvard University Press, 2006; Bok, Derek Curtis. The Cost of Talent: How Executives and Professionals Are Paid and How It Affects America. New York: Free Press, 1993; Delves, Donald P. Stock Options and the New Rules of Corporate Accountability: Measuring, Managing, and Rewarding Executive Performance. New York: McGraw-Hill, 2004; Graham, Michael Dennis, Thomas A. Roth, and Dawn Dugan. 2008. Effective Executive Compensation: Creating a Total Rewards Strategy for Executives. New York: AMACOM/ American Management Association, 2008; Ho, Karen Zouwen. Liquidated: An Ethnography of Wall Street. Durham, NC: Duke University Press, 2009; Kay, Ira and Steven Van Putten. Myths and Realities of Executive Pay. Cambridge, UK: Cambridge University Press, 2007; Kolb, Robert W. The Ethics of Executive Compensation (The Leeds School Series on Business & Society). Hoboken, NJ: Wiley/Blackwell, 2006; Monks, Robert A. G. Corpocracy: How CEOs and the Business Roundtable Hijacked the World’s Greatest Wealth Machine—And How to Get It Back. Hoboken, NJ: Wiley, 2008; Oxelheim, Lars and Clas Wihlborg, eds. Markets and Compensation for Executives in Europe. Bingley, UK: Emerald, 2008. Websites: AFL/CIO, Executive PayWatch Database. http://www.aflcio.org/corporatewatch/ paywatch/ceou/database.cfm; Center for Corporate Policy. http://www.corporatepolicy .org/issues/comp.htm; “How to Fix Executive Pay.” Harvard Business Review. http:// blogs.hbr.org/hbr/how-to-fix-executive-pay/; “The Pay at the Top.” New York Times, April 3, 2010. http://projects.nytimes.com/executive_compensation; United for a Fair Economy. Executive Excess 2008: How Average Taxpayers Subsidize Runaway Pay. http://www.faireconomy.org/files/executive_excess_2008.pdf

Kathleen Uradnik

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F FEDERALISM The framers of the Constitution faced tremendous obstacles in crafting a new form of government to replace the failed Articles of Confederation. They first had to agree among themselves about how the United States should be structured, and then they had to convince the states to approve their plan. It was by any measure a formidable challenge. Perhaps the framers’ most difficult task was to convince the states to cede much of their power to the new federal government. The states had enjoyed a period of near-complete autonomy under the Articles of Confederation; by definition, the “confederation” was only a loose arrangement. The Constitution, to the contrary, would bind the states together in a completely different and complicated arrangement, one that had never been heard of or tried before. Why would a state agree to surrender its power to a strong central government and, with its neighbors, become subservient to it? Opponents of ratification argued that the Constitution gave too much power to the federal government and feared that power would be used against the states. In crafting the Constitution, the framers had little choice but to keep the existing states intact. After all, Americans’ first loyalty had been to the colonies they founded, which became states after the American Revolution. There was little sense of national identity among Americans, most of whom, after all, had been British citizens until independence. They were, however, quite loyal to their states. The idea of dismantling states in favor of a single central government might have appealed to some framers, but it would never sell. The states had to be preserved as entities and given authority over their own affairs,

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but they also had to be made to assume a secondary position in the new system of governance. This idea came to be known as “federalism.” It was an invention of the framers borne of necessity. Federalism created two distinct and autonomous levels of government in the United States. The federal government would run national affairs; the state governments would be responsible for their own internal affairs. The Constitution created a hierarchy of authority that placed the American people on top, for they retained the power to amend the Constitution, followed by the Constitution itself. The “supremacy clause” in Article VI declared the Constitution the supreme law of the land, and all levels of government were bound to follow it. Under the Constitution was the new central government, which had been designed to be much stronger than its predecessor. Next, the states remained free and independent of each other but subservient to the federal government. States could adopt any laws they wanted for themselves, so long as they did not conflict with federal law or the Constitution. Local government is the final level in the American system. The Constitution did not address local government; any political subdivision smaller than a state is a creation of the state itself. ACCEPTANCE WAS NOT IMMEDIATE Federalism was an ingenious solution to a distinct historical problem. But it was not a complete solution. Many supporters of states’ rights, known as “Anti-Federalists” during the debate over the Constitution, remained suspicious of the new federal government’s intentions. Moreover, no one knew exactly how federalism would work when it was actually put into practice. The early relationship between the states and the federal government was not an easy one, particularly for the South. States asserted their authority in various ways that came to be challenged before the Supreme Court; typically, the states would lose. In Martin v. Hunter’s Lessee (1816), the Court concluded that states were bound by federal treaties and could not interpret them to suit their own ends. Thus the Commonwealth of Virginia was bound to honor the federal government’s agreement with Britain regarding land owned by British citizens before the revolution. Shortly thereafter, the Court decided another landmark case, McCulloch v. Maryland (1819). In this case, it concluded that Congress had very broad powers under the “necessary and proper clause” of the Constitution and that the states could not interfere with federal functions by seeking to impose taxes on them. Similarly, in 1824, the Court decided in Gibbons v. Ogden that New York could not grant a monopoly over steamship operations because the Congress had already passed legislation to the contrary. In doing so, the Court granted Congress almost limitless power to regulate commerce under the Constitution’s “interstate commerce clause.” As these decisions were handed down, some Southern leaders began to suspect that the Chief Justice of the Supreme Court, John Marshall, was undermining state power. Marshall, after all, was a loyal Federalist who had supported the ratification of the Constitution and its creation of a strong central government.

Federalism

Marshall had served as the Secretary of State to Federalist President John Adams; Adams appointed him to the Supreme Court. It seemed as if the Federalists, through the Supreme Court, were quietly plotting the destruction of the states. It is true that Chief Justice Marshall shared in the Hamiltonian vision of a strong federal government and a growing and prosperous nation. He seized upon opportunities to interpret the Constitution to ensure that federal power was superior to state power, and that the states understood this fact. His opinions for the Court during his nearly 35 years on the bench were consistent in that regard, and Marshall grew increasingly unpopular in the South. But Marshall was not solely, or even mostly, to blame for the South’s increasing uneasiness over the growing power of the federal government. Issues that had been left unresolved during the constitutional debates did not go away; to the contrary, as time passed they became worse. Slavery was chief among these issues: the North rejected it; the South practiced it. The status quo did not work for long, because as territories to the west sought to enter the United States as new states, Congress had to decide whether they would be slave or free. Over the next several decades, Congress tried to resolve this ongoing controversy through legislation that created a boundary line across America. States admitted to the north of the line would be free; states admitted to the south would be slave. To some extent, slavery was the symptom of a broader problem—the economic differences between the northern and southern states. Although federalism envisioned that each state would run its own affairs, over time it became clear that the northern economy was outpacing that of the South. The North contained the nation’s largest cities and busiest seaports. Most manufacturing took place in the North. Most international trade also took place in the north. The South, to the contrary, continued its historical reliance on agriculture and the plantation system of farming. This industry centered on a few key crops, including tobacco, cotton, and sugarcane. Importantly, plantation farming was a very labor-intensive undertaking. The only way plantation farming could be profitable was from its free slave labor. The South was dependent on its slaves for maintaining its economy and lifestyle; yet despite its free labor, the southern economy could not keep pace with the North. The reasons underlying the Civil War are complex, and this essay cannot hope to do them justice. For present purposes, it is important to understand that, although the framers had high hopes for federalism in keeping the states happy, long-standing historical, economic, and philosophical differences kept widening the rift between the North and South and between the South and the federal government. Allegiance to one’s state ran deep in the South, which finally seceded from the United States in 1860. The bloody four-year Civil War that followed would determine whether these states would leave or remain in the union. One could argue, then, that federalism’s success was not assured at the ratification of the Constitution—and neither was the Constitution’s. It took the Civil War to resolve the issue of whether the states would actually be united under one central government, and whether the Southern states would accept this

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arrangement permanently. Through some combination of preparation, resources, destiny, or perhaps even luck, the North prevailed in the war and the union was kept intact. MODERN CHALLENGES FROM THE STATES Today, none of the states is poised to leave the union (although some of them muse over it from time to time). Disagreements persist, but they are resolved predominantly through the legal system. In recent years, the states have challenged federal authority in a number of areas, with many of the lawsuits ultimately decided by the Supreme Court. The federal government is obviously much more powerful today than it was even 50 years ago. The primary reason for its ability to assert its authority over the states lies in its creation of a vast array of federal programs. Starting in the 1960s, the federal government began to address social and economic issues by creating and funding its own programs at a rapid rate, particularly in the areas of education and welfare. In creating new programs or significantly augmenting existing ones, the federal government extended a hand to the states in addressing the nation’s most pressing problems. But federal assistance came at a price: to receive federal money, the states had to comply with the conditions placed on the funds they received and the programs that they wanted. At first, states were happy to comply. Over time, though, it became increasingly difficult to follow complicated federal regulations and to fill out the paperwork required to receive federal monies. As the burden on states increased, some considered opting out of certain federal programs—a task that proved almost impossible, given that the states had grown dependent on federal funds. Too, states began to object to new federal policies that forced them to change their own laws against the will of their legislatures and voters. Perhaps the most famous example of a state challenge to federal authority came in 1987, in the case of South Dakota v. Dole. In 1984, Congress passed legislation designed to penalize states with drinking ages lower than 21. Under principles of federalism, the Congress could not simply pass a national drinking age, but it could achieve the next best thing by putting financial pressure on the states to set the drinking age at 21. States that did not comply faced losing up to 10 percent of their federal highway funds, amounting to millions of dollars per state. South Dakota rejected the government’s conditions and sued for the right to set its own drinking age. The Supreme Court concluded that South Dakota did have that right, just as it had the right to refuse federal highway funds. But if South Dakota wanted those funds, it had to meet the conditions set by Congress. There was, the Court concluded, no constitutional violation in having Congress place conditions on the granting of its own aid. After the defeat, South Dakota changed its drinking age in order to maintain its eligibility for the federal funds; all of the states have complied with the 21-year-old drinking age. More recently, Congress threatened the same penalty if the states did not lower their legal intoxication standard to a .08 blood alcohol limit; again, all the states have complied.

Federalism

Not all challenges to federal authority involve federal programs. Recently, states have tried to assert their authority to pursue policies that conflict with federal regulations. One of the theories behind federalism is that it allows states to serve as public policy “laboratories” by pursuing new and different ways to combat economic and social problems. States have indeed blazed trails by experimenting with unique problem-solving approaches that have gained nationwide attention, particularly in the areas of welfare, prison, and environmental reform. California is a leader in innovative strategies for combating global warming and embracing alternative forms of energy. It has also been in the forefront in many areas of consumer rights law. However, not every California experiment has been consistent with federal law. For example, in 1996 its voters approved an initiative making medicinal marijuana legal in the state. But marijuana has been banned by the federal government as a “controlled substance” in all of its forms, and the states are bound by this determination. In a challenge to the federal government, a group of patients sued for the right to grow and use medicinal marijuana for their own purposes. The lawsuit, called Raich v. Gonzales, ended up in the Supreme Court. Not surprisingly, the Court held that Congress had the authority to ban marijuana and that the states and citizens had to comply with federal law. Interestingly, however, the decision was not unanimous—some justices dissented because they felt that Congress had gone too far and had undermined the ability of the states to experiment with their own public policies. The Raich decision, handed down in June 2005, has not ended the debate over medicinal marijuana. Today, at least 15 states have passed laws permitting its use; none of them can take effect, however, until the federal law changes. Despite the fact that federal law still bans it, California has been dispensing medicinal marijuana routinely, counting on the Obama administration to “look the other way” and not enforce the federal law. Another recent area of conflict between the states and the federal government has been over the direct importation of prescription drugs from other countries, particularly Canada. The U.S. Food and Drug Administration has banned all drug imports that have not received its approval. Often, the only difference between a drug sold in the United States and the same drug sold in Canada is the packaging—nevertheless, the Canadian drug is still off-limits. When U.S. citizens go to Canada to purchase their prescription drugs, or have those drugs mailed to them, they are violating U.S. law. Rising health care costs, including the highest prescription drug costs in the world, have caused not only individuals but states as well to seek cheaper sources of prescription drugs for their employees and for their citizens receiving public medical assistance. Border states such as Maine, Vermont, and Minnesota initially pushed the FDA to ease its restrictions on importation of prescription drugs, but the agency continues to hold fast. The FDA argues that it cannot ensure the safety and effectiveness of products that it did not approve, and it points out that even Canadian drugs can come from unknown sources in other countries. The states counter that the FDA’s policy is unreasonably harsh; more

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and more of them are joining in the effort to gain the right to import drugs. About a half-dozen states actually created programs to import cheaper drugs from Canada, and Vermont sued the FDA for the right to do so. The issue was resolved to some extent after Congress acted to include prescription drug coverage for seniors under Medicare, effective starting in 2006. The 2010 health care reform legislation did not address the issue of drug importation; it remains illegal today. In 2010, the Arizona legislature overwhelmingly passed legislation aimed at identifying and deporting illegal immigrants from the state. Known as “Senate Bill 1070” or “SB 1070,” it gives law enforcement officials the authority to ask for identification and check a person’s citizenship status when that person is legally stopped, detained, or arrested in connection with the violation of any law. It also requires immigrants to show legal citizenship when applying for state benefits. Finally, it requires immigrants to carry their immigration papers on them at all times or be subject to a misdemeanor citation with a fine not to exceed $100 for the first offense. The law specifically forbids state actors from using race, color, or nation of origin in enforcing SB 1070, except as permitted by the U.S. or Arizona Constitutions. Civil rights groups were quick to condemn SB 1070 as racist and illegal, claiming it amounted to unconstitutional discrimination. The federal government filed suit against Arizona to overturn the law, arguing that immigration policy and enforcement powers belong to the federal government, and the states do not have the authority to independently set enforcement criteria. Arizona countered by pointing out that its law was based on a similar federal law that had already been upheld by the courts. In the summer of 2010, a federal judge issued a preliminary injunction against Arizona that prohibited most of the law from taking effect. The lawsuit remains pending in the federal courts and is most assuredly headed to the Supreme Court for a final determination of whether, and to what extent, a state can enact and enforce immigration policy. At the same time the federal government was suing Arizona to stop its immigration law from taking effect, a group of 20 states was suing the federal government to stop its health care reform bill from taking effect. On March 23, 2010, President Obama signed sweeping health care reform legislation into law. A few moments later, the first of several state lawsuits was filed in an effort to stop implementation of the law. Virginia challenged the law immediately, arguing that it conflicted with its own law, called the Virginia Health Care Freedom Act, that protected state citizens from being forced to purchase health insurance. The state also contended that the federal mandate to buy health insurance was unconstitutional under the commerce clause. Further south, then-Florida Attorney General Bill McCollum filed a similar lawsuit on behalf of his state and 19 others. These states argued that the federal health care law exceeded the government’s power. Like Virginia, it argued that the law was an unconstitutional extension of the commerce clause. To date, approximately 27 of the 50 states have sued to overturn this new federal law. Federal judges in Virginia and Florida have determined that the

Flat Tax and National Sales Tax

lawsuits can proceed, while a federal judge in Michigan dismissed a similar one. In fact, on December 13, 2010, U.S. District Court Judge Henry Hudson ruled in the Virginia case (Virginia v. Sebelius) that the “individual mandate” imposed upon Americans is unconstitutional. Everyone fully expects that the Supreme Court will resolve this critical debate within the next year or two. That is how federalism battles are fought these days—through the legal system. Legal challenges between the states and the federal government are common, which is reassuring because both are willing to accept the courts’ decisions and adjust their behavior accordingly. Often these cases concern matters of little concern or relevance to voters. But not right now. The immigration and health care lawsuits described above are among the most critical disputes to come before the courts in some time. Both involve deeply divisive issues that are based in ideological principles. Both sides in these cases will fight with every resource to ensure victory. And, of course, they will not stop until the U.S. Supreme Court has determined their fate. These battleground issues will remain legally unresolved until that day, and as a practical matter for long after that. Further Reading Books: Conlan, Timothy J. and Paul L. Posner, eds. Intergovernmental Management for the Twenty-first Century. Washington, DC: Brookings Institution, 2008; Feeley, Malcolm and Edward Rubin. Federalism: Political Identity and Tragic Compromise. Ann Arbor: University of Michigan Press, 2008; Gerston, Larry N. American Federalism: A Concise Introduction. New York: M. E. Sharpe, 2007; Marbach, Joseph R., Ellis Katz, and Troy E. Smith, eds. Federalism in America: An Encyclopedia. Westport, CT: Greenwood Press, 2006; Norris, Pippa. Driving Democracy: Do Power-sharing Institutions Work? New York: Cambridge University Press, 2008; Purcell, Edward A. Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry. New Haven: Yale University Press, 2007; Zimmerman, Joseph Francis. Contemporary American Federalism: The Growth of National Power. Albany: State University of New York Press, 2008. Websites: American Enterprise Institute. The Federalism Project. http://www.aei.org/ outlook/11716; The Federalist Society for Law and Public Policy Studies. http:// www.fed-soc.org/; National Governors’ Association. Federal Relations. http://www .nga.org/portal/site/nga/menuitem.67948e4cf7b28b7ae8ebb856a11010a0/; Mott, Jonathan. Federalism. ThisNation.Com: American Government and Politics Online. http:// www.thisnation.com/federalism.html; Stanford Encyclopedia of Philosophy. Federalism. October 12, 2006. http://plato.stanford.edu/entries/federalism/; Urban Institute: Nonpartisan Economic and Social Policy Research. Assessing the New Federalism. http:// www.urban.org/center/anf/index.cfm

Kathleen Uradnik FLAT TAX AND NATIONAL SALES TAX The Sixteenth Amendment to the U.S. Constitution, ratified in 1913, granted Congress the power to collect income taxes. Congress uses income tax and other tax revenues to fund government programs. The Internal Revenue Service, or

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IRS, is the arm of the federal government authorized to collect income taxes and to investigate those who fail to pay their taxes. Over the years, the rules and regulations governing the setting of tax rates, the granting of tax credits and exemptions, and the collecting of income information and funds have become increasingly complicated. Few Americans understand how the income tax system works, relying on accountants, tax preparers, and specialized computer software programs such as “Turbo Tax” to help them prepare their tax returns. The same is true for businesses, which employ an army of accountants and tax attorneys to ensure that they are properly navigating the tax system. The complexities in the tax code are due in large part to a series of deductions, credits, exemptions, penalties, and other policies created by Congress to ease the tax burden on some groups and to increase the tax burden for others. When Congress wishes to encourage a particular activity, such as homeownership, it can grant individuals a tax break when they purchase a home. The same is true for corporate income taxes: when Congress wants to increase jobs in a particular sector, it can grant a tax break to companies that fulfill its specific hiring requirements. It follows, too, that when Congress wishes to discourage a particular activity by individuals or businesses, it can impose tax penalties. The current Internal Revenue Service Code is hundreds, if not thousands, of pages in length and contains a seemingly endless number of these incentives and disincentives. Even the basic federal individual tax form, IRS 1040, is several pages in length and comes with dozens of pages of instructions for filling it out. The complications in the existing tax code are not only confusing but costly. Individuals and businesses want to take advantage of every tax break offered to them, but figuring out how tax breaks work and how to obtain them is a costly proposition. By some estimates, Americans spend hundreds of billions of dollars each year in an effort to understand the taxation system, file their taxes, and most importantly to take advantage of its many exceptions and loopholes. Those who don’t understand their taxes often fail to file them. Those who can’t take advantage of legal loopholes often cheat, either by underreporting their income or, in the case of some corporations, moving their money overseas. IRS enforcement personnel have limited resources and only audit a small number of taxpayers each year. Consequently, many nonfilers and cheaters are never caught, a fact that causes others to take their chances with tax evasion, too. In short, a complicated tax system leads to strategic behavior by taxpayers. WHAT IS THE “FLAT TAX”? Because the current tax system is complicated, confusing, expensive, unpredictable, and in many ways unfair, many scholars and public officials have called for its complete reform. The most dramatic and sweeping reform proposal is called the “flat tax.” Like its name implies, the flat tax would impose a single tax rate on income and eliminate all exemptions, credits, deductions, penalties, loopholes, and other rules and regulations that complicate the current system. The flat tax would be imposed on an individual’s income from work and on a

Flat Tax and National Sales Tax

business’s income from its activities. In addition, other forms of taxes on income, such as the capital gains tax and the inheritance tax, would be completely eliminated. The goal of the flat income tax is to tax a person’s earnings once, and only once. Proponents of the flat tax argue that it is easier to understand, cheaper to administer, and more fair to taxpayers. WHAT IS THE “NATIONAL SALES TAX”? A national sales tax would mean, first, that all income taxes are eliminated. Instead of taxing an individual’s income, the federal government instead would tax his or her purchases. This type of tax is often called a “consumption” tax, because it is levied on material goods and services. Many states already impose a sales tax on certain goods and services, but there is no equivalent at the national level. Under a new national sales tax, sometimes called the “fair tax,” consumers would keep all of their income but pay for what they consume. Both of these tax systems seem daunting and perhaps unfair, in that they eliminate the tax breaks that most average Americans have come to expect. But the theory behind both of these tax proposals is that they would level the playing field among various groups of taxpayers, who today pay wildly different amounts of tax. For example, a family with children receives a tax deduction for each child. No such benefit exists for childless couples. Poor families with children can receive a tax credit that is not available to middle-class families with children. Anyone who owns a house can receive a tax deduction, but it is not available to those who rent. An employee who drives to work cannot deduct the cost of commuting, but a self-employed business person may be able to do so. Sometimes a married couple will find that they owe less tax if they file separate individual tax returns, and other times the opposite is true. Congress and the IRS have created many special rules that treat taxpayers differently—the flat tax and sales tax would eliminate these disparities for everyone. The flat income tax would be levied on personal income only—taxpayers would no longer have to worry about paying taxes on their investment income or their retirement savings. Businesses would be taxed on their income, and all of the special incentives for businesses would be eliminated, too. The flat tax would not favor one form of business over another; large corporations, small businesses, professional associations, and partnerships would pay their taxes at the same rate. Taxes would be limited to money that a person or corporation makes in this country, the theory being that each nation should tax only the activities that are undertaken within its borders. Proponents of the flat tax argue that it would make U.S. businesses more competitive, because they would be taxed only once, for their activities here. Opponents fear that U.S. businesses might move overseas in search of more favorable tax schemes. In rebuttal, flat tax advocates point out that U.S. businesses have already moved some or all of their operations overseas to escape the existing burdensome tax code. A flat tax approach will create incentives for businesses to remain in the country by streamlining and simplifying the

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tax rate, and also by reducing the time and money associated with tax recordkeeping and preparation. HOW HIGH WOULD YOUR TAXES BE? Under the current system, an individual might pay no tax, 10 percent of their income in tax, or 15, 25, 33, or even up to 35 percent of their income in annual tax. The rate you pay depends on how much money you earn and how many of the special incentives or tax breaks you qualify for. If all of these special rules and regulations were eliminated, most experts predict that the tax rate would be around 20 percent of one’s annual income, and would be collected as the individual was paid. Those currently paying a higher rate would benefit immediately because they would pay less in taxes. Those who pay little or no tax today would pay something under certain flat tax proposals. However, some flat tax proposals would not begin to impose the tax until a person reaches a minimum income level, thus ensuring that poor people with little income would be protected. In addition, flat tax proposals typically take into account a family’s size, and they set a different starting level for imposition of the income tax depending on how large or small the family is. For example, a family of four would not begin to pay taxes until they reached a specific household income, say $50,000. This income level would be adjusted down for smaller families and up for larger ones. Since the national sales tax is imposed on goods and services that you buy, there would be no income tax of any kind. That means a person could keep 100 percent of what he or she earns, but would be responsible for paying a tax on virtually any purchase—including large items such as homes and cars, essential goods such as food and clothing, and discretionary purchases such as iPods and video games. The more you buy, the more you pay in taxes. The sales tax rate would be a set rate, the exact amount of which varies from proposal to proposal. In general, experts talk of imposing a rate of anywhere from 20 to 25 percent on goods and services, with “fair tax” proponents setting the level at 23 percent. But how could any American afford to pay such a high tax on everyday necessities such as food and clothing? The national sales tax addresses this issue by giving each taxpayer a rather significant “rebate” based on family size. A traditional rebate involves buying an item, and then filling out and sending in a form to obtain some or all of your money back on that item. The “rebate” in this case would be paid to you up front, before you purchase anything. For that reason, this sum is often called a “pre-bate.” The idea is that, by giving Americans a set amount of money up front, they will have the funds they need to pay for basic necessities first, and will not have to wait for government to reimburse them for their purchases. Although experts differ on how large this sum should be, the consensus seems to be around $30,000 to $50,000 per year. Stated another way, under a national sales tax, each American would be given a fixed sum of money each month to pay for essential items. The exact amount would depend on family size, but would be the same for each family of the same

Flat Tax and National Sales Tax

size. That sum would ensure that each American family had enough money to cover “the basics.” After that, the family would pay for everything they purchased—those spending the most would pay the most. The idea of receiving a monthly check from the government makes the national sales tax much more attractive. Added to that is the proponents’ promise that all other federal taxes would be eliminated: income tax, Social Security tax, Medicare tax, inheritance tax, and the like. On the one hand, Americans would pay a high rate of tax on the goods and services that they use. On the other hand, this is the only tax that they would pay. Individuals leading a simple life, or who do not have a lot of money, would likely do better with a consumption tax. Those fond of expensive purchases would pay for them. But regardless of whether one bought a small economy car or a luxury SUV, the tax rate would be the same for both. WHAT ABOUT STATE AND LOCAL TAXES? These proposals address reform of the federal income tax system only. State and local taxes are in the authority and control of the individual states and vary widely from place to place. Although most states impose an income tax on their residents, some do not: Texas, Washington, South Dakota, Nevada, Florida, Alaska, and Wyoming do not have any form of individual income tax. Of course, these states find other ways to tax, usually by imposing a substantial sales tax on goods and services. Some states use a flat tax approach: Massachusetts, Michigan, Illinois, Pennsylvania, Indiana, Utah, and Colorado employ this method to tax residents’ income. Each state varies as to whether and to what extent they provide exceptions and loopholes in their respective taxation policies. If the federal government were to impose a radically new tax system on Americans, the states would not be forced to follow suit. But the pressure on states to simplify their tax codes is increasing, and the same incentives exist for the states to reform their systems as for the federal government. States would save the tremendous costs of implementing complex tax systems by switching to a flat tax or a sales tax approach to raising revenue, and would accomplish increased fairness in tax policy. Discontent over state taxation schemes has already resulted in significant taxpayer revolts. Perhaps the most famous revolt occurred in California in 1978, when voters placed on the ballot a proposal calling for a cap on out of control property taxes. The proposal, called “Proposition 13,” passed by an overwhelming margin. It amended the California Constitution itself in placing limits on whether and how much the state’s property taxes could increase each year. Importantly, it also changed the law to require a two-thirds majority of the state legislature or local government body to approve a tax increase of any kind. In the short run, the proposition lowered property taxes for many Californians and kept increases to a maximum of 1 percent per year. Proposition 13 remains the law in California, but it has been adjusted over the years by additional constitutional amendments seeking loopholes for certain

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types of taxpayers, such as the children of current homeowners who wish to acquire their parents’ property tax rate. Today the law creates a perhaps unwise incentive for keeping or renting out one’s home, because when it is sold, the buyers have to pay property taxes at a newly assessed rate. Those who owned homes at the time of the law’s passage benefited the most, because their tax rates were limited; new home buyers do not enjoy the same benefits. The loss of revenue to the state and the perceived unfairness of subsequently created loopholes have caused some experts to call for the repeal of the proposition. This result is unlikely, because the taxpayer revolution that caused it was so deep-seated that Californians view Proposition 13 as untouchable, much like Social Security. A recent high-profile taxpayer revolt occurred in 2008 in Massachusetts, where voters were called upon to decide whether to eliminate the state’s income tax. As noted above, Massachusetts uses a flat tax approach, taxing income at a rate of 5.3 percent. “Income” is defined broadly to include wages, interest income, capital gains on investments, and the like. The ballot proposition would have eliminated the income tax as of January 1, 2010. Proponents of the plan argued that government had become too bloated and that the tax was too burdensome. Opponents countered that the loss of revenue would virtually shut down state government, or at a minimum would lead to deep cuts in public services such a schools, police, and firefighters. Ultimately, as in 2002 when a similar measure was defeated, the 2008 proposition failed by a significant margin. The tax remains in place. WHAT WOULD BECOME OF ACCOUNTANTS, TAX ATTORNEYS, AND TAX PREPARERS? Proponents of both the flat tax and the national sales tax boast of putting these people out of business because their services would no longer be needed. While it is unlikely that these careers would vanish entirely, it is a goal of the reformers to greatly reduce or eliminate the need for assistance in preparing one’s taxes. Flat tax advocates are convinced that an individual will be able to prepare his or her own income tax form, promising that it will be no larger than a postcard and easy to fill out. National sales tax advocates point out that income tax forms will no longer be needed at all—there will be nothing to file, because the taxes will be paid as goods and services are purchased, eliminating the need to prepare any sort of annual tax statement. OTHER COUNTRIES How do other countries tax their citizens? Some use a form of the flat tax. Virtually all of the former Soviet-bloc nations in Eastern Europe, including Russia, Ukraine, and the Czech Republic, use some form of flat tax. In fact, the dramatic growth of Eastern European economies is often used as evidence that the flat tax works. Countries in Western Europe take various approaches, and are often criticized by economists for having much higher individual income tax rates than the United States. In Denmark, for example, the tax rate on

Flat Tax and National Sales Tax

income starts at 42 percent and can go as high as 68 percent. In the Netherlands, Sweden, Norway, and Denmark, top tax brackets are in the 50–55 percent range. (The highest tax bracket in the United States today, by contrast, is 35 percent.) However, these nations have large-scale social programs that the United States does not offer, such as universal health care, which helps to account for their higher rates. Some European nations do not impose certain taxes that are common in the United States, such as the capital gains tax and the inheritance tax. Every nation participating in the European Union (EU) imposes a “value added tax,” or VAT, in addition to income tax. The VAT is similar to a sales tax, but it can be placed on an item at any stage of the production process where, as its name implies, value is added to it. A sales tax, by contrast, is placed on a good or service when it is purchased by the consumer (often called “end user”). Because of their highly varied approaches to taxation, as well as the different social welfare programs and political philosophies of European democracies, they do not necessarily serve as a model for American tax reform. And, as noted above, federalism also makes it is difficult to compare other wealthy democracies to the United States, because each individual state can impose its own system of taxes on residents above and beyond what the federal government does. Typically these include income and sales taxes, which is one major reason, perhaps, why the United States has not adopted its own national sales or VAT. WILL AMERICANS AGREE TO TRY A NEW TAX SYSTEM? For a number of reasons, proponents of both the flat tax and the national sales tax face an uphill battle in trying to implement their programs. First, while many Americans understand that the current tax system is very complex, they have become used to receiving certain benefits from it that would disappear under a new tax system. Chief among these is the deduction for mortgage interest used by homeowners, which has become something of a sacred cow in federal income tax policy. Additional deductions for things like student loan interest are popular, too, and taxpayers are unwilling to give them up. No one wants to see deductions disappear for children—and they wouldn’t, exactly, under the flat and fair tax proposals, but they would take radically different forms. Second, experts continue to disagree over whether to impose a single income tax rate or sales tax rate on Americans. Opponents of a single rate argue that the rich should pay a higher proportion of their money in taxes than the poor. Reformers counter that those at or below the poverty level would not pay income taxes, and under a national sales tax would effectively not pay anything until their generous “pre-bate” money was exhausted. Proponents of tax reform understand that any program that makes the poor worse off is not going to be adopted; the challenge is in convincing elected officials and the public that this is, in fact, the case. Neither tax reform plan could be implemented immediately, but rather would have to be introduced during a transitional period from the old tax system to the new. Congress would have to adopt an interim plan, a formidable task in itself. But proponents of the national sales tax predict that revenues to

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the federal government will increase because every purchase is taxed—including purchases made with what today might be considered illegal or unreported income. The government would no longer care whether the money was hidden from U.S. income taxes, because the income tax would cease to exist. The plans sound straightforward and have much to recommend them. But convincing voters and taxpayers to embrace them is a monumental task. People complain about their taxes, and the thought of taxation taking on a radically different form is a lot for people to accept. Most do not understand the existing tax code and are not inclined to learn a new one. Plus, Americans tend to be suspicious of government promises and plans that sound too good to be true. In order to achieve serious tax reform, proponents of these new approaches are going to have to fight not only for the wallets of Americans, but for their hearts and minds as well. Further Reading Books: Boortz, Neal and John Linder. The FairTax Book: Saying Goodbye to the Income Tax and the IRS. New York: Regan Books, 2005; Dennis-Escoffier, Shirley and Karen A. Fortin. Taxation for Decision Makers. Upper Saddle River, NJ: Pearson Prentice Hall, 2006; Johnston, David Cay. Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich—and Cheat Everybody Else. New York: Portfolio, 2005; McCaffery, Edward J. Fair Not Flat: How to Make the Tax System Better and Simpler. Chicago: University of Chicago Press, 2002; Slemrod, Joel and Jon Bakija. Taxing Ourselves: A Citizen’s Guide to the Debate over Taxes. Cambridge, MA: MIT Press, 2008; Steuerle, C. Eugene. Contemporary U.S. Tax Policy. Washington, DC: Urban Institute Press, 2004; Zodrow, George R and John W. Diamond, eds. Fundamental Tax Reform: Issues, Choices, and Implications. Cambridge, MA: MIT Press, 2008. Websites: Americans for Tax Reform. http://www.atr.org/; Chamberlain, Andrew. “Wyden and Emanuel to Introduce ‘Fair Flat Tax’ Today.” 2007. The Tax Foundation. April 16, 2007. http://www.taxfoundation.org/blog/show/22338.html; FairTax.org. http:// www.fairtax.org; The Fair Tax Blog. http://www.fairtaxblog.com; Mitchell, Daniel J. “A Brief Guide to the Flat Tax.” Heritage Foundation. July 7, 2005. http://www.heritage .org/Research/Taxes/bg1866.cfm; YouDebate.Com. “Is the National Sales Tax the Fairest Plan?” http://www.youdebate.com/DEBATES/TAX_NATIONAL_SALES.HTM

Kathleen Uradnik FOOD SAFETY In mid-August 2010, American consumers had a hard time purchasing one of the nation’s most basic foods: eggs. That’s because nearly a half-billion eggs had been pulled from grocery store shelves. The United States was under a nationwide alert for tainted eggs. The eggs contained salmonella, a bacteria that causes intestinal pain, nausea, vomiting, and diarrhea and that in rare cases can result in more serious health issues and even death. Although the cases of salmonella poisoning had begun to emerge in May, it took until August to trace their source to Wright County Egg, located in Galt, Iowa. The owner of Wright County Egg was already well known to inspectors, who had cited his company in the past for environmental and labor violations. By the time the recall was completed, several hundred Americans had reported egg-related

Food Safety

gastrointestinal illnesses, and it is suspected that thousands more had suffered from the contamination without reporting it. Despite the egg scare, the American food supply, on balance, is among the safest in the world. Most Americans simply assume that the food they eat and the water they drink are pure, and don’t think about the consequences of unsafe food products. However, the egg fiasco and a number of other recent, highprofile cases of food-borne illnesses and food recalls suggest that more may need to be done to ensure the integrity of the nation’s food supply. The Centers for Disease Control (CDC) notes that they are over 250 known food-borne diseases. These diseases affect around 76 million people in the country each year. In almost all cases, the symptoms experienced by the afflicted are mild and shortlived. But the CDC also acknowledges that around 325,000 hospitalizations and 5,000 deaths occur each year from food-borne illnesses. The elderly, children, pregnant women, and persons with compromised immune systems are most at risk of serious illness or death from contaminated food and water. THE MOST COMMON CULPRITS A handful of pathogens are responsible for the vast majority of these cases. E. coli are bacteria found in the feces of cattle and other animals. Even a tiny amount of feces can taint beef, or can be transferred to another food product or water source. The symptoms of E. coli contamination include painful cramping, diarrhea, and abdominal pain. E. coli bacteria are especially dangerous to vulnerable individuals and in rare cases can cause death. In September 2006, for example, an E. coli outbreak in fresh spinach killed three people and sickened at least 200 others in two dozen states. Fresh spinach was taken off the market for several weeks as the FDA and other federal agencies investigated the source of the outbreak. It took six months before they concluded that the likely source was a cattle ranch in California, but investigators never could determine how the spinach itself became tainted. Salmonella is found in the saliva of birds, reptiles, and other animals or in eggs. It can be easily transferred by coming into contact with saliva or through tainted food products. Salmonella poisoning causes abdominal pain, nausea, and fever, and, if left untreated, it can lead to bloodstream infection and even death. In 2007, the FDA ordered the recall of two brands of peanut butter contaminated with a type of salmonella. For one brand, the recall applied to all jars dating back to May 2006! Nearly 300 persons were sickened by the outbreak, and four dozen were hospitalized. The outbreak affected 39 states. And in 2006, just two months after the E. coli-related recall of fresh spinach, lettuce and tomatoes were pulled off store shelves after approximately 175 consumers in 19 states became ill in another salmonella outbreak. “Campylobacter” is a bacteria found in birds. The CDC identifies it as the most common cause of bacterial diarrhea the world. It is ingested when one consumes undercooked poultry or comes in contact with the juices of raw poultry. Finally, “calcivirus” is a common cause of what Americans generically refer to as “food poisoning,” a condition characterized by severe abdominal pain,

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cramping, and diarrhea that usually lasts only a few days. Calcivirus is often referred to in the press as the “Norwalk virus” (after a 1968 outbreak of gastroenteritis in schoolchildren in Norwalk, Ohio), and it can spread very quickly where large numbers of people congregate, such as on cruise ships or in hospitals or schools. This type of virus accounts for almost all of the nonbacterial gastrointestinal outbreaks in the United States. Typically, it is spread through water, food, or dirt that has been contaminated with fecal matter. FEDERAL FOOD SAFETY AGENCIES Numerous federal government agencies are responsible for protecting the nation’s food supply. Primary among them is the U.S. Food and Drug Administration (FDA). The FDA enforces all U.S. laws governing domestic and imported food, with the exception of meat and poultry, as well as bottled water. The FDA inspects food production sites and warehouses, works with state governments to monitor food service establishments, tests both human food and animal feed, and issues recalls of unsafe food products. The FDA also works with foreign governments and import companies to ensure that food from abroad meets U.S. safety standards. The U.S. Department of Agriculture (USDA) is responsible for regulating meat and poultry, as well as products containing meat. The USDA inspects facilities where livestock are raised and the slaughterhouses where they are processed and packaged for market. It tests various products for bacteria and other pathogens and undertakes efforts to educate Americans on safe meat preparation. Together with the U.S. Customs Service, the USDA also regulates imported meat and poultry to ensure that they meet national safety standards. The Centers for Disease Control conducts investigations of food-borne and water-borne illnesses. The CDC acts as a kind of “SWAT team” when food safety has been compromised, descending quickly on a location in an effort to prevent the spread of bacteria and other food-related pathogens that sicken people. It studies trends in food-borne illness and maintains a database of incidents across the country. It also helps to train state and local governments in disease prevention and control techniques. Finally, the Environmental Protection Agency protects the nation’s water supply. It tests water for purity and sets standards for safe levels of various substances appearing in water (minerals, pesticides, fluoride, etc.). It also regulates manufacturing facilities to ensure that toxic substances and waste products do not contaminate the nation’s waterways and do not enter the food chain. In addition to these four agencies, at least one dozen smaller agencies also bear some responsibility for ensuring that food and water are safe to consume. For example, the National Oceanic and Atmospheric Administration (NOAA)—the same agency that forecasts hurricanes—also inspects seafood, both on fishing boats and at seafood processing plants. The Bureau of Alcohol, Tobacco, and Firearms, perhaps known best for its drug enforcement, also regulates the safety of beer, wine, and spirits.

Food Safety

The federal government views these various agencies as a “redundant system,” which means that, because many of the agencies’ duties and responsibilities overlap, there is repetition in investigating, testing, and monitoring of food products. The theory is that, while one agency has primary responsibility for certain parts of the food chain, other agencies with related responsibility serve as a kind of backup for them, adding an extra level of security to the nation’s food supply. The FDA characterizes the government’s multiagency involvement as a “team approach” to food safety. EXTRA SAFETY, OR ADDITIONAL CONFUSION? But if multiple agencies are responsible for food safety, why do serious cases of food-borne illnesses still arise? Critics argue that, rather than providing extra screening for the nation’s food and water, the government’s system of independent, partially overlapping agencies actually allows food products to “slip through the cracks,” because often no one agency is completely responsible for a particular food item. Assigning various foods to various agencies, they maintain, leads to confusion over which agency is actually in charge and should take the lead in regulating, inspecting, and testing. Several examples of popular food products help to illustrate the critics’ point. Water itself is regulated by the EPA, but bottled water is regulated by the FDA. The FDA is responsible for ensuring that eggs are safe, but the USDA is responsible for egg products. A frozen cheese pizza falls under the regulatory authority of the FDA, but when the manufacturer adds sausage or pepperoni, that pizza falls under the authority of the USDA. The same is true with frozen vegetable and meat lasagnas. Overlapping authority, therefore, does not necessarily mean extra layers of inspection and supervision of food and water. Sometimes just the opposite occurs: if one agency believes that another has taken responsibility for a food product, it may not undertake any additional testing or supervision at all. Another important flaw in the food safety system arose from the fact that, until reform legislation finally was adopted in late 2010, no government agency could actually force a company to recall its food products. With the sole exception of infant formula, recalls were voluntary, meaning that the FDA or USDA could ask a company to recall products but could not require it to comply. The FDA and USDA have always had to cooperate and work closely with other federal agencies that are separately responsible for enforcement of laws governing the proper packaging and transporting of food. For example, the Consumer Product Safety Commission, the Department of Transportation, the U.S. Postal Service, and even the FBI all enforce a myriad of antitampering and safe shipping laws and regulations concerning food. INSPECTION UNDER FIRE Inspection is perhaps the most important component in assuring food safety, but agencies’ inspection standards vary wildly, as does the amount of funding provided to various agencies for this purpose. Each year about 60 percent of

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all food inspection funding is allocated to the USDA for meat inspection. Obviously it is very important to have safe meat, but meat is not the largest part of the American diet. Non-meat products such as grains and produce make up a significantly larger percentage of the food supply, but the FDA receives only about 30 percent of available funding to inspect all of those other products. Moreover, critics charge that, regardless of where the money goes, the federal government does not adequately support the inspection process. Only a small percentage of domestic and imported food is ever inspected. Critics also point to the fact that, over approximately the last ten years, funding for inspections has been cut, and the number of food safety inspectors has been reduced. They call for the government to allocate additional resources to hire more inspectors, who can then conduct announced and unannounced inspections on a more frequent basis. More inspectors visiting plants and processing facilities perhaps could have helped to prevent the largest recall of beef in the nation’s history. In late February 2008, the American Humane Society released a dramatic videotape and written report documenting the abuse of cattle at the Westland/Hallmark meat company in central California. The Humane Society video showed deformed and sick cattle being slaughtered and placed into the food chain against USDA rules. Much of the beef at the plant had been processed into hamburger and sold over the past two years to school districts and fast food establishments around the country. As a result of the Humane Society’s undercover work, the USDA ordered the recall of 143 million pounds of ground beef—most of which, ironically, had already been consumed. This massive recall was imposed not simply because of animal abuse, but also because sick and crippled animals are deemed unfit for human consumption, in that they pose a higher threat of contamination than healthy animals. Critics contend that insufficient funding for inspection of food producers has led to an untenable situation where the producers and packagers essentially police themselves. They charge that meat-packing plants cannot be trusted to fully enforce the rules regarding the raising and slaughtering of animals, because there are too many temptations to cut corners and it is too easy for them to cheat. Violations at the Westland/Hallmark plant were not discovered by government inspectors, and they would have never come to light were it not for the efforts of the Humane Society. WHAT CAN CONSUMERS DO? Part of the problem with food safety lies with consumers themselves. Although numerous federal, state, and local agencies attempt to instruct the public about proper food handling techniques, many cases of contamination are caused by improper handling or cooking of food. Ground beef is a common source of bacterial contamination because, as its name implies, it involves grinding up beef parts from numerous sources. If any single part is contaminated, its bacteria becomes mixed into the entire batch of ground beef, which is then divided, packaged, and typically sold throughout a wide area. (A solid meat

Food Safety

product such as a steak poses a much lower threat, because contamination, if present at all, is found only on the surface of the product, and the steak itself is sold as a single unit.) When it comes to ground beef, consumers are warned to be especially careful to cook it thoroughly. Heating ground beef and other foods to a temperature of 160 degrees Fahrenheit kills virtually all of the bacteria and viruses that might be present. Despite the fact that thorough cooking is the consumer’s most powerful tool and last line of defense against tainted food, many Americans still insist on eating their hamburgers medium or rare, or do not adequately monitor their foods for the degree of doneness. Proper preparation techniques are also important barriers against food-borne illnesses. Cooks should wash their hands often, wash all of the food they prepare, and prevent possible cross-contamination by keeping various types of food separate. Any easy step to take, for example, would be to have one cutting board for meat and another for vegetables. Paying increased attention to higher-risk foods—including not only ground beef, but eggs and raw chicken or turkey as well as raw vegetables—can also help to prevent the transmission of dangerous bacteria. Buying pasteurized or irradiated food products also helps to ensure a higher level of food safety. “NATURAL” AND “ORGANIC” FOODS Some consumers, however, do not want to buy pasteurized or irradiated foods, or any foods that were exposed to pesticides or fertilizers. They prefer natural and organic products, believing them to be healthier and to have superior taste. But exactly what is a “natural” food? An “organic” food? This question is difficult to answer with precision, because these kinds of food products remain largely unregulated. In general, a natural food is one that is sold in pure form, without additives, flavor enhancers, artificial sweeteners or preservatives, artificial coloring, hydrogenated oils, and the like. For the most part, the government does not regulate the use of the term “natural” when it is placed on food products, except for meat and poultry. For non-meat products, therefore, consumers should study ingredients labels to determine how “natural” each one really is. An organic food refers not only to the food item itself, but also how it was grown or produced. To be considered organic, the food must meet the criteria set forth in the government’s 2002 National Organic Program (NOP). These regulations provide that the food grown be free from synthetic pesticides and herbicides, genetically engineered genes, and petroleum and “sewage sludge” fertilizers. (A sewage sludge fertilizer is the product obtained at the end of the wastewater treatment process. Today, the Environmental Protection Agency has replaced that awkward term with a new one, “biosolids.” The EPA has long argued that the use of biosolids as a fertilizer is beneficial, in that it promotes recycling of wastewater and is safe for use in growing crops.) Organic meat cannot have additives such as growth hormones or antibiotics. Farmers and ranchers who produce organic goods are committed to sustainable agriculture and renewable resources in their approach to raising animals and crops. They must embrace natural approaches in the care and feeding of their animals.

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Some products may contain components that are organic. If the USDA labels a product “100% organic,” all of the components contained in it are organic. Other possible USDA labels include “organic,” which means the product is made from 95 percent or more organic ingredients; and “made with organic,” which requires the product to have at least 70 percent organic ingredients in order to use the word “organic” on the front of its packaging. For foods that contain less than that amount, use of the term “organic” is restricted to the ingredients list found on the package. Proponents of organic food believe that the USDA definitions are not precise enough, and that the USDA permits certain exceptions to be made in labeling for the 95 percent organic foods. The USDA has developed a list of approximately 38 nonorganic substances that can be used in a 95 percent organic product without compromising its “organic” status. Common examples include hops (used in beer making) and sausage casings. Legally, while the sausage itself may be organic, the casing that it is stuffed into can be made of materials exposed to the very things (like bovine growth hormone) shunned by purchasers of organic foods. Another problem with organic foods is that, while they might conjure up an idyllic image of plants and animals being raised on family farms, an “organic” farm may in fact be a large, factory-like feedlot where thousands of tightly packed cattle are essentially force-fed an organic mixture to promote quick growth and lean meat, or where similarly tightly packed dairy cows have no ability to roam. Opponents of these feedlots argue that organic beef and milk should be derived from animals allowed to roam in pasture and eat grass. As more and more producers seek to gain a share of the rapidly growing organic food market, confusion over organic products is appearing in industries not commonly thought to be purveyors of organic goods. The wine industry is an excellent example: what is the difference between an organic wine and a wine made with organic grapes? Organic wine is at least 95 percent organic; wine containing organic grapes is at least 70 percent organic. Moreover, the 70 percent product is allowed to contain sulfites, a preservative that is not allowed in any other type of product with USDA organic labeling. Beer makers, similarly, argue that organic beer should contain 100 percent organic ingredients, but current standards allow for the use of non-organically grown hops, a necessary and important ingredient in beer. Although the amount of sulfites is very limited and strictly regulated, supporters of organic foods argue that even 70 percent organic wine should not contain sulfites. Much of the controversy over organic foods concerns just what it means to be organic and whether the FDA and USDA do an adequate job of policing food and beverage producers who purport to sell organic products. As demand for organic products grows, the federal government will undoubtedly be called upon to tighten labeling standards and step up enforcement to ensure that an organic food really is all that it claims to be. IMPORTED FOOD In the spring of 2007, pet food manufacturer Menu Foods recalled numerous brands of canned and dry dog and cat food in North America after consumers

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and veterinarians across the United States reported cases of otherwise healthy animals becoming seriously ill and, in some cases, experiencing sudden kidney failure and death. FDA investigations eventually revealed that the wheat and rice components of the pet food, which had been manufactured in China, were contaminated with melamine, a compound commonly used in flame retardants and pesticides. In addition, the FDA determined that certain ingredients in the pet food had been mislabeled. After this high-profile incident, political and media focus turned to human food imported from China. The FDA admitted that it inspects less than 1 percent of food brought in annually from overseas, and that about 80 percent of it bypasses the inspection process entirely. Investigations at Chinese food processing plants revealed thousands of health and safety violations, and Chinese officials acknowledged that over 100 companies had been caught introducing industrial additives into food products. Serious outbreaks of food-borne illnesses have been linked not only to China but to Mexico (onions, 2003; cantaloupes, 2000; and strawberries 1997) and Guatemala (raspberries, 1996), among other countries. In response, Congress passed legislation in 2002 requiring that food coming into the United States from overseas be labeled with country of origin information. The bill (nicknamed “COOL” for “Country-of-Origin Labeling”) covered meat, fish, shellfish, produce, and certain types of nuts. President Bush signed the legislation, but he later signed two bills delaying its implementation. Critics charged that large agribusiness companies and mega-retailers that import food and other goods from overseas (and particularly from China) interfered with the act because they did not want consumers to know where their products came from. The COOL legislation finally took full effect in March 2009. The USDA was quick to point out on its website, however, that the program is not a food safety or traceability program but instead a consumer information program. In short, it simply lets shoppers know where their grocery items originate and, in the case of meat, where the animals were slaughtered. FINALLY—REFORM! Lawmakers on Capitol Hill have long understood the need to overhaul the nation’s food safety system, but their efforts to do so never made it out of Congress. Few observers gave the most recent bill any chance of passage, given that it was being presented to the 2010 lame duck session of Congress. To almost everyone’s surprise, however, Congress managed to get quite a bit accomplished during a few short weeks in December, including adopting sweeping changes in the Food Safety Modernization Act of 2010. President Obama signed the act into law on January 4, 2011. The act was designed to allow the federal government to be more proactive in dealing with food safety. In the past, government agencies had been roundly criticized for responding slowly to outbreaks of food-borne illnesses; the new approach emphasizes preventing such outbreaks in the first place. Sections of the act went into effect immediately. These include new authority for the FDA

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to issue mandatory recalls of products when the producer or manufacturer refuses to engage in a voluntary recall. The FDA also has the authority to turn back imported products from facilities that refuse to allow its inspections. The agency has expanded authority and greater access to corporate records in conducting its inspections. Those who report violations by food producers now have “whistleblower” protection. Other aspects of the legislation will be implemented over time, as the FDA formulates regulations to deal with specific food safety concerns. For example, the agency has been authorized not only to increase significantly the number of inspections that it conducts both in the United States and abroad, but also to more severely punish violators. To that end, it will have to issue new rules regarding food safety standards and the consequences for failed performance. Food producers, for their part, must review their processes and procedures to identify ways that their products could become contaminated. After that, they must create and implement reforms to keep their products safe. These plans must be filed with the FDA, and they are subject to its review. While almost everyone agrees that the reforms are extensive and overdue, some consumer groups continue to argue that the new law does not go far enough. Critics argue, for example, that Congress gave the producers too long to comply with this new requirement (18 months from enactment of the legislation), and that the “new and improved” inspections are still too infrequent, especially with respect to high-risk facilities. The FDA itself has stated repeatedly that it cannot fully meet its new responsibilities under the law until Congress increases its budget; even though Congress approved the act in a bipartisan manner, finding the money to fund it in 2011 and beyond is not guaranteed. Finally, the act only applies to the FDA, not the USDA. That means that meat and poultry products are not covered by it. On the other side of the debate, many food producers have criticized the new legislation as an excessive intrusion into their businesses that represents a kind of public takeover of food production. They complain that the extensive new regulatory scheme will make it much more expensive to produce food products, and that their costs will have to be passed onto consumers in the form of higher food prices. As the new legislation begins to take effect, it is clear that the debate over food safety is not over. It likely never will be, as consumers, producers, and politicians wrestle with the dilemma of how to make the nation’s food supply safe while still keeping it affordable. Further Reading Books: Fortin, Neal D. Food Regulation: Law, Science, Policy, and Practice. Hoboken: Wiley, 2009; Hoffman, Sandra A. and Michael R. Taylor, eds. Toward Safer Food: Perspectives on Risk and Priority Setting. Washington, DC: Resources for the Future, 2005; Redman, Nina E. Food Safety (Contemporary World Issues). 2nd ed. Santa Barbara, CA: ABC-CLIO, 2007; Sherrow, Victoria and Alan Marzilli, eds. Food Safety (Point/Counterpoint). New York: Chelsea House Publications, 2008; Wallace, Carol, William Sperber, and Sara E. Mortimor. Food Safety for the 21st Century: Managing HACCP and Food Safety throughout the Global Supply Chain. Hoboken, NJ: Wiley-Blackwell, 2010.

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THE GREAT TOMATO SCARE OF 2008 In April 2008, hundreds of Americans across at least 17 states began to complain of severe stomach and intestinal disorders commonly called “food poisoning.” By early June, with at least 150 confirmed cases and two dozen hospitalizations, federal officials confirmed a nationwide outbreak of a virulent strain of salmonella called Salmonella st paul. Investigators with the Food and Drug Administration initially linked the outbreak to tomatoes. In response, thousands of restaurants across the country stopped serving tomatoes, and large grocery store chains pulled them from their shelves. Almost all of the nation’s fast food restaurants stopped using tomatoes entirely, including McDonalds, Burger King, Wendy’s, and Taco Bell. Large national chains such as Applebee’s and the Cheesecake Factory also stopped serving dishes made with tomatoes. Over the summer, the FDA and the Centers for Disease Control continued to look for the source of the contaminated tomatoes. Meanwhile, the tomato industry was completely devastated. Millions of pounds of tomatoes were thrown away or left to rot in the fields. Farm workers lost their jobs because there were no tomatoes to pick. Farmers who believed their tomatoes were safe sought to have them tested in order to get them back to market, but the process of clearing their tomatoes was frustrating and slow. In just a few months, the industry suffered its worst public relations nightmare. Frightened consumers simply would not eat tomatoes, and the industry lost tens of millions of dollars in revenue as a result. However, six weeks after issuing its official warning about tomato consumption, the FDA lifted it. The agency had conducted thousands of tests trying to trace the salmonella outbreak back to its source, only to find that, as far as it could tell, tomatoes were not responsible after all. Instead, it looked like the culprit could be imported jalapeno or Serrano peppers. The FDA could not say for certain that tomatoes were not the cause of the outbreak, but it could not confirm it, either. As tomato testing failed to confirm them as the source, the FDA and Centers for Disease Control turned their attention to other potential causes and began to test peppers. By the end of July, the FDA confirmed that raw jalapeno peppers from a small Texas food packing plant had tested positive for salmonella. The plant stopped selling raw peppers and recalled shipments of peppers and products, like salsa, that included peppers. Still, the FDA did not know where the peppers became contaminated—at the farm, during transport, or at the plant itself. Pepper growers and distributors feared a disaster similar to that suffered by their counterparts in the tomato industry and urged the FDA and CDC to find the source of the outbreak. Even today, this goal has proved elusive. The “Great Tomato Crisis of 2008” turned out to be a crisis not for consumers but for the tomato industry, which was blamed for sickening over a thousand Americans when, in fact, many now believe that the nation’s tomatoes were safe all along. The crisis illustrates many of the points discussed in this “Food Safety” article: namely, that it is often very difficult to trace the source of food-borne illnesses, and that the nation is not sufficiently staffed or equipped to do so.

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IT’S A LAW! NO, IT’S NOT! In late 2010, the U.S. Congress came close to adopting long-sought, comprehensive reforms that would improve the safety of the nation’s food supply. In fact, both houses thought that they had passed the legislation—until they discovered a technicality that nullified it. The House of Representatives had acted first to pass the new law, voting approval in July 2009. The bill remained stuck in the Senate for a year and a half, but was finally approved in late November 2010. However, the Senate’s version of the bill included a taxing provision to pay for the new legislation. Under Article I of the Constitution, which outlines the powers of Congress, all spending bills (also called “revenue” bills or “appropriations” bills) must originate in the House of Representatives. The inclusion of a taxing provision in the Senate’s version violated this requirement. In order to enact the bill into law, both houses of Congress were required to vote on it again. If the House voted on and approved the language of the Senate’s version, and then the Senate re-voted, the technical error would be resolved. Given that the bill enjoyed rare and widespread bipartisan support, one would predict that this problem could be fixed in a hurry. Unfortunately, Congress does not necessarily work that way—especially a lame duck Congress. At the end of 2010, Congress had a lot to do in a short period of time. Many of its members would not be returning after the Christmas holiday, having retired or been voted out of office, so certain pieces of legislation had to take priority. Most Congress-watchers predicted that it would not be able to schedule the necessary second-round voting. As it turns out, however, predictions that the bill would be pushed into 2011 proved wrong. Recognizing its error, the Senate made slight changes to its version of the bill and passed it without further discussion in a procedure called “unanimous consent.” The vote was taken during a rare Sunday evening session on December 19, 2010. A day and a half later, the House passed the bill once again and sent it to President Obama for his signature. The new law significantly increases the powers of the Food and Drug Administration by authorizing it to directly recall tainted foods if its producers will not agree to do so voluntarily. In addition, food producers will have to meet stricter reporting standards. The bill also increases funding for the FDA so that it can inspect food facilities more frequently. Consumer groups hailed Congress’s efforts to pass the bill at the last minute despite numerous political and procedural hurdles—a rare but not impossible legislative feat that resulted in an early Christmas present for the American people.

Websites: American Dietetic Association. http://www.homefoodsafety.org/index.jsp; Keep Food Safe from Bacteria. http://www.fightbac.org; National Food Safety Program, Food and Drug Administration. http://www.foodsafety.gov

Kathleen Uradnik FORECLOSURE CRISIS Homeownership has always been a significant part of the “American Dream.” But today that dream has turned into a nightmare for many Americans, as the country

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has found itself in the midst of a foreclosure crisis. Millions of homeowners have lost their homes to foreclosure, and many millions more are going through the foreclosure process as this book goes to print. What happened? CREATIVE LENDING PRACTICES Foreclosure is a legal process for obtaining possession of a home when the homeowner can no longer afford to pay for it. A few decades ago, no one even considered buying a home unless they had saved 20 percent of its purchase price for a down payment. Indeed, banks required as much before they would agree to lend the purchaser the money necessary to buy the home. This type of loan is called a “mortgage,” and obtaining a mortgage is how the vast majority of homeowners realize their goal of homeownership. Generally, to qualify for a home loan, buyers need to have good credit, steady income, and savings for a down payment. In the 1990s, lending institutions began to relax the standards for obtaining a mortgage. In addition, a new industry emerged called “mortgage brokering.” Because mortgage brokers were not banks, they were not regulated by the federal government and, as a new industry, were not regulated very much by the states, either. Mortgage brokers typically worked with multiple lending institutions in an effort to obtain mortgages for clients. Relaxed qualification standards and more mortgage providers had a profound effect on the real estate market, and Americans began to buy homes in record numbers. Millions took advantage of readily available mortgages to purchase their first homes or sometimes a second “vacation” home. For many individuals, the relaxation of lending standards was the only way they could purchase a home. During the 1990s and into the new millennium, the traditional requirement of a 20 percent down payment all but disappeared. Prospective home buyers only had to save 10 percent for a down payment, or 5 percent, or sometimes nothing at all. “Zero-down” loans became popular for low-income families, young people, newly divorced individuals, and others who did not have a lot of savings to devote to a home purchase. In addition to lowering the requirements for a down payment, lending institutions also loosened the credit requirements for homeownership. Borrowers with a compromised credit history, or even with bad credit, now found themselves approved for loans. Many took advantage of the liberal lending rules to purchase a home. A driving force behind the relaxation of home lending standards during this time was the unprecedented rise in real estate values nationwide. Homes were increasing in value quickly and steadily, which meant that they were a good investment for homeowners and financial institutions alike. As prices rose, homes in some areas of the country, such as California and Florida, became too expensive for average buyers under traditional lending approaches. In response, banks and mortgage brokers developed special lending plans that would enable individuals to qualify for the “jumbo mortgages” needed to purchase homes in expensive areas. One such plan was known as a “no interest loan,” where buyers could defer the interest on their mortgages for a period of

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time, essentially having the use of their mortgage money for free. Another device commonly employed during this period was the adjustable-rate mortgage (ARM), which typically started out with a low interest rate that increased after a few years to a higher rate. Once the initial period of low interest ran out, these mortgages often were adjusted to a higher interest rate and higher payment each year. Sometimes the monthly mortgage payments doubled for buyers after their introductory financing offers ran out. Finally, “balloon mortgages” became popular. With this type of mortgage, a buyer would start out with smaller payments and low interest that would grow (like a balloon being blown up) after a period of years, usually seven or more. Creative mortgage lending led to a significant increase in homeownership across the nation. For several years, everyone was happy: families bought homes, the homes increased in value, the lenders kept busy and made money, and all of the industries related to real estate prospered. As early mortgage brokering firms made a fortune, more such firms emerged, and mortgage lending became the latest way for both savvy and unscrupulous investors to get rich. In addition, mortgages proved attractive to investors. Mortgages themselves are a kind of commodity that can be bought and sold. Typically, numerous mortgages are bundled to together and sold as a unit. Financial institutions and investors bought mortgages to obtain the interest money paid on the loans and to realize gains as the value of the homes increased. They also used mortgage packages as collateral to support other financial deals. Buying and selling mortgages became a big business in America, and there was no shortage of firms that thought they could make significant amounts of money by making, selling, and buying home loans. SUBPRIME LOANS The lure of big money led some institutions and mortgage brokers to loan money to individuals who were not necessarily the most reliable borrowers. Typically, these borrowers had one or more problems that prevented them from obtaining a traditional bank loan—perhaps they had no money for a down payment, or a poor credit score, or had changed jobs frequently. Because mortgage lenders took risks by loaning money to these borrowers, they charged the borrowers more to obtain the loans and higher interest rates on the loans. The upside for the lenders thus came in the form of a greater return on their investment from those higher fees and interest rates. The downside was the risk that the borrowers would not follow through on their obligations. These types of loans became known as “subprime loans,” because they were made to borrowers with less than stellar (“prime”) credentials. The old adage that “all good things must come to an end” came true for real estate investors and homeowners in 2000. Starting that year, foreclosures in the subprime lending market became noticeable, and then began to rise precipitously. Economists studying this market predicted significant failures ahead. Federal government regulators, too, came to view the lending practices of some mortgage brokers and financial institutions as highly questionable.

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As the decade progressed, the dire predictions of economists and regulators came true. America experienced a crisis in the subprime lending market as more and more borrowers began to default on their mortgage loans. To make matters worse, the American economy as a whole faced challenges, with economists sparring over whether it would end up in recession or whether it was, in fact, already in one. Homeowners found themselves in a precarious position in the downward economy. Some lost their jobs. Those that kept their jobs did not receive pay increases. For many, the expenses of homeownership proved too much to handle. Those with adjustable-rate mortgages found themselves facing much higher mortgage bills without the ability to pay them. And, significantly, home values began to decline, sometimes dramatically. Some homeowners found that they owed more on their mortgages than their home was even worth. A CRISIS EMERGES By 2004, a startling number of Americans had fallen behind on their mortgage payments, particularly in the subprime market. Foreclosure, however, was not instantaneous. Under various federal and state laws, homeowners must be given a series of warnings when they fall behind in their mortgage payments. Typically, an owner who falls 60 to 90 days behind is considered “in default.” The lender can begin the foreclosure process at that time, but the requirements in most states are such that it is another three to nine months before the foreclosure is completed. During the process, homeowner can bring their payments current and pay accrued penalties and legal fees in order to keep their home, but more often than not they are unable to do so. When the foreclosure process is completed, the home can be sold at auction. Quite often the lender regains legal title to the home and retakes possession. Typically, the lender will attempt to resell the home immediately after getting it back. Because the actual foreclosure process takes several months (and sometimes more than a year), there is a delay in foreclosed homes coming back on the market for resale. But economists and regulators can count the number of homes in the pipeline, and some predicted as early as 2004 that foreclosures would occur in record numbers and would have a significant negative impact on the nation’s economy. Just how bad is it? RealtyTrac, a company that bills itself as the “leading online marketplace for foreclosure properties,” prepares annual reports on the scope of the crisis. In January 2008, it released its annual report and data for 2007. The report showed that the number of foreclosures nationwide had risen 75 percent over 2006 levels and nearly 150 percent over 2005 levels. The hardest-hit states included California (with a foreclosure rate that more than tripled from 2006 to 2007), Florida, Nevada, Colorado, Ohio, Georgia, Arizona, Illinois, and Indiana. In Nevada, 1 out of every 167 homes was in some stage of foreclosure. In Florida, it was 1 out of every 273 homes. Many states experienced unprecedented growth in foreclosures: in Virginia, for example, foreclosures in 2007 were up a whopping 634 percent over 2006 totals. In sum, by the end of 2007, nearly 1.3 million homes across America were in the foreclosure process, totaling about 1 percent of the nation’s homes.

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THE CONTINUING FALLOUT Losing one’s home is traumatic for the individual; the loss of over a million homes nationwide is traumatic for the economy. The foreclosure crisis has caused a multifaceted ripple effect both nationally and internationally. For investors, particularly those who held subprime mortgages, their investments have become worthless. Instead of obtaining interest income from homeowners, they now find themselves the owners of vacant houses that are declining in value. Tenants, too, became victims of the crisis, finding themselves evicted when their landlords abandoned their apartment buildings to foreclosure proceedings. For homeowners not in foreclosure, the plethora of foreclosed properties has meant a drop in home values generally, as banks struggle to dump their housing inventory. Homeowners who realized record gains in home values in the 1990s are now seeing steady drops. The housing market itself has become stagnant, because there are too many homes for sale and not nearly enough buyers. Indeed, even homeowners who are willing to accept much lower prices on their homes cannot find buyers. In fact, in the spring of 2008 the Federal Reserve reported that, for the first time since it started keeping records in 1945, the total amount of debt owed on the nation’s homes exceeded the total equity in those homes. Banks and other lending institutions have significantly tightened credit requirements, reducing the overall number of eligible home buyers and making it much more difficult for consumers and even businesses to borrow money. Global uneasiness with the American foreclosure crisis has also led international lenders to tighten credit significantly, to the further detriment of the American economy. With no buyers and a glut of homes on the market, construction companies have stopped building homes and have laid off their workers. Real estate agents are also out of work. Related industries that supply products to home builders and buyers—appliance manufacturers, lumberyards, roofing companies, and so on—have seen a slowdown, and they too have reduced their workforces. In short, the entire economy has been damaged by poor lending practices and the foreclosure crisis.

WHO’S TO BLAME? The finger-pointing for the current housing and economic downturn has certainly begun, and will likely continue for several more years, because there is plenty of blame to go around. Subprime lenders certainly bear significant responsibility for their role in making thousands of creative mortgage loans to borrowers who, judged by more traditional criteria, simply were not creditworthy. Some lenders acted in good faith in trying to make homeownership available to families who could not otherwise qualify for a traditional mortgage. Others, however, employed very questionable sales tactics in an effort to drum up business for themselves. Because

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lenders made money from mortgage fees and interest rates, and also by selling bundled mortgages on the open market, it was in their interest to sell as many mortgages as possible. Slick tried-and-true sales tactics were used in a predatory manner to convince prospective homeowners that they could afford to purchase a home when, in fact, they could not. Often lenders did not explain the fine print of their creative financing schemes to home buyers, who were surprised later to learn that their mortgage interest rates and payments had risen dramatically. Some mortgage brokers even engaged in fraud, misrepresenting mortgage terms to both the buyers and the financial institutions with which they did business. To stay competitive, even traditional lending institutions like home-town banks adjusted their credit and lending policies, granting mortgages to individuals who just a few years earlier might not have qualified. Banks and credit unions loosened restrictions not only on home loans, but on all types of credit, including auto loans and other consumer loans, home equity loans, and credit cards. Loose lending policies made it easy for people to obtain credit and for a lot of them to get in financial trouble because of it. Securities brokerage houses and stock market investors also jumped on the housing boom bandwagon, buying investments backed by mortgages. When the mortgages lost value, the investments backed by mortgages also lost value, which did not sit well with their owners. The sheer number of now-questionable mortgage-backed securities and related investments created problems worldwide, as both American securities firms and international investors lost large sums of money or found the value of their holdings to be at risk. Homeowners, too, must bear some of the blame for taking on perhaps the most important purchase of their lives without being adequately prepared for it. Many individuals “overbought,” meaning they purchased homes that were larger and more expensive than they could really afford. Some stretched themselves beyond their means, paying big mortgage bills without leaving any money for furnishings or repairs. A significant number of people probably knew that they were not financially prepared for homeownership, but could not resist a good deal, or counted on funding sources (like steady raises or bonuses) that never materialized. Lots of homeowners and home buyers became caught up in the idea that homes would continue to appreciate quickly and dramatically, and that buying and selling homes was a good way to make a lot of money in a relatively short period of time. Finally, homeowners who invested all of their savings and disposable income in their homes found themselves unable to deal with any type of financial emergency that came along, such as the loss of a job. Without a safety net, many homeowners turned to their credit cards to pay their mortgages and other bills, which only left them deeper in debt. Builders, of course, kept building houses during the good years, because there was tremendous money to be made while demand for homes was high and prices kept increasing. Many, however, did not plan for the eventual downturn in the housing market and continued to build new homes while lenders were foreclosing on existing ones. As a result, builders across the country now find themselves with empty homes for which there are no buyers, homes that cost them a substantial amount of money to construct and still cost money to maintain.

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Federal regulators, too, have a lot of explaining to do. Housing analysts predicted a problem with subprime lending early on, but the federal government was slow to respond. Because most subprime lenders were not banks but rather mortgage brokers, the federal government did not regulate them. Some members of the Federal Reserve called for the federal government to supervise subprime lenders, but it did not do so and, in a short time, found itself faced with a national and international crisis of confidence in the American economy. RESPONSE TO THE CRISIS By late 2006, as the foreclosure crisis deepened, politicians and pundits alike began to realize that the worst was yet to come. The Federal Reserve took action by cutting interest rates several times in an effort to encourage lending and, it follows, spending. The Federal Reserve also created a program called the “Term Auction Facility” that allowed banks to borrow large sums of money directly from it. Although home interest rates subsequently fell to a near-record low, banks remained leery about lending money to even their best customers. Consumers could not borrow and, strapped for cash, could not spend. At the end of the year, President Bush announced a plan to provide limited help to homeowners with adjustable-rate mortgages by imposing a kind of temporary freeze on their interest rates. The plan was intended to help consumers who had not yet fallen behind in their mortgages, but were likely to in the future when their interest rates adjusted upward. Thus, any homeowner who had already missed mortgage payments or who was in foreclosure did not benefit from this plan. In addition, borrowers who were deemed sufficiently financially healthy to take on their expected higher mortgage payments were also left out of the plan. Although the president encouraged lenders to find a way to work with their customers to avoid additional foreclosures, the actual federal assistance provided to homeowners proved rather limited. By early 2008, with foreclosures rising and consumer confidence falling just as fast, President Bush and Congress quickly agreed to a $168 billion “economic stimulus package,” a bipartisan set of measures aimed at jump-starting the American economy. The key to their plan was a tax rebate for approximately 130 million Americans of up to $600 for an individual and up to $1,200 for a married couple. The plan also provided incentives to businesses aimed at sparking increased spending. In addition, the stimulus package included significant changes to the way the federal government loaned money through its home buying programs (Fannie Mae, Freddie Mac, and the Federal Housing Authority). The government increased the amount of money home buyers could borrow and tied those limits to median home prices, thus accounting for regional differences in housing prices across the country. State and local governments also started to take action. Many states set up telephone hotlines staffed by financial counselors to help consumers work on

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plans to avoid foreclosure and to better manage their debt. Some created special emergency funds to provide assistance to individuals at risk of losing their homes. Many states passed laws imposing stricter standards on mortgage brokers and are actively prosecuting brokers who engaged in deceitful or predatory lending practices. Local governments and nonprofit agencies are also trying to address the problem, largely by negotiating payment extensions with lenders.

OBAMA’S ACTIONS Initial efforts by the federal and state governments were not effective in stemming the tide of foreclosures. To the contrary, the situation became much worse in 2009, leading newly elected President Barack Obama to propose a program to keep people in their homes. On February 18, 2009, he announced that Homeowner Affordability and Stability Plan, which was aimed at helping struggling homeowners to stay in their homes by providing certain kinds of mortgage relief. For example, eligible homeowners could modify their monthly mortgage payments to bring them more in line with their income; alternatively, they could refinance their mortgages to take advantage of lower interest rates. Those who could not afford to stay in their homes could take advantage of a program to transition them more smoothly and affordably to new housing, primarily by making it easier for them to sell their homes via a “short sale” or a “deed in lieu of foreclosure.” (A “short sale” occurs when the entity holding an individual’s mortgage—usually either a bank or the government—allows the property to be sold for less than it is owed. Often, the difference between the mortgage loan amount and the selling price is in the tens of thousands of dollars, a sum that under some circumstances is forgiven, which allows the homeowner to get out from under his debt and get on with his life.) The president’s plan has met with obstacles, however. Lenders continued to prove obstinate about working with struggling homeowners. It took months for lenders to understand and begin to implement the relief efforts, and even then most Americans did not qualify for the assistance. And still, things got worse. RealtyTrac reported that, by the third quarter of 2009, a record 937,840 homes received a foreclosure notice of some kind (a default notice, auction notice, or bank repossession notice). That meant 1 in every 136 U.S. homes was in some stage of foreclosure—a 5 percent increase from the second quarter of 2009 and a 23 percent jump over the third quarter of 2008. And, despite the infusion of billions of dollars in cash into the housing market through Obama’s program, the precipitous decline in home values and sales only continued in 2010. On January 13, 2011, RealtyTrac released its annual report of the 2010 foreclosure market. It showed a total of 3,825,637 foreclosure filings, including default notices, scheduled auctions and bank repossessions, on a record 2,871,891 properties. This amounted to an increase of nearly 2 percent from 2009 and an increase of 23 percent from 2008.

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The report also contained the dismal news that 2.23 percent of all U.S. housing units (one in 45) received at least one foreclosure filing during the year, up from 2.21 percent in 2009 and 1.84 percent in 2008. WILL IT EVER END? Although the White House claims that its efforts have resulted in at least a temporary reprieve for over one million homeowners, the nation’s housing statistics continued to demonstrate that millions more are faced with the prospect of losing their homes. Compared to the bailouts approved for Wall Street and the automotive industry, the federal government has not been as quick or as generous to bail out struggling homeowners or infuse the housing market with cash. Some economists have argued that doing so would be disastrous for the economy, because there is no use propping up bad loans or unreliable debtors. They argue further that it sends the wrong message to consumers if government rescues them from their own bad financial decisions. An equal number of economists take a different view, arguing that homeownership is critical to the stability of the nation’s economic and political systems. They point out that, to some extent, federal and state regulators failed consumers by not insisting on tougher standards or cracking down on disreputable lenders. They note, too, that the aftermath of foreclosures is just as devastating to the economy as the foreclosures themselves, with lenders owning empty homes and consumers owning homes that have precipitously decreased in value that they cannot sell. Empty and neglected homes lead to a number of new problems, including a deterioration of neighborhoods and increased crime. Advocates for a “buyout” program believe that it is important to stem the rising tide of foreclosures in large part to avoid the economic and societal problems that follow them. Some economists predict that 2011 will mark the bottom of the housing market; others think it will still take several years for homeowners to see any sort of recovery. Until then, everyone simply waits, seemingly helplessly, for things to improve. As to the best approach to take to solve the foreclosure crisis and the related economic downturn—only time will tell. As these events continue to unfold, the public and private sectors are considering new potential solutions to the crisis, not knowing which if any of them will work to set the American economy and housing market back on track. Further Reading Books: Guttentag, Jack. The Mortgage Encyclopedia: An Authoritative Guide to Mortgage Programs, Practices, Prices, and Pitfalls. New York: McGraw-Hill, 2004; Morris, Charles R. The Trillion Dollar Meltdown: Easy Money, High Rollers, and the Great Credit Crash. New York: Public Affairs, 2008; Muolo, Paul and Mathew Padilla. Chain of Blame: How Wall Street Caused the Mortgage and Credit Crisis. Hoboken, NJ: Wiley, 2008; Phillips, Kevin. Bad Money: Reckless Finance, Failed Politics, and the Global Crisis of American Capitalism. New York: Viking, 2008.

Foreclosure Crisis | 259 Websites: Cornett, Brandon. “Subprime Mortgage Crisis Explained.” Home Buying Institute. http://www.homebuyinginstitute.com/homebuyingtips/2007/12/subprime -mortgage-crisis-explained.html; How the Foreclosure Crisis Began. http://www.fore closuredataonline.com/blog/foreclosure-crisis/how-the-foreclosure-crisis-began/; Policy Options for the Housing and Financial Markets. Congress of the U.S., Congressional Budget Office. 2008. http://purl.access.gpo.gov/GPO/LPS93371; “Why We Have a Foreclosure Crisis in the First Place.” August 8, 2008. http://calculatedrisk.blogspot.com/ 2008/08/why-we-have-foreclosure-crisis-in-first.html.

Kathleen Uradnik

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G GENETIC TESTING AND THE USE OF GENETIC INFORMATION Genetic tests examine a person’s genetic code using a sample of blood or other tissues. Physicians use genetic tests for several reasons, such as prenatal screening to find possible genetic diseases in unborn babies or to find out if someone carries a gene for a disease that might be passed on to his or her children. Genetic testing can also be used to confirm or rule out a suspected genetic condition or to identify a person during a forensic investigation. For many, it is important to know whether they are predisposed to a disease and whether it can be treated or cured before it occurs. For example, some women have a defective copy of a gene known as BRCA1, which can greatly increase their risk of developing breast cancer during their lifetime. Although only a portion of American women are estimated to carry a mutation in this gene, the number of women who want this genetic testing has increased significantly in the last few years. Knowledge about the effects of DNA variations can lead to new ways to diagnose, treat, and someday prevent the disorders that affect us. Genetic testing can also be used to determine a person’s ancestry. Start-up testing companies have emerged over the past few years offering information on a person’s origins from as low as $99 and up. The general procedure for this kind of DNA test involves taking a simple cheek swab at home and mailing the sample to a laboratory that tests for genetic genealogy. Typically, every person carries two copies of every gene, one inherited from the mother and the other from the father. The human genome, all the genetic material in the chromosomes of a particular organism, is believed to contain around 20,000 to 25,000 genes, although these genes only comprise about 2 percent of the human genome. Begun formally in 1990, the U.S. Human Genome Project

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was a 13-year government effort to identify all the genes in human DNA and determine the sequences of the three billion chemical base pairs that make up human DNA. In 2008, a millionaire became the second person in the world to buy the full sequence of his own genetic code, at a price tag of $350,000. The collection and storage of genetic information by private companies made headlines in the late 1990s when the country of Iceland approved a computerized database project to store all of the medical records of its 270,000 citizens. The license was given to a private company, deCODE Genetics. Iceland is considered one of the most homogeneous societies in the world, with little immigration over the last 1,000 years. Scientists hoped that the homogeneity of the Icelandic gene pool would allow them to track down the causes of genetic diseases throughout the generations. This was the first attempt to collect and store a nation’s genetic heritage. GENETIC TESTING IN CRIMINAL TRIALS Genetic evidence found at crime scenes and used at trial has been considered a “forensic gold standard” in obtaining convictions against criminal defendants. When DNA blood or skin cells match a suspect’s genetic profile, it can often lead to a conviction, even in the absence of other evidence. But some argue that DNA “matches” are not always what they appear to be. Although a person’s genetic makeup is unique, his or her genetic profile—which is just a piece of the full genome—may not be. Siblings can share a genetic profile, and even unrelated people can share a profile by coincidence. In 2009, identical twins escaped the death penalty in Malaysia for drug trafficking when the court was unable to determine which one had actually committed the crime, given their identical DNA. To identify individuals, forensic scientists scan 13 DNA “regions” and use the data to create a DNA profile or “DNA fingerprint,” of that person. There is an extremely small chance that another person has the same DNA profile for a particular set of 13 regions. The FBI estimates that the odds of unrelated people sharing the majority of the same genetic markers to be as remote as 1 in 113 billion. New forensic technologies are making it easier to convict individuals for crimes, but they are also being used to free many people wrongfully convicted of crimes who have been languishing in jail. In 2002, the Associated Press published a scathing article examining the lives of 110 former inmates who had been exonerated using new DNA and other advanced forensic techniques. Some had been on death row for murders they did not commit; over half had spent more than a decade in jail. Most had their lives and families ruined by their costly trials and appeals and lengthy incarcerations. The confirmation that innocent individuals had been serving on death row contributed to the decision of at least two states, Illinois and New Mexico, to suspend their death penalty statutes. More may follow.

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GENETIC TESTING FOR FORENSIC IDENTIFICATION Genetic testing has solved some of the world’s most famous genealogical mysteries. In 2008, genetic testing finally closed a famous case in Russian history when remaining bone fragments found in Russian graves in 2007 were identified as the two children of the last Tsar of Russia, Nicholas II. In 1918, Tsar Nicholas II, his wife, five children and four staff members were killed by a firing squad. Based on DNA technology available in the 1990s, the first five bodies were positively identified as the tsar, the tsarina, and three of their children. Until recently, however, many people believed a rumor that the last two children had escaped their executioners. Recent DNA evidence, however, proved the rumors incorrect. Genetic testing was done not only on the bone fragments found in the grave dug up in 2007, but also by confirmation from DNA samples of living relatives. Researchers used DNA from Britain’s Prince Philip, whose grandmother and the tsarina’s grandmother were sisters, and from indirect descendants of the royal family. The use of DNA for forensic identification can also be used to identify victims of catastrophes or natural disasters. For example, the identification of the victims of the 9/11 attacks on New York’s World Trade Center presented a forensic challenge because the number and identity of the victims were unknown and many victims were represented only by bone and tissue fragments. At the time of the attack, no systems were in place for rapidly identifying victims in disasters with more than 500 fatalities. Many governmental institutions worked together to develop a process to collect DNA on the disaster site, match them to the victims’ previously stored specimens, and set up a database with the victims’ DNA profiles. In 2005, the search was declared at an end because many of the unidentified remains were too small or too damaged to be identified by the DNA extraction methods available at that time. However, the search was reopened in 2007, when technological developments allowed more victims to be identified, as forensic DNA technology improved. DTC TESTING The science behind the human genome has long been available only to top scientists in research laboratories. Yet a new industry is emerging that offers a range of genetic testing services to individuals, giving them a first glimpse at their own DNA. This industry is called “Direct-to-Consumer Testing,” or “DTC.” It is an increasingly popular way to offer genetic testing, often called “personal genome services” or “gene profiles,” to consumers willing to pay for it. One benefit of this type of genetic test is that it is offered to consumers without them having to go through a health care provider. Usually, a patient asks a doctor or health care professional to order a genetic test. DTC genetic tests, however, allow consumers to bypass this process and order one themselves. In many cases, a client sends a DNA sample to one of these firms, which then analyzes the sample and stores the data in a private online account. The customer

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then accesses the account and receives a printout of his or her levels of risk for specific conditions. Today there are more than 1,100 genetic tests that are clinically available, and many of these are being offered through DTC. Some tests just look at a single gene disorder, while others look at multiple genetic changes that indicate a person’s predisposition to a disease, often one that is also influenced by behavioral, environmental, and even socioeconomic factors. Different types of DTC tests are used to determine paternity, assess disease risk, and measure cancer susceptibility. Some tests offered by DTC companies, such as those used to identify the gender of fetuses, are not widely accepted in the scientific community. Because of many of these concerns, about half of the states in the U.S. ban the use of DTC genetic testing, with several states allowing consumers limited use of it, such as with a physician referral on behalf of a patient for the testing. Proponents of DTC testing argue that it promotes access to health care in a private manner that is easy for consumers to use. DTC genetic testing, however, is controversial within the scientific community. Critics argue that it can be subject to unregulated advertising and marketing claims about its product. It also lacks governmental oversight. Critics also argue that without professional guidance, consumers may misinterpret genetic information, causing them to be misled about their personal health. They worry that the test may not have undergone appropriate review, and the claims regarding the test and/or its results may either be exaggerated or unsupported by scientific evidence. THE ROLE OF THE FDA Currently, there is no strong federal regulation of the DTC market. Despite the hundreds of available tests, many of which can now be purchased from a grocery store or drugstore, only a few have been approved by the Federal Drug Administration (FDA). None of these tests were preapproved by the FDA, but rather brought directly to market. Testing companies by and large have chosen to offer their products first and worry about FDA enforcement later. The FDA has long had the authority to regulate medical devices. A “medical device” is something used to diagnose, treat, cure, or prevent a disease. The FDA argues that the vast majority of DTC tests are, in fact, medical devices subject to their jurisdiction. But not all of them fall under that definition. For example, a test to determine a person’s risk of developing breast cancer is considered a medical device, while a test to determine one’s ancestry is not. For this reason, and perhaps because they know that the FDA cannot keep up with the rapid growth of the industry, DTC manufacturers offer their testing products almost as soon as they are developed. The FDA points to one company that provided 17 tests to consumers in 2008. By 2010, it offered over 100! Starting in 2007, the FDA began meeting with these companies in an effort to work cooperatively to ensure that the tests were effective and accurate and did not mislead consumers. The FDA has always maintained that DTC tests are subject to its oversight, but many companies continue to routinely skirt its jurisdiction. One problem is the sheer number of companies that have emerged in

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just the past few years: by some estimates, over 700 were in operation in the United States by 2010. The FDA has met with several dozen of these, but obviously it cannot keep pace. Consumer and medical groups have argued that Congress needs to appropriate more money to ensure that the agency can effectively regulate the industry and protect consumers from potential genetic testing scams. PRIVACY CONCERNS The rise of genetic testing has created uneasiness regarding the storage and privacy of genetic information. In particular, concerns have risen regarding the possibility of discrimination by employers, especially by health insurers, based on an individual’s genetic testing information. Legislation passed in the 1990s said little about safeguarding genetic information. Most notably, the Health Insurance Portability and Accountability Act (HIPAA), enacted by the U.S. Congress in 1996, had little to say about the collection and storage of genetic information. Among the HIPAA provisions, the Privacy Rule set forth rights regarding a person’s health information and sets rules and limits on who can look at and receive personal health information. The Privacy Rule statute, which took effect in 2003, regulates the use and disclosure of certain information held by entities such as employer-sponsored health plans, health insurers, and medical service providers. However, it does not provide for special privacy protections for genetic information. Some genetic information is protected if it meets the statute’s definition of “protected health information” (PHI), but not all genetic information is included in this category. Would an employer really use genetic information against its employees? Sadly, it has already happened. In 2001, the U.S. Equal Employment Opportunity Commission went to federal court in Iowa to stop the Burlington Northern Santa Fe Railway from secretly collecting and analyzing its employees’ DNA information. In this first of its kind case, the EEOC asked the court to permanently enjoin (stop) the company from collecting blood samples from employees who had filed disability claims for carpal tunnel syndrome. The employees had no idea that their blood samples were being used to test for the presence of “Chromosome 17 deletion,” which some scientists had argued could show a predisposition to carpal tunnel syndrome. The employees found out only by accident, when one of them questioned the need to give such large blood samples—his wife, who happened to be a nurse, could not understand why such samples were required and began asking questions of the company. Two months later, the EEOC settled its case against Burlington Northern. The company agreed not to use the information it had gathered from its employees and to stop all genetic testing. The settlement did not resolve private discrimination lawsuits against the company filed by its affected employees. News of Burlington Northern’s actions sparked outrage in the public and in Congress, where members immediately went to work on legislation to protect the privacy of genetic information. This legislation was finally adopted in 2008, when Congress passed the Genetic Information Non-discrimination Act (GINA).

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Because increased genetic testing makes it more likely that researchers will come up with early, lifesaving therapies for a wide range of diseases with hereditary links, policy makers wanted to create a law that would encourage more Americans to undergo genetic testing for diseases such as cancer, heart disease, and diabetes, without fearing for their job or health insurance. GINA is designed to do just that, protecting Americans from discrimination based on information derived from genetic tests. For example, the bill prevents companies from using genetic information in deciding whether to employ someone. It also forbids insurers from discriminating against individuals because of genetic proclivities. Some critics point out, however, that GINA does not go far enough given that the issue of genetic privacy goes beyond one’s health. For example, “surreptitious sampling” of DNA is growing in popularity, causing defense lawyers and civil libertarians to argue that it violates the constitutional right to privacy. Surreptitious sampling often occurs when law enforcement officials secretly collect DNA from saliva, sweat, and skin that individuals shed in daily life. For example, DNA could be collected from a suspect’s discarded coffee cup at a fast food restaurant or a cigarette butt thrown on the ground. The police, critics say, could collect DNA deemed “abandoned” from suspects and monitor their movements even if they are not suspected of committing a serious crime. There is concern that DNA collected from innocent people may be put in a database without their knowledge or consent, to be used later on in a criminal investigation or for some other governmental purpose. ETHICAL DILEMMAS The advancement of genetic testing and the uses of genetic information have created many ongoing ethical and political dilemmas. One example is the information gained by prenatal testing in pregnant women. As prenatal tests make it possible to identify serious health problems and genetic defects in unborn fetuses, the issue of a woman’s right to choose is adding another perspective in the political debate over abortion. Those who support abortion rights and believe that a woman has the right to make decisions about her own body must now consider the reality that some women may selectively abort fetuses deemed “genetically undesirable.” A pregnant woman, for example, might discover early on in her pregnancy that her baby will be born with a fatal or debilitating condition. She will have to determine whether to continue or terminate the pregnancy. Early testing could also allow parents to find out the gender of their child, causing concern that they will abort a pregnancy because the child is the undesired gender. A third possibility is that, in time, scientists may establish a link between a particular gene and homosexuality, causing concern that parents might abort fetuses that they suspect will become homosexual. The scientific, medical, and religious communities are deeply divided over whether and why to terminate pregnancies. While almost all agree that saving the life of the mother would be an acceptable reason, the idea of manipulating

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a pregnancy to create a “designer child” is considered abhorrent by scientists, ethicists, and religious leaders alike. Genetic testing is not yet mainstream, but it is quickly headed in that direction. Individuals and families are starting to make serious life decisions based on genetic information. Women who have tested positive for BRCA, commonly called the “breast cancer gene,” have chosen to undergo double mastectomies in an effort to prevent the emergence of the disease. Most notable among these is the actress Christian Applegate, who at age 36 chose to undergo the procedure after learning that she had breast cancer and that she had tested positive for the gene. Medical decisions based on genetic testing, like Ms. Applegate’s, can be lifechanging. They raise a host of ethical issues not only for the individual, but for society as a whole. Who should get genetic testing? What about those who cannot afford it? How well do doctors and scientists understand the link between genetic information and the prospects for certain diseases or conditions? What should the government do with this information, if anything? And finally, how can this information be secured to ensure that individuals are protected while medical research and understanding is advanced? To date, there are more questions than answers to these weighty questions. The future impact of genetic testing on individuals and society cannot be overstated. Whether genetic testing is done to determine paternity, ancestry, forensic identification, or disease screening, it encompasses the political, economic, social, ethical, and medical realms. As genetic testing grows in popularity, so too do its consequences for society as a whole. While most Americans agree in general that genetic information should be kept private and should not be used against a person, deep disagreements remain about access to and the appropriate uses of genetic tests. Further Reading Books: Buchanan, Allen, Dan W. Brock, Norman Daniels, and Daniel Wikler. From Chance to Choice: Genetics and Justice. New York: Cambridge University Press, 2000; Cowan, Ruth Schwartz. Heredity and Hope: The Case for Genetic Screening. Cambridge, MA: Harvard University Press, 2008; Deane-Drummond, Celia. Genetics and Christian Ethics. Cambridge, UK: Cambridge University Press, 2006; Green, Ronald Michael. Babies by Design: The Ethics of Genetic Choice. New Haven, CT: Yale University Press, 2008; Harris, John. Enhancing Evolution: The Ethical Case for Making Better People. Princeton, NJ: Princeton University Press, 2007; United States Senate Special Committee on Aging. Roundtable Discussion: Regulatory, Scientific and Ethical Issues Relating to Genetic Testing. Washington, DC: U.S. Government Printing Office, 2009. http:// purl.access.gpo.gov/GPO/LPS111467; Sandel, Michael J. The Case against Perfection: Ethics in the Age of Genetic Engineering. Cambridge, MA: Belknap Press of Harvard University Press, 2009; Wailoo, Keith and Pemberton, Stephen. The Troubled Dream of Genetic Medicine: Ethnicity and Innovation in Tay-Sachs, Cystic Fibrosis, and Sickle Cell Disease. Baltimore: Johns Hopkins University Press, 2006; Zallen, Doris Teichler. To Test or Not to Test: A Guide to Genetic Screening and Risk. New Brunswick, NJ: Rutgers University Press, 2008. Websites: Centers for Disease Control and Prevention. Public Health Genomics. http:// www.cdc.gov/genomics/gtesting/index.htm; Human Genome Research Project. Gene

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Genocide Testing. http://www.ornl.gov/sci/techresources/Human_Genome/medicine/genetest .shtml; Lawrence Berkeley National Laboratory. Ethical, Legal and Social Issues in Science. http://www.lbl.gov/Education/ELSI/genetic-testing.html; National Human Genome Research Institute. Genetic Testing. http://www.genome.gov/19516567; “Political Issues in the Genome Era.” Science magazine. http://www.sciencemag.org/cgi/ content/full/291/5507/1249; United States National Library of Medicine. Genetic Testing. http://ghr.nlm.nih.gov/handbook/testing

Sara Hower

GENOCIDE Although genocide has existed perhaps as long as humans have formed governments, the actual term did not come into use until scholar and author Dr. Raphael Lemkin coined it in 1944 to describe the Nazi extermination of Jews during World War II. The word comes from a combination of the Greek geno-, for race or tribe, and the Latin -cide, for killing. It refers to the practice of attacking a large group of people solely because of their race or ethnicity. Other euphemisms for genocide include “purifying” one’s own race by eliminating others or “ethnic cleansing” of one’s nation or region. Dr. Lemkin, a Polish-born professor who fought in World War II before fleeing to the United States, advocated throughout his life for nations to recognize genocide as a crime. He served as the primary drafter of the United Nations’ Convention on the Prevention and Punishment of the Crime of Genocide, which was finally adopted in 1948. The United Nations defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” Under international law “genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, [and] complicity in genocide” are all illegal and punishable by international tribunal. Not all mass killings constitute genocide. War itself is not genocide, even though millions might be affected by it. Rather, genocide refers to a particular motive for intentional killing, namely the hatred of a group based primarily on an immutable characteristic, most often race, ethnicity, or religion. Thus, while a particular historical event constitutes genocide can be the subject of debate, many would classify the following historical events as genocides: • The reduction of the Native American population from 12 million in 1500 to 237,000 in 1900 through forced removals, killings, and the introduction of non-native diseases by colonial settlers. • The killing of 65,000 Herero in Namibia from 1904 to 1907 by the German commander Lothar von Trotha. • The Ottoman government’s expulsion and killing of over a million Turkish Armenians from 1915 to 1923.

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• The killing of 7 million people in ethnic Ukrainian regions by USSR leader Joseph Stalin through a manmade famine and labor camps. • The death of over 2 million people through execution, disease, exhaustion, and starvation at the hands of Pol Pot’s Khmer Rouge guerrilla movement, which sought to impose a communist government on Cambodia. • The deportation of the Muslim town of Srebrenica in BosniaHerzegovina and the subsequent killing of up to 7,500 men and boys in the town by Serb troops seeking political domination of the region. • The elimination of Kurdish citizens in Northern Iraq by Iraqi President Saddam Hussein. GENOCIDE IN RWANDA Genocide unfortunately is not an isolated or occasional event, but a tragic and recurring problem that continues across the globe today. Perhaps the most compelling genocide in recent times occurred in the African nation of Rwanda. Rwanda is a small country in central Africa. It was part of German Africa until Belgium began administering the country in 1919 under the League of Nations. The country is made up of two ethnic groups: the historically land-working and more populous “Hutus,” and the historically land-owning herdsmen called the “Tutsis.” When Belgium chose the Tutsis to serve as the higher-class “intermediary” to the colonial government, tensions arose between the two ethnic groups. A Hutu rebellion began in 1956, and by 1959 they had gained power and began taking the Tutsis’ land. The Hutus declared independence for the country in 1962 and continued to deal harshly with the Tutsis. In response, the Tutsis formed the Rwandan Patriotic Front (RPF) and fought back, starting a wide-scale civil war in 1990. This war raged for three years, until United Nations’ efforts to help bring stability to the country led to a 1993 cease-fire. This cease-fire fell through when the Hutu president’s plane was shot down in 1994. After that, the Hutu government launched a massive campaign to eliminate the Tutsi people. The elimination of the Tutsis was no secret: the government repeatedly told its citizens that it was their duty to kill the Tutsis. Shockingly, it even ran radio announcements calling for Hutus to attack Tutsis. The killing spree was terribly effective: in only three months, an estimated 800,000 people were killed in the country. After the killings ended, two million Rwandans fled the country out of fear. Many went to Zaire (now the Congo) where they lived for a time in refugee camps. The refugees were forced out the camps in 1996, and many had no choice but to return to Rwanda. The Rwandan government declared that the returning refugees would be welcomed and that no arrests would be made. However, some violence between the Hutus and Tutsis continued, especially in the northern region of the country. WORLD RESPONSE TO THE GENOCIDE IN RWANDA Though UN forces were in the country to monitor the 1993 cease-fire, they did not intervene when the genocide began. The UN Security Council was

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hesitant to call what was going on in Rwanda “genocide” because of the actions that it would have been required to take under its existing conventions. The Security Council and many Western nations viewed what was happening in Rwanda not as genocide, but as tribal violence based on ancient ethnic issues or as the fallout of a failed state. (Years later, many would come to reject this characterization, including former President Bill Clinton, who identified his decision not to intervene in Rwanda as a major mistake in his presidency.) Britain wanted to pull UN forces out of the country. The United States wanted to send a UN fact-finding mission to Rwanda once it became clear that the death toll had reached 100,000, but Britain opposed the idea. The United States declined to use its technology to block the radio programs the Hutu government was using to call upon the Hutu people to kill their Tutsi neighbors, in part because it felt this action would violate the U.S. commitment to free speech. Despite the killings, France continued to support the Hutu government. The genocide and the mass exodus of refugees continued as the world watched but did not respond. After the violence ended, the UN commissioned an independent report on its failures. The 1999 report condemned the UN for ignoring evidence of the genocide and failing to act, as well as for removing UN staff and thereby abandoning victims. The United States and other countries were also criticized for their inaction and lack of commitment to the people of Rwanda. After the refugees returned to Rwanda, an International War Crimes Tribunal was set up in Tanzania to bring to trial the leaders of the genocide. The former Rwandan prime minister was among those tried and convicted in the court. Courts within Rwanda have since tried thousands of cases as well; over 400 people have been sentenced to death for their part in the genocide. GENOCIDE IN DARFUR The Rwandan genocide was not a singular event on the African continent. Within a few years, another African conflict emerged that many considered genocide. This time the crisis occurred in the Darfur region of western Sudan. The country of Sudan was under British and Egyptian control from 1859 to 1955. Except for 11 years between 1972 and 1983, Sudan has been at civil war since it declared its independence in 1956. The second civil war broke out in 1983 when President Numayri withdrew the agreement that had ended the previous war because he wanted to move the country toward Islamic law. The Sudanese People’s Liberation Army/Movement (SPLA/M) opposed Numayri, and a military coup removed him from power in 1985. It formed a civilian government, but that government did not last long. In 1989 Omar al-Bashir became president after another military coup. Despite the fact that Sudan starting exporting oil in 1999, by March 2001 two million people in the country were affected by famine and hunger. To make matters worse, that year the Nile River flooded and left thousands of Sudanese people homeless. At the same time, civil unrest continued. In 2002, the government reached a peace settlement with the SPLM/A. It lasted less than a

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year. In 2003, a rebellion broke out in Darfur. The government and its Janjaweed militia, made up mostly of Arab ethnic groups, challenged both the Sudan Liberation Movement, made up of non-Muslim African ethnic groups, and the Justice and Equality Movement, made up of Muslim Africans. In the midst of this conflict, the Sudanese government began systemically attacking civilians who belonged to the same ethnic groups as the rebel forces, mostly those from the Fur, Zaghawa, and Masalit groups. What resulted was one of the most violent and senseless periods of barbarism in the modern era: a systematic attack on African Sudanese in the south by the government-backed Arab Sudanese in the north, characterized by mass killings, rapes, torture, and enslavement. WORLD RESPONSE TO GENOCIDE IN DARFUR In 2004, the U.S. government publicly declared the events in Darfur to be genocide. In January 2005, the UN Commission of Inquiry declared that war crimes and crimes against humanity had been committed, and that these crimes may have reached the level of genocide. An African Union peacekeeping force was sent to the region, but a cease-fire in September 2004 fell through and the Sudanese government refused to accept a UN peacekeeping force. The UN Security Council then requested that the International Criminal Court investigate what was happening in Darfur. The court responded by issuing warrants for crimes against humanity for a number of Sudanese government officials. CONTINUING CONTROVERSY OVER DARFUR The ongoing conflict in Darfur became the focus of worldwide efforts to combat genocide and ethnic cleansing. In the United States, the plight of Darfur was a cause célèbre for many prominent individuals, including former President Jimmy Carter and the actor George Clooney, who visited the region on several occasions. They argued that the global community was morally obligated to do more for Darfur to stop the killing and civil unrest that had forced millions from their homes. Advocates urged the UN to negotiate a lasting peace agreement, increase humanitarian aid, and impose stricter sanctions on the Sudanese government. Many, however, remained critical of the movement to save Darfur. Some did not believe that what was occurring in Darfur was, in fact, genocide. Rather, they viewed the violence in the region as a politically motivated conflict for power, rather than as ethnically or religiously motivated conflict for destruction of a particular people. UN Reports in part supported that conclusion: in 2004, the European Union found that no genocide was occurring in the region, and a 2005 UN report also fell short of calling the Darfur conflict genocide. In addition, some critics suggested that the United States was calling the Darfur conflict “genocide” simply because Sudan is an oil-rich nation. These critics charge that the United States did not, and does not, call the violence occurring in many other African nations “genocide” because these nations do not have natural resources of interest to the United States. Finally, critics also emphasize that many

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of the organizations pushing for intervention in Darfur have lost sight of the political complexities of the situation. They argue that in reality the violence in Darfur is a conflict over land, water, and scarce natural resources. They do not believe that the killings in Darfur can be explained simply as Arab-against-African violence; therefore, the killings do not constitute genocide. PEACE, PERHAPS In March 2005, the United Nations brokered a peace deal for the Sudan that called for a coalition government that would ensure more participation by the southern part of the nation and a more equitable distribution of the nation’s resources. A year later, in 2006, the United Nations won approval of a peace agreement for the Darfur region, and sent a multinational force of over 25,000 to enforce it. These agreements, although tenuous, laid the groundwork for national elections in 2010 and a referendum in early 2011 to determine the future of the nation. From January 9 to 15, 2011, voters in the southern part of the Sudan cast ballots to decide whether they would secede from the north and form their own country. The results of the UN-sponsored election were released in February 2011: over 98 percent of voters chose to secede. The Sudanese government in the north accepted the results, which means that Sudan will be divided into two separate nations. The declaration of independence for South Sudan occurred on July 9, 2011. FOR THE FUTURE History teaches that the world has not seen its last genocide. Rwanda and Darfur are just the most recent examples of man’s inhumanity toward man. Whether one calls it “genocide” or something else, one thing remains clear: mass killings continue today in Darfur and across the African continent. Violence on such a scale defies neat political labels; indeed, the debate over the propriety of the “genocide” label can distract political leaders from addressing the suffering experienced by peoples in the world’s most dangerous and brutal regions. Thus, instead of arguing over just what constitutes a “genocide,” which by definition must have a particular race, ethnic, or religious-based motive, policy makers should strive to remain focused on the reality of poverty, disease, and fear suffered by millions in the world who face corrupt or repressive governmental regimes. Further Reading Books: Chiot, Daniel and Clark McCauley. Why Not Kill Them All? The Logic and Prevention of Mass Political Murder. Princeton, NJ: Princeton University Press, 2006; Guinness, Os. Unspeakable: Facing Up to Evil in an Age of Genocide and Terror. San Francisco: HarperSanFrancisco, 2005; Kiernan, Ben. Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur. New Haven: Yale University Press, 2007; Prunier, Gérard. Darfur: The Ambiguous Genocide. Ithaca, NY: Cornell

Globalization University Press, 2007; Steele, Michael R. Christianity, the Other, and the Holocaust. Westport, CT: Greenwood Press, 2003; Wilshire, Bruce. Get ’Em All! Kill ’Em!: Genocide, Terrorism, Righteous Communities. New York: Lexington Books, 2006. Websites: Genocide studies. http://www.genocide.org/; Genocide Watch. http:// www.genocidewatch.org; Prevent Genocide International. http://www.prevent genocide.org; United States Holocaust Memorial Museum. http://www.ushmm.org/wlc/ article.php?lang=en&ModuleId=10007043

Lindsey Hanson and Kathleen Uradnik GLOBALIZATION “Globalization” is a term used to describe an increasingly accessible and interconnected world. It is the integration of the politics, economics, technologies, laws, and cultures of the world. This integration occurs through increased communication, more open trade, and the interaction of numerous international business and nonprofit organizations. Some believe that globalization is a positive force that brings economic growth and advanced technology to underdeveloped countries and lifts their people out of poverty. Others argue that it is a negative force that exploits poor countries, damages the environment, and threatens the loss of indigenous cultures. In America, proponents of economic globalization in the business community see it as inevitable and argue that emerging markets create new buyers for our goods and services. Critics of this type of globalization, on the other hand, believe that it results in the loss of American jobs, which are shipped overseas to be performed by cheap labor. To understand this controversy, it is necessary to know more of what we mean when we speak of globalization. What does the globalization of politics look like? Politics is normally conducted within a nation, with each nation taking responsibility for its own laws and citizens. Globalization means an increasing trend toward politics on a broader and more multinational scale. Examples of this politics abound: the United Nations, for example, brings together member nations in an attempt to maintain peace and economic stability in the world. The European Union, which is comprised of over 20 democratic countries in Europe, is dedicated to strengthening its member states through collective economic action, including the use of a common currency. The growing number of international nongovernmental organizations (NGOs) like Amnesty International and Oxfam International are also evidence of political globalization. The trend toward world politics has also led to the globalization of law. This form of globalization is marked by international criminal tribunals and the International Court of Justice located in The Hague, Netherlands, which serves as the principal judicial organ of the United Nations. Of course, institutions like the UN and the International Court of Justice have been around for many decades. What has changed to make them into examples of political globalization? Looking at the concept historically, what we call globalization today has been occurring around the world ever since humans first entered into civil society. Groups of people have always traded with their neighbors and sought agreements to cooperate with one another.

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The interaction of peoples, and then nations, has only increased over time, usually sparked by advances in transportation that made it easier to visit and trade with increasingly more remote parts of the world. Regional alliances of the kind that existed, say, among European nations in the nineteenth century became international alliances as improvements in transportation and technology linked nations across the oceans. Nations cooperated to create organizations such as the League of Nations after World War I and the United Nations after World War II. This kind of cooperation between nations in the modern era was a start on the path toward globalization. After World War II, technology sped up the process considerably, first with the emergence of commercial airlines, which made it fast and economical to travel the globe, and more recently with the development of satellites, computers, and the Internet, which make it possible for even the most remote parts of the world to be linked together. In a global world, nations cooperate economically as well as politically. International intergovernmental organizations like the International Monetary Fund, which provides loans and facilitates trade and cooperation between its 140 member nations, and the World Bank, which provides loans to UN member countries, serve as evidence of economic globalization. Direct foreign investment by corporations and multinationals, as well as the increasing flow of workers from one nation to another, also demonstrate this type of globalization. Technological advancements in the areas of communication and transportation have led to the integration of an increasing number of countries into the international economy. As countries become exposed to new markets, and particularly to Western markets, they are increasingly influenced by Western culture. Thus, globalization of culture is also taking place along with globalization of politics and economics. That means the values, ideals, and lifestyles of various cultures come to be extended beyond their geographic borders, most commonly through widespread use of communication technologies like television, satellite, and the Internet. Americans are exposed to peoples and cultures of the world, and American culture in turn is spread abroad through trade, technology, and entertainment. THE IMPACT ON WORLD POVERTY While overall world opinion seems to favor increasing globalization, many people believe that it exploits poor people. These critics argue that, while economic globalization may increase prosperity, it does so to the benefit of the wealthy and to the detriment of the poor. They argue that globalization widens the gap between the “haves” and the “have-nots” because the wealthy nations make the rules that govern the system. They argue, for example, that wealthy nations subsidize their own food production and then dump their excess food onto world markets, thus driving down prices and endangering the livelihood of impoverished food producers in poor countries. To make matters worse, when poor producers in other countries try to export their product, they are commonly met with high tariffs that reduce their profits. Critics assert that organizations like the International Monetary Fund force poor countries to open their markets to a world market that is stacked against them. They also

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claim that transnational companies take advantage of workers in poor countries, which have few laws to protect their laborers and where individuals work cheaply. In response, Oxfam, an NGO working on three continents to fight poverty and injustice, has launched a “Make Trade Fair” campaign. It would like to see the IMF and the World Bank revoke regulations that force poor countries to open their markets and end agricultural subsidies and food dumping by wealthy countries. Oxfam also urges corporations to pay fair prices for labor, and seeks to provide poor countries with a greater voice in the World Trade Organization. It advocates for new intellectual property rules that would allow poor countries to afford the technologies and medicines they need but cannot afford. Proponents of globalization believe that the foreign investment and free trade reduce overall world poverty because they create economic growth. They also argue that globalization does not increase the gap between the poor and the wealthy, but rather shrinks that gap. China and India, for example, are two examples of countries that have increased their presence in world production and trade and have grown strong economies because of it. Although they still have sizeable indigent populations, the economic status of millions of their citizens has been improved, and both nations can claim a rapidly growing middle class. THE IMPACT ON THE ENVIRONMENT Critics of globalization also argue that it harms the environment because expanded free trade with countries that do not have environmental policies results in a “race to the bottom.” This happens when countries with low environmental protection standards (such as China and India) reap greater profits because of their reduced regulatory and production costs. In short, emerging nations ignore and deplete the environment in order to make a quick profit and grow their economies. Over time, this approach could ultimately undermine globalization itself as the resources that once provided a profit are exhausted. At the same time, the Earth and its inhabitants are further polluted, creating increased medical and cleanup costs across the globe. The argument is not quite that simple, however. Emerging nations point out that established ones, particularly the United States, became economic superpowers by exploiting their own natural resources, and that it is unfair and hypocritical to expect emerging nations to conform to rigid environmental standards. Brazil, for example, has made this argument in response to outside pressure to stop the economic exploitation of its vast Amazon rainforest. Environmentalists seek to preserve this ecosystem, while Brazilian and international business interests see the development of the land and its resources as a means to increasing the prosperity of the nation and its people. THE IMPACT ON INDIGENOUS PEOPLES AND CULTURES Finally, critics contend that globalization is a homogenizing force that spreads Western and particularly American culture without regard to the

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indigenous cultures it undermines. As western culture is advertised through movies, television shows, and the Internet, blue jeans and rock music begin to show up in increasingly remote places. Critics assert that this homogenization results in the loss of the local customs, traditions, languages, and art forms that connect people to their homeland and to each other. This loss of connection can lead to a growing sense of alienation, and a feeling of being lost that ultimately undermines quality of life. The idea of one global Westernized culture, in short, threatens everything that gives countries and peoples their distinct identities. DO CITIZENS SUPPORT GLOBALIZATION? Proponents of globalization point to numerous opportunities for economic growth and advancement in poor countries. But how many people believe that globalization is actually good for their country? A 2007 poll by the Chicago Council on Global Affairs and World Public Opinion asked people in 18 countries a simple question: “Do you believe that globalization, especially the increasing connections of our economy with others around the world, is mostly good or bad for [your country]?” The poll showed that, in the 18 countries surveyed, most respondents favored globalization. The strongest support for globalization was found in China, where 87 percent of respondents said globalization was “mostly good”; the weakest support was in Mexico and Russia, where 41 percent of respondents said globalization was mostly good. In the United States, 60 percent of respondents thought globalization was good for the country. Strong support was also found in Israel, South Korea, and Thailand. But polling has also shown that supporters are not blind to the potential downsides of globalization. A World Economic Forum survey of 25 countries found widespread support for globalization, but also concern about the effects of globalization on jobs, poverty, and the environment. American workers have decidedly mixed feelings about globalization. Workers in manufacturing industries have seen their plants close and move overseas to Mexico, China, and Southeast Asia, where labor is cheap and governmental regulations are lacking. Employees in white-collar industries, too, have seen their jobs “outsourced” to companies overseas: the stereotype of unintelligible tech support personnel trying to help Americans with their computer problems from thousands of miles away has become ingrained in American culture. Business owners, for their part, admit that their actions hurt their employees, but complain that they cannot be competitive in the world market unless they move their operations overseas. America has seen entire industries disappear from its shores, including textile manufacturing. Finally, Americans who have retained their jobs complain that their wages are stagnant and that their standard of living has declined, in part because of increasing competition from abroad. NAFTA One target of displaced workers is “NAFTA,” the “North American Free Trade Agreement.” NAFTA is an agreement between the United States, Mexico,

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and Canada to open their borders to more readily facilitate trade with one another. It went into effect on January 1, 1994 and remains as controversial today as it was when it was adopted. To open trade, NAFTA removed many tariffs that the United States had in place against goods imported from Mexico. Many agricultural tariffs were removed immediately; others were removed on a set schedule over a period of years. As a result, Mexican commodities, especially produce, freely flow across the border to be sold in America. But both Americans and Mexicans find fault with this new trade policy. Americans complain that cheap Mexican produce undercuts U.S. farmers, and that Mexico does not adhere to rigorous food safety regulations and inspections to ensure that its products are safe. NAFTA contains environmental and safety regulations but no effective mechanism for enforcing them against violators. Mexican farmers point out that most are just as poor now as they were before NAFTA—that large farming organizations benefit from the act, but small farmers do not. NAFTA is also blamed for the loss of manufacturing jobs to Mexico, predominantly because of its cheaper labor and less onerous governmental regulations. Many prominent American companies, including Whirlpool, Hershey, Honeywell, and General Motors, have moved manufacturing operations south of the border. Mexico, for its part, removed many of its tariffs on American goods, including American automobiles, to ensure that they are competitively priced and available for its citizens to purchase. Critics argue that, on balance, the loss of American jobs to Mexico has hurt local communities and the national economy more than the purchase of American goods by Mexicans has helped them. During the 2008 Democratic presidential primary, both Hillary Clinton and Barack Obama criticized NAFTA, with Clinton pledging to renegotiate it. Ironically, though, Mexico has not proved the biggest threat to U.S. jobs in the opening up of the global economy. Even Mexico is losing out to China, which is in the midst of a period of unprecedented economic growth and development. More American jobs and manufacturing plants have moved or have been outsourced to China than to Mexico, where labor is cheaper still. Neither the United States nor Mexico can compete with the cheap labor in China; as a result, both countries have seen businesses relocate there. Although NAFTA is now over 14 years old, its future remains in some doubt. It is unlikely that the agreement will ever be canceled, but it may be renegotiated at some point to correct actual or perceived inequalities among its participants and to provide tougher sanctions for violations. However, business and labor alike increasingly seem to understand that their focus on Mexico may have been misplaced. Over the past several years, China, not Mexico, has proven the most attractive location for cheap labor and cheap goods. Experts predict that, in the coming decades, China has the potential to become an economic superpower the likes of which the world has never seen. Globalization, and particularly economic globalization, is likely not only to continue, but to expand. As the old adage goes, once released it is simply impossible to put the genie back into the bottle. But the economic success of countries

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like China may cause some nations, including the United States, to rethink its approach to free trade with other countries. As job losses mount and wages remain stagnant, American labor unions place more pressure on government officials to invoke protectionist policies such as tariffs, the very policies that agreements like NAFTA sought to remove. Opponents of globalization point to the fact that America simply cannot compete with the cheap labor overseas, and argue that the nation must find some way to “level the playing field” so that very different countries can compete fairly in the global economy. Because no one has yet figured out how to do that, the debate over the costs and benefits of globalization will only heat up in the years to come. Further Reading Books: Bhagwati, Jagdish. In Defense of Globalization. New York: Oxford University Press, 2004; Goldin, Ian and Kenneth Reinert. Globalization for Development: Trade, Finance, Aid, Migration, and Policy. Washington, DC: World Bank, 2007; Isaak, Robert A. The Globalization Gap: How the Rich Get Richer and the Poor Get Left Further Behind. Upper Saddle River, NJ: Prentice Hall/Financial Times, 2005; Mandle, Jay R. Democracy, America, and the Age of Globalization. Cambridge, UK: Cambridge University Press, 2008; O’Connor, David E. Encyclopedia of the Global Economy : A Guide for Students and Researchers. Westport, CT: Greenwood Press, 2006; Rupert, Mark and M. Scott Solomon. Globalization and International Political Economy: The Politics of Alternative Futures. Lanham, MD: Rowman & Littlefield Publishers, 2006; Zakaria, Fareed. The Post-American World. New York: W. W. Norton, 2008. Websites: Global Policy Forum. http://www.globalpolicy.org/globaliz/index.htm; The International Forum on Globalization. http://www.ifg.org/; The Levin Institute. http:// www.globalization101.org/; World Trade Organization. http://www.wto.org

Lindsey Hanson and Kathleen Uradnik

H HISPANIC VOTE Within the next 40 years, the Census Bureau estimates that Hispanics will comprise nearly 25 percent of the U.S. population. Already Hispanics have surpassed African Americans as the largest minority group in the United States. What does this mean for electoral politics? Currently in nine U.S. states, more than 10 percent of eligible voters are Hispanic. New Mexico has the greatest share of Hispanic voters, estimated at nearly 40 percent of all eligible voters. A combination of factors such as population growth and increased political participation make Hispanics a voting bloc of growing importance to political candidates. The Hispanic vote is often referred to as a “sleeping giant” because of its potential impact and importance in upcoming decades. In the 2004 presidential election, President George W. Bush narrowly won reelection in New Mexico, Florida, Nevada, and Colorado—states where Hispanics constitute a sizable share of the electorate. These states were considered “swing states” in the 2008 elections, meaning they could swing in favor of either the Democratic or Republican Party. Some political analysts predicted that the Hispanic vote could tilt the “swing vote” because of their strategic position on the electoral map. This prediction largely came true. The significance of the Hispanic vote has led both parties to recognize that capturing this vote may be critical to winning future elections. Many political observers question whether the Hispanic vote will continue to tilt Democratic as it did in the 2008 presidential election. If it does, how will the Republican Party position itself on issues important to Hispanic voters to try to win back a share of their votes?

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PARTY IDENTIFICATION Over the years, there has been low voter turnout and political participation among Hispanics. This was partly due to a combination of factors: low levels of political mobilization, low rates of voter registration, and low citizenship rates. Additionally, Hispanics have a youthful demographic—more than a third of Hispanics are too young to vote. This trend in low voter turnout, however, began changing in the mid-1990s. Today, Hispanics are registering and voting in ever-increasing numbers. For example, the number of Hispanic voters who cast a ballot in the 2004 presidential election jumped 23 percent over those cast in the 2000 election. Historically, Hispanics in the United States have aligned themselves more with the Democratic Party than the Republican Party, but they do not yet constitute a voting bloc. In order to measure voting strength, it is important to distinguish between Hispanic voters, or voters of Mexican origin, and Latino voters, meaning voters with national origins from Central or South America or the Caribbean. Some pollsters consider all of these various groups together when sampling public opinion, but they have different voting patterns. For example, Cuban Americans often vote Republican, while Mexican Americans lean toward the Democratic Party and Puerto Ricans tend to overwhelmingly vote Democratic. In 2004, polls suggested that Colombians, Puerto Ricans, and Dominicans leaned toward Senator John Kerry while Nicaraguans embraced President Bush. The Hispanic vote also varies regionally, with Florida and some Texas voters leaning toward the Republican Party, and California and New York voters preferring the Democratic Party. But even this trend has changed in the last decade because a large influx of Puerto Ricans, Mexicans, and immigrants from Central and South America has reduced the impact of the traditionally Republican Cuban vote, loosening the Republican grip on the Latino and Hispanic vote in Florida. Thus, even defining the “Hispanic vote” has been a continuing challenge for political strategists and scholars alike. Usually they view Hispanics as having an undetermined party attachment, even though the current political moment favors the Democratic Party. In the 1990s, Hispanics moved closer to the Democratic Party when California voters passed Proposition 187, a bill denying social services such as health care and welfare benefits to illegal immigrants. By the 1996 presidential election, Democratic President Bill Clinton received support from the Hispanic community with over 70 percent of the Hispanic vote. Yet, by the 2000 presidential election, the Republican Party made gains in the Hispanic community, especially among evangelicals and Pentecostals. President George W. Bush also appealed to the Hispanic electorate with his message of shared family and religious values. Hispanics living in Florida were crucial to Bush’s narrow victory in 2000, and four years later up to 40 percent of Hispanic voters nationwide backed Bush. George W. Bush was the first Republican president to gain 40 percent of the Hispanic vote in the 2004 presidential election. Bush won Colorado, Nevada, Florida, and New Mexico by five percentage points or less, which set up these states to be key battlegrounds in the 2008 election.

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Soon after Bush’s re-election in 2004, Hispanic support began to crumble when a billed passed by U.S. House Republicans proposed raising penalties for illegal immigration and classifying unauthorized immigrants (and those who help them enter or remain in the United States) as felons. The bill’s passage in the House led to protests in over 100 cities across America in 2006. The Pew Hispanic Research Center in Washington, D.C. reported that after the 2006 midterm elections, the Republican Party’s support among Hispanics dropped from 44 to 30 percent, with the Democrats gaining in the Hispanic vote from 55 percent in 2004 to 69 percent in 2006. This turnaround in the Hispanic voting trend came at a time when the issue of illegal immigration became an intense focus of national attention. Immigration has become a more important issue to Latinos and Hispanics since the 2004 presidential election. The Pew Hispanic Research Center found that 79 percent of Hispanic registered voters said it was an “extremely” or “very” important issue in the 2008 presidential race; up from 63 percent who said the same thing in June, 2004. Immigration still ranks behind education, health care, the economy, and crime, but many believe it is the immigration issue that pushes voters to the polls. When polled on a list of six issues, the greatest number of Hispanic respondents considered education as either extremely important or very important, followed by health care, the economy and jobs, crime, immigration, and the war in Iraq. Some 41 percent of Hispanic registered voters say the policies of the Bush Administration had been harmful to Hispanics. COURTING THE HISPANIC VOTE DURING THE 2008 PRESIDENTIAL ELECTION Both the Republican and Democratic parties actively courted the Hispanic vote, recognizing it as a decisive political force in the 2008 presidential race. It forced all 2008 presidential candidates to hire outreach consultants, to start Spanish-language websites, and to campaign vigorously before Latino and Hispanic audiences. At the same time, the debate over immigration spurred Hispanic leaders and voters to mobilize for action. In 2008, the National Association of Latino Elected Officials joined with the Hispanic television network Univision on a campaign to help Hispanic residents fill out citizenship applications and to help those who are already citizens to register to vote. Univision’s reach among the electorate is quite extensive—it is the leading Spanishlanguage broadcaster in the United States. As a sign of the times, seven Democratic presidential hopefuls, including Senator Hillary Clinton, Senator Barack Obama, and former Senator John Edwards, appeared on a historic debate broadcast on Univision in 2007. While campaigning, New Mexico Governor Bill Richardson alternated between English and Spanish on the campaign trail, while Senator Christopher Dodd (D-CT), who speaks fluent Spanish, announced his candidacy on CNN en Español. Early on in the presidential campaign, Senator Hillary Clinton assembled Hispanic outreach team whose duties included writing press releases in Spanish and lining up Spanish-language spokespersons who could fill in

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for Clinton at events that focus on Hispanics. The Republicans made similar efforts. Arizona Senator John McCain made appearances before Hispanic audiences around the country, appearing on both Univision and Telemundo. Univision planned to hold a debate among Republican presidential candidates but cancelled it after only one contender, Republican Senator John McCain, agreed to participate. Hispanics overwhelmingly favored Senator Hillary Clinton over Barack Obama during the 2008 primary season. In the polls, Barack Obama consistently ran a distant second, followed by Bill Richardson and John Edwards. Polls also showed that only slightly more than half of the Hispanics polled knew that New Mexico Governor Bill Richardson is Hispanic. In California, Latinos voting on Super Tuesday in February 2008 almost doubled their numbers from 2004, and Clinton easily won the Hispanic electorate. Once Obama received the Democratic nomination for President in August 2008, there was some question as to whether the Hispanic electorate would shift their vote from Clinton to Obama. According to polls, roughly 75 percent of Hispanic registered voters who supported Clinton in the primaries planned to switch their support to Obama. According to the Pew Hispanic Research Center, no other major demographic voting group in the country swung so heavily to Obama as Hispanics did between the primaries and the general election in 2008. Obama won 67 percent of the Hispanic vote, roughly 23 percentage points higher than President Bush in 2004. A dramatic increase in voting among Hispanics put Obama over the top in Florida, Nevada, New Mexico, and Colorado. The trends were similar in Arizona and Texas, although the two states ultimately went for Republican John McCain. According to the Pew Center, Obama also carried 75 percent of U.S.-born Hispanics and won 35 percent of the Cuban vote nationwide. On the Republican side, although McCain’s Hispanic vote fell well below that of President’s Bush’s in 2004, it was still a much higher percentage than Senator Robert Dole received as the Republican presidential nominee in 1996. The 30 percent share of the Hispanic vote received by McCain reflected the share of that vote that Republican congressional candidates received during the 2006 midterm elections. Arizona Senator John McCain is from a heavily Hispanic state, but his affiliation with the Republican Party affected his share of the vote in 2008. In the final weeks before the congressional elections, Republicans ran what was viewed by many Hispanics as anti-immigration television ads, comparing laborers who illegally crossed the Mexican border to terrorists. Further criticism was aimed at Republicans in 2006 when they failed to pass a congressional bill that would have allowed most illegal immigrants to become citizens. A report published by the Pew Hispanic Research Center in January 2009 indicates that the issue of immigration has receded among Hispanics. Only 31 percent of Hispanics rate immigration as an “extremely important” issue facing the incoming Obama administration, placing it sixth on a list of seven policy priorities. The top-rated issue among Hispanics was the economy; 57 percent of them stated that it is an “extremely important” issue for the new president to address.

Hispanic Vote | 283 THE 2010 MIDTERM ELECTIONS The 2010 midterm elections proved historic for Hispanic candidates. New Mexico elected the nation’s first female Hispanic governor, Susana Martinez. Nevada elected its first Hispanic governor, Brian Sandoval. Previously, Sandoval had served as the state’s first Hispanic federal judge. Finally, Florida elected Latino Marco Rubio to the U.S. Senate. Rubio is of Cuban descent; his parents fled Cuba during the communist uprising that saw Fidel Castro come to power. Interestingly, all three elected officials are conservative Republicans. They won their races despite the fact that Hispanic voters traditionally support the Democratic Party. This trend continued in the midterm elections, with 60 percent of Hispanic voters supporting Democrats and 38 percent supporting Republicans. In Florida, where voters are predominantly Latino (meaning they are either of Cuban descent or originated from Central and South America), Republicans tend to fare better than in states such as California, where the predominantly Hispanic voters (of Mexican descent) are very loyal to the Democratic Party.

FUTURE CHALLENGES Hispanic voters swung their support to the Democratic Party and Barack Obama in a trend that poses challenges for Republicans in future national and state elections. Many believe that Republicans need a new strategy for positioning themselves before an increasingly Hispanic electorate, especially in key battlegrounds such as Florida, California, and the states of the Southwest. Some Republicans fear that many Republican-sponsored bills will alienate the Hispanic vote. For example, Texas Republicans are pushing for a law requiring voters to present photo identification at the polls. Republican leaders have dismissed the belief that this action will damage their party’s reputation among minorities. Democrats argue that requiring a photo ID will be particularly hard on the disabled and low-income workers without driver’s licenses, who are more likely to be racial minorities. Party leaders on both sides recognize that in Texas, Hispanics make up 36 percent of the total population and 25 percent of the eligible electorate. Striking a balance between traditional party strongholds and issues important to the Hispanic electorate may become increasingly more difficult for both parties, and are sure to affect elections for decades to come. Further Reading Books: Abrajano, Marisa A. and R. Michael Alvarez. New Faces, New Voices: The Hispanic Electorate in America. Princeton, NJ: Princeton University Press, 2010; Garcia, F. Chris and Gabriel Sanchez. Hispanics and the U.S. Political System: Moving into the Mainstream. Upper Saddle River, NJ: Prentice Hall, 2007; García, John A. Latino Politics in America: Community, Culture, and Interests. Lanham, MD: Rowman & Littlefield, 2003; Navarro, Sharon Ann and Armando Xavier Mejia, eds. Latino Americans and Political Participation: A Reference Handbook. Santa Barbara, CA: ABC-CLIO, 2004; Martínez, Deirdre. Who Speaks for Hispanics? Hispanic Interest Groups in Washington. Albany, NY: SUNY Press, 2009; Oboler, Suzanne. Latinos and Citizenship: The Dilemma of Belonging. New York: Palgrave Macmillan, 2006; Vaca, Nick Corona.

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Human Trafficking The Presumed Alliance: The Unspoken Conflict between Latinos and Blacks and What It Means for America. New York: Rayo, 2004. Websites: Gallup. “Hispanic Voters Solidly behind Obama.” http://www.gallup.com/poll/ 108532/hispanic-voters-solidly-behind-obama.aspx; Johns Hopkins University, Hispanic Voter Project. http://advanced.jhu.edu/academic/government/hvp/; Latino Voter’s League. http://www.latinovotersleague.net/; The Latino Voter. “Analysis of Latino Vote in 2008.” 2008. http://thelatinojournal.blogspot.com/2009/01/analysis-of -latino-vote-in-2008.html; Public Policy Institute of California. “Latino Likely Voters in California.” http://www.ppic.org/content/pubs/jtf/JTF_LatinoVotersJTF.pdf; Taylor, Paul and Richard Fry. “Hispanics and the 2008 Election: A Swing Vote?” Pew Hispanic Center. http://pewhispanic.org/reports/report.php?ReportID=83

Sara Hower HUMAN TRAFFICKING Human trafficking is the forced or fraudulent transportation of individuals for the purpose of exploiting them. It is widely considered to be one of the most cruel and despicable crimes that one human being can inflict on another. The victims of human trafficking are vulnerable adults and children, who are often poor, uneducated, unemployed, or simply too young to understand what is happening to them. Typically, traffickers promise their victims good jobs, money, and a path to a better life in order to lure them away from the support and protection of their families and home towns. The traffickers sometimes purchase children from families who cannot make ends meet, promising to take care of them. All of these promises quickly turn out to be false. Victims are forced to work in terrible conditions as domestic servants, sweatshop or agricultural workers, or prostitutes. The problem is shockingly widespread: the International Labor Organization estimates that there are 12.3 million people in this kind of forced labor; other estimates vary between 4 million and 27 million. The U.S. government estimates that every year 800,000 people are trafficked between countries. This figure does not even include the trafficking that takes place within a country’s borders. Upwards of 80 percent of trafficking victims are female, and 50 percent are children. The FBI estimates that human trafficking is a $9 billion per year industry worldwide. Human trafficking is as old as civil society: it used to be called “slavery.” Today, human trafficking encompasses not only slavery/slave labor, but also, and increasingly, sex crimes. In the past two decades, human trafficking has become a widespread international crime problem. Underlying causes for trafficking include poverty and famine, which drive individuals into desperate situations to survive and support their families; globalization, which makes travel among nations easier to undertake; and increased demand for cheap labor. INTERNATIONAL HUMAN TRAFFICKING The 2008 Trafficking in Persons Report issued by the U.S. State Department identifies Burma, Cuba, Iran, Kuwait, North Korea, Saudi Arabia, and Sudan as some of the worst countries in the world for human trafficking. These countries

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do not comply with minimum international standards for preventing and prosecuting human trafficking. Some do not even attempt to stop it. Trafficking affects numerous countries throughout the world. In Saudi Arabia, for example, families are often tricked or threatened into selling their children to others, who then send them out into the streets as beggars to collect money. These children are commonly beaten or mutilated by their captors, ensuring that they will remain beggars. In Cambodia, both male and female children are sold into sexual slavery and forced to work in brothels or to make pornographic videos. In Ghana, boys are sold as workers to contractors and are used in various trades. In India, children are sold to work in retail sweatshops. In Eastern Europe, finally, young women are tricked, kidnapped, or otherwise forced to become prostitutes. Often, international organized crime groups sponsor this type of trafficking. The stories of trafficked children are as numerous as they are heartbreaking. In an effort to address the plight of these children, the United Nations adopted in 2000 the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.” This protocol serves as the main source of international law in the area of human trafficking. It defines “trafficking” as “recruiting, transporting, transferring, harboring, or receiving persons by threat, force, coercion, fraud, deception, abuse of power or vulnerability, or use of payment or benefits to get consent, for the purposes of exploitation.” The protocol has been signed and ratified by at least 110 states. However, identifying and convicting offenders has remained problematic. In response, the United Nations Office on Drugs and Crime (UNODC) started its “Global Initiative to Fight Human Trafficking” in March 2007. The initiative seeks to spread awareness of and knowledge about trafficking issues. The UNODC hopes to build relationships among governments, the international community, various nongovernmental and private organizations, and media outlets in an effort to urge cooperation in addressing the problem. HUMAN TRAFFICKING IN THE UNITED STATES Human trafficking is not just an international issue, however—it is also a domestic issue. The United States often serves as an endpoint for people trafficked from Mexico, East Asia, and Central America. The estimated number of victims entering the country each year varies widely. However, in 2003, a high-ranking State Department official speaking at a conference on the topic placed the number of trafficked individuals entering the United States at between 20,000 and 50,000 each year, with another 200,000 children subject to trafficking within U.S. borders. A majority of these victims are trafficked in this country for purposes of forced labor, but many are trafficked for sexual exploitation. Individuals trafficked into the United States enter both legally and illegally. Trafficking is decidedly not the same as smuggling, although both are illegal. Smuggling involves bringing an illegal alien into the United States. The alien pays the smuggler a fee for preparing false documents and making arrangements (usually transportation) to get him or her into the country. A trafficker, on the other hand, does

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not deal with a willing client. Rather, the trafficker controls the individual and forces him or her into the country. Once illegally in the United States, the victim remains in the control of the trafficker, who continues to make money from the victim’s services. The trafficker coerces, abuses, and intimidates the victim into compliance, and may keep the victim in bondage indefinitely. The U.S. government spent $23 million in 2007 on domestic investigation, enforcement, protection, and awareness related to trafficking. In 2007, the Justice Department investigated 182 instances of potential trafficking, charged 89 people, and won convictions in 103 cases. The average prison sentence for those convicted of human trafficking was just under nine-and-a-half years. Numerous state attorneys general have also stepped up efforts to find and prosecute traffickers in recent years. According to its statistics, between 2000 and 2007, the Department of Health and Human Services identified 1,379 victims of trafficking. In 2007 alone, the U.S. Department of Health and Human Services identified, for purposes of determining eligibility for services and benefits, 270 adult victims of trafficking and 33 child victims. Of these victims, the vast majority were female. The victims came from over 50 countries, and around 63 percent of them were trafficked for purposes of forced labor. Most came from Thailand, Mexico, Guatemala, the Philippines, and China. The U.S. government maintains a National Human Trafficking Resource Center that provides training and technical assistance as well as information for victims and interested organizations and individuals. The center maintains a 24-hour hotline and makes referrals for many types of public and private assistance. It also serves as a connecting point for victims and federal law enforcement officials. The FBI and Department of Justice run the “Innocence Lost Program” that seeks to bring state, local, and federal officials as well as social service agencies together to address the problem of child trafficking for the purposes of prostitution. In 2007, program activities led to the arrest of 308 individuals, 106 convictions, and the rescue of 181 children. Unfortunately, though, the ordeal for many victims does not end when they are rescued: in 2007, the Department of Homeland Security received 122 new requests for witness protection services from victims of human trafficking who felt their lives remained in danger. Finally, the Department of Health and Human Services sponsors a public awareness campaign called “Rescue and Restore Victims of Human Trafficking.” This program has regional programs that operate on a local level in 19 cities in two states. While this effort is laudable, advocacy groups agree that not enough attention has been paid to the problem of human trafficking, and that the government has not provided sufficient resources to combat it. Numerous nongovernmental organizations (NGOs) based in the United States undertake human trafficking initiatives. For example, Lutheran Immigration and Refugee Services (LIRS) sponsors a “Trafficked Children Initiative” that works to create awareness about issues related to the trafficking of children in the United States. The initiative addresses policy issues related to trafficked children and provides training and information to social service agencies that

Human Trafficking

work with trafficked children. The Protection Project at Johns Hopkins University researches and documents trafficking on an international level for use in policy development here and abroad. The Coalition Against Trafficking in Women works specifically to advance the human rights of women and to end the sexual exploitation of women through trafficking. These are just a few examples of the many U.S.-based NGOs dedicated to this issue. LEGAL EFFORTS TO PUNISH TRAFFICKING The Thirteenth Amendment to the Constitution outlawed slavery and has been used across the country in prosecutions for human trafficking. In 2000, Congress passed the Trafficking Victims Protection Act (TVPA), which gave federal prosecutors a new weapon to use against traffickers. Importantly, it made trafficking a crime. Previously, prosecutors had to charge perpetrators with existing crimes ranging from pimping to kidnapping. These crimes did not address the seriousness of trafficking, and often did not provide for appropriately strong penalties. The TVPA made the act of trafficking itself a federal offense punishable by jail terms of 20 years to life in prison. The TVPA is the most comprehensive piece of legislation the nation has for dealing with the challenges of human trafficking. It includes provisions to prevent trafficking, protect victims, and prosecute offenders. The act applies to labor and sex trafficking that is forced, fraudulent, or coercive and other types of trafficking that involve children. The TVPA seeks to prevent trafficking by increasing international awareness of the problem and providing economic opportunities for the impoverished people who often become its victims. These include offering micro-credit loans for individuals or families to start a business; job training and counseling; and programs designed to increase women’s education and economic independence. The TVPA also authorizes funding for nongovernmental organizations to implement programming that seeks to prevent trafficking and increase awareness. In addition, the TVPA extends extra protection and assistance to victims of trafficking. This fact is important because many victims are brought into this country illegally and have no official identification papers. Rather than treat these victims like illegal immigrants, the law considers them more akin to political refugees. Trafficking victims can access the same services that are provided for refugees who must leave their home country because of persecution. They are eligible to use numerous federal programs, including Medicaid, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and food stamps. They can also access Refugee Cash and Medical Assistance, the Matching Grant Program for refugees, and the Unaccompanied Refugee Minor Program. Victims need no longer fear deportation. The TVPA makes “T” and “U” immigration visas available to victims of trafficking. A T visa is available to victims of severe trafficking who are physically present in the United States. Severe trafficking is defined by the law as “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to

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perform such an act has not attained 18 years of age; [or the] recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” A U visa is somewhat broader in scope: it is available to persons who have experienced significant physical or mental abuse from illegal trafficking, sexual exploitation or assault; slavery; or involuntary servitude. Both the T and the U visas may also be used for the victim’s family members. The visas allow a victim to stay and work in the United States for up to three years. After the three years have passed, he or she can apply to become a permanent resident of the United States. In 2007, 279 T visas were issued to survivors of trafficking, and 261 T visas were issued to family members of survivors. Finally, as noted above, the TVPA addresses the prosecution of perpetrators of human trafficking. The act makes it a crime to keep travel and identification documents in order to engage in trafficking. It also provides a means to prosecute cases in which the coercion of victims did not involve violence. The act sets a 20-year minimum sentence for trafficking. Significantly, it allows for life imprisonment if the trafficking resulted in a death or if it involved sexual abuse or kidnapping. Finally, the TVPA also allows victims to enter witness protection programs, and it requires sentencing courts to make offenders pay restitution or forfeit assets. In 2003, the Trafficking Victims Reauthorization Act (TVPRA) amended the original TVPA. One of the amendments required foreign governments to provide the State Department with data on investigations, prosecutions, convictions, and sentences for crimes in human trafficking. Collected international data first became available in 2003. It showed that there were 7,992 prosecutions and 2,815 convictions for trafficking worldwide. In 2004, prosecutions went down (6,885), but convictions (3,025) went up. A similar trend was noted in 2005, when there were 6,178 prosecutions and 4,379 convictions. In 2006, there were 5,808 prosecutions and 3,160 convictions. In 2007, there were 5,682 prosecutions and 3,427 international convictions. Despite these numbers, however, much more trafficking is undertaken than is ever reported or prosecuted. Indeed, trafficking often has to be discovered by law enforcement officials because, even when victims escape their captors, they are too fearful to seek help. Some do not trust the police or government officials; others believe that they will be killed for testifying against their captors. Still others do not understand that they can receive help and guidance toward a better life, because all they have ever known is a life of slavery and abuse. THE STATES ALSO RESPOND Individual states are slowly realizing that they have a significant role to play in identifying and prosecuting human trafficking. No state is immune from it. Following the federal example of the TVPA, 25 states have passed laws making human trafficking a crime. Most have done so just within the past few years. A dozen states have task forces dedicated to raising public awareness of the

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problem and organizing appropriate responses. A handful of states regulate “marriage brokers”—individuals or companies that arrange for U.S. citizens, usually men, to meet and marry foreign brides, sometimes called “mail order brides.” Although some of these companies are legitimate, many brides who come to America seeking a better life for themselves and their families end up trapped in abusive relationships. Along the same lines, a few states have made it illegal for individuals or companies to arrange for travel services overseas for the purpose of prostitution. These laws are aimed at travel agencies that arrange “sex trips” abroad for their customers. WHAT THE FUTURE HOLDS It is a sad but true fact that human trafficking remains prevalent in the United States and across the world. A quick Internet search is all that is needed to identify the almost daily arrests of those in numerous countries who seek to enslave and exploit vulnerable individuals. Certainly, no one questions the need to address this battleground issue; the issue for the future is how best to do it. In this country, the federal government and the states will have to figure out a way to work cooperatively and effectively to stop the importation and exploitation of trafficked individuals. States that have not yet provided legislation and resources to this cause will need to get onboard with these efforts. Additionally, the U.S. government, working closely with its allies, must find a way to make reticent nations comply with international mandates outlawing trafficking. Ultimately, however, the key to solving human trafficking is more fundamental than simply passing and enforcing national and international laws. Governments must also find a way to address the root causes of trafficking, which include poverty, hunger, and hopelessness. Accomplishing this goal will remain a critical and controversial issue for years to come. Further Reading Books: Bales, Kevin. Ending Slavery: How We Free Today’s Slaves. Berkeley: University of California Press, 2007; Batstone, David. Not for Sale: Return of the Global Slave Trade. New York: HarperOne, 2007; Center for Women Policy Studies, http:// centerwomenpolicy.org; DeStefano, Anthony M. The War on Human Trafficking: U.S. Policy Assessed. Piscataway, NJ: Rutgers University Press, 2008; Sage, Jesse and Liora Kaster, eds. Enslaved: True Stories of Modern Day Slavery. New York: Palgrave Macmillan, 2008; Scarpa, Silvia. Trade in Human Beings: Modern Slavery. New York: Oxford University Press, 2007. Websites: Academy for Educational Development. http://www.humantrafficking.org; Coalition Against Trafficking in Women. http://www.catwinternational.org; Polaris Project Action Center. http://actioncenter.polarisproject.org; U.S. Department of Health and Human Services. http://www.acf.hhs.gov/trafficking; U.S. Department of Justice. http:// www.justice.gov/opa/pr/2011/February/11-ag-140.html; United Nations Office on Drugs and Crime. http://www.unodc.org

Lindsey Hanson and Kathleen Uradnik

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BATTLEGROUND GOVERNMENT AND POLITICS

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BATTLEGROUND GOVERNMENT AND POLITICS VOLUME 2 (I-Z)

Kathleen Uradnik, Lori A. Johnson, and Sara Hower, Editors

Battleground Series

Copyright 2011 by ABC-CLIO, LLC All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Battleground : government and politics / Kathleen Uradnik, Lori A. Johnson, and Sara Hower, editors. v. cm. — (Battleground series) Includes bibliographical references and index. Contents: v. 1. A–H — v. 2. I–Z. ISBN 978–0–313–34313–1 (pbk. : alk. paper) — ISBN 978–0–313–34314–8 (ebk.) 1. United States—Politics and government—Handbooks, manuals, etc. 2. Social conflict—United States— Handbooks, manuals, etc. 3. Divided government—United States—Handbooks, manuals, etc. I. Uradnik, Kathleen Ann. II. Johnson, Lori A. III. Hower, Sara. JK275.B37 2011 320.973—dc23 2011032642 ISBN: 978–0–313–34313–1 EISBN: 978–0–313–34314–8 15 14 13 12 11

1 2 3 4 5

This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. Greenwood An Imprint of ABC-CLIO, LLC ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America

From Kathy: For Jacob, Alex, and Lizzie From Lori: For Professor William K. “Sandy” Muir, who showed us that the “battleground” of American politics can be a civil, productive, and fun place. From Sara: For Todd, Teddy, and Will, who make everything possible; and to my nephew Charlie, who always wants to know what I’m working on.

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CONTENTS Guide to Related Topics

xi

Entries: Abortion

1

Affirmative Action

9

Afghanistan, War in

18

Airline Safety

27

Al Qaeda

35

Amending Power

47

Bailouts

55

Bankruptcy

68

Bioterrorism

76

Campaign Finance Reform

83

Census and Redistricting

94

Childhood Obesity

101

China: Economic Emergence

105

China: Human Rights

113

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College Funding and Debt

122

Congress, U.S.

130

Cyberterrorism

140

Death Penalty

151

Divided Government and Bipartisanship

159

Don’t Ask, Don’t Tell Policy

166

Drinking Age

170

Earmarks

175

Ecoterrorism

181

Electoral College

187

Emergency Preparedness/Federal Emergency Management Agency (FEMA)

193

Enemy Combatants

198

Energy Policy

206

Executive Compensation

217

Federalism

227

Flat Tax and National Sales Tax

233

Food Safety

240

Foreclosure Crisis

250

Genetic Testing and the Use of Genetic Information

261

Genocide

268

Globalization

273

Hispanic Vote

279

Human Trafficking

284

Immigration Reform

291

Infrastructure

301

Intelligence Operations

306

Internet Campaigning

312

Iran, Relations with

318

Iraq War

326

Israel and the Middle East Peace Process

333

Contents

Judicial Activism

343

Living Wage

351

Lobbying

356

Medicare and Medicaid

363

Mexican Drug War

370

National Aeronautics and Space Administration (NASA)

381

National Debt and Budget Deficit

388

National Guard

396

No Child Left Behind (The Elementary and Secondary Education Act)

401

North American Free Trade Agreement (NAFTA)

408

Nuclear Proliferation

413

Obama Presidency

421

Pandemics

431

Patriot Act

437

Presidential Power

447

Primaries and Caucuses

455

Recession

467

Right to Die

472

Russia, Relations with

478

Same-Sex Marriage and Civil Unions

487

Second Amendment to the U.S. Constitution

498

Social Security

505

Special Education

512

Supreme Court Nominations

518

Tea Party Movement

523

Term Limits

528

United Nations

535

Universal Health Care

544

Veterans’ Rights and Needs

557

Voting and Voter Fraud

564

Women in Politics

573

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Contents

Appendix 1: Case Citations

581

Appendix 2: Statute Citations

583

Selected Bibliography

587

Index

601

About the Editors and Contributors

629

GUIDE TO RELATED TOPICS CIVIL RIGHTS

Abortion Affirmative Action Death Penalty Don’t Ask, Don’t Tell Policy Human Trafficking Immigration Reform Right to Die Same-Sex Marriage and Civil Unions Second Amendment to the U.S. Constitution Veterans’ Rights and Needs ECONOMIC CONTROVERSIES

Bankruptcy Bailouts College Funding and Debt Energy Policy Executive Compensation Flat Tax and National Sales Tax Foreclosure Crisis Globalization Living Wage North American Free Trade Agreement (NAFTA) National Debt and Budget Deficit Recession

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Guide to Related Topics FEDERAL GOVERNMENT

Amending Power Congress, U.S. Divided Government and Bipartisanship Earmarks Federalism Judicial Activism Obama Presidency National Aeronautics and Space Administration (NASA) Presidential Power Supreme Court Nominations FOREIGN AFFAIRS

Afghanistan, War in China: Economic Emergence China: Human Rights Genocide Iran, Relations with Iraq War Israel and the Middle East Peace Process Russia, Relations with United Nations HEALTH AND WELFARE

Childhood Obesity Drinking Age Food Safety Genetic Testing and the Use of Genetic Information Medicare and Medicaid No Child Left Behind (The Elementary and Secondary Education Act) Pandemics Social Security Special Education Universal Health Care NATIONAL SECURITY

Airline Safety Al Qaeda Bioterrorism Cyberterrorism Ecoterrorism Emergency Preparedness/Federal Emergency Management Agency (FEMA) Enemy Combatants Infrastructure Intelligence Operations Mexican Drug War

Guide to Related Topics

National Guard Nuclear Proliferation Patriot Act VOTING AND ELECTIONS

Campaign Finance Reform Census and Redistricting Electoral College Hispanic Vote Internet Campaigning Lobbying Primaries and Caucuses Tea Party Movement Term Limits Voting and Voter Fraud Women in Politics

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I IMMIGRATION REFORM According to its analysis of 2005 Census Bureau data, the Pew Hispanic Center estimates that, as of March 2006, there were between 11.5 and 12 million illegal immigrants in the United States. Since the mid-1990s, the number of illegal immigrants entering the United States each year has exceeded the number of entering legal immigrants. The majority of these illegal immigrants (sometimes called “undocumented,” “paperless,” or “unauthorized” immigrants) live in California, Texas, Florida, and New York. Nearly half of these illegal immigrants first entered the country legally. Estimates indicate that 4 million to 5.5 million entered the United States on a nonimmigrant visa which they then overstayed. Somewhere between 250,000 to 500,000 entered the United States by violating a Border Crossing Card; these cards allow short visits to the border region between the United States and Mexico. Six to seven million illegal immigrants entered the United States by evading Border Patrol and Immigration inspectors; many hid in trucks, walked or tunneled through the Arizona desert, or waded across the Rio Grande. As of 2004, the Pew Hispanic Center estimated that 13.9 million people, including 4.7 million children and 3.2 million U.S. citizens by birth, live in homes where the head of the household or the spouse is an illegal immigrant. At least 6.3 million illegal immigrants were employed as of March 2004, which amounts to 4.3 percent of the U.S. civilian labor force. Three percent of these workers are employed in agriculture positions, 33 percent in service industries, 16 percent in construction and extractive occupations (such as roofing, carpentry, and mining), and 17 percent are employed in production, installation, and repair positions. The average household income for illegal immigrants who have

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been in the United States for less than 10 years is $25,700; for those who have been in the country for more than 10 years, the average is $29,900. A quarter of these illegal immigrants have at least some college education, but 49 percent have not finished high school. About 57 percent of illegal immigration is from Mexico, 24 percent from other Latin American countries, 9 percent from Asia, 6 percent from Europe and Canada, and 4 percent from other countries. In the past two years, immigration raids and crackdowns by the federal government, tougher punishments on employers of illegal immigrants, and a troubled U.S. economy have led many illegal immigrants to leave the United States to return to their country of origin. However, as evidenced by the emphasis on immigration in the 2008 presidential elections, the public debate over illegal immigration remains heated, especially over the question of what to do with the illegal immigrants who continue to reside in this country. LOCAL RESPONSES TO ILLEGAL IMMIGRATION Mounting frustration with the federal government’s inability to pass any sort of comprehensive immigration reform has led to an increasing number of states and local communities attempting to create and enforce immigration policies of their own. For example, Farmers Branch, Texas, requires tenants to obtain rental licenses from the city in order to rent a home or apartment, and will not give such licenses to illegal immigrants. Whether the city can legally engage in such behavior remains to be seen—federal courts are currently reviewing the ordinance, but it is certainly indicative of the community’s frustrations. The Sheriff’s Department in Rockingham County, Virginia, like nearly three dozen other police agencies, has signed on to a controversial Department of Homeland Security program that allows them to detain people on immigration charges, and to check fingerprints against a national immigration database. Many of these communities express frustration at the restrictions federal law places on them in their efforts to curb illegal immigration; for example, federal law prohibits school officials from asking public school students about their immigration status. The boldest local stand against illegal immigration, however, belongs to the state of Arizona, which passed two controversial pieces of legislation in the last four years. The first is known as the Legal Arizona Workers Act. The act, which became law on January 1, 2008, imposes a 10-day license suspension, followed by a multiyear probationary period, on any business in the state that knowingly hires an illegal immigrant. A second violation could result in the revocation of the business’s license. The act also requires employers to verify the legal status of every new employee through the federal government’s E-Verify computer database, which is administered by the Department of Homeland Security. With respect to job applicants, the act imposes harsh new penalties on anyone using false identification in order to obtain a job. Opponents of the act, including many business groups and unions, immediately filed lawsuits challenging it. They argued among other things that the states were not allowed to regulate in the field of immigration law, because this

Immigration Reform

power was reserved for the federal government. On September 17, 2008, the U.S. Court of Appeals for the Ninth Circuit upheld the law on its face, and opponents appealed to the Supreme Court. The Supreme Court accepted the appeal and heard oral argument in the case of Chamber of Commerce v. Whiting on December 8, 2010. On May 26, 2011, the Court upheld the Legal Arizona Workers Act by a vote of 5:3. Justice Elena Kagan did not participate in the case. The decision was immediately viewed as a major victory for the State of Arizona. Not all communities have taken a negative view of illegal immigration. At least 30 of the nation’s largest cities believe that their economies could not function without the labor of illegal immigrants. Many of them—including San Francisco, Los Angeles, Minneapolis, New York City, Chicago, Houston, and Philadelphia—have designated themselves as “sanctuary cities,” which prohibit local officials from inquiring into an individual’s immigration status in the provision of government services and in law enforcement actions. The theory behind sanctuary cities is that local officials do not have any responsibility to perform the federal government’s duties in the immigration realm, and thus can adopt a kind of “don’t ask, don’t tell” approach to their residents. These cities also by and large oppose government crackdowns on illegal immigrants, considering them an ill-conceived, inhumane, and economically unsound way to approach the problem of illegal immigration. Sanctuary cities have come under increasing fire, however. In 2008, two separate incidents brought nationwide attention to the repercussion of sanctuary cities’ refusal to inquire about the immigration status of their criminal defendants. In June 2008, an illegal immigrant from El Salvador gunned down a San Francisco man and his two sons in a senseless road rage incident in the city. It turned out that the killer, Edwin Ramos, had two prior juvenile felony convictions and a recent handgun charge. But Ramos had been shielded by the city’s sanctuary law, and the city did not inquire into his immigration status as he was processed through the criminal justice system. Had Ramos been reported as an illegal alien and violent offender, he would have been deported. Similarly, in Virginia Beach, Virginia, a drunk driver named Alfredo Ramos hit and killed two teenage girls in March 2008. Ramos had prior arrests for drunk driving, but the police did not inquire about his immigration status. After his arrest, many in the community were outraged because, they argued, had federal authorities been notified of his illegal status, Ramos would have been picked up and deported. Ramos, whose blood alcohol limit was three times the legal limit at the time of the crash, pleaded guilty to manslaughter and was sentenced to 40 years in prison—24 to be served immediately, and the remaining 16 should he ever return to the United States after his deportation. ARIZONA TAKES CHARGE, AGAIN On April 23, 2010, Arizona Governor Jan Brewer signed into law a controversial act aimed at enhancing her state’s ability to identify and deport illegal immigrants. The law had easily passed both houses of the Arizona legislature

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and had the widespread support of voters. The federal government, however, did not look so kindly upon it. In its original form, the law gave police officers the authority to detain anyone reasonably suspected of being an illegal immigrant. Opponents argued that law enforcement officials had been given the ability to engage in illegal racial profiling, because it was impossible to know a person’s status simply by looking at them. In response, the legislature quickly enacted a series of changes to the language of the original bill. The updated version provided that law enforcement personnel could only inquire about a person’s immigration status in connection with a lawful stop or arrest. In addition, the law made it illegal for anyone in the state to transport illegal immigrants and for employers to hire them as day laborers. The Justice Department filed suit against the law in early July, arguing that Arizona had no right to create immigration laws or policies because the Constitution gives plenary power over immigration law and policy to Congress. Arizona, it contends, is thus “pre-empted” from regulating in this area. Shortly before the law was to take effect, U.S. District Court Judge Susan Bolton sided with the federal government and issued an injunction against the most controversial provisions of the law. Arizona, for its part, believes that its law is sound because it is based on federal immigration laws that have already been tested and upheld in the courts. The state argues that it has the right to enforce immigration law with its own personnel because the federal government has failed or refused to do so. The Justice Department, to the contrary, argues that the federal government does not want Arizona’s assistance, and that it must remain in sole control of immigration laws and their enforcement. To allow the states to act independently, it contends, would create a hodgepodge of approaches to immigration that would impermissibly interfere with the federal government’s ability to regulate and enforce national policy on the issue. On November 1, 2010, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard arguments from both sides in United States v. Arizona. On April 11, 2011, the panel affirmed Judge Bolton’s decision holding that four key provisions of AB 1070 were unconstitutional. This ruling will not be the end of the litigation, however, as both sides have promised to take their fight to the Supreme Court. IMMIGRATION RAIDS In light of the public concern with illegal immigration, there has been a marked increase in the number of illegal immigrants arrested by U.S. Immigration and Customs Enforcement (ICE). The Boston Globe reports that there has been a 750 percent increase in such arrests from 2002 to 2006, and National Public Radio reports that in the past two years, almost 9,000 illegal immigrants have been arrested for workplace violations alone. Many of these arrests took place during immigration raids. The December 2006 raid of the Swift Meatpacking Plant in Worthington, Minnesota is a good example of a typical raid. Officials from ICE arrived unannounced at the plant, which they had been

Immigration Reform

investigating for some time. Workers were asked for their papers, and those who could not produce them were arrested. Families were given an ICE hotline number to call to find out the status of their relatives. Of the 230 arrested in one day at this particular plant, most chose voluntarily to be deported. Approximately 20 faced criminal charges for identity theft, and the remaining workers are being held in a federal prison in Atlanta, Georgia while they await court hearings about their immigration status. On the same day it raided the Worthington plant, the ICE also raided five other Swift plants in Colorado, Nebraska, Texas, Utah, and Iowa, with similar results. Nearly 1,300 illegal workers were taken into custody in one day, and the federal government has indicted dozens of workers at each plant, primarily on identify theft charges. ICE raids have met with outrage from pro-immigrant and human rights groups for their effects on families, especially children. The National Council of La Raza, a Latino Civil Rights and Advocacy Group, contends that ICE’s procedures make it difficult for those being detained to contact their families in order to secure care for their children. The organization alleges that the raids cause emotional trauma for children whose parents are suddenly taken away, and asserts that mental health experts notice increased fear and anxiety, and in some cases depression, post-traumatic stress disorder, separation anxiety, and suicidal thoughts in children whose families were affected by the raids. (The children are not deported because, unlike their parents, they often are U.S. citizens, having been born legally in this country to one or more parents who came here illegally.) Some workers arrested during the raids have even sued the federal government over mistreatment they alleged occurred during their arrest and imprisonment. Opponents of the raids argue that immigration reform should not be achieved by arresting and deporting poor working people and leaving their children parentless—this approach accomplishes very little in terms of real national immigration reform while subjecting poor, uneducated workers and their American children to wrenching punishment. Opponents also cite the economic loss to businesses as a result of the raids; the Swift Company, which was largely shut down during the raids, expected to sustain a loss of at least $30 million as a result. However, supporters of the raids contend that both the companies hiring illegal immigrants and the immigrants themselves are breaking the law and are, or should be, aware of the consequences of such actions. ICE, they claim, is doing its job by enforcing the immigration laws. Many supporters also assert that illegal immigrants are taking jobs and affordable housing away from citizens, and that the raids return these opportunities to law-abiding U.S. citizens. THE SECURE FENCE ACT OF 2006 The Secure Fence Act of 2006 (H.R. 6061) is one recent federal attempt to deal with the controversial immigration issue. The act was signed into law by President Bush on October 26, 2006, having passed the House (283–138) and the Senate (80–19) by substantial margins. The stated purpose of the bill was to establish control over U.S. borders. It authorized increased border

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surveillance and the construction of a 700 mile fence along the 2,000-mile U.S.-Mexico border. Additionally, it called for a study on the necessity and feasibility of such a fence along the U.S.-Canada border, and a report on border patrol’s ability to stop vehicles that flee across the border. The act has caused considerable controversy for a number of reasons. Proponents argue that the fence is necessary to control U.S. borders and enforce laws against illegal immigration, drug trafficking, and terrorism. Then-Mexican President Vincente Fox, as well as the current Mexican President Felipe Calderon, expressed their strong disapproval of the plan and claimed that it would seriously damage relations between the two countries. Environmentalists, for their part, voiced concern over the fence’s impact on sensitive wildlife refuges in the area. Three Native American Nations span the border and would be divided by the fence. The affected tribes also expressed outrage with the plan. Some critics charged that a 700-mile wall would do little good to protect a 2,000-mile border. The University of Texas-Brownsville voiced alarm that the fence would cut through its campus, and many of the landowners and communities whose backyards and farmlands are also in line to be cut through shared that concern. These opponents argued that the rest of America does know how things are done around the border area, and do not understand the massive issues and problems the fence raises. Nevertheless, in December 2007, President Bush signed a measure that began funding the fence construction, which is projected to cost $1.2 billion. In January 2008, the federal government began preparing to defend against over 100 lawsuits with property owners who have refused to allow construction. The government is planning to seek a temporary right to enter these properties. Eagles Pass, Texas, facing the first of these lawsuits, was ordered by a federal judge to temporarily turn over 233 acres of city land to the federal government so that it could build the fence. By the end of 2008, the Department of Homeland Security had hoped to have 670 miles of the fencing completed, but the actual pace of construction fell far short. As an alternative to physical fencing, the federal government entered into a contract with the Boeing Corporation to build a “virtual” fence. Boeing had proposed technology called “SBInet” that involved building a series of radar towers that would be linked by heat-sensitive sensors in the ground that could detect those walking or driving across the border. Unfortunately, the system proved much more expensive and much less effective than promised. After the first section of the virtual fence (a mere 50 miles long) did not perform as expected, the Department of Homeland Security put the entire project on hold in March 2010 so that it could review its feasibility. In January 2011, Homeland Security Secretary Janet Napolitano canceled it entirely because it did not work. The idea sounded simple enough: fence the border first to close it, and then decide what to do with the illegal immigrants who are already in the United States. As of 2011, the border is hardly fenced, physically or virtually, and Congress has yet to decide what to do about any of the illegal immigrants who remain in the United States. Ironically, some point out that it is a good idea that the border is not completely fenced: given the poor economic conditions

Immigration Reform

experienced since 2008, some illegal immigrants are actually returning to Mexico and other home countries because of a lack of opportunities in the United States. THE REAL ID ACT OF 2005 The REAL ID Act of 2005 is another example of the federal government’s attempt to address illegal immigration. President Bush signed the act into law on May 11, 2005. It sets federal standards for state-issued identification cards, including driver’s licenses. Among other requirements, these standards would compel states to ascertain that individuals applying for any form of state identification are in the United States legally. The state deadline for compliance with the act has been postponed twice, and is now set for 2014 (and 2017 for drivers over 50 years of age). In response, a few states have considered issuing licenses in a tiered system, with some of the licenses not being in compliance with the federal standards and therefore not usable as a federal form of identification. One provision of the act allows judges in immigration proceedings to require corroborating evidence to back up otherwise credible testimony if the judge sees fit. Another provision allows for the repeal of any and all laws impeding construction of a barrier anywhere along U.S. borders (the previous law had only allowed for the repeal of two environmental laws to facilitate construction). The repeal of these laws would be at the discretion of the Director of Homeland Security and would be subject to limited judicial review. The act also removed the annual 10,000-person limit on the number of asylum seekers (individuals who have entered the United States on their own and then apply for asylum status because of a fear of persecution in their home country) who can become permanent residents. However, the rules for applying for asylum also became stricter. Finally, the act also expanded the definition of “terrorist activities” for which someone can be deported. THE DREAM ACT Pro-immigrant groups are pushing for legislation of their own. Many such groups are encouraging Congress to pass the DREAM Act, formally entitled the Development, Relief and Education for Alien Minors Act. This measure would provide the estimated 65,000 undocumented students who graduate from high school in the United States each year a path to legal permanent residence. Under current law there is no way for a child brought into the United States illegally to obtain legal status, even if the child’s parents are here legally. To qualify for eventual legal status under the act, the child would have to: (1) provide proof of arrival in the United States prior to his or her 15th birthday; (2) provide proof of consecutive U.S. residence for at least five years since arrival; (3) be between the ages of 12 and 30 at the time the bill is enacted; (4) graduate from high school or receive a GED; and (5) prove “good moral character” by possessing a clean criminal record, having no fraudulent documents, and complying with selective service laws.

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A child who meets these requirements would be granted conditional legal status for six years. During this provisional time, he or she would have to graduate with a two-year degree, complete two years toward a four-year degree, or serve two years in the U.S. military. Conditional status immigrants would not be eligible for federal educational grants, but would be eligible for work-study programs and student loans. Second, the individual would be required to keep a clean record free from any drug-related offenses and all felonies. If these two conditions were not met, the immigrant could lose temporary status and face deportation. Upon successful completion of the probationary period, the immigrant would be given a green card and would have the right to apply for citizenship. The DREAM Act has been introduced a number of times in both the House and the Senate. It came close to passing in mid-December 2010, when it was made a legislative priority by Democrats who were about to lose control of the House of Representatives in the wake of the midterm elections. The House of Representatives passed the bill on December 8th by a vote of 216 to 198. Ten days later, during a rare Saturday session, the Senate refused to advance the bill. It fell just five votes short of the 60 needed to overcome a procedural hurdle and proceed to a full vote. Prospects for the bill’s future are in serious doubt, because starting in January 2011, the House of Representatives fell under the control of Republicans, while the Senate had six more Republicans members. It is possible that the DREAM act will be included eventually in a comprehensive immigration reform bill, but there is nothing like that on the immediate horizon. While the act is not likely to be considered again in the near future, some states have introduced DREAM Acts in their own legislatures in hopes of providing state fee waivers, grants, and loans to illegal immigrants in individual states. States, of course, cannot grant legal status to immigrants, because the Constitution vests that power in Congress. But they can choose to support them through their own policies, so long as those do not conflict with federal ones. GUEST WORKER PROGRAMS Many people believe that guest worker programs are an effective way to reduce illegal immigration by providing more legal routes to employment in the United States. Guest worker programs are also a way to encourage employers to hire their workers legally. Current immigration policy provides for two programs for temporary, or “guest,” workers. The H-2A visa program is for agricultural guest workers, and the H-2B visa covers all other guest workers. Businesses interested in hiring employees through these programs apply to the U.S. Department of Labor. They must certify that there are not enough U.S. workers available to fill the open employment positions, and that the employment of guest workers will not negatively affect the conditions of U.S. citizens employed in similar circumstances. The government limits how many H-2B visas may be granted, but there is no limit for H-2A visas. Largely in response to the illegal immigration controversy, a number of new guest worker programs have been proposed. The year 2007 saw a plethora of

Immigration Reform

them. One such program was called the “Agricultural Job Opportunities, Benefits, and Security Act of 2007.” It was intended to reform the H-2A agricultural worker program. Under the act, a business would have to prove that the job it wants to fill is a seasonal or temporary position and is available to a qualified U.S. worker if one should apply. The STRIVE Act (“Security through Regularized Immigration and a Vibrant Economy Act of 2007”) included the Agricultural Job Opportunities, Benefits, and Security Act of 2007 outlined above. Additionally, it proposed to create a new H-2C class of visa that would cover guest workers whose labor and services do not qualify under any of the existing guest worker programs. As in the other programs, employers applying for this program would need to show that a U.S. worker is not available for the job, and that wages to be paid to the guest worker would be in line with industry and company standards. Next, the Border Security and Immigration Reform Act of 2007 would create a “W visa” for both agricultural and nonagricultural workers. Immigrants employed illegally in the United States could apply to the program if they meet certain requirements. These visas would allow an initial two-year stay that could be extended for an unlimited number of two-year periods afterward. Another proposal, Senate Bill 1639, sought to terminate the H-2B program, change the H-2A program, and create new guest worker programs. Under this legislation, the H-2A guest worker program would require an employer to file an application with the Department of Labor proving that the position the employer is attempting to fill with a guest worker is covered by a bargaining contract and that union representatives were notified of the employer’s application. If there were no collective bargaining agreement, the employer would still have to meet a list of requirements for wage and working conditions for the guest worker. Workers in this program who performed a minimum of 150 work days of agricultural employment and met a few other requirements could obtain a Z-A nonimmigrant visa. The number of Z-A visas would be capped at 1.5 million, and spouses and children would be eligible for an unlimited number of Z-A dependent visas. Senate Bill 1639 would also create a “Y visa” temporary worker category. Y-1 visas would cover temporary laborers not covered by existing visas for highly skilled workers. These visas would have an initial period of two years. A second type of visa, called the Y-2 visa, would cover seasonal nonagricultural workers and would be valid for an initial period of 10 months. Y-3 visas would cover the spouses and children of Y-1 and Y-2 visa holders. The bill also called for the establishment of a “Z nonimmigrant visa” category. This visa would not be a traditional guest worker-type visa, because it would allow certain illegal immigrants to obtain legal status and give them authorization to work. Z-1 visas would be granted to employed illegal immigrants who have been continually present in the United States for a specified period of time. Z-2 and Z-3 visas would cover the family members of Z-1 visa holders. Payment of a fine was required in applying for any of the Z visas. Finally, the Bush Administration’s Temporary Worker Program was designed to complement the administration’s plans for increased border

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security and enforcement. As in the current H-2A and H-2B visa programs, employers would have to meet certain specifications to participate in the program, including certifying that no U.S. worker could be found for the job. At first the program would be open to illegal immigrants already in the country as well as people currently outside the country, but eventually the program would exclude illegal immigrants. Temporary workers would be granted visas for three years. The United States would work with the home countries of program participants so that workers could receive credit in their home retirement systems, and would also help to create tax-preferred savings accounts from which workers could collect when they went home. Under the Bush Administration’s temporary worker plan there was no way for workers to gain legal permanent residence, but workers could apply through the immigration application process already in place. IS THERE ANY END IN SIGHT? If all of these proposed guest worker programs sound confusing, that’s because they are. And they’re controversial, too—so much so that none of them were approved. Congress has been talking about them for years, but it has yet to agree on how to reform its current approach to meet the needs of American businesses while being fair to American workers. Members disagree over how many immigrants should be granted guest worker status and whether these individuals ultimately should be permitted to apply for U.S. citizenship. The most controversial component of the various programs concerns the plan for illegal workers already in the United States. Hard-liners believe that all illegal immigrants should be deported. More moderate policymakers argue that it is impossible to round up and deport so many millions of people, and that a more realistic and humane approach would be to grant them some sort of temporary legal status and a path toward eventual citizenship. But strong disagreements exist even among moderates over whether and how to punish immigrants who came to this country illegally. Some have called on them to pay back taxes; others suggest fines. Most reformers agree that illegal immigrants with serious criminal records should be deported, but just how serious remains to be determined. Many want illegal immigrants to wait their turn in line for citizenship, just as legal immigrants must do. For now, there has been plenty of debate but no action on addressing the nation’s guest worker programs, which many observers believe is the key to real immigration reform. Because a large number of elected officials in Congress are insisting on a comprehensive approach, it is unlikely that individual reform measures will be debated and adopted in the next few years. Similarly, because many in Congress want the nation’s borders secured first, any comprehensive reform plan is likely to stall until that goal is achieved. Intransigence on all sides of the debate over illegal immigration virtually ensures that its complicated issues will not be resolved anytime soon; this battleground issue will remain in the headlines for years to come.

Infrastructure Further Reading Books: Daniels, Roger. Guarding the Golden Door: American Immigration Policy and Immigrants since 1882. New York: Hill and Wang, 2005; Haerens, Margaret, ed. Illegal Immigration (Opposing Viewpoints). San Diego: Greenhaven Press, 2006; Kazin, Michael, and Joseph A. McCartin, eds. Americanism: New Perspectives on the History of an Ideal. Chapel Hill: University of North Carolina Press, 2006; Miller, Debra. Illegal Immigration (Current Controversies). San Diego: Greenhaven Press, 2007; Newton, Lina. Illegal, Alien, or Immigrant: The Politics of Immigration Reform. New York: New York University Press, 2008; Swain, Carol M, ed. Debating Immigration. New York: Cambridge University Press, 2007; Zolberg, Aristide R. A Nation by Design: Immigration Policy in the Fashioning of America. New York: Russell Sage Foundation/ Cambridge, MA: Harvard University Press, 2006; Congressional Budget Office. Immigration Policy in the United States: A CBO Paper. Washington, DC: U.S. Government Printing Office, 2006. http://purl.access.gpo.gov/GPO/LPS72417 Websites: Center for Immigration Studies. http://www.cis.org; Federation for American Immigration Reform. http://www.fairus.org/site/PageServer; National Immigration Forum. http://www.immigrationforum.org/; U.S. Citizen and Immigration Services. http://www.uscis.gov/portal/site/uscis

Sara Hower and Kathleen Uradnik INFRASTRUCTURE On August 1, 2007, an eight-lane steel truss arch bridge over the Mississippi River suddenly collapsed, plunging rush-hour traffic into the murky waters below. The bridge was part of Interstate 35W in Minneapolis, Minnesota, a major traffic artery. Thirteen people died in the bridge collapse, and nearly 150 others were injured. The I-35W bridge collapse serves as a poignant example of the consequences of the nation’s failing infrastructure. “Infrastructure” refers to the large, underlying physical and organizational structures that allow a nation to function. There are many categories of “infrastructure.” For example, “transportation infrastructure” includes highways, roads, and bridges as well as dams and levees and airports and runways. “Energy infrastructure” and “communications infrastructure” include the nation’s power grids, power plants, pipelines, telephone lines, cable systems, and the like. Environmental infrastructure refers to water treatment facilities, waste facilities, and recycling facilities, among other things. When most people think about infrastructure, they focus on roads. The U.S. interstate highway system was constructed in the mid-1950s. At the time, it was considered the largest public works project in the nation’s history, and it probably still is. The aim of the project was to link the states through a vast network of roadways that would make travel safer and more efficient. The federal government provided nearly $120 billion for construction of the interstates, which were then built by the states and their contractors. Today, the system stretches for nearly 47,000 miles. The states own and maintain their own portions of the interstates; the federal government contributes funds to this end.

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The interstate highway system remains a modern marvel of governmental planning and foresight with respect to ground transportation. But it is now over 50 years old, and it is showing its age. Although the federal government and the states work together to undertake necessary repairs to the system, Congress has never budgeted enough money to meet the demand. Consequently, the nation has fallen behind in maintenance of the system, and needed repairs often are postponed until they are absolutely necessary. The same is true for other types of roadways. The Federal Highway Administration estimates that one-third of the nation’s roads are in poor shape, and one-fourth of its bridges are structurally deficient or obsolete. Because fixing all of them would cost hundreds of billions of dollars, the government tends to take a piecemeal approach, identifying a handful of specific projects at the federal or state level for funding. Unfortunately, national and state procrastination on fixing the problems inherent in aging infrastructure is not limited to interstate highways. Almost every area of infrastructure in the United States needs updating, from tunnels to canals to the drinking water systems in America’s largest cities. Many components of the nation’s infrastructure are falling apart; others are outdated and need to be replaced entirely. There is no shortage of projects, and “top ten” lists of infrastructure priorities abound. In 2008, the magazine Popular Mechanics identified its “Top Ten Pieces of Infrastructure We Must Fix Now.” They proposed fixing the Brooklyn Bridge, the oldest suspension bridge in the United States, which is currently considered structurally deficient. The New Orleans canal lock made the list because almost all of the commercial river traffic on the Mississippi runs through it, including some 20 million tons of cargo each year. The Atlanta water system needs major repairs; it loses massive quantities of water through leaky pipes. In south Florida, the Herbert Hoover Dike holding back Lake Okeechobee is expected to fail; if that happened, the entire area’s drinking water could be contaminated, and the environmental damage would be enormous. Similarly, the Wolf Creek Dam in Kentucky risks collapse, which would drain Lake Cumberland and threaten downstream communities like Nashville. In California, the Army Corps of Engineers determined that 19 levees on the Sacramento River were in danger of collapse, threatening not only the city, but also the area’s rich delta farmland. Across the nation, in seemingly every state and community, some significant infrastructure project needs to be addressed. IMPLEMENTING NEXTGEN Infrastructure is not just about physical structures, however. One infrastructure project requiring immediate attention is the nation’s air traffic control system. Everyone—from the federal government to the airline industry to consumer advocacy groups—agrees that modernization of the system is long overdue. The 40-year-old radar-based approach to tracking aircraft needs to be replaced entirely. In 2003, under the Bush administration, the government embraced a new technology called “NextGen.” The NextGen program

Infrastructure

encompasses a series of changes to the air traffic control system that are to be implemented over the next 10 years. Importantly, it includes a switch from the current ground-based radar system for tracking aircraft to a new satellite tracking system based on global positioning system (GPS) technology. The program also includes more traditional infrastructure projects like updating airports. When fully in place, the system is expected to increase safety for the traveling public, save the airlines billion of dollars in fuel costs, and significantly reduce carbon emissions. The greater accuracy and efficiency in flight planning and weather forecasting under NextGen will lead to fewer flight delays and a substantially improved ontime performance. This improvement, in turn, is expected to save travelers many more billions of dollars in downtime and travel-related expenses. The only downside to the program is its cost. Implementing NextGen is predicted to cost $20 billion (more by some estimates), and the various stakeholders have yet to agree on how to pay for it. The Bush administration fought with Congress over whether and what kinds of taxes to impose to raise the necessary funds. Ultimately, appropriations for NextGen proved sporadic, which slowed down the pace of implementation. Airline companies complained that they had spent millions of dollars updating aircraft for the new program, only to have to retire them before the program actually took effect. With many of the nation’s major airlines fresh out of bankruptcy and already suffering from high fuel costs, it was unrealistic to expect them to pay up front for a complete overhaul of their fleets. But the airlines need to equip their aircraft with certain new technologies for the system to work, and the FAA is hoping to obtain the high level of cooperation and joint planning necessary to avoid more delays. The Obama administration, which has made NextGen a top priority, has not been able to secure the necessary funding as wrangling over the annual budget and growing national debt continues in Congress. Republican success in the 2010 midterm elections likely means that the president will not have an easy time getting any spending bill through the current Congress, which was seated in early January 2011. Neither the American people nor their legislature is currently in the mood to fund large government programs. Thus, despite the fact that NextGen will benefit millions of travelers and the national economy as a whole, the long-hoped-for steady stream of funding may not materialize. In March 2010, Federal Aviation Administration (FAA) chief J. Randolph Babbitt released a report called the “NextGen Implementation Plan” that set out the agency’s goals and timetable for what it called the “midterm” period of implementation, which is between 2010 and 2018. He pointed to successes in the early stage of implementation and reiterated the president’s commitment to seeing the project through. He acknowledged that current economic conditions created serious challenges for the program, but remained confident that, by 2018, the nation would see profound changes in its air traffic control system. THE INTERNET AS INFRASTRUCTURE Today, the Internet plays a critical role in how American business is conducted and how its citizens communicate. Much like telegraphs and telephones

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in the past, the Internet needs to be maintained, and the government now recognizes it as an essential component of the nation’s communications infrastructure. The Internet can be disrupted in any number of ways: if the power supply is cut off, access to the Internet can be interrupted. A natural disaster could take out key facilities such as network servers. Cyberterrorism remains a threat on the national level, and just about everyone with a computer worries about computer viruses and worms launched by hackers. Although corporate and government computers have been successfully targeted by hackers, the United States has not experienced a catastrophic Internet failure or disruption—yet. The government is preparing for such a disruption. In 2007, the U.S. Government Accountability Office (GAO) conducted a comprehensive study of how the Internet might be compromised and how the nation should prepare to recover from a major disruption in service. It issued a report that described significant events from the past several years that had caused major interruptions. Most were from deliberate, well-publicized attacks such as the Code Red worm (2001) and the Slammer worm (2003), and various “denial of service” attacks on corporate and governmental computers and websites. While these incidents caused billions of dollars in damage, they were relatively short-lived, and Internet access was quickly restored to users. Other incidents causing significant disruptions in service included a tunnel fire that destroyed a major fiber-optic cable system and local damage to Internet service providers from Hurricane Katrina flooding. In most of these cases, the government’s role was fairly minimal, because almost all of the physical infrastructure of the Internet is owned by private companies. These companies have been quick to respond to outages, often by rerouting service around affected areas. In the event of a massive attack or disruption, however, government and the private sector will have to work together to restore Internet capabilities. Because the integrity of the Internet is critical to national security, the Department of Homeland Security has been charged with developing a response plan that coordinates government and industry efforts. Right now there is no plan in place to identify and prioritize the most critical areas to be addressed in the event of a mass Internet outage. The DHS has sponsored a number of internal working groups and public-private partnerships to develop joint procedures and responsibilities for handling a catastrophic failure, but nothing definitive has been decided and few formal regulations have been promulgated. SUMMARY The politics surrounding America’s infrastructure does not focus on whether to fix things—everyone is sympathetic to the need to repair, maintain, and modernize the nation’s infrastructure. After all, infrastructure by definition is for the public good, and everyone uses it. The real problem is ongoing technical and political disagreements over which projects should be addressed first and how

Infrastructure

they will be paid for. Years of deferred maintenance have only exacerbated the nation’s infrastructure problems and made them even more costly to fix. Just how much will it cost? The American Society of Civil Engineers has calculated that it will take $1.6 trillion to undertake basic infrastructure repairs and upgrades, a figure that does not even include new modernization projects like high-speed rail and increased broadband access. By contrast, the discretionary spending in President Obama’s proposed 2010 federal budget was only $1.4 trillion—for the entire federal government. Because the largest portion of the federal budget is taken up by mandatory spending on things such as entitlement programs, most infrastructure projects are found in its discretionary spending. Transportation infrastructure accounts for about 3 percent of the annual federal budget, which is a large amount of money, but not enough to meet pending needs. In the face of federal inaction, some states have begun to champion infrastructure reform. In California, then-Governor Arnold Schwarzenegger made infrastructure a priority and convinced the state legislature and voters to fund major efforts to improve it. The “Strategic Growth Plan,” “Hydrogen Highway Plan,” and “Million Solar Roofs Plan” are all aimed at repairing or replacing the state’s most important pieces of infrastructure, with an eye to decreasing traffic congestion and pollution, reducing carbon emissions by developing alternative energy sources, and stimulating the economy through the creation of green jobs. These efforts constituted the new first comprehensive infrastructure policy out of any federal or state government in decades. The Strategic Growth Plan alone, which is funding through a bonding measure approved by the voters in 2006, is expected to cost $42 billion. At the same time, its projects are predicted to create thousands of jobs in the state, which has been hit particularly hard by the ongoing recession. The 20-year plan aims to improve not only roads and levees, but also schools, parks, courthouses, and ports. In undertaking this massive effort, California hopes to increase its national and global competitiveness and become the unchallenged leader in green industries and technologies. Unfortunately, there is no such thing as a cheap infrastructure project, and at a time of economic stagnation, annual budget deficits, and record national debt, it is difficult to find the funds for any of them. It is simpler to continue to put them off. This attitude explains why the nation’s infrastructure has become so at risk. At some point, the Congress will need to make infrastructure a priority in the budget, particularly given that infrastructure improvements will yield countless economic benefits. Until that time, the nation can only cross its fingers in the hope that nothing bad happens. Further Reading Books: Board on Infrastructure and the Constructed Environment, Division on Engineering and Physical Sciences, National Research Council of the National Academies. Sustainable Critical Infrastructure Systems: A Framework for Meeting 21st Century Imperatives: Report of a Workshop toward Sustainable Critical Infrastructure Systems: Framing the Challenges Workshop Committee. Washington, DC: National Academies Press, 2009; Gould, James P. Toward Infrastructure Improvement: An Agenda for Research.

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Intelligence Operations New York: General Books LLC, 2009; Hayes, Brian. Infrastructure: A Field Guide to the Industrial Landscape. New York: W. W. Norton, 2006; Matthys, Levy and Richard Panchyk. Engineering the City: How Infrastructure Works. Chicago: Chicago Review Press, 2000; Rohatyn, Felix G. Bold Endeavors. New York: Simon & Schuster, 2009; Silivanch, Annalise. Rebuilding America’s Infrastructure. New York: Rosen Classroom, 2010; Verchick, Robert R. M. Facing Catastrophe: Environmental Action for a PostKatrina World. Cambridge, MA: Harvard University Press, 2010. Websites: American Society for Civil Engineers. Report Card for America’s infrastructure. http://www.infrastructurereportcard.org/; “The Cracks Are Showing.” The Economist, June 26, 2008. http://www.economist.com/node/11636517?story_id=11636517; Knowledge@Wharton. Law and Public Policy. “America’s Aging Infrastructure: What to Fix, and Who Will Pay?” http://knowledge.wharton.upenn.edu/article.cfm?articleid=2627; PBS NewsHour Online. “Failing Infrastructure.” April 4, 2006. http://www.pbs.org/news hour/bb/fedagencies/jan-june06/infrastructure_4-4.html; Remarks by the President on Rebuilding America’s Infrastructure. October 11, 2010. http://www.whitehouse.gov/the -press-office/2010/10/11/remarks-president-rebuilding-americas-infrastructure; U.S. Department of Transportation, Federal Highway Administration, Office for Infrastructure. http://www.fhwa.dot.gov/infrastructure/; U.S. House of Representatives, Committee on Transportation and Infrastructure. http://transportation.house.gov/

Kathleen Uradnik INTELLIGENCE OPERATIONS In 2002, President George W. Bush and Congress established a commission to study the circumstances and responses surrounding the 9/11 terrorist attacks. Nearly two years later, the Final Report of the National Commission on Terrorist Attacks Upon the United States, more commonly called the 9/11 Commission Report, was released. According to the report, the devastating attacks on the World Trade Center and the Pentagon on September 11, 2001 demonstrated the need for an even stronger intelligence community in the United States. The bipartisan commission concluded in its 567-page final report that the attacks were a shock but not a surprise. It warned that without a major restructuring of the nation’s intelligence agencies, the United States would leave itself open to more catastrophic attacks. The report noted the failures of the Central Intelligence Agency, the Federal Bureau of Investigation, the Pentagon, the National Security Council, and almost every government agency responsible for defending the nation. The 10-member commission also offered a detailed proposal for reorganizing the way the country gathers and shares intelligence. One of its key recommendations for overhauling intelligence operations was the appointment of a cabinet-level national intelligence director within the White House who would control the budgets of all 15 federal intelligence agencies. THE INTELLIGENCE REFORM ACT Recognizing the need for better intelligence data on national security threats, Congress increased intelligence budgets and passed the Intelligence Reform and Terrorism Prevention Act of 2004, also known as the “Intelligence Reform Act.”

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The act called for the most extensive reorganization of the intelligence community since the National Security Act of 1947. Among its many provisions, it created an “intelligence czar” to administer the intelligence community. The 9/11 Commission Report found that there was not enough sharing of intelligence data among the existing federal intelligence agencies in the United States. The report concluded that the United States needed to centralize the control of intelligence to make it more efficient. Therefore, the Intelligence Reform Act created a Director of National Intelligence (DNI) to head the intelligence community, serve as the principal intelligence adviser to the president, and direct the gathering of intelligence data related to national security. The DNI also would have hiring, firing, and budgetary authority over the intelligence community’s 15 agencies. Some critics argued that by adding a new bureaucracy, the existing intelligence agencies would not increase information sharing but rather delay and diminish the flow of information to the president. Within a year after its creation, key lawmakers expressed worry that the position was not fulfilling its mission, because the government was moving too slowly to improve the quality of intelligence and failing to streamline and reform intelligence flow processes. More recently they have acknowledged some improvements in communication, collaboration, and data collection among intelligence agencies. WHO IS THE INTELLIGENCE COMMUNITY? The intelligence community consists of the following: the Central Intelligence Agency (CIA); the Bureau of Intelligence and Research, Department of State (INR); the Defense Intelligence Agency (DIA); the National Security Agency (NSA); the National Reconnaissance Office (NRO); the National GeospatialIntelligence Agency (NGA); the Federal Bureau of Investigation (FBI); Army, Navy, Air Force and Marine Corps offices; the Department of Homeland Security (DHS); the Coast Guard (CG); the Treasury Department; the Energy Department; and the Drug Enforcement Agency (DEA). The CIA is the cornerstone of the intelligence community with capabilities that extend worldwide. It collects intelligence data from various sources and, under the direction of the president, sometimes engages covert (undercover) activities to influence political or military conditions abroad. Within the Department of Defense are three major intelligence agencies—the NSA, NRO, and NGA. These agencies are responsible for a range of intelligence activities that include operating reconnaissance satellites, preparing maps and charts, and gathering signals intelligence. All of these activities are necessary for targeted military operations dependent upon precision-guided weapons. The State Department’s Bureau of Intelligence and Research (INR) provides analysis and diplomatic reporting from embassies. Though highly useful to intelligence analysts, it is not considered an intelligence function. Key intelligence functions of the FBI relate to counterterrorism and counterintelligence. Counterterrorism and counterintelligence efforts have grown in importance since September 2001. The intelligence organizations of the four military services concentrate largely

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on concerns related to their specific missions. Their analytical findings, along with those of DIA, supplement the work of CIA analysts and provide greater depth on key military and technical issues. The Homeland Security Act gives the Department of Homeland Security (DHS) the responsibility for joining law enforcement and intelligence information relating to terrorist threats to the homeland. The Office of Intelligence and Analysis in DHS participates in the interagency counterterrorism efforts and, along with the FBI, has focused on ensuring that state and local law enforcement officials receive information on terrorist threats from federal intelligence agencies. The Coast Guard, now part of DHS, deals with information relating to maritime security and homeland defense. The Energy Department has a strong counterintelligence effort that analyzes foreign nuclear weapons programs as well as nuclear nonproliferation and energy-security issues. The Treasury Department collects and processes fiscal and monetary information, including terrorist financing data. TYPES OF INTELLIGENCE OPERATIONS The intelligence community is built around major agencies responsible for collecting specific types of intelligence. There are three major intelligence disciplines—signals intelligence (“sigint”), imagery intelligence (“imint”), and human intelligence (“humint”). These provide the most important information for intelligence analysts. The collection of signals intelligence is the responsibility of the NSA. Signals intelligence is a type of intelligence-gathering operation that intercepts signals between people or machines, or a combination of both. Because sensitive information is typically encrypted, signals intelligence typically involves decoding. Often, the analysis of who is transmitting signals and their frequency can produce valuable information, even when the messages cannot be decrypted. Imagery intelligence is gathered from satellites and aerial photography often from both manned and unmanned aircraft. Aerial intelligence began with early attempts to capture images by hot air balloons with artists detailing the imagery. The true beginning of imagery intelligence began with the invention of the camera. Hot air balloons equipped with cameras were used during the American Civil War. During World War I, cameras were used on aircraft; by World War II, a majority of intelligence data came from aerial photography. Today, imagery intelligence is gathered primarily from satellites gathering information from a variety of “collection targets.” Interestingly, some of these satellites are from private companies but are nevertheless extensively used by the government. The availability of high-quality commercial satellite imagery from companies such as Google has raised questions about whether satellite coverage from the private sector can meet the requirements of intelligence agencies. High altitude unmanned aerial vehicles may also provide surveillance capabilities that overlap those of satellites. The National Imagery and Mapping Agency (NIMA) manages much of this imagery. Intelligence information from human contacts, “humint,” is the oldest intelligence discipline. It is also low-tech compared to signals and imagery

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intelligence. The CIA is the primary collector of intelligence from humans, but other intelligence agencies deploy agents around the world. The collection of humint has changed from the days of the Cold War to the post-9/11 world. During the Cold War, targets of U.S. humint collection were foreign government officials and military leaders, so intelligence agency officials were able to work under cover as diplomats or in foreign embassies. Today, however, the nation needs information from clandestine terrorist groups or narcotics traffickers rather than diplomats. The CIA was criticized for decreasing its use of human intelligence in the years leading up to 9/11. Many intelligence organizations underestimated the value of this type of intelligence, which is in some aspects not replaceable by even the most sophisticated intelligence-gathering technology. EXECUTIVE ORDER 13470 On July 31, 2008, President George W. Bush issued Executive Order 13470 that amended Executive Order 12333, more commonly called, “United States Intelligence Activities.” Former President Ronald Reagan signed the original EO 12333 in 1981; since then it has been amended several times. This executive order provides fundamental directions to intelligence agencies for their activities and operations. This order updated the role of America’s 16 intelligence agencies under the Director of National Intelligence. According to the Bush administration, EO 13470 was deemed necessary to conform to the new intelligence structures and intelligence reform law passed in 2004. The order calls for a significant expansion of CIA and FBI intelligence operations, increasing the number of analysts and officers in its clandestine unit (hidden intelligence operations unit) by 50 percent. It also called for an increase in the number of research officers to explore the use of science in the war on terrorism, the proliferation of weapons of mass destruction, and other emerging threats. Many feel that President Bush’s executive order expanded the DNI’s powers, while possibly furthering the erosion of the CIA’s traditional autonomy. The order also drew criticism from civil liberties groups and even legislators from the president’s own Republican Party. The American Civil Liberties Union (ACLU) quickly condemned the order after its release, arguing that it authorizes the intelligence agencies to focus more on domestic spying. DOMESTIC WIRETAPPING Allegations of domestic spying received national attention in 2005 when news emerged that President Bush had secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States in search of evidence of terrorist activity. This was done without the court-approved warrants ordinarily required for domestic spying. Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and e-mail messages of potentially thousands of people inside the United States without warrants in an effort to discover links to Al Qaeda, the terrorist group

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responsible for the 9/11 attacks. By undertaking warrantless wiretaps, Bush bypassed the Foreign Intelligence Surveillance Act (FISA), enacted in 1978, which requires a warrant to intercept international communications involving anyone in the United States. This warrant was typically obtained through a special FISA court. The Bush administration argued that the FISA process was too limiting during the war on terrorism, making it difficult to react swiftly to national security threats. In response to criticism of the wiretapping program, in August 2007, Congress passed the “Protecting America Act” designed to provide a legal framework for much of the warrantless surveillance secretly conducted by the NSA. It also expanded some of the surveillance ability of the government. Under the act, communications that begin or end in a foreign country may be wiretapped by the U.S. government without supervision by the FISA court. The act removes from the definition of “electronic surveillance” any surveillance directed at a person “reasonably believed” to be located outside the United States. As such, surveillance of these communications no longer requires a government application to, and order issuing from, the FISA Court. Among other provisions, it also gave legal immunity to the telephone companies that took part in the wiretapping program. The bill’s passage came more than two years after public disclosure of the wiretapping program set off national debate over the balance between protecting the country from another terrorist strike and safeguarding civil liberties. In January 2009, a federal intelligence court upheld the 2007 law, allowing the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved. A few months later, the NSA notified members of the congressional intelligence committees that it had encountered operational and legal problems in complying with the new wiretapping law. The issue appears to be technical problems in the NSA’s ability to distinguish between communications inside the United States and those overseas as a result of using American telecommunications companies’ fiber-optic lines and its own satellites to monitor international calls and e-mails. DRIVERS’ LICENSES The wiretapping issue illustrates the dilemma created by trying to strike a balance between the protection of national security, on the one hand, and civil liberties on the other. Debate has also raged over the creation of so-called “national identity” cards, a type of identification that would be issued to all citizens by the federal government. Proposals to create a national identity card have met with fierce opposition from civil liberties groups, who see creation of such a system as an invitation to the government to collect information on Americans and follow their activities. Proponents believe that creation of a single form of identification will improve the federal government’s ability to verify citizenship, given that millions of Americans do not hold U.S. passports.

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One related idea that did obtain approval pertained to the standardization of U.S. drivers’ licenses. A provision of the Intelligence Reform Act required the standardization of driver’s licenses, following the 9/11 Commission’s recommendation that “the federal government should set standards for the issuance of birth certificates, and sources of identification, such as drivers’ licenses.” Noting the problem of identification fraud, the commission concluded that sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists. Prior to the passage of the Intelligence Reform Act, the criteria for drivers’ licenses and birth certificates were determined exclusively by the states. The new legislation set standards such as the physical appearance of the IDs and the data to be gathered from individuals for the issuance of licenses. Nevertheless, the states remain responsible for determining who can obtain a driver’s license, and under what circumstances. Given this fact, calls for a national identity card may resurface. Further Reading Books: Bamford, James. A Pretext for War: 9/11, Iraq, and the Abuse of America’s Intelligence Agencies. New York: Doubleday, 2004; Brzezinski, Matthew. Fortress America: On the Front Lines of Homeland Security, an Inside Look at the Coming Surveillance State. New York: Bantam Books, 2004; Lowenthal, Mark M. Intelligence: From Secrets to Policy. Washington, DC: CQ Press, 2008; National Commission on Terrorist Attacks on the United States. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks on the United States. Washington, DC: USGPO, 2004; Odom, William E. Fixing Intelligence: For a More Secure America. New Haven, CT: Yale University Press, 2003; Richelson, Jeffrey. T. The US Intelligence Community. New York: Westview Press, 2007; Shulsky, Abram N. and Gary J. Schmitt. Silent Warfare: Understanding the World of Intelligence. Dulles, VA: Brassey’s, 2002; Sims, Jennifer E. and Burton Gerber, eds. Vaults, Mirrors, and Masks: Rediscovering U.S. Counterintelligence. Washington, DC: Georgetown University Press, 2009; Treverton, Gregory F. Intelligence for an Age of Terror. New York: Cambridge University Press, 2009; Treverton, Gregory F. Reshaping National Intelligence for an Age of Information. New York: Cambridge University Press, 2003; Tenet, George with Bill Harlow. At the Center of the Storm: My Years at the CIA. New York: HarperCollins, 2007; Weiner, Tim. Legacy of Ashes: The History of the CIA. New York: Anchor Books, 2008. Websites: Central Intelligence Agency. History of the CIA. https://www.cia.gov/kids-page/612th-grade/operation-history/history-of-the-cia.html; Council on Foreign Relations. “CIA Probe and the Torture Debate.” August 2009. http://www.cfr.org/publication/ 20076/cia_probe_and_the_torture_debate.html; FAS Intelligence Resource Program. http://www.fas.org/irp/ops/index.html; Helium. Debates. “Has the U.S. Central Intelligence Agency Done More Harm Than Good in the Agency’s History?” http:// www.helium.com/debates/77005-has-the-us-central-intelligence-agency-cia-done-more -good-harm-agency; Helium. Debates. “Do the NSA and CIA Threaten Civil Liberties?” http://www.helium.com/debates/87247-do-the-nsa-and-cia-threaten-civil-liberties-inthe-us; Office of the Director of National Intelligence. An Overview of the United States Intelligence Community for the 111th Congress. 2009. http://purl.access.gpo.gov/GPO/ LPS108822

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INTERNET CAMPAIGNING The Internet could be the most significant innovation in political campaigning since John F. Kennedy became the nation’s first “television president” in 1960. The 2000 presidential election marked the first time America saw a noticeable presence of political advertising and information on the Internet. Since that time, however, the Internet has grown exponentially to become a major source of political information for the nation. In fact, a 2009 survey by the Pew Research Center concluded that 74 percent of Internet users (representing 55 percent of the entire adult population of the United States) went online during 2008 to get news and information about or participate in the presidential election. Not surprisingly, young adults led the way, using social networking sites to gain or convey information about candidates and issues. Because the Internet has become a prominent fixture in the lives of most Americans, it is little wonder that politicians have turned to it for campaigning. The Internet has become a significant medium for political communication, a fact made evident by the sheer number of candidate websites and political blogs one can view today. However, while it seems clear that the Internet is a popular source of information for voters, the question of how effective it is for candidates remains a significant topic for study. CANDIDATE WEBSITES The political community has come to believe that the Internet is well worth its time and money. For the candidate, the Internet is a necessary, relatively cost-effective way for an individual to make his or her candidacy and positions known. Creating campaign websites has become a big business in the web design industry. Campaign Advantage, for example, is a leading company devoted to designing attractive and user-friendly campaign websites as well as secure online fund-raising and constituent management software. Once created, the candidate’s website can be maintained and updated by a few campaign workers. The cost of designing and maintaining a website is minimal when compared to the amount of time and money campaign workers used to spend on door-to-door solicitations and “snail mail” direct marketing campaigns. In addition to being an important method of fund-raising, a typical candidate website gives voters the ability to actually join the campaign. Many websites instruct voters on ways to host parties or other campaign events in their local area. And, of course, they always present information on the candidate’s schedule of appearances and the progress of “get out the vote” drives. Often, volunteers do not even need to leave their computers to assist in a campaign. A telling example from the 2008 presidential primary season was found on Senator Hillary Rodham Clinton’s website: it contained a system to make calls on behalf of the Clinton campaign from a database of phone numbers listed online. The Internet provides a very easy way for candidates to get their message out. A typical candidate website includes detailed sections regarding the policy issues that are pertinent to the election. It also includes other multimedia options for

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potential voters to see the candidate’s points of view. A website may contain videos of the candidate’s speeches and important television clips, a fact-checking link for the opposing candidates’ statements, a set of policy resources and links, and a bank of news stories about the campaign. All of these resources are available readily on the Internet. To compile the same amount of information, a single voter would have to spend countless hours in the library reading newspapers, policy pieces, and congressional records—and even then, it would be impossible to stay abreast of political events and campaign developments as quickly as they appear on the Internet. Indeed, the Internet today is sometimes faster than television in providing updated information to voters. It therefore is not surprising that the 2008 Pew study found that 45 percent of Internet users viewed at least one political video online during the presidential election. WEBLOGS Just as the candidates have come to embrace the Internet as a means of political dialog, so too have politically minded individuals. Recent years have seen a steep rise in the number of “weblogs” created by both politically affiliated and unaffiliated individuals. A weblog, or “blog,” is a kind of personal online journal where an individual or group can broadcast thoughts on any topic to the Internet community. Several candidates have blogs on their websites, and some of their campaign staffers have blogs of their own where they share their experiences on the campaign trail. The website for 2008 Democratic presidential candidate Senator Barack Obama (D-IL), for example, included links to the blogs of staff members from each of his local campaign offices. Therefore, a voter could find out not only what the candidate thought about a current event, but also what an Obama staffer thought about the event’s local impact. Used in this way, the blog can be a powerful tool for putting a local face on national issues and personalizing a candidate for a local area. The political landscape is also full of individuals who blog on their own about specific issues and candidates. Many bloggers speak on issues and candidates without sponsors or censorship, which can also mean that they speak with differing degrees of truthfulness. To be more credible, popular blogs can post links to news stories, other websites, and multimedia content such as YouTube videos that are relevant to their discussions. Blogging has other problems. For example, major questions have been raised with respect to the relationship between political bloggers and federal campaign laws. Two kinds of problems present themselves. First, these blogs could be considered a type of “in-kind contribution” for the candidate that the blogger supports. Second, if the blogger has any affiliation with the candidate, the blogger’s efforts could be construed as “coordinated communication.” Campaign financing and campaign contributions are closely monitored by federal and state governments. The Federal Elections Commission (FEC) enforces the Federal Election Campaign Act (FECA) and issues regulations regarding the nature and amount of contributions given to candidates for federal office. The FEC’s oversight normally includes keeping track of “in-kind” contributions.

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An “in-kind” contribution is not a donation of money, but rather the donation of something else of value to the campaign, especially free services. Bloggers who advocate for candidates might be providing a free service (e.g., advertising) for a candidate that would fall under FEC regulations. Even if the blogger is not advocating for a particular candidate, he or she could be advocating for interests important to that candidate’s platform. When contributions are made to another entity that is under the candidate’s control, those contributions are considered “soft money.” This loophole in the federal campaign finance law was supposedly closed by the Bipartisan Campaign Reform Act of 2002 (BCRA), which banned soft money. However, the BCRA specifically did not apply to communications over the Internet, including e-mail. Thus, when a blogger supports an issue or platform taken by a candidate online, it could be considered an in-kind, soft-money donation to a candidate that if done offline would violate campaign finance laws. The authors of the BCRA were determined to ban soft money, but they probably did not anticipate the growth in the number and influence of political blogs. It remained for Congress, the FEC, and the courts to interpret whether and how campaign finance regulations apply to Internet blogs. A related issue concerns “coordinated communication.” FEC regulations forbid a candidate from coordinating various sources of communication about the campaign that are outside of the candidate’s financial disclosures. To the unsuspecting website searcher, a blogger might appear as a politically concerned citizen posting his or her well-informed views, but in reality the blogger may be working for (and even paid by) the candidate. Bloggers who hide their identities and try to appear independent can be mouthpieces for campaigns that at least arguably fall within the scope of campaign finance and disclosure laws. As with in-kind contributions, such blogging activity, if done off-line, would likely violate these laws. As it became clear that Internet bloggers were in a gray area of the 2002 campaign finance reform legislation, Congress debated what to do about it. Some members believed that Internet activities should be treated like all other campaign activities and be carefully regulated by the FEC. Others felt that Internet activities, including blogs, should be considered political speech protected by the Constitution. They argued that trying to regulate blogs would limit bloggers’ First Amendment rights. In 2005 alone, numerous bills were introduced in Congress to protect Internet speech from campaign finance and disclosure laws, all of which failed. After lengthy debate and more than one lawsuit, the FEC ultimately decided that most Internet communications were not subject to federal election laws. Only websites and blogs that require a fee to become a member or to view their content can be regulated. Thus, the current legal landscape is that, so long as a blogger is not compensated for his or her opinion and does not charge for his or her service, the blogger is not subject to campaign finance laws or FEC regulations. The blogger’s communications can even be “coordinated communications”—that is, joined with a candidate’s overall campaign communications—without running

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afoul of the law. In short, a candidate can use as many bloggers as he or she wants, so long as they are not paid. SOCIAL NETWORKING WEBSITES In addition to a candidate’s own website and blogs, many candidates have profiles on social networking websites such as Facebook, MySpace, and YouTube. While these are perhaps the most popular sites, candidates make use of several other sites such as Eons, Digg, LinkedIn, and BlackPlanet. These social networking websites have become prominent since the 2004 presidential election because they provide a way for the candidates to reach out to young voters, a group that historically has poor turnout at the polls. These websites make it possible for voters to become “friends” with one of the candidates and declare their support for that candidate to others. This form of grassroots recruiting is attractive to candidates not only because of the number of potential voters they can reach, but also because membership on these social networking websites is free. Websites and blogs provide a cheap and effective way for a candidate to become accessible in a digital location that large numbers of voters are likely to visit. They also provide a cheap and effective way for voters to educate themselves about candidates and issues. Thus Internet campaigning seems to be a “win-win” for democracy, making it easy for candidates and voters alike to have their voices heard. It takes a certain degree of effort, time, and usually money for a voter to go see a candidate speak or to watch debates on television. With websites and blogs, candidates can reach many more voters, and voters have quick access to complete information on the candidate’s entire platform and movements. IS INTERNET CAMPAIGNING EFFECTIVE? If all of this sounds too good to be true, however, it just might be. While it is undoubtedly beneficial for candidates and voters alike to use websites and blogs, the question remains whether their use actually translates into more votes for a candidate. After all, a candidate uses Internet tools not simply to inform the voters, but to get them to vote on Election Day! The number of “hits” on a candidate’s website does not automatically translate into votes. Indeed, it should not simply be assumed that Internet advertising is a deciding factor in getting folks to the polls; the influence of websites and blogs on actual voting requires further study. Recent elections have presented a few political candidates who were stars on the Internet but wholly unsuccessful in the voting booth. During the 2004 primary season, Democratic presidential candidate Howard Dean showed an impressive Internet presence and received a staggering number of Internet contributions. However, in the end he did not make a good showing in the primaries for the Democratic nomination. The 2008 primary season presented another popular Internet candidate in Ron Paul, a Republican congressman from Texas. As with the case of Dean, if a voter looked to the Internet to discover a candidate’s

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popularity, that voter might have assumed that Paul was the clear choice among Republicans. But despite incredible numbers of Internet contributions, he performed terribly in the primaries and caucuses. The poor performance of Howard Dean and Ron Paul at the polls raises the question of whether candidates who are popular on the Internet can win elections in the real world. Both of these campaigns failed miserably, but the Internet was not to blame. One explanation for their failures might be that they did not enjoy strong support from traditional media sources. Congressman Paul never had it, and Governor Dean lost it after the Iowa caucuses, when he engaged in a now-famous shriek that became a leading sound bite on every television and radio newscast, as well as a popular clip on YouTube. It could be argued, too, that most influential political pundits and media figures, as well as the groups that turn out to vote on Election Day, are not members of the Internet generation. They use, but do not rely on, the Internet for their political activities. Young people use the Internet extensively, but as a demographic group they simply do not vote in high numbers. Thus, until large numbers of regular voters fully embrace it, a candidate’s Internet popularity probably will not be a significant indicator of likelihood of success in the election. Given that the Internet is such a new tool for campaigns, political scientists and other observers of campaigns and elections are certain to learn significantly more about its efficacy issue in the near future, as they gather more data about the effects of Internet viewing and use on voting behavior. INTERNET FUND-RAISING While it might be hard to measure whether Internet campaigning actually leads individuals to vote for a particular candidate, it is now certain that the Internet makes it easy for individuals to donate to a particular candidate. As the 2008 presidential election made clear, a candidate’s website can be his or her most effective fund-raising tool. Significant use of the Internet to raise campaign funds started in 2004, when then-Democratic presidential candidate Howard Dean raised over 40 percent of his total $20 million in contributions from Internet users. Importantly, all of these Internet donations were small (less than $200 each), which demonstrated the wide reach of his campaign website to the voters. Ultimately, Dean’s campaign failed, but during much of the primary he led his opponents in fundraising based on this strategy. Dean was the first national presidential candidate to use the Internet as his major source for fund-raising. In 2007–08, however, candidate Barack Obama took Internet fund-raising to a level never imagined even four years earlier. He set a number of fund-raising records during his primary and general election campaigns, bringing in a whopping $750 million by the end of the election cycle. Millions of dollars came into his campaign over the Internet, most in small donations. Political pundits, reporters, and scholars all agreed that the Obama campaign changed the nature of political fund-raising forever, both because of the amount of money raised and how it was raised. Combined with the totals raised by Republican

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presidential candidate John McCain, the 2008 presidential election was the most expensive in history, surpassing the $1 billion mark. Despite this fact, no one seems to have kept track of exactly how much of Obama’s $750 million total was in the form of electronic donations received over the Internet. Part of the reason for this has to do with existing campaign finance laws. Under the law, small donations under $200 are simply considered “unitemized receipts,” and a campaign does not have to keep track of their donors. In addition, many donations came in the form of gift cards such as those issued by Visa and MasterCard. It is impossible to trace who actually uses a gift card to make a donation. This fact caused some of Obama’s opponents to allege that his campaign was accepting illegal donations from foreigners, who could hide their identities by purchasing gift cards and making their contributions over the Internet. An infamous e-mail hoax containing this allegation made its way around the Internet during the 2008 election. Such improprieties, however, were never proven. The success of Obama’s Internet and overall fund-raising has led many to argue that public financing of presidential campaigns is now dead. Originally, public financing was intended as a means to make money less influential in presidential campaigns by relieving some of the pressure to raise money. Eligible candidates are given a choice: they can accept matching funds, where the federal government uses public money to match the contributions they raise privately, or they can “go it alone” and refuse public money. Candidates who “go it alone” bear the burden of raising as much money as they can, and also bear the risk that they will not be effective fund-raisers. Candidates who accept matching funds only have to raise half of their funds—the government provides the other half. But the catch is that they are capped in the amount of money they can spend on their campaigns. In the 2008 presidential election, both candidates initially pledged to use public funds. Ultimately, however, only Republican candidate John McCain selected this option. Because of this choice, he was limited by law to spending only $84 million during the general election. As noted above, Barack Obama raised $750 million and spent over $730 million of that total. Given this huge disparity, it is unlikely that future candidates would choose to limit their campaigns by selecting public funding. OLD LAW FOR A NEW DAY Other problems have begun to emerge from the now widespread use of the Internet to reach and raise money from voters. For example, candidates who are successful in their election bid might be tempted to keep up with their supporters as they did during the campaigns. However, existing election laws prohibit, say, President Obama from reaching out to his supporters in that manner. The president is supposed to represent all of the people; consequently it is a violation of federal election laws if he contacts only his political supporters. Moreover, because the office of the president is legally distinct from the campaign of the person running for president, all of the president’s communications belong to the government and the people, not to him. The president’s

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e-mails, texts, and blog entries, along with his “snail mail” and any other communications that he makes, are in the public domain and unless classified can be obtained through the Freedom of Information Act. As a practical matter, too, it is much more difficult for the elected official to keep track of thousands (and, in the case of the president, probably millions) of electronic contacts. The candidate can have as many staff members as he or she can afford to hire or who sign up to volunteer; the officeholder cannot. While the Obama administration has pledged to keep abreast of electronic contacts from citizens, actually turning their comments into something useable in the policy making process is more difficult than it sounds. Certainly the ability to e-mail the president and Congress (and just about every other federal, state, and local elected official these days) may make citizens feel that they are more in contact with their representatives, but are they really? The Internet increases information and commentary, but if the communications are considered little more than opinion data (which is notoriously inconsistent and changing), they may not have much practical impact. The truth is that, while everyone expects the Internet to change the way citizens interact with their government, no one yet knows exactly what this change is going to look like. (In fact, the Internet is affecting global politics in many nations, not just in the United States.) Regulation of the use of the Internet in the American political process is probably inevitable, but history has demonstrated that the law rarely keeps pace with technological change. As Americans and their elected officials struggle to make sense of this new form of politics, the use of the Internet will remain a battleground issue for decades to come. Further Reading Books: Bimber, Bruce and Richard Davis. Campaigning Online: The Internet in U.S. Elections. New York: Oxford University Press, 2003; Foot, Kirsten and Steven M. Schneider. Web Campaigning (Acting with Technology). Cambridge, MA: MIT Press, 2006; Perlmutter, David D. BlogWars: The New Political Battleground. New York: Oxford University Press, 2008; Sunstein, Cass R. Republic.com 2.0. Princeton, NJ: Princeton University Press, 2007; Tedesco, John C. The Internet Election: Perspectives on the Web in Campaign 2004. Lanham, MD: Rowman & Littlefield, 2006. Websites: Gordon-Murnane, Laura. “The 51st State: The State of Online.” http:// www.infotoday.com/searcher/nov07/Gordon-Murnane_51stState.pdf; Helium. “The Internet’s Effect on Campaigns and Elections.” http://www.helium.com/knowledge/ 57564-the-internets-effect-on-campaigning-and-elections; “Internet’s Broader Role in Campaign 2008: Social Networking and Online Videos Take Off.” Pew Center for the People and the Press. http://people-press.org/report/384/internets-broader-role-incampaign-2008; Personal Democracy Forum. http://www.techpresident.com/

Patrick J. Donaldson and Kathleen Uradnik IRAN, RELATIONS WITH Since the 1979 Iranian Revolution, Iran officially has been called the Islamic Republic of Iran. Formerly known as Persia, Iran is a large country with a

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population of over 70 million people. It occupies a strategic position in Eurasia, bordering Armenia, Azerbaijan, Turkmenistan, Russia, and Kazhakstan to the north; Afghanistan and Pakistan to the east; Turkey and Iraq to the west; and the Persian Gulf and the Gulf of Oman to the south. Because of its geostrategic significance and vast natural resources, Iran is influential in the world economy, particularly since it is the second-largest oil exporter in the world. Iran has received increased attention on the world stage since 9/11 with its defiance of UN Security Council resolutions on uranium enrichment and allegations of state-supported terrorism. THE IRANIAN REVOLUTION In 1953, American and British intelligence agencies launched a coup d’état to overthrow the democratically elected Iranian prime minister, Mohammed Mossadeq. Mossadeq had come to power two years earlier with broad support among the Iranian people. He was committed to re-establishing democracy and to nationalizing the Iranian petroleum industry, which was then controlled by the British. The Americans, in support of the British and fearing that Sovietbacked communists were going to overthrow the new government, beat the Soviets to it and overthrew the Mossadeq government. They restored the proWestern leader Shah Mohammad Reza Pahlavi to power. The Shah, an autocratic ruler, was supported economically and militarily by the United States for decades in return for a steady supply of oil to the west. By the early 1960s, the Shah announced social and economic reforms but refused to grant broad political freedom. Iranian nationalists condemned his U.S.-supported regime and his “westernizing” of Iran. In 1963, the Shah cracked down on dissent and suppressed all political opposition. Among those arrested and exiled was a popular religious nationalist, the Ayatollah Ruhollah Khomeini. The Shah continued to lose popular support among Iranians because of his monarchical style, his pro-Western policies, and his use of billions of dollars in oil revenues to buy military weapons. Opposition forces rallied against the Shah’s regime. The Iranian Revolution began in January 1978 with the first major demonstrations against the Shah. As conditions worsened, the Shah fled Iran a year later. Ayatollah Khomeini returned from exile to Tehran in 1979. Iran officially became an Islamic Republic in April 1979 after Iranians voted in a national referendum. In December 1979, the country also approved a constitution, whereby Ayatollah Ruhollah Khomeini, a bitter foe of the United States, became Supreme Leader of Iran. U.S.-Iranian relations worsened with the overthrow of the Shah. In 1979, a group of Islamic students stormed the U.S. embassy in Tehran to support the ongoing revolution and to denounce America’s recent decision to allow the exiled Shah into the United States for medical treatment. Fifty-two U.S. diplomats were kidnapped by the militants and held hostage in the embassy for 444 days. This incident became known as the “Iranian Hostage Crisis.” It gripped American hearts and headlines for over a year.

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In Iran, the incident was celebrated as a blow against the United States and its political influence in Iran. In response to the seizure of the embassy, the United States imposed economic sanctions on Iran; for a variety of reasons, U.S. sanctions have remained in place. Thus, since the November 4, 1979 embassy seizure, economic sanctions have formed a major part of U.S. foreign policy toward Iran. By September 1980, war broke out between Iran and its neighbor Iraq. The war lasted until August 1988. The war began when Iraq invaded Iran on September 22, 1980 following a long history of border disputes and fears of Shia insurgency among Iraq’s suppressed Shia majority. Believing that Iran was still unstable because of its recent revolution, Iraqi leader Saddam Hussein considered Iran an easy target. But Iraqi forces instead met strong resistance in Iran, and the war dragged out with no clear winner for eight years. The war came at a tremendous cost in lives and economic damage to both countries; approximately half a million Iraqi and Iranian soldiers and civilians are believed to have died during the war, with untold numbers more injured and wounded. Saddam Hussein did not hesitate to use chemical weapons in the war, including mustard gas, which had been banned by the international community after World War I. He used the poisonous gas not only against Iranian troops, but also against his own people, the Iraqi Kurds who lived in the north of the country. The war ultimately ended in stalemate, without any change in borders. GOVERNMENT AND POLITICS Constitutional changes following the revolution established a system of government based on three pillars of power—the executive, judicial, and legislative branches. At the top of the Islamic Republic’s power structure is the position of the Supreme Leader. Under Supreme Leader Khomeini, Shia Islam became an important element of the country’s political structure. Khomeini believed that the government should be run in accordance with sharia, the sacred Islamic law. The stated aim of the revolution had been to end the reign of the Shah and restore Islamic ideology to Iran. Khomeini accomplished this goal by arguing that, in the absence of the Imam Mahdi (also known as the twelfth Imam of the Shia faith), government should be run by those religiously closest to the Imam. Although this belief was rejected by many “ayatollahs” (religious leaders) in Iran, it was popular among young revolutionaries and became central to the movement to overthrow the Shah’s regime. For this reason, the Iranian government emerged from its revolution structured somewhat like a democracy but run by religious leaders. Khomeini’s teachings created a system of government that combines elements of Islamic theocracy, government by religion, and separation of powers. Unlike in the United States, church and state are completely intertwined in modern-day Iran. Although it elects a president and a parliament, its political system is dominated by a small group of religious clerics. Khomeini died in 1989, 10 years after the revolution. The regime he established, consisting of some elected and some appointed positions, appeared

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relatively stable to the outside world. Internally, however, it has experienced unrest by minorities, women, students, and intellectuals. Iran suppresses dissent quickly, so it is difficult to document its exact nature and extent. Upon Khomeini’s death, Ayatollah Ali Khamenei was selected to be the Supreme Leader, a position he still holds. Khamenei had vast formal powers in this role, including the power of commander-in-chief of the armed forces. He appointed half of the 12-member Council of Guardians, one of the most influential bodies in Iran, which is currently controlled by religious conservatives. The Council of Guardians approves all bills passed by parliament and has the power to veto them if it considers them inconsistent with the Iranian Constitution or Islamic law. The council can also block candidates from competing for a seat in parliament, for the presidency, or for a seat in the Assembly of Experts. Finally, Khamenei has the constitutional power to remove the elected president if either the Supreme Judicial Council or the elected parliament ordered it. With political dissatisfaction growing in Iran in the 1990s, the people elected Mohammad Khatami as president in 1997 in the hope of political reform. The reform movement wanted to adjust the balance between Iran’s self-appointed religious clerics and its democratically elected officials. The movement floundered, though, as conservative politicians, through the control of unelected offices and institutions, prevented the enactment of reform measures. They also increased government repression. Thus, although reformists dominated the Iranian parliament between 2000 and 2004, they were defeated by the disqualification of many of their potential candidates by the conservative Guardians Council. The failure of the reform movement led to the election of current Iranian President Mahmoud Ahmadinejad in June 2005. Ahmadinejad technically became the first non-cleric president of Iran in 24 years; as a religious hardliner, however, he fully supports the cleric-control system. Ahmadinejad embraced policies that further alienated Iran from its people and the West. Domestically, he faced criticism for failing to use the nation’s soaring oil revenues to fix its economy. During his first term, inflation hovered around 25 percent and unemployment around 10 percent. In response to economic sanctions imposed by the United Nations and foreign governments, the president encouraged austerity. Iran once had a thriving middle class under the Shah, but it has since all but disappeared. By 2007, the Iranian government responded to criticism by a heightened crackdown on dissent. The Iranian National Security Council sent a warning to all the country’s newspaper editors detailing banned topics, including the rise in gasoline prices and other economic problems, negotiations with the United States over the future of Iraq, and the fact of dissension itself. 2009 PRESIDENTIAL ELECTION On June 12, 2009, voters in Iran went to the polls to select their president. Current President Mahmoud Ahmadinejad sought re-election against three opponents, the most prominent of whom was former Iranian Prime Minister Mir Hossein Mousavi. Before all of the votes were counted, the state news

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agency announced that Ahmadinejad had won by a substantial margin over Mousavi. The opposition candidates alleged that the election had been rigged, as did many Western nations as well as Western reporters and journalists. Mousavi encouraged his supporters to express their outrage at the what he claimed was a fraudulent election. For a week, thousands of mostly young Iranians took to the streets of Iran’s major cities to protest. In response, the government cracked down on students at Tehran University, and many protestors were injured or killed. Because western reporters were restricted, news of the attack reached the outside world via personal accounts posted by average Iranians on the Internet and Twitter. Films from handheld video cameras and photographs from digital cameras were uploaded, often with commentary from the protestors. On June 18, Mousavi called for a massive gathering in Tehran to mourn those who had been killed in the protests; it is believed that more than 100,000 citizens showed up. At the same time, Iran’s Guardians Council announced that it would conduct a recount of votes. The next day, Iran’s Supreme Leader told the nation during a prayer service that the election was legitimate and that further protests would not be allowed. On June 20, 2009, protestors again took to the streets of Tehran. One of them was Neda Aghal-Soltan, a 26-year-old college graduate. Neda and her friends were headed to the protest when she was gunned down without provocation by the government. By one friend’s account, they had not yet even reached the protest when she was shot in the heart by a member of the Basij, the government’s paramilitary force. The shooting and her death were caught on three separate videos, and the accounts were quickly put on the Internet. The disturbing videos went viral on You Tube and Facebook, eliciting outrage from around the world and serving as a rallying cry for the Iranian protestors. Fearing an escalation in the protests, Iran clamped down. It used tear gas and weapons to disperse protestors, many of whom were attacked and beaten. It arrested hundreds of demonstrators and their leaders, including opposition politicians. The repression put an end to mass protests, but smaller ones persisted. In these, protestors would come together at a designated place, denounce the government, and disperse before government forces had the chance to arrive. On June 29, the Guardians Council certified the results of the presidential election. On August 5, President Ahmadinejad was sworn in for a second four-year term. Protestors rallied against the government on both days. Meanwhile, Neda Aghal-Soltan had become a martyr for their cause. The government has attempted to limit the impact of her death by threatening her family and friends and publicizing alternative versions of the event, including that Neda was slain by the protestors themselves or by the CIA. NUCLEAR AMBITIONS Iran made international headlines when President George W. Bush, in his January 29, 2002, State of the Union message to Congress, labeled Iran as part of an “axis of evil” along with Iraq and North Korea. Bush used the term “axis

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of evil” to single out countries committed to developing weapons of mass destruction (WMD) and sponsoring terrorism. Although Iran continues to deny that it has a nuclear weapons program, many experts believe that Iran’s enrichment of uranium is a front for the development of nuclear weapons rather than for energy production. Enriching uranium is the pivotal step for either goal. When enriched to a low level of about 3.5 percent, uranium will fuel a nuclear power plant. But if enrichment continues at much higher levels, it can provide the explosive power for atomic weapons. The United Nations has investigated Iran’s nuclear intentions for over a decade, but Iran has consistently refused to cooperate or has otherwise interfered with its efforts. Members of the International Atomic Energy Agency (IAEA) were sent to the country on several occasions to determine the true nature of Iran’s nuclear programs, but were denied access to key documents and facilities. For that reason, the United Nations has not been able to definitively establish what kind of facilities Iran is building. The United States and its western allies, however, are convinced that Iran is developing nuclear warheads to fit onto its long-range missiles. Israel is the likely target, as Iran does not recognize the Jewish state, and President Ahmadinejad has publicly and repeatedly called for its destruction. Former Iranian President Akbar Hashemi Rafsanjani, who served from 1988 to 1994, admitted that Iran has already successfully enriched uranium at least once, and is headed toward enrichment on an industrial scale. Many security experts believe that Iran will gain the capability necessary to build and deploy nuclear weapons by 2020. Some argue that Iran could build its own nuclear device much sooner, followed a few years later by its actual deployment. International security experts also suspect that, while Iran may not have such a program right now, it is acquiring the equipment and core technology necessary to develop and manufacture biological weapons. The U.S. State Department has called Iran the world’s “most active state sponsor of terrorism.” U.S. officials have documented Iran’s continuing efforts to provide funding, weapons, training, and safe havens to many terrorist groups based in the Middle East. Iran remains subject to U.S. and UN economic sanctions and export controls because of its continued involvement in terrorism and conventional weapons proliferation. In October 2007, Iran was also subject to U.S sanctions for providing material support to the Taliban and other terrorist organizations. The UN Security Council has imposed three sets of sanctions on Iran and has called on it to suspend its uranium enrichment activities. Iran has consistently refused to comply. Concerns about Iran’s nuclear intentions were raised again in January 2009, when the country successfully launched its first orbital satellite. The orbit coincided with the celebration of the 30th anniversary of the Islamic Revolution. Although the launch of the satellite was mainly a symbolic event, it raised concerns about Iran’s potential to manufacture and use long-range ballistic missiles. Iran’s development of a space launch vehicle may have established the technical basis necessary for developing such complex missile systems. Over the years, Tehran openly has sought to build a large fleet of rockets and to develop its

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own satellites. It has received technical assistance in these projects from Russia, China, India, Italy, and North Korea. However, Iran’s continued expansion of its ballistic missile program only intensifies international concern over its nuclear ambitions and intentions. In June 2010, the United Nations approved yet another resolution—its fourth— to impose new sanctions on Iran for continuing its effort to produce nuclear fuel. It called for a ban on heavy weapons sales to Iran, including tanks, aircraft, warships, and missiles. It required nations importing from or exporting to Iran to inspect vessels for suspected contraband. The resolution also contained provisions directed against the Iranian Revolutionary Guard, which largely controlled nuclear production. The resolution did not, however, target average Iranian citizens. For its part, Iran rejected the sanctions and announced it would pursue business as usual. President Ahmadinejad reportedly likened the sanctions to “annoying flies,” while his UN envoy Mohammad Khazaee complained bitterly about international interference in Iran’s internal affairs. Subsequently, Iran has continued its nuclear program undeterred. HOSTAGE TAKING REDUX On July 31, 2009, three American friends, Shane Bauer, Joshua Fattal, and Sarah Shourd, set out for a hike in northern Iraq. Later that day, they were arrested by armed Iranian militiamen. They were accused of entering Iranian territory in order to spy for the United States. The three were sent to Evin Jail, known for its deplorable conditions and torture of political prisoners. They were kept in solitary confinement while the U.S. government, working through intermediaries, tried to obtain their release. Iran refused and announced it would put the three on trial for espionage. The hikers remained in jail for over a year. During that time, Bauer and Shourd became engaged to be married. On September 14, 2010, after 13 months in confinement, President Ahmadinejad ordered Sarah Shourd released on humanitarian grounds and to commemorate the end of the Islamic holy month of Ramadan. Shourd was required to post $500,000 bail, which apparently came from an undetermined source. Shourd reportedly had developed medical problems during her confinement; she was seen by a team of doctors upon her release. About a month after Shourd’s release, confidential U.S. documents that had been posted on the website Wikileaks.com revealed that the three hikers had actually been in Iraqi territory when they were seized. The U.S. government has not commented on these reports. Despite pleas from their families, Shane Bauer and Joshua Fattal remain in jail. Their trial date was set for February 6, 2011, but was postponed at the last minute and rescheduled for May 11. As that date approached, the trial was postponed until July, when it was finally held. Distraught relatives of the two men hope that the end of the trial will finally lead to their release.

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IRAN’S FUTURE Iran’s political system combines elements of a modern Islamic theocracy with elements of democracy. It consists of a number of un-elected institutions controlled by the powerful Supreme Leader as well as a president and parliament elected by the people. For much of the last decade, Iranian politics has been characterized by continued struggle between these elected and unelected institutions. With conservatives regaining control of the parliament in 2004, and hardliner Ahmadinejad in the presidency, Iran today remains an oppressive regime. However, as evidenced by the backlash against its last presidential election, Iran’s poor economic condition and Islamic extremism have fueled opposition to Ahmadinejad and the clerical elite. Dissenters continue to mount protests but face an immediate and violent response from their government. For the United States, the most important challenge lies in what to do about Iran’s nuclear program. American and international sanctions have not stopped its development, and Iran continues to receive materials and support from outside sources such as Russia. Foreign policy hawks in the United States argue that someone should eliminate Iran’s nuclear facilities before it is too late. Virtually no country favors Iran’s development of nuclear weapons, which would be extremely destabilizing to the entire Mideast region. At the same time, forcefully “taking out” those capabilities would provoke protests throughout the Islamic world and potential retaliation. President Obama has pursued a diplomatic strategy toward Iran that his political opponents characterize as folly. They point out that Iran has entirely ignored the “cease and desist” orders from the West and the United Nations while unapologetically developing its nuclear technology. At the same time, high-ranking Israeli government officials have gone on the record saying that Iran cannot and will not be allowed to obtain nuclear weapons. Israel believes that Iran, which has already called for the Jewish state’s destruction, will act on its promise. For that reason, Israel views any attack by its forces on Iran’s nuclear facilities as an act of self-defense. No one knows what will happen in Iran: Will it develop nuclear weapons? Will its economy collapse first? Will opposition leaders and protestors finally achieve political reform? All of these critical issues have yet to be played out, and the stakes for the people of Iran and the world in their resolution have never been higher. Further Reading Books: Adib-Moghaddam, Arshin. Iran in World Politics: The Question of the Islamic Republic. New York: Columbia University Press, 2008; Arjomand, Said Amir. After Khomeini: Iran under His Successors. New York: Oxford University Press, 2009; Axworthy, Michael. A History of Iran: Empire of the Mind. New York: Basic Books, 2010; Cordesman, Anthony H. and Khalid R. Al-Rodhan. Iran’s Weapons of Mass Destruction: The Real and Potential Threat. Washington, DC: Center for Strategic and International Studies, 2006; Gheissari, Ali. Contemporary Iran: Economy, Society, Politics. New York: Oxford University Press, 2009; Keddie, Nikki R. Modern Iran: Roots and Results of Revolution. New Haven, CT: Yale University Press, 2006;

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Sara Hower IRAQ WAR For almost a decade, the U.S.-led war in Iraq and its continued violence after the end of major combat operations has proved to be one of the most divisive issues in American politics. Unlike the Persian Gulf War more than a decade earlier, there was no near-unanimous support behind efforts to remove Iraqi President Saddam Hussein from power. The invasion of Iraq in 2003 was strongly opposed by most world leaders, including traditional U.S. allies France, Germany, and Canada. One month before the invasion, protests erupted worldwide in opposition to military action in Iraq, including rallies of millions of people in Rome and London. Many in the Middle East saw the war as another example of U.S. imperialism, and most Arab leaders rejected the occupation of an Arab country by foreign troops. Despite international criticism, President George W. Bush argued that the war was legal because Iraq had not complied with UN Security Council resolutions prohibiting certain types of weapons systems, including chemical, biological, and nuclear weapons. An armed Iraq, the administration argued, created for the United States a sovereign right to self-defense as permitted by international law. In the United States, some Americans initially approved the war based on humanitarian grounds associated with removing Iraqi leader Saddam Hussein from power. Others, however, accused the Bush Administration of pursuing a misguided foreign policy stemming from a neoconservative view of foreign affairs that emphasized the readiness to use military power to bring about liberalism and democracy. After the end of major combat operations in Iraq in 2003, national debate centered on a host of issues spawned by the war in Iraq—the continued

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deterioration of political stability and growing violence in Iraq, American troop casualties and injuries, legal issues surrounding the detainment and treatment of enemy combatants, the use of torture, and the withdrawal of troops from Iraq. In the presidential election campaign of 2008, Barack Obama campaigned on the promise to end U.S. fighting in Iraq. Today, combat activities have pretty much ceased. Much speculation remains, however, regarding whether resurgent violence in Iraq threatens the country’s political stability. It has left some questioning whether troops need to remain in Iraq longer than promised by the Obama administration’s predicted final withdrawal date in 2011. PRIOR TO THE INVASION With the end of the Persian Gulf War in 1991, during which Iraq had invaded its neighbor Kuwait without provocation, the United Nations banned Iraq from developing or possessing weapons of mass destruction. Iraq was also required to permit inspections to confirm its compliance. In the years following 1991, the international community was continually frustrated with Iraq’s failure to fulfill its disarmament obligations. On several occasions, Iraqi forces prevented weapons inspectors from doing their jobs. Iraq’s refusal to comply with UN requirements led to the passage of at least 16 UN Security Council resolutions demanding that Iraq allow weapons inspections. The Bush Administration threatened to use military force to overthrow the Iraqi government unless Iraq rid itself of all weapons of mass destruction. In 2002, the UN Security Council passed Resolution 1441, which gave Iraq a final opportunity to comply with the disarmament obligations that had been set out in several previous resolutions. These resolutions called for Iraq to completely cooperate with UN weapon inspectors to verify that it was not in possession of weapons of mass destruction and certain prohibited missiles. Eventually the United Nations was given access by Iraq to some facilities; no evidence of weapons of mass destruction was found. At the same time, it was not clear to UN inspectors that Iraq had fully disarmed itself since it still failed to account for substantial chemical and biological weapons stockpiles, the existence of which inspectors had confirmed as existing as late as 1998. It was well known that Saddam Hussein had used chemical weapons in Iraq’s war with neighboring Iran as well as against Iraqi Kurds living in the northern part of the country. The U.S. government also claimed that Saddam Hussein’s dictatorship provided headquarters, operating bases, training camps, and other support to terrorist groups fighting in neighboring countries. The possibility of Iraq’s link to terrorism, coupled with Saddam Hussein’s suspected attempts to develop weapons of mass destruction, led the Bush administration to fear that he might share such weapons with terrorists who could launch attacks against the United States. The Bush administration’s argument that a “pre-emptive strike” was necessary against Iraq was unsettling to many, because the United States had never before used military action against a nation for the purpose of stopping an eventual attack. Opponents vigorously opposed the idea of pre-emptive war, arguing

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that it was not sanctioned by U.S. history and was certain to spark outrage in the international community. THE 2003 INVASION Two days prior to the invasion of Iraq, President Bush, in an address to the nation, stated that intelligence data showed that the Iraqi regime possessed and concealed some of the most lethal weapons ever devised. The invasion of Iraq began on March 19, 2003 when the president ordered a missile attack on a complex in Baghdad where Saddam Hussein was believed to be hiding. The attack was followed by air strikes on government and military installations, and within days U.S. ground forces invaded Iraq from Kuwait. The war, also known as “Operation Iraqi Freedom,” was led by the United States, which supplied most of the invading forces along with British forces and troops from Australia and Poland. The Bush administration tried to characterize the war as an international effort or a “coalition of the willing,” but very few countries sent troops to Iraq. In Britain, then-Prime Minister Tony Blair was criticized for joining the United States in Iraq and labeled a “puppet” of President Bush. His popularity, like Bush’s, would be severely diminished as the war dragged on. Despite fears that Iraqi forces would destroy bridges and set fire to oil wells, there was little damage done by retreating Iraqi forces. U.S. officials were also worried that Iraqi forces would deploy chemical weapons, as Saddam Hussein had used them during the Iran-Iraq War in the 1980s and against his own people in Kurdish villages in northern Iraq. Ultimately, none were used, and none were found by U.S. troops. Within weeks, the United States quickly toppled the Iraqi government, despite intense fighting by some regime loyalists. The U.S. Army entered the capital city of Baghdad on April 5, seizing the Saddam Hussein International Airport. Four days later, the world watched as a statue of Saddam Hussein was pulled down with the help of the U.S. Marines. The initial military campaign in Iraq was widely considered to be extremely successful. American, British, and Australian forces defeated a military of over 400,000 troops while suffering fewer than 200 combat deaths—even smaller coalition losses than in the First Gulf War. President Bush declared an end to major combat on May 1, 2003. Famously, he made the announcement “Mission Accomplished” from the deck of the aircraft carrier USS Abraham Lincoln. Bush later expressed regret at this stunt, because while the combat mission may have been concluded quickly, the real war in Iraq had just begun. Several Iraqi leaders fled into hiding and became the object of intense search by U.S. forces. The U.S. military even developed a set of playing cards to help troops identify the most-wanted members of Hussein’s government. Saddam Hussein, the “ace of spades,” was eventually found hiding in an underground bunker and captured in December 2003. He was later executed by hanging after being tried and convicted by the newly elected Iraqi government for crimes against humanity.

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INSTABILITY AND INSURGENCY IN IRAQ Following the collapse of Saddam and his Ba’athist Party, Iraq’s major cities erupted in looting and violence. Under Saddam, who was a Sunni Muslim, Sunnis enjoyed preeminent status and opportunities in Iraq while their religious counterparts, the Shi’ite Muslims, were victims of Saddam’s oppression. Once the Sunnidominated government was toppled, Shi’ites took revenge. As a result, religious warfare broke out among various Sunni and Shi’ite factions in Iraq. In addition, opportunists sought to exacerbate tensions among other factions within Iraq; it was widely suspected that Iran facilitated some of these efforts. Thus, rather than quickly return power to the Iraqi people, the United States created an occupational government to administer Iraq until a democratic government could be elected. The occupation government was widely blamed for alienating many Iraqis and angering the country’s religious radicals. Restoring law and order soon became a challenging task for the occupying forces. Continuing attacks against U.S. and coalition troops developed into full-scale, door-to-door guerrilla warfare. Increasingly, the conflict came to be identified as a civil war, although the Bush administration generally avoided using that term in favor of the label “sectarian violence.” By the end of 2003, the intensity and pace of insurgent attacks began to increase. Rebels targeted both coalition forces and the new Iraqi Security Forces, which were comprised of civilians and police. An organized Sunni insurgency, along with other radical groups, began launching attacks on coalition targets in an attempt to seize control from Iraqi security forces in the southern and central regions of Iraq. While coalition casualties had been light in the initial 2003 combat, deaths of U.S. troops soared after the end of the military campaign, reaching roughly 1,000 by the time of the U.S. presidential election in November 2004 and surpassing 3,000 in early 2007. In addition, several hundred soldiers from other coalition countries were killed. The number of Iraqis who died during the conflict is uncertain. One estimate made in late 2006 put the total at more than 650,000 between the time of the U.S.-led invasion and October 2006, but many other reported estimates put the figures for the same period at about 40,000 to 50,000. Violence against coalition forces and among various sectarian groups led to “asymmetric warfare.” (Asymmetic warfare refers to a conflict where the opponents differ substantially in their levels of power, weaponry, or strategy.) The United States battled the Iraqi insurgency, struggled to resolve internal strife between many Sunni and Shi’ite Iraqi groups, and worked to eliminate Al Qaeda operations in Iraq. The number of Iraqis killed grew substantially; estimates ranged from 85,000 civilians to 1,000,000 citizens through 2007. The Office of the UN High Commissioner for Refugees (UNHCR) estimates that the war uprooted 4.7 million Iraqis through April 2008 (about 16 percent of the population of Iraq), 2 million of whom had fled to neighboring countries, creating a humanitarian situation that the Red Cross described in March 2008 as “among the most critical in the world.”

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Despite the violence, the people of Iraq were able to vote for the start of a new democratic government. On January 30, 2005, they went to the polls across the nation to cast ballots for representatives to a transitional assembly that would meet to draft the nation’s new constitution. On October 15, Iraqis voted to approve that constitution, and on December 15, millions turned out in an atmosphere of relative calm to cast their votes for their first democratic parliament. These were the first free elections in Iraq, and turnout was heavy despite threats of violence. Sunnis, who had initially opposed ratification of the constitution, turned out in large numbers for the parliamentary vote. National turnout was estimated at 80 percent. Although no one party won a majority of votes, a coalition of parties agreed to share power (as is common in parliamentary systems). They selected Nouri al-Maliki to be the prime minister. Al-Maliki had been a Shi’ite opponent of Saddam Hussein who fled the country and lived in exile for over 20 years, where he continued to oppose the regime from abroad. The continued guerrilla assaults on occupying forces and leaders of the new Iraqi government led to debate within the administration over the direction of the violence in Iraq. Some in Congress began to fear that the war had been lost, and that America had become embroiled in “another Vietnam,” meaning an unwinnable war in a place where the United States was not welcome. In 2006, an independent bipartisan panel, the Iraq Study Group, issued a report that found the situation in Iraq to be “grave and deteriorating.” Among its findings was that the Pentagon had seriously underreported the violence in Iraq. The group recommended that the United States significantly increase the number of U.S. military personnel in Iraq, including combat troops. Later, a White House spokesman told CNN’s Larry King that Bush was considering recommendations by the Iraq Study Group and that the president would be able to “announce a new way forward” in Iraq by the end of the year. In January 2007, President Bush announced in a televised speech a plan to increase the number of American troops in Iraq by more than 20,000. The arrival of additional forces in Iraq came a day after leading Democrats said they would back legislation to block funding to pay for them. “The Surge,” as it was called, would deploy security patrols primarily to neighborhoods in Baghdad and Al Anbar Province in an attempt to better counter sectarian violence. Where once American or Iraqi troops would clear a neighborhood and then withdraw, under the Surge, troops would stay in place to ensure stability and stop any re-emergence of violence. As a result of the Surge, areas within Iraq, and especially in its largest cities, were taken by and remained in the control of coalition and Iraqi forces. Stability slowly returned, and violence dropped significantly. Eventually, the additional troops were slowly withdrawn. Whether the Surge was chiefly responsible for the declining levels of violence in 2007, or it was a combination of related factors including a change in U.S. ground tactics, continues to be hotly debated. PUBLIC OPINION Reaction to the war was mixed in the United States. Although several antiwar protests occurred in American cities in the days leading up to the invasion,

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opinion polls showed considerable support for military action against Iraq before and during the war. Surprisingly, American opinions on the war sometimes crossed traditional party lines. Many conservatives viewed the war as an act of reckless internationalism; at the same time some on the political left, who were appalled by the brutal human rights violations under Saddam Hussein, gave moderate support to military action. As the violence continued and casualties mounted, however, more Americans (including some who had initially supported the war) began to criticize the Bush administration for what they perceived to be the mishandling of the occupation of Iraq. The appearance in the news of photographs of U.S. soldiers abusing Iraqis at Abu Ghraib prison near Baghdad further damaged world opinion of the United States. In addition, a U.S. bipartisan commission formed to investigate the September 11th attacks reported in July 2004 that there was no evidence of a collaborative relationship between Saddam Hussein’s Ba’athist government and Al Qaeda, which had been one of the Bush administration’s main justifications for the war. Most importantly, perhaps, was the fact that U.S. troops did not find any weapons of mass destruction in Iraq. U.S. intelligence services had been wrong about Iraq’s possession of such weapons, which undermined U.S. credibility at home and overseas. Indeed, many in Congress alleged that the Bush administration had simply lied about the threat of weapons of mass destruction to convince Congress and the American people to support the war. Bush administration officials vehemently denied that charge, and pointed out that many prominent members of Congress from both political parties had agreed that Iraq had WMDs. The intelligence community, as it turned out, had failed both Congress and the president in asserting with certainty that Saddam Hussein had these weapons and intended to use them. The war proved a central issue in the 2004 U.S. presidential election, in which Bush narrowly defeated Democratic candidate Senator John Kerry of Massachusetts. After the election, however, Bush’s approval rating dropped as the war dragged on; it never recovered. In his last year in office, Bush’s job approval rating fell below 30 percent. In the 2006 midterm elections, moreover, Democrats regained control of Congress. Their victory was due in large part to the growing sentiment against the war, which increased with the number of American deaths. By the end of 2006, 3,000 Americans had died in the war effort, and its monetary costs continued to escalate. Secretary of Defense Donald H. Rumsfeld, blamed for having mismanaged the war, was terribly unpopular; he resigned the day after the midterm election. Opposition to the war continued to increase over the next several years; soon only a dwindling minority of Americans believed that the initial decision to go to war in 2003 was the right one, and an even smaller number still supported the administration’s handling of the situation in Iraq. TROOP WITHDRAWAL AND THE FUTURE OF IRAQ In February 2009, newly elected Democratic President Barack Obama announced that U.S. combat forces would be withdrawn from Iraq by

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August 2010, with the remaining troops due to pull out by December 2011. These dates had been outlined in a security pact signed between the Bush administration and Baghdad in 2008. On Aug. 31, 2010, President Obama declared an end to the American combat mission in Iraq and withdrew all but 50,000 military personnel. The remaining U.S. forces will be used to support and train Iraqi security forces and to protect American personnel and facilities. On September 1, the Obama Administration renamed the nation’s efforts in Iraq to reflect this change, drawing Operation Iraqi Freedom to an end and launching Operation New Dawn. Barring some unforeseen event, by late 2011 the U.S. State Department will become responsible for overseeing the training of the Iraqi police, a task likely to be carried out by private contractors. President Obama did not bring American troops home, however—most were redeployed to Afghanistan, where international efforts to rid the nation of Taliban and Al Qaeda forces had been in stalemate. It was thought that efforts in Afghanistan, like Iraq, would benefit from its own “surge.” Because conditions in Iraq had improved, the Obama administration determined that Afghanistan was now the more pressing need. Over the past two years, the security situation in Iraq appears to have improved dramatically, and violence has significantly decreased. Yet serious challenges to rebuilding a politically stable Iraq remain. The parliamentary elections of March 2010 left no single group with the ability to form a government, leading to violence in an unstable government. In November 2010, Iraq’s political leadership finally agreed on a new government that gave Prime Minister Noiuri al-Maliki a second term in office. The U.S. war in Iraq has been the second costliest war for the United States, following World War II. Some conservative estimates place the total economic cost of the war between $860 billion and $3 trillion. The war has claimed the lives of more than 4,000 Americans and over 70,000 Iraqis, according to U.S and Iraqi government figures. As the issue of the Iraq War slowly draws to a close, intense debate continues as to whether it was really worth it. Did the war make conditions safer for the United States? Is the region more stable after the ouster of Saddam Hussein? Can the Iraqi people overcome their ethnic and religious differences and sustain their nascent democracy? All of these questions remain unanswered, and while many in the United States and Iraq alike are now guardedly optimistic about its prospects as a free nation, its future remains uncertain. Further Reading Books: Cordesman, Anthony H. The Iraq War: Strategy, Tactics, and Military Lessons. Westport, CT: Praeger, 2003; Allawi, Ali A. The Occupation of Iraq: Winning the War, Losing the Peace. New Haven, CT: Yale University Press, 2007; Chandrasekaran, Rajiv. Imperial Life in the Emerald City: Inside Iraq’s Green Zone. New York: Alfred A. Knopf, 2006; Duffield, John S. and Peter J. Drumbrowski, eds. Balance Sheet: The Iraq War and U.S. National Security (Stanford Securities Studies). Stanford, CA: Stanford University Press, 2009; Gordon, Joy. Invisible War: The United States and the Iraq Sanctions. Cambridge, MA: Harvard University Press, 2010; Haass, Richard. War of Necessity, War of

Israel and the Middle East Peace Process Choice: A Memoir of Two Iraq Wars. New York: Simon & Schuster, 2010; Hanson, Victor Davis. Between War and Peace: Lessons from Afghanistan to Iraq. New York: Random House, 2004; Huband, Mark. Brutal Truths, Fragile Myths: Power Politics and Western Adventurism in the Arab World. Boulder, CO: Westview Press, 2004; Hybel, Alex Roberto. The Bush Administrations and Saddam Hussein: Deciding on Conflict. New York: Palgrave Macmillan, 2004; Kaplan, Fred. Daydream Believers: How a Few Grand Ideas Wrecked American Power, John Wiley & Sons, 2008; Musheno, Michael C. Deployed: How Reservists Bear the Burden of Iraq. Ann Arbor, MI: University of Michigan Press, 2008; O’Leary, Brendan. How to Get out of Iraq with Integrity. Philadelphia: University of Pennsylvania Press, 2009; Packer, George. The Assassins’ Gate: America in Iraq. New York: Farrar, Straus and Giroux, 2005; Pauly, Robert J. Strategic Preemption: U.S. Foreign Policy and the Second Iraq War. Burlington, VT: Ashgate Publishers, 2005; Serfaty, Simon. Architects of Delusion: Europe, America, and the Iraq War. Philadelphia: University of Pennsylvania Press, 2008; Ricks, Thomas. The Gamble: General David Petraeus and the American Military Adventure in Iraq, 2006–2008. New York: Penguin Press, 2009; Ricks, Thomas. Fiasco: The American Military Adventure in Iraq. New York: Penguin Press, 2006; Scheuer, Michael. Marching toward Hell: America and Islam after Iraq. New York: Free Press, 2008; Shimko, Keith L. The Iraq Wars and America’s Military Revolution. New York: Cambridge University Press, 2010; Woodward, Bob. State of Denial: Bush at War, Part III. New York: Simon & Schuster, 2006; Yetiv, Steven A. The Absence of Grand Strategy: The United States in the Persian Gulf, 1972–2005. Baltimore: Johns Hopkins University Press, 2008. Websites: 100 stories on the Iraq War. http://topics.edition.cnn.com/topics/iraq_war; The Debate over War with Iraq. http://americanhistory.about.com/library/blreasonwar.htm; Did Oil or Money Influence America’s Plans for War on Iraq and Afghanistan? The Debate. http://www.thedebate.org/; The Heritage Foundation. http://www.heritage.org/ places/Middle-East/Iraq; Iraq Veterans against the War. http://www.ivaw.org/; Iraq War: Directory of Online Resources. http://www.academicinfo.net/iraqwar.html; Operation Iraqi Freedom/Operation New Dawn. United States Forces official website. http://www.usf-iraq.com/; Operation Iraqi Freedom: Casualty Counts. http://www .defense.gov/NEWS/casualty.pdf; Should the U.S. Have Attacked Iraq? ProCon.org. http://usiraq.procon.org/; Should the U.S. Withdraw Its Troops from Iraq? http:// www.balancedpolitics.org/iraq_withdrawal.htm

Sara Hower ISRAEL AND THE MIDDLE EAST PEACE PROCESS For more than 60 years, the United States has participated in negotiations to bring peace to the Middle East, especially between Israel and the Palestinians. This goal has been a major foreign policy objective for several U.S. presidential administrations. While the United States has always supported Israel’s unconditional right to exist, more recently it has also called for the creation of a Palestinian state based on the idea of self-determination for the Palestinian people. Like many presidents before him, Barack Obama continues to actively support a solution to the IsraeliPalestinian conflict, yet the quest for a lasting peace remains elusive. Historically, the United States has had strong cultural, military, economic, and political ties with Israel. The primary expression of U.S. support for Israel has been foreign aid, with Israel being the largest recipient of U.S. monetary

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aid from 1976 to 2004, superseded only by postwar Iraq. Since 1985, the United States has provided nearly $3 billion in grants annually to Israel. Some policy analysts in the United States question this level of aid, and argue that the unwavering U.S. commitment to Israel hinders U.S. relations with various Arab and Muslim governments. Supporters of Israel, on the other hand, maintain that it is a strategic ally, and that U.S. relations with Israel strengthen its presence in the Middle East. ARAB-ISRAELI CONFLICT At the beginning of the twentieth century, the area known as Palestine was ruled by the Ottoman Empire until its dissolution at the end of World War I. At the end of the war, Great Britain occupied and administered Palestine under a British mandate on behalf of the League of Nations, which was the precursor to the United Nations. The Balfour Declaration of 1917, a formal statement of British policy, announced the support for the construction of a homeland for the Jewish people in Palestine. For the next three decades, thousands of Jews flocked to Palestine. British efforts to restrict this immigration failed due in large part to international concern for the plight of the Jews, which intensified following the near-extermination of European Jews by the Nazis during World War II. After World War II, the United Nations developed a plan to partition the territory under the British mandate. It recommended terminating the mandate and creating two states, one Jewish and one Arab. Because of its sensitivity and importance to Judaism, Islam, and Christianity, the United Nations recognized the need for the Jerusalem-Bethlehem area to be placed under special international protection. It proposed separate administration under its supervision. The proposed plan was accepted by the leaders of the Jewish community in Palestine, but rejected by leaders of the Arab community. As the British withdrew from Palestine in 1948, the Jewish community in Palestine declared independence and formed the state of Israel. In response, armies from neighboring Arab countries crossed into the territory of the former mandate, resulting in the 1948 Arab-Israeli War. While the creation of Israel in 1948 provided a home for the Jewish people, the ensuing conflict caused thousands of Arab residents in the area to flee, creating a refugee crisis. The effects of this crisis are still being felt today. The war was concluded by armistice agreements between Israel, Egypt, Jordan, Lebanon, and Syria in 1949. By then, Israel had captured about 75 percent of the land that made up the former British mandate; thus the war resulted in a significant increase in Israeli territory. Jewish immigration steadily increased for the next several decades, as did the violence between Palestine’s Jewish and Arab communities. In 1956, a second conflict started as Egypt attempted to block access to the strategic Suez Canal linking the Mediterranean Sea with the Red Sea. Israel, with the backing of the British and French, captured territory known as the Sinai and the Gaza Strip, which it reluctantly turned over to UN control. Although the fighting lasted

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only a few days, it was significant, as the Israelis and Palestinians still disagree over who should control these areas. The third Arab-Israeli war, fought between June 5 and June 10, 1967, is known as the “Six-Day War.” It resulted in the expansion of Israel into all of the Palestinian territory formerly claimed by Egypt and Jordan, including the Sinai Peninsula, the West Bank, the Gaza Strip, the Golan Heights, and all of Jerusalem. These areas are often referred to as the “Occupied Territories.” East Jerusalem was seized by Israel in the Six-Day war. Subsequently it has become the center of the Israel-Palestine conflict. Palestinians have long hoped that East Jerusalem—home to religious sites sacred to Jews, Christians, and Muslims—would be the capital of their future independent state. Neither the United Nations nor most other countries consider it to legally belong to Israel. Today, roughly 200,000 Jews live in the areas of East Jerusalem that have been developed since 1967. Current Israeli Prime Minister Benjamin Netanyahu has supported continued Jewish development in these areas. The United States does not agree with this position and believes that the permanent status of Jerusalem is still subject to negotiation. Its position is in line with the UN’s unsuccessful 1947 partition plan for Palestine, which called for separate international administration of Jerusalem. DECADES OF PEACE TALKS The end of the Persian Gulf War in 1991 sparked a renewed peace process during which both Israel and the Palestinians discussed the prospect of an interim period of Palestinian self-rule and Israel’s withdrawal from the Golan Heights and south Lebanon. In October 1991, the Madrid conference called together Israeli, Lebanese, Jordanian, Syrian, and Palestinian leaders to build the foundation for ongoing negotiations designed to bring peace and economic development to the region. Within this framework, Israel and the Palestinian Liberation Organization (PLO) signed a Declaration of Principles, also known as the Oslo Accords, on September 13, 1993. The PLO, established in 1964, is a political organization considered to be the representative voice of the Palestinian people. It holds diplomatic relations with over 100 countries and observer status in the United Nations. The Oslo Accords established objectives relating to a transfer of authority from Israel to an interim Palestinian authority. Israel and the PLO subsequently signed the Gaza-Jericho Agreement in May 1994, and the Agreement on Preparatory Transfer of Powers and Responsibilities in August 1994, which began the process of transferring authority from Israel to the Palestinians. On October 26, 1994, Israel and Jordan signed a historic peace treaty that affirmed the end of hostility between the two countries. The Israeli-Palestinian Interim Agreement, which was signed on September 28, 1995 by Israeli Prime Minister Yitzhak Rabin and PLO chairman Yasser Arafat, broadened Palestinian self-government and provided for cooperation between Israel and the Palestinians in several areas. Subsequent Israeli governments continued to negotiate with the PLO over the

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return of territory, resulting in additional agreements, including the Wye River and the Sharm el-Sheikh memoranda. In May 2000, Israel withdrew from South Lebanon. In July 2000, U.S. President Bill Clinton, Israeli Prime Minister Ehud Barak, and Palestinian National Authority (PNA) Chairman Yasser Arafat met at Camp David to negotiate a final settlement of the Palestine-Israel conflict based on the Oslo Accords. The negotiations ended in failure. Israel offered to surrender the Gaza Strip and more than 90 percent of the West Bank, while keeping major settlement blocks and most of East Jerusalem. It proposed leaving Palestinians control of Muslim holy sites, and it offered contributions to a fund for Palestinian refugees. The Palestinians, on the other hand, wanted to start with a reversion to the lines that were in place prior to the Six-Day War of 1967. They offered the Israelis rights over the Jewish quarter of Jerusalem, but sought sovereignty over East Jerusalem, particularly the Temple Mount, a site holy to both Jews and Muslims. With the failure of the peace talks, a Palestinian uprising, or “intifadah,” began two months later in September 2000. Ariel Sharon was elected Prime Minister of Israel on February 6, 2001. He declared the results of Camp David void. In early June 2003, U.S. President George W. Bush, the first U.S. president to call for a Palestinian state, hosted summits in an attempt to move the peace process forward. Later that month, three terrorist groups declared a cease-fire, and Israeli forces then withdrew from Gaza and Bethlehem. However, seven weeks of relative calm ended in mid-August when a suicide bomb exploded in Jerusalem, killing 22 people. Unable to control the terrorist groups and lacking key support among Palestinian leaders, Palestinian Prime Minister Mahmud Abbas resigned. After that, Israel suspended political talks with the Palestinians, halted plans to transfer cities to Palestinian control, closed the borders of the West Bank and Gaza, raided several West Bank towns, and killed terrorist leaders. As a result, Palestinian terror groups declared an end to their cease-fire, and conflict resumed. THE RISE OF HAMAS It took years for Israeli and Palestinian leaders to overcome their mutual suspicion of one another and sit down at the bargaining table. Israel had long viewed the PLO as a terrorist organization and its founder, Yasser Arafat, as a murderer. Arafat, for his part, fought vigilantly for Palestinian self-determination and considered Israel the enemy; for decades he consistently denied its right to exist. Over time, however, the two sides slowly managed to come together in the series of negotiations described above. In 1994, the Nobel Peace Prize was awarded jointly to Arafat as President of the Palestinian National Authority, Israeli Prime Minister Yitzhak Rabin, and Israeli Foreign Minister Shimon Peres. The prize was given “for their efforts to create peace in the Middle East.” For decades, Yasser Arafat represented the heart and soul of the Palestinian people. He formed the Fatah political party in 1959 and dedicated it and his life to the creation of a Palestinian state. In the late 1980s, however, a wave of

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Islamic fundamentalism swept the globe, spawned in part by the success of Muslim resistance fighters in driving the Soviet Union out of Afghanistan. Desperate Palestinians who were disenchanted with Arafat’s cooperation with Israel and the West founded a new political party to oppose him: Hamas. Hamas, which has both political and military components, is a fundamentalist Islamic resistance movement that engages in violence in an effort to destroy Israel. Most western nations consider it a terrorist organization and do not maintain relations or negotiate with it; these include the United States, Canada, and the European Union. Hamas is committed to waging “jihad,” or “holy war,” against Israel and the West. It seeks an independent Palestinian state, but does not support compromise to obtain it. To further its plans, Hamas has engaged in numerous terrorist attacks against Israel and Jewish settlers, ranging from suicide bombings in cafes and markets to missile launches into Israel to assaults against Israeli soldiers policing the Occupied Territories. Hamas receives financial support and weapons from sympathetic governments such as Syria and Iran and likely from Muslim fundamentalist organizations as well. Yasser Arafat died in 2004. Without its charismatic leader, the onceinvincible Fatah Party lost support among Palestinians. Hamas, which had boycotted the 2005 Palestinian presidential election for leadership of the Palestinian Authority, won significant support in that year’s local elections. The next year, in 2006, it won a majority of seats in the Palestinian legislature, a fact that took many by surprise. Obviously, neither Israel nor the West was prepared to negotiate peace with a terrorist organization representing the Palestinian people. Consequently, the United Nations, with the support of the United States, Russia, the European Union, determined that it would cut off support for the Palestinian Authority unless Hamas was willing to become a legitimate political organization. They required Hamas to renounce terrorism, recognize Israel’s right to exist, and accept the terms of previously negotiated agreements. Hamas refused, causing many nations to stop international aid, which left the already impoverished Palestinian people in even more desperate straits. Today, the United Nations continues to deliver limited humanitarian aid to the Palestinians while trying to avoid their government. ISRAELI SETTLEMENTS—WEST BANK The rise of Hamas created serious challenges for the peace process. Nevertheless, the Bush and Obama administrations committed to continuing them without Hamas’s participation. As mentioned above, the Bush administration did not make much progress; it was largely consumed with fighting the wars in Iraq and Afghanistan. During the 2008 presidential campaign, thencandidate Barack Obama announced his commitment to negotiation instead of conflict in the world’s hot spots. This change of direction was viewed favorably by American voters, but even more so by foreigners and their governments. Shortly after he took office, President Obama was notified that he had won the

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Nobel Peace Prize “for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples.” Many critics alleged that the Nobel committee had recognized Obama not for what he had actually done, but for what he intended to do. In any event, the challenges came immediately to the Obama administration. Early in 2009, U.S. relations with the Israeli government became strained over the issue of the growing Israeli settlements in the West Bank. An Israeli settlement is a Jewish community on land that was captured by Israel during the Six-Day War. This land is considered by much of the international community to be occupied territory. After the Six-Day war, the Israeli government began sponsoring settlement construction in the territories. International law prohibits civilian settlement on land occupied during war. Some settlements on the West Bank grew so large that they have achieved city status. The Israeli government has long maintained that the settlements, developed in large part with public money, sit on untitled property or on property of unclear legal status. While Israeli courts have ruled that unauthorized outposts on private Palestinian property must be moved, these orders are rarely carried out. Some argue that much of the land used by Jewish settlements in the West Bank is private Palestinian property, which is a violation of international and Israeli law guaranteeing property rights in the occupied territories. The Israeli population of the West Bank, not including East Jerusalem, has tripled since the Israeli-Palestinian peace effort started in the early 1990s. Nearly 300,000 Israelis live in such settlements, alongside some 2.5 million Palestinians. The United Nations and other members of the international community criticize the ongoing construction of settlements by Israel, arguing that it creates an obstacle to the peace process. The international community has called upon Israel to resist transferring its own population into the territories or changing their demographic makeup. The position of successive Israeli governments, however, is that all authorized settlements are entirely legal and consistent with international law. Many human rights organizations, such as Amnesty International, argue that Israel’s settlement policy is discriminatory and violates Palestinian human rights. Travel restrictions placed on Palestinians impact their freedom of movement and ability to work. A recent report from Human Rights Watch concluded that Israel deprives Palestinian residents in the West Bank of basic necessities while its Jewish settlements flourish. According to this global human rights group, Palestinians face systematic discrimination merely because of their race, ethnicity, and national origin that deprives them of electricity, water, schools, and access to roads; at the same time, nearby Jewish settlers enjoy all of these state-provided benefits. American officials hope that, by convincing Israel to stop building settlements on land where the Palestinians expect to build their future state, they can persuade regional powers like Saudi Arabia to offer concessions to Israel on issues like trade or tourism. At a minimum, Israel insists that the Palestinians and their Arab neighbors recognize its right to exist as an independent nation.

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This has been a condition—some would say a precondition—to Israel’s agreement to support the creation of a Palestinian state. In September 2009, Israel, under heavy American pressure, agreed to a 10-month moratorium on new settlement construction; the pledge did not include suspending construction already under way or construction in Jerusalem. On Sept. 2, 2010, President Obama convened a new round of Israeli-Palestinian peace talks in Washington hoping to resolve key issues in carving out a Palestinian state from the Israeli-occupied territory on the West Bank. However, three weeks after peace talks began, Israel’s moratorium on construction in the occupied West Bank expired. Prime Minister Benjamin Netanyahu refused to extend the moratorium, despite appeals from President Obama and other American officials. The Palestinian Authority president, Mahmoud Abbas, had said before the peace talks began that he would not participate if Israel resumed construction of settlements in disputed areas. The peace talks went nowhere. President Obama tried to cast their failure in a positive light, saying that the talks were a “risk worth taking.” He pledged to continue efforts to bring the parties together. Critics, however, placed blame for the breakdown of the talks squarely on the president’s shoulders, arguing that his administration’s efforts were inept and naive and that the president had nothing new to offer the parties. TWO-STATE SOLUTION One of the most widely supported solutions to the Palestinian-Israeli conflict has been the advocacy of two separate states, or the “two-state solution.” In November 2007, the Bush administration called Israeli and Palestinian negotiators together in what is now known as the “Annapolis Conference.” There the parties outlined a potential Palestinian–Israeli peace agreement calling for two separate states in the western portion of Palestine. Under this solution, Israel would remain a Jewish state. Arab inhabitants, and likely Palestinian refugees, would be given citizenship by the new Palestinian state. Arab citizens living in Israel would have the choice of staying in Israel or becoming citizens of the new Palestine. For the two-state proposal to work, three primary (and familiar) issues must be resolved. First, the parties must agree on the status and borders of Jerusalem and the borders of the future Palestinian state. Second, they must agree on what to do with Israeli settlements in the West Bank. Finally, they need to develop a plan to address the plight and citizenship status of Palestinian refugees. Unfortunately, prospects for resolving these issues in the near future remain bleak. In November 2010, the Israeli parliament, the Knesset, approved the “referendum law,” which requires a national referendum on any future withdrawal from the Occupied Territories of the West Bank, Gaza Strip, and much of the Golan Heights. Many observers feel that this act is the death knell for the two-state solution, since it is unlikely that any referendum proposing a viable Palestinian state would ever be approved.

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Advocates for an alternative “one-state solution” argue for either a single state, or a bi-national state, in Israel, the West Bank, and Gaza Strip, or alternatively for a single state in Israel and the West Bank, with citizenship and equal rights in all three territories. This approach has largely remained outside official efforts to resolve the conflict because it has received low levels of popular support. Support among Palestinians for a one-state solution may be increasing, however, because the continuing growth of Israeli Jewish settlements in East Jerusalem and the West Bank will limit their ability to claim land for their eventual state. They fear that a Palestinian state could only be created in remaining territorial enclaves. Regardless of whether a formal agreement is reached, some observers feel that this may be the de facto outcome given continuous growth of Jewish settlements in the West Bank. It is important to note that, although the terms “one-state solution” and “binational solution” are often used synonymously, they are not necessarily the same. “Bi-nationalism” refers to a political system in which the two groups, Jews and Palestinians, would retain their legal and political rights as separate nations or nationalities within the same territory. Critics of bi-nationalism warn that fostering two different political entities could cause rivalry and faction. Given the size of the Palestinian population, many Israeli Jews predict that Palestinians will constitute an electoral majority that poses a threat to a secular, democratic Israel. Thus, a one-state solution is generally endorsed by Israel’s Arab population and rejected by its Jewish population. THE AMERICAN DEBATE Since its inception, Israel and the United States have maintained close relations. Some consider Israel to be America’s strongest ally. The relationship is close for various reasons, including shared cultural and democratic values and similar interests and goals in the Middle East. As mentioned above, the relationship has been further solidified by significant amounts of U.S. economic and military aid to Israel. Strong ties between Israel and the United States also exist because of the strong Jewish political lobby in the United States. The lobby consists of a diverse coalition of groups and individuals who seek to influence U.S. policy toward Israel. The lobby consists primarily of Jewish American secular and religious groups as well as Christian organizations. Support for Israel is strong among American Christians of all denominations. Still, some critics, like former U.S. President Jimmy Carter, argue that mainstream American politics does not give equal time to the Palestinian side of the Israeli-Palestinian conflict. In 2006, Carter labeled Israel’s policies in the Palestinian territories “a system of apartheid, with two peoples occupying the same land, but completely separated from each other, with Israelis totally dominant and suppressing violence by depriving Palestinians of their basic human rights.” Critics of U.S. policy argue that it exacerbates tensions in the region and ignores the fact that a relatively small number of Jewish Israelis control the lives of a huge number of Arab Israelis and Palestinians. Many Arab analysts insist

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that U.S. economic assistance to Israel only adds to the suffering of Palestinians. The United States, however, has not cut Israel’s military or economic aid. While the United States has criticized Israel in regard to its settlements in the occupied territories and arms sales to China, its support of Israel has been unwavering. Public opinion in the United States continues to show that Americans view Israel as a reliable and important strategic partner. Jewish groups in the United States are somewhat divided over the IsraeliPalestinian controversy. More liberal American Jewish groups support Israel but are critical of its policies toward the Palestinians. This position is simply unacceptable to more conservative Jewish organizations, which allege that their opponents are not “real Jews.” Unfortunately, the issue is polarizing, with “Israel-right-or-wrong” continuing to be the position of most U.S. Jewish organizations. “J Street,” an upstart Jewish organization that supports Israel but disagrees with its settlement activities, has claimed that American Jews who dare to oppose the continued expansion of settlements in the West Bank, or who question growing anti-Arab bias, are ostracized by powerful Jewish groups and organizations. With the recent breakdown of the most recent peace talks over the issue of settlements, it is widely believed that President Obama has little support for his position that the expansion of Israeli settlements undermines a two-state solution. He would not be the first president to fail to bring resolution to the Israeli-Palestinian conflict, only the latest. Prospects for a negotiated settlement during the final two years of President Obama’s term are not good, particularly since he no longer has the support of a Democratic Congress. Voters in the 2010 midterm elections clearly indicated that they want the federal government to fix things at home, not overseas. Indeed, foreign affairs issues hardly registered in pre-election public opinion polls—not even the wars in Iraq and Afghanistan ranked as significant issues—because voters remained focused on the nation’s troubled economy. Still, President Obama has continued his efforts toward a negotiated solution. In mid-May 2011, he invited Prime Minister Netanyahu to the White House. Shortly before the prime minister was to fly to the United States, President Obama announced in a speech his view that Israel’s borders should be returned to their pre-1967 war status. Netanyahu was not pleased, and in a news conference with the president he emphatically rejected the suggestion. Although both countries characterized the meeting as productive, and President Obama reaffirmed the U.S. commitment to Israel, it was clear to observers that the two leaders remained far apart on their expectations. Critics of the Obama administration accused the president of “throwing Israel under the bus” in suggesting that it agree to adopt its pre-1967 borders; the administration later claimed that the president’s comments were misinterpreted. In any event, compromise on this issue remains highly unlikely. Thus the crisis in the Middle East continues, to no one’s surprise. If resolution of the Israeli-Palestinian conflict were easy, it would have been accomplished long ago. There is no doubt that this issue will remain the subject of intense scrutiny and debate among American foreign affairs scholars, national

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security experts, and elected officials for years to come. Although the American public remains supportive of Israel, it may soon be asked to reconsider its longstanding commitments, particularly with regard to financial assistance. Indeed, recent proposals for reducing the national debt—a key issue to voters—include severe cuts in foreign aid around the globe. Americans will have to determine whether they wish to continue to support Israel given that they face a crushing national debt at home. They will also have to continually assess whether Israeli policies and the Palestinian response to them are advancing the cause of regional peace, which almost all agree is in the long-term interests of the United States and all of the parties in the region. Further Reading Books: Albrecht, Holger, ed. Contentious Politics in the Middle East: Political Opposition under Authoritarianism. Gainesville: University Press of Florida, 2010; Bard, Mitchell Geoffrey. Will Israel Survive? New York: Palgrave Macmillan, 2007; Bentsur, Eytan. Making Peace: A First-hand Account of the Arab-Israeli Peace Process. Westport, CT: Praeger, 2001; Carter, Jimmy. Palestine: Peace Not Apartheid. New York: Simon & Schuster, 2006; Cooley, John K. An Alliance against Babylon: The U.S., Israel, and Iraq. Ann Arbor, MI: Pluto Press, 2005; Felton, John. The Contemporary Middle East: A Documentary History. Washington, DC: CQ Press, 2008; Freedman, Robert O. Israel’s First Fifty Years. Gainesville: University Press of Florida, 2000; Gordon, Neve. Israel’s Occupation. Berkeley: University of California Press, 2008; Haugbolle, Sune. War and Memory in Lebanon. New York: Cambridge University Press, 2010; Jung, Dietrich. Democratization and Development: New Political Strategies for the Middle East. New York: Palgrave Macmillan, 2006; Maoz, Zeev. Defending the Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy. Ann Arbor: University of Michigan Press, 2009; Political Handbook of the Middle East. Washington, DC: CQ Press, 2008; Ram, Haggay. Iranophobia: The Logic of an Israeli Obsession. Stanford, CA: Stanford University Press, 2009; Ross, Dennis. The Missing Peace: The Inside Story of the Fight for Middle East Peace. New York: Farrar, Straus and Giroux, 2004; Roy, Olivier. The Politics of Chaos in the Middle East. New York: Columbia University Press with the Centre d’Etudes et de Recherches Internationales, Paris, 2008. Websites: CIA World Factbook: Israel. https://www.cia.gov/library/publications/the-world -factbook/geos/is.html; The Guardian: Israel. http://www.guardian.co.uk/world/israel; Israel Ministry of Foreign Affairs. http://www.mfa.gov.il/MFA; The Jerusalem Post. http://www.jpost.com/; New York Times. World News about Israel. http://topics .nytimes.com/top/news/international/countriesandterritories/israel/index.html; Timeline of Israeli-Arab Middle East Conflict. http://www.mideastweb.org/timeline.htm; University of Denver, Institute for the Study of Israel in the Middle East. http:// www.isime.org/

Sara Hower and Kathleen Uradnik

J JUDICIAL ACTIVISM American judges differ from their counterparts in other democracies in a number of significant ways. Most importantly, perhaps, they possess the power of judicial review—the ability to declare laws unconstitutional. This power is widely exercised by judges across the American legal system, from low-level state judges all the way up to the justices of the U.S. Supreme Court. In addition, American judges are more politically active than their international counterparts. In many states, judges begin their careers as political appointees. Sometimes judges run for election to the bench. Judicial elections can be partisan, with judicial candidates declaring their political party affiliation, raising campaign funds, and acting very much like political candidates; or nonpartisan, where judges run for office under circumstances that severely limit their campaign activities. In either case, American judges participate directly in the electoral process, a practice considered unusual abroad. Finally, unlike most European judges, American judges are not professionally trained to be judges. Instead, most are attorneys or law professors before being selected for the bench. They receive no special training in college or law school to prepare them for the judiciary; indeed, there is no comprehensive judicial education available in the United States. Some judges choose to attend occasional training seminars, but there is no uniform or required preparation for them as they undertake their duties. As a result of these and other uniquely American practices, American judges tend to be quite involved in the adjudication of cases. They view themselves as members of a separate, independent branch of government that has an almost sacred responsibility for ensuring that the other branches of government behave

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properly and that the rights of individuals are protected. They actively interpret the laws of the land, including the Constitution. They also enjoy considerable discretion to “do justice” by the various persons who come before them, and can have significant discretion in the sentencing of criminal defendants. American judges, like the juries they oversee, reflect the populist, lay-driven nature of the American legal system. Judges by and large view themselves as a part of and integral to the communities they serve. In short, American judges are by nature more politically active than the judges of other nations. That being said, Americans still debate whether their judges are too active and too political on the bench. Since the founding, citizens have levied charges of “judicial activism” against judges whom they perceive have overstepped the bounds of propriety or ignored the limitations of their office. But just what constitutes “bad” judicial behavior? What makes a judge an “activist,” the common pejorative term for a judge who acts beyond the scope of his or her office? “ACTIVISM” EXPLAINED In its simplest form, critics may label a judge an “activist” because they do not agree with his or her decisions or approach to deciding cases. This type of criticism has been around since the nation’s founding. In the early days of the Republic, Chief Justice John Marshall upset many southerners by rendering decisions that they perceived to be against states’ rights. They accused Marshall of behaving on the high court as he had as a partisan in President Adams’s administration. Opponents viewed him as a Federalist Party member who favored a strong central government, plotted the demise of the states, and used the Supreme Court to embrace a pro-northern, pro-federal view of the Constitution. One aspect of judicial activism, then, is the ability or tendency of a judge to follow a particular political agenda or political philosophy rather than the requirements of the law. That agenda or philosophy can be found on either side of the political spectrum: liberals accuse judges of being too conservative, and conservatives accuse judges of being too liberal. Theoretically, a judge should divorce himself or herself from partisan politics upon taking the bench and adopt an objective, neutral view toward interpreting laws and deciding cases. That was, at least, the model suggested by Alexander Hamilton in Federalist Paper 78. According to Hamilton, Americans could expect their judges to be men of high intelligence, civic virtue, and moderate temperament. Hamilton wrote Federalist 78 in response to the Anti-Federalists’s claim that the Supreme Court was not sufficiently controlled by the Constitution. Unlike the other branches of government, which had extensive checks and balances placed on their powers, Anti-Federalists argued that Supreme Court justices had no restraints once appointed to the bench. Indeed, justices serve for life, cannot be removed except by impeachment (which has never successfully been done in the nation’s history), and cannot have their judicial salaries lowered. It seems that the Anti-Federalists may have been onto something in their criticism

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of the Court, but Hamilton assured them that judges by their very nature would be conservative in the exercise of their discretion and careful in their decision making. Over time, it is clear that Hamilton was rather optimistic in his predictions about judicial behavior. Although judges and justices would be loath to admit it, one can point to judicial opinions that resemble political statements, or are argued from a political or policy perspective rather than a legal one. The problem is that reasonable persons disagree about which judges and which opinions cross the line from legal interpretation to political policymaking. In recent years, American conservatives (generally but not exclusively found in the Republican Party) have insisted that judges “follow the law” and resist the temptation to “legislate from the bench.” Clearly, Supreme Court justices are not designed to be lawmakers. They are not elected and are not accountable to the people. They cannot be recalled or otherwise voted out of office. They do not represent a demographic crosssection of America. They do not read citizens’ e-mail complaints or answer constituents’ phone calls. That being said, justices and their lower court counterparts are charged with interpreting the law, a task made more difficult by the fact that American laws are often written in an imprecise, vague manner—one that actually invites the courts to step in and give meaning to them. For a modern conservative, a judge should embrace a number of principles that restrain him or her in the exercise of judicial power. Among other things, a “restraintist” judge: (1) decides only those cases properly before the court; (2) follows the text of the Constitution or applicable law very closely; (3) uses a straightforward approach to defining the key terms or portions of legislation; (4) decides cases as narrowly as possible, tackling only the issues that are presented in the case; and (5) refrains from imposing his or her personal views in reaching a decision. In short, conservatives look for a judge who sticks to the law and understands the difference between a judge and a legislator. ORIGINAL INTENT Some modern judicial conservatives continue to embrace “original intent” or “originalism,” a philosophy regarding judicial behavior made popular in the 1980s by Supreme Court Justice Antonin Scalia, unsuccessful Supreme Court nominee Judge Robert Bork, and a handful of prominent legal scholars of the time. Original intent means that judges should follow the intent of the framers of the Constitution both in interpreting that document and in their judicial philosophy generally (called “jurisprudence”). Proponents of original intent argue that, because judges have few structural limitations placed on them in the scheme of government, they need to be especially careful to rein in their personal predilections by abiding the boundaries of the Constitution. Opponents of original intent, for their part, argue that the framers’ attitudes do not bind their successors, and that the Constitution is an evolving document that needs to be adjusted over time. They remind originalists that the framers had no knowledge of modern issues and technologies that yield so many current

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court cases. More crassly, opponents point out that the framers are long dead and do not control the Constitution from the grave. The debate over original intent reached its peak in 1987, when President Ronald Reagan nominated Judge Robert Bork to fill a vacancy on the Supreme Court. Bork was a federal appellate judge who had been a prominent Yale law professor before joining the bench. As a scholar, Bork had written extensively about constitutional interpretation, outlining the tenets of originalism in several of his works. The fact that Bork was a prolific writer came back to haunt him during his very public, very divisive Senate confirmation hearings, where he came under heavy fire for his conservative beliefs. Democrats, who controlled the Senate at that time, portrayed Bork as a kind of Neanderthal nominee who would roll back abortion rights, protections for criminal defendants, and the scope of the first amendment. It did not help that Bork had also been the Solicitor General and acting Attorney General during President Richard Nixon’s last days in office, and had ordered at Nixon’s behest the firing of Watergate Special Prosecutor Archibald Cox, who was investigating the president. Senate Democrats viewed Bork not only as a conservative extremist, but one who favored the executive branch and extolled executive power. Ultimately, the Senate turned down Judge Bork for a seat on the high court, a fact that today’s conservatives have not forgotten or necessarily forgiven. The term “Borked” was adopted soon after his defeat to describe a political nominee or appointee torn apart by critics in an especially unfair or critical manner. After losing the nomination, Judge Bork became the poster child for the modern conservative movement to reform the judiciary by, in part, electing a Republican majority to the U.S. Senate. POLITICAL PHILOSOPHY OR JUDICIAL PHILOSOPHY? Does judicial conservatism lead to conservative political results? That’s an interesting question. Justice Antonin Scalia, often identified as the most conservative member of the current Supreme Court, has stated publicly that judicial conservatism involves acknowledging that there are areas of the law on which the Constitution is silent. In a spring 2008 interview on the CBS television news program 60 Minutes, Scalia explained that both liberals and conservatives would be disappointed with his view on abortion. As a devout Catholic, Scalia as an individual opposes abortion. Scalia the justice, on the other hand, has concluded that the right to abortion is not in the Constitution—but neither is the prohibition of abortion. In short, the Constitution is silent on the issue, which leaves it to the state legislatures and Congress to decide whether and to what extent it exists. In earlier speeches, Scalia took a similar view of the “right to die” or “assisted suicide,” which he also believes cannot be found in the Constitution. Is Scalia’s position a boon for conservative policymakers? In one sense it is, because Scalia is unwilling to recognize a number of rights that the Court has identified or at least clarified and extended over the years. Certainly a judge or justice following a conservative judicial philosophy is not going to be at the forefront of recognizing new rights or of extending existing ones. On the other

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hand, Scalia’s view means that he is not going to set abortion policy from the bench. Scalia adheres to a core belief of judicial conservatism that legislatures must be allowed to make public policy, and that under our federal system important (nonconstitutional) rights can and will vary from state to state. THE ACTIVIST RESPONSE AND THE RIGHT TO PRIVACY Those who support a philosophy of judicial activism believe that an integral part of the judge’s duty is to protect the rights of individuals. They argue that neither the Constitution nor the laws can fully identify and detail the nature and extent of all of the rights to which persons are entitled, and that it is fully within the scope of the judicial function for judges to assist in the recognition and protection of rights. Proponents point to rights created by the judiciary that we take for granted today, including the right to counsel in a criminal case. Other widely embraced rights adopted by the Supreme Court include the “Miranda rights” read to persons upon their arrest and the “exclusionary rule” that prohibits illegally obtained evidence from being used against a defendant at trial. Critics of judicial conservatism also point out that it was the Supreme Court that forced state and local governments to adhere to the Bill of Rights through a decades-long process called “incorporation.” Probably the most controversial issue in the debate over the proper role of the judiciary concerns the “right to privacy.” This right is not explicitly found in the Constitution, but over the years the Supreme Court has recognized various forms of it, some more controversial than others. The right to privacy has been used to protect individuals from unwarranted government intrusion into their lives, and has been used to justify other fundamental rights (like the right to marry and procreate) that also are not found in the text of the Constitution. The right to privacy has been used to overturn a state law prohibiting a physician from discussing contraception with a married couple (in the 1964 case of Griswold v. Connecticut). This decision might not have been considered controversial except for the fact that it later became the foundation for the 1973 case of Roe v. Wade, in which the high court recognized that the right to privacy also included the right to abortion. Roe v. Wade quickly became one of the most controversial and decisions in Supreme Court history, and it remains so today. Opponents of Roe argue that the Court overstepped its bounds and stretched the words and meaning of the Constitution in creating the abortion right. Proponents, naturally, praised the Court for its vision and courage in protecting women and acknowledging their right to dictate the treatment of their own bodies. Which side is correct? The answer depends at least in part on how one views the role of the judiciary. The first issue to be considered is a substantive one: whether the right exists. For the reasons described above, judicial activists and judicial restraintists will disagree on whether the Constitution includes the right to abortion, and will also disagree on whether and to what extent it even includes a right to privacy. The second issue is whether the Supreme Court is even in the best position to recognize a new right. Obviously, the Court needs to protect all of the individual

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rights found in the Constitution. But the judiciary is not the only branch of government that can recognize and protect rights. The Congress and the state legislatures can also grant rights above and beyond those found in the Constitution. Judicial restraintists argue that, structurally and practically, the legislature is in a better position to identify and define rights that are not clearly provided for in the Constitution. They contend that the legislature is equipped to understand what the American people want and need because they are elected by and accountable to the voters. Important, too, is the question of which branch in the constitutional scheme is best equipped to make mistakes. It might sound odd to talk about who should be allowed to make mistakes, but it actually matters quite a bit in a system of democratic governance. The framers recognized that all individuals are flawed and potentially corruptible, including public officials. Mistakes in governing (whether made by accident, incompetence, miscalculation, greed, or corruption) are inevitable, which means that correcting mistakes must be an integral part of the governing process. This belief explains in part why the Constitution can be amended and why, on a less dramatic scale, it can be interpreted by judges and legislators alike. Conservatives believe that it is generally preferable for the legislative branch to make mistakes in interpreting the nation’s Constitution and laws, because voters can comment directly and quickly on their actions. Indeed, voters can change policies with which they disagree by voting their elected officials out of office or by invoking other democratic reform measures such as recall. Voters have no ability, however, to remove members of the U.S. Supreme Court. Thus, if the Supreme Court makes a mistake in interpreting the Constitution, its decision still becomes the law of the land. A Supreme Court decision is final, and can be overturned only by an amendment or by the Supreme Court changing its mind. Today, some 35 years after Roe v. Wade, the Supreme Court is still being asked to overturn its decision. In fact, the Court over the years has already cut back significantly on the abortion right, but has not dismissed it. Critics of Roe point out that the Court has been continually adjusting its decision, and with it the abortion right, and is likely not done yet. They contend that this approach to recognizing rights does not instill much faith in the court’s authority or legitimacy and does not allow for disagreement or reform should the public believe that the Court has acted illegitimately or made a crucial mistake. SUMMARY Debate over the proper role of judges in the legal system has existed since the nation’s founding. It has been a constant in American politics and is not likely go away. At its core, disagreement over judicial activism is grounded in the differing political philosophies of its proponents and opponents. Some embrace the notion of a judiciary of the people, one that stands up for individual rights in the face of legislative obstinacy and old-fashioned thinking. Others see the judiciary as facilitators of legislative intent who should not venture out on their

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own policymaking adventures, but rather should follow the will of the people as expressed through legislation. Both of these notions are a bit romantic. In reality, the judiciary is a defender of both majority rule and minority rights, which means that the proper judicial role is not necessarily so easy to define. Further Reading Books: Maveety, Nancy, ed. The Pioneers of Judicial Behavior. Ann Arbor: University of Michigan Press, 2003; Pacelle, Richard L. Jr. The Role of the Supreme Court in American Politics: The Least Dangerous Branch? Boulder, CO: Westview Press, 2002; Roosevelt, Kermit III. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. New Haven: Yale University Press, 2006; Sandler, Ross and David Schoenbrod. Democracy by Decree: What Happens When Courts Run Government. New Haven, CT: Yale University Press, 2003; Sunstein, Cass R. Are Judges Political? An Empirical Analysis of the Federal Judiciary. Washington, DC: Brookings Institution Press, 2006; Sunstein, Cass R. Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. New York: Basic Books, 2005. Websites: Bolick, Clint. “A Cheer for Judicial Activism.” The Wall Street Journal, April 3, 2007. Cato Institute. http://www.cato.org/pub_display.php?pub_id=8168; Dean, John W. “What Exactly Is Judicial Activism?” Findlaw. http://writ.news.findlaw.com/dean/ 20050617.html; “Should We Get Rid of Judicial Review?” Mark Tushnet and Erwin Chemerinsky Debate, Legal Affairs, May 30, 2005. http://www.legalaffairs.org/webexclu sive/debateclub_jr0605.msp

Kathleen Uradnik

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L LIVING WAGE Each year, the federal government determines the “poverty level,” an income level below which a family or an individual is deemed to live in poverty. The poverty level is an important number, because it is used by government to determine eligibility for a host of federal, state, and even local benefits. By the government’s definition, millions of Americans live in poverty. According to the U.S. Census Bureau, the nation’s official poverty rate in 2009 was 14.3 percent, up from 13.2 percent in 2008. There were 43.6 million people in poverty in 2009, up from 39.8 million in 2008, which was the nation’s third consecutive annual increase. Growing poverty was seen across all types of households and all regions of the nation. By the federal government’s definition, the average poverty threshold for a family of four in 2009 was $21,954. Meanwhile, the number of people with health insurance declined from 255.1 million in 2008 to 253.6 million in 2009. This gap was caused by the loss of private health insurance coverage: Americans with private health insurance decreased from 201.0 million to 194.5 million from 2008 to 2009. Of those without health insurance, 7.5 million were children—amounting to 10 percent of the nation’s children under age 18. When the Census Bureau released these figures in September 2010, they did not come as much of a surprise. The U.S. economy had been in a deep recession since 2008, during which millions of Americans lost their jobs and several major corporations and financial institutions failed. Companies struggling to stay in business cut staff, benefits, or both—and health insurance, as the most costly benefit, was often the first to go. Most Americans would agree that these are

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disturbing numbers, and they continue to worsen because the nation’s economy has yet to get back on track. Many of these impoverished individuals belong to working families who cannot escape the cycle of poverty. Advocates of what has been coined the “living wage” seek to remedy this situation by requiring businesses to pay their employees wages sufficient to keep a family of four above the federal poverty level. They claim that living wages are good for business, for disadvantaged members of society, and for government. Opponents counter that living wage laws fail to target the most disadvantaged in our society and that they drive businesses out of communities that impose such laws. When businesses leave for other locations or go abroad, the unemployment rate rises for society’s least skilled individuals, and they see little if any increase in actual income. HISTORY OF THE LIVING WAGE MOVEMENT The term “living wage” had its genesis in the 1870s with a group of striking miners in Britain who demanded a “lifeline,” or a floor beneath which wages could not fall. The phrase came to the United States in 1877 when it was used by national railroad strikers. It was also used by workers in the famous 1894 Pullman strike and in the 1897 American Federation of Labor strike. During the first third of the twentieth century, Progressive Era reformers across the nation demanded better conditions for workers, including maximum working hours and minimum wage laws. Congress and several states tried to adopt these laws, only to be thwarted by the Supreme Court, which considered them an unconstitutional infringement on the individual’s right to work. In time, however, the Supreme Court backed down, clearing the way for Congress to adopt its first minimum wage laws during the Great Depression. In 1938, Congress passed, and President Roosevelt signed, the Fair Labor Standards Act. The act mandated a minimum wage of 25 cents per hour for workers, and it still exists today. Congress raised the initial minimum wage eight times between 1938 and 1974, when it reached $2.00 per hour. By 1980, it was at $3.10; by 1991, it was at $4.25; and in 1997 it was set at $5.15. In 2007 Congress passed amendments to the Fair Labor Standards Act that authorized a gradual increase in the minimum wage. On July 24, 2007, the minimum wage became $5.85. On July 24, 2008, it became $6.55 an hour. On July 24, 2009, it rose to $7.25 per hour. Many states also have their own minimum wage laws. Under federal law, an employee is entitled to the higher of the two wage rates. That means in California, for example, the minimum wage as of January 1, 2011 is $8.00 per hour while in Washington it is $8.67. Despite this recent increase, disparity still exists between the federally mandated minimum wage and what is actually required to keep a family of four above the poverty level. This disparity is due in part to inflation, and in part to the rising cost of everything from housing to gasoline to food. The disparity between federal minimum wage requirements and what is needed to keep a family of four above the federal poverty level led to the start of the modern

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living wage movement in Baltimore in 1994. As churches in the Baltimore area began to see an increase in the number of working families utilizing soup kitchens and food shelves, they realized that the low-wage jobs held by these workers were preventing them from escaping the cycle of poverty. The churches also observed that many of the workers were employees of firms that had been awarded city contracts by being the lowest bidder for them. But the reason these firms were the lowest bidder often was because they paid their employees a low wage. Baltimore churches began to characterize this phenomenon as a direct city “subsidization of poverty.” The churches joined local labor organizations and activist groups to demand a wage that would be high enough to give a family of four the chance to escape poverty. Their efforts led to the passage of living wage rules in city contracting. In 1997, the success of the Baltimore movement led to similar movements and successes in St. Paul and Duluth, Minnesota; New Haven, Connecticut; and Los Angeles and West Hollywood, California, among other cities. Eleven more cities passed living wage legislation in 1999. Some states followed by increasing their minimum wage rates. Currently, 17 states and the District of Columbia have minimum wage rates higher than that required by the federal government. The living wage movement has, however, met with serious challenges. Given the grassroots nature of the movement, activists largely have attempted to effect change on the local level, but these efforts have been opposed by cities as well as states. In an attempt to head off the passage or implementation of living wage laws, some states passed laws banning local governments from setting minimum wages above the federal guidelines. In February 2002, for example, voters in New Orleans approved the first-ever citywide minimum wage, set at $1 above the federal minimum. Opponents immediately sued and the law was put on hold. The Louisiana Supreme Court determined that the law was “an illegal encroachment on power reserved to the state,” and upheld a 1997 state law that forbade local governments from setting minimum wages. However, in a similar case in St. Louis, the Missouri Supreme Court refused to reinstate the ban on local wage laws and upheld the St. Louis living wage law for businesses receiving public money. The court declared that the state law banning local governments from setting their own local minimum wages was enacted in violation of the Missouri Constitution. WHY ARE SOME PEOPLE OPPOSED TO LIVING WAGE LAWS? Those opposed to living wage laws do not want to appear cruel or insensitive to the plight of those living in poverty. To the contrary, they want to address the complex issues of poverty in the most effective manner. They concluded that the living wage is not the best way to assist low-income workers, and that living wage laws can end up hurting the very people they are designed to help. Those who oppose living wage legislation argue that a living wage does not meet the interests of impoverished families, businesses, communities, the

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economy, or the nation as a whole. They point out that living wage laws affect only about 100,000 of the 134.5 million workers in the United States. Opponents believe that the effect on workers as a whole, and especially on the least skilled workers, is negative. Classical economics instructs that price floors such as the living wage result in considerable unemployment among the lowest-skilled workers in a society, because businesses can no longer afford to employ them. As a result of the higher wages companies must pay, they are likely to reduce the number of people they hire. If they find it unprofitable to hire those whose output does not warrant the required living wage, the lowest-skilled employees will not be hired. Economist David Neumark’s 2002 study of living wage laws supported this conclusion, finding “small but significant negative effects” of living wages on the employment of such workers.” Moreover, the fact that firms must pay such high wages to employees whose output does not warrant those wages will lead companies to develop and implement technological or organizational changes. This automation further reduces the number of these low-skilled workers required in the first place. Not only do these laws result in the unemployment of the lowest-skilled individuals, but they may also fail to lead to the expected increase in family income. For example, if a family earns a dollar more an hour due to a living wage ordinance, this raise could theoretically result in an 80-cent decrease in welfare benefits (because they are no longer eligible), meaning that the family’s actual income increase will be only 20 cents. The net effect to the family is small. Business picks up the entire tab for the wage increase, while government saves money on the welfare benefits. Opponents argue that it is not the responsibility of business to pick up all of the costs of higher wages, particularly when it benefits the government. They conclude that such policies could significantly harm the economy. Critics of the living wage also argue that living wage laws are less effective than other governmental measures to remedy poverty because they fail to target the least well off in society. Indeed, the living wage often benefits those who do not need or require it—particularly teenagers working at fast-food and retail establishments. Living wage laws make no distinction between the impoverished single mother of two, who bears all of the family’s financial burdens, and the middle-class teen living at home, who earns money for himself or herself and does not pay household bills. While both employees may be working a minimum wage job, they have very different needs. The living wage law is intended to help individuals out of poverty, not to supply extra cash to a teenager who wants a new computer or iPod. Finally, opponents argue that local living wage laws are problematic precisely because they are local in nature. When a living wage law applies to a particular city, it is easy enough for businesses to relocate across city lines, where the next community has not adopted them. An exodus of businesses from the first city does not help its workers, the poorest citizens whom the law was meant to aid. Plus, living wage laws can be arbitrarily drawn, helping some but not all of a city’s low-income workers. In Baltimore, for example, workers who cleaned the city’s major league baseball stadium, Oriole Park at Camden Yards, initially

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were not covered by living wage requirements. The state of Maryland, which passed a living wage law in the spring of 2007, exempted part-time and temporary workers like those who worked at the publicly owned stadium. After months of pressure from unions and labor groups, however, the state’s Stadium Authority voted to pay living wage benefits, resulting in a nearly 60 percent wage increase to stadium workers. While these workers were successful, most part-time and temporary workers do not enjoy the benefits of the state’s living wage law. WHY ARE SOME PEOPLE IN FAVOR OF LIVING WAGE LAWS? On the other side of the debate, however, are those who believe that a living wage is an appropriate and effective way to bring aid and hope to families who would otherwise find themselves caught in a cycle of poverty. Proponents argue that these impoverished people serve our society in essential ways: they clean our schools, drive our buses, and take out our trash. Society, however, fails to view them and value them as essential members of our communities. Advocates of living wage laws contend that they are good for business and community development. They point out that low-income workers spend some of their wage increases in the businesses surrounding their homes, creating an economic stimulus and bringing more money into the local area. Studies of communities with living wage laws have found that the laws have not led to the dire consequences suggested by their opponents. The Preamble Center for Public Policy, for example, found that following the implementation of its living wage law, Baltimore experienced greater business investment in the community, greater workforce stability, increased job commitment, better productivity, and less turnover at very little taxpayer expense—17 cents per person annually to be exact. A similar study in Los Angeles found that implementation of living wage laws resulted in increased spending, stronger small business markets, and more home ownership. Proponents argue that living wage laws validate workers’ contributions to society and reward workers by giving them not only more money but a greater sense of recognition and pride in their work. A more content workforce will have reduced turnover, greater efficiency, better productivity, and less absenteeism. Living wages, they say, are better for everyone: workers, families, businesses, and communities. While opponents argue that living wage laws fail to target the truly disadvantaged of society (by favoring upper- and middle-class teens working part-time minimum wage jobs), some studies indicate that this conclusion is false. Nearly 70 percent of the workers affected by such living wage laws would be over 20 years of age, and nearly half would be full-time workers. Moreover, if widely implemented, these laws would disproportionately aid female, minority, immigrant, and disabled workers—groups widely acknowledged as among the most disadvantaged in society. A study in Los Angeles found that implementation of a living wage law there would result in a 50.4 percent decrease in government subsidies to low-income workers and their families. The shift from welfare to work is a major goal of welfare reform, and providing a living wage can help to make this goal possible.

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FOR THE FUTURE Strong opposition emerges every time Congress seriously considers increasing the minimum wage, and the last fight in 2007 was no exception. The battle to raise the minimum wage was hard-fought and bitter, and it left members weary. Ultimately, Congress agreed to an increase that would go into gradual effect from 2007 to 2009, topping out at the current federal rate of $7.25 per hour. Given that it passed this minimum wage legislation with great difficulty, Congress is unlikely to address the issue again anytime soon. Moreover, as described above, the minimum wage is not necessarily even high enough to constitute a living wage. Advocates who believe in a living wage, therefore, might be wise to direct their efforts toward the states and local communities. The future success of these efforts is not assured—the worse the economy becomes, the more difficult it is to convince lawmakers to impose new wage burdens on businesses. The key to success in the living wage movement may be to convince businesses and governments to work together, recognizing that the burden of paying a living wage could be shared by both. While today’s economic hard times do not bode well for the movement, its advocates remain undaunted, ensuring that the debate over the desirability and efficacy of the living wage will continue. Further Reading Books: Cunningham, Wendy V. Minimum Wages and Social Policy: Lessons from Developing Countries. Washington, DC: World Bank, 2007; Figart, Deborah. Living Wage Movements: Global Perspective. New York: Routledge, 2004; Neumark, David and William Wascher. Minimum Wages. Cambridge, MA: MIT Press, 2008; Neumark, David. How Living Wage Laws Affect Low-Wage Workers and Low-Income Families. San Francisco: Public Policy Institute of California, 2002; Nordlund, Willis J. The Quest for a Living Wage: The History of the Federal Minimum Wage Program. Westport, CT: Greenwood Press, 1997; Pollin, Robert. A Measure of Fairness: The Economics of Living Wages and Minimum Wages in the United States. Ithaca, NY: Institute of Labor Relations, Cornell University Press, 2008; Quigley, Bill. “The Living Wage Movement.” Blueprint for Social Justice 54:9 (2001); Tanner, Jane. “Living-Wage Movement.” Selections from the CQ Researcher: Issues for Debate in American Public Policy. 4th ed. Washington DC: CQ, 2004. Websites: “Get the Facts: The Living Wage,” Independent Women’s Forum, http:// www.iwf.org/campus/show/20516.html; Hungry for Food and Hope.” What’s Going On? Poverty in America. 2003. The UN Works. http://www.un.org/works/goingon/poverty/jessica_story.html; “Living Wage v. Minimum Wage: What’s the Difference?” http://www-tc.pbs.org/pov/pov2006/wagingaliving/pdf/pov_wagingaliving_lp.pdf; “Should the Minimum Wage be Abolished?” http://www.balancedpolitics.org/minimum_wage.htm; University of California, Berkeley Labor Center, “Living Wage and Self Sufficiency Resources.” http://laborcenter.berkeley.edu/livingwage/resources.shtml

Lindsey Hanson and Kathleen Uradnik LOBBYING “Lobbying” is an attempt by a group to influence the policy process through the persuasion of government officials. A lobbyist is a person who tries to influence

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legislation on behalf of a special interest. By gaining the ear of influential legislators or their staff members, lobbyists inform them about issues, facts, or claims about certain issues and express public support for or against those issues. They educate and mobilize public opinion, prepare legislation, and testify before legislative hearings. In this way, lobbyists can serve an important role in the legislative process. Yet many people are concerned that lobbyists have too much power and influence on government, especially since they also can contribute large sums of money to political campaigns. WHO ARE LOBBYISTS? The constitutional basis for lobbying is the First Amendment, which provides for the right to “Petition the Government for a redress of grievances.” Eventually, the word “petitioning” gave way to “lobbying” since petitioning cannot take place on the House or Senate floors. Therefore, the petitioner confronted members of Congress in the lobbies of the legislative chambers, which led to the term “lobbying.” Lobbying activities may involve direct contact between a lobbyist and a government official, or it may involve indirect action such as swaying public opinion to influence legislators. Some lobbyists are volunteer activists, while other are salaried employees of groups or firms whose interests they represent. Others are contract lobbyists, often referred to as “hired guns,” that usually include experienced Washington lawyers from top law firms that have worked within government channels for years. Most firms recruit lobbyists who are both Democrats and Republicans to assure access to elected officials regardless of which party controls government. Currently there are more than 20,000 lobbyists registered in the United States, many of whom reside in the Washington, D.C. area. In American politics, many lobbyist organizations are headquartered on or near K Street in Washington D.C., so “K Street” has become identified with lobbying. Lobbyists work for associations that try to influence policy decisions and positions in the executive and especially legislative branches of government. Typical work of a lobbyist includes staying current with regard to what is happening in the legislature and in the executive branch and following bills. If a piece of legislation might affect one of the lobbyist’s clients, the lobbyist will determine the nature and extent of its impact. If the piece of legislation is introduced, lobbyists may talk to members of various committees and explain their clients’ position on the legislation. Making personal contacts in a congressional office is the most effective lobbying technique, especially if the legislator sits on a committee of interest to the lobbyist and their clients. Lobbyists are often quite experienced in government affairs, since many of them worked as congressional staffers before going to work for a corporation, association, or other organized interest group. Many lobbyists include former members of Congress with established networks and personal friendships they can use to gain access to current members. Moving freely from a government job to one with an interest group in Washington is often called the “revolving door.” The revolving door tendency

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produces networks of people who specialize in certain issues. These networks are sometimes referred to as “iron triangles,” a term used to describe the relationship among interest groups, congressional committees and subcommittees, and government agencies that share a common policy concern. DOES LOBBYING CORRUPT AMERICAN DEMOCRACY? Lobbyists employ tactics of direct persuasion by providing information and advice to congressional members and staff. Historically, their dealings with elected officials were largely private and quiet. In the last two or three decades, however, groups increasingly are going “public” by mobilizing their activists, talking with the media, and encouraging members to send letters and e-mails and to make phone calls to congressional offices. These tactics are undertaken to exert pressure on legislators. Lobby groups are producing citizen movements, using public relations groups, and hiring public opinion pollsters to mobilize their constituencies. Many observers believe this “grassroots lobbying” enhances democracy since it represents real people with genuine interests who are working on behalf of a particular issue. Others argue, however, that when public relations firms are paid large sums of money to generate a response to legislation, it creates a distorted picture of public opinion. This perception leads to a common criticism of lobbying on behalf of special interests—that special interest groups wield an influence that is greatly out of proportion to their representation in the general population. This disconnect occurs when the interests of most citizens are underrepresented in Congress compared to those interests that are represented by well-financed, highly organized special interest groups and their lobbyists. In addition, and more importantly, many lobbyists also contribute money to political campaigns as a strategy to influence legislators, or at least to ensure their voice is heard by influential legislators. Special interest groups, including businesses and unions, may set up political action committees (PACs) to give money to the campaigns of political candidates. PACs can constitute a form of lobbying, and with the high costs associated with modern elections campaigns members of Congress increasingly depend upon PAC contributions. Citizens and pundits alike often view these kinds of campaign contributions as corrupting the political system. Accepting special interest money from lobbyists can affect a candidate’s image in the media. In 2008, the New York Times reported that John McCain held over 100 fund-raisers that brought in more than $100,000 each to his presidential campaign; about a sixth of them were held by lobbyists. These contributions challenged his image as a reformer on the campaign trail. In response, the McCain campaign argued that contributions from lobbyists did not compromise the senator’s independence in any way, and reminded voters of his strict policy not to seek or accept earmarks. Barack Obama, for his part, raised a record $750 million and spent hundreds of millions of dollars more than the McCain campaign; he even had $30 million left over after the election! This fact might be considered a “mixed bag” by persons suspicious of the influence of money in elections. On the one hand, the

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Obama campaign raised incredible amounts of money from individual donations (with nearly four million total contributors), suggesting that average Americans, if motivated enough, can contribute significant sums that outpace even the contributions of lobby groups. On the other hand, the Obama campaign spent more money than any other campaign in history, suggesting that the influence of money in elections is not only alive and well, but growing. Contributions by lobby groups are tracked by the government and made part of the public record. Monetary donations by lobbyists are disclosed in “lobbying contribution reports” filed with Congress under an ethics law, adopted in 2007 in response to scandals involving the lobbyist Jack Abramoff. Under the law, lobbyists must itemize their contributions to political candidates and committees, presidential libraries, and events honoring members of Congress. Lobbyists could face criminal penalties if they fail to comply. Another criticism of lobbying is that it allows people with particular interests who represent a minority to gain special access to lawmakers. Some, it is alleged, use contributions and favors to forge close, controversial relationships with representatives. In early January 2006, for example, powerful Washington D.C. lobbyist Jack Abramoff pleaded guilty to fraud, tax evasion, and conspiracy to bribe public officials in a deal that required him to provide evidence about members of Congress. As a lobbyist, Abramoff provided key lawmakers with lavish luxury trips, skybox fund-raisers, campaign contributions, jobs for their spouses, and meals at his own upscale restaurant. Abramoff’s lobbying practices gained public notice because of the enormous payments—eventually totaling $82 million—he and a public relations partner received from casino-rich Native American tribes. He later admitted to defrauding four of those tribal clients out of millions of dollars. He also pleaded guilty to evading taxes, to conspiring to bribe lawmakers, and to conspiring to induce former Capitol Hill staffers to violate the one-year federal ban on lobbying their former bosses. Despite the Abramoff example of lobbyists encouraging political corruption, many argue that lobbying actually contributes to the democratic process. Although lobbyists are primarily out to influence members of Congress, they also assist them by acting as an important source of information to them on policy areas. Lobbyists are experts in their fields, and because they are typically better funded and supported than congressional committees, they have the most up-to-date information to share with elected officials. Lobbyists can also help politicians devise strategies for getting legislation passed that can benefit millions of Americans. Some groups feel that greater restrictions on lobbying violate the First Amendment to the U.S. Constitution. These groups argue that certain restrictions on lobbying infringe on the right to petition government officials, which is a guaranteed right. In March 2009, President Barack Obama enacted new rules that barred lobbyists from conversations or meetings with federal officials about specific stimulus projects that were part of the $787 billion stimulus package, a cornerstone of Obama’s policies to revive the U.S. economy. Critics of these new rules contended it was unconstitutional, in that it attempted to bar registered lobbyists from speaking to government officials.

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When considering whether lobbyists help or hurt the political process, it is important to keep in mind that the nation’s founders always expected that interest groups would play a large part in American democracy. In his famous essay Federalist 10, James Madison brilliantly explained the basis for the presence of “factions” in society, concluding that they were inevitable. Factions had long been considered a serious threat to any government, but particularly to a democracy. Madison proposed an ingenious solution for controlling the power and influence of factions in the new republic, which was essentially not to control them at all. Rather, individuals would be free to create or join any group and to speak out publicly on issues of concern. The constitutional right to free speech and to petition the government is, in effect, the right to try to influence its elected officials. REGULATIONS ON LOBBYING Still, many wonder if this influence has gotten out of hand. Congress itself has adopted many important guidelines to regulate the actions of lobbyists. For example, it adopted the Federal Regulation of Lobbying Act in 1946. This act defined a “lobbyist” as any person “who by himself, or through any agent or employee or other persons in any manner whatsoever, directly or indirectly, solicits, collects, or receives money or any other thing of value to be used principally . . . to influence, directly or indirectly, the passage or defeat of any legislation by the Congress of the United States.” Those meeting this description were required to register name, address, salary, and expenses with the secretary of the Senate and the clerk of the House. The primary objective of the law was to establish a system of lobbyist registration and disclosure for those attempting to influence Congress. However, this act did not attempt to regulate the conduct of lobbying or the financial activity of lobbyists. In the mid-1970s, the Senate drafted and passed more specific definitions of lobbyists and lobbying practices, but intense pressures (from lobbyists, naturally) kept the measure from passing in the House. There have been other significant reforms. Since 1993, businesses may no longer deduct lobbying costs as a business expense on their taxes. The 1995 Lobbying Disclosure Act requires all organizations employing lobbyists to register with Congress and to disclose whom they represent, whom they lobby, and how much they are paid. If lobbyists neglect to register, they are susceptible to criminal charges and harsh penalties. In 1996, Congress passed legislation limiting the size of gifts to its members: no gift could be worth more than $50, and no member could receive more than $100 from a single source. However, Congress did not limit payment by lobby groups for travel of representatives, senators, their spouses, and congressional staff members. Interest groups can pay for congressional travel as long as a trip is for legislative business and is disclosed on congressional reports within 30 days. On these trips, meals and entertainment expenses are not subject to the $50 and $100 limits. Members of Congress are allowed to travel on corporate jets as long as they pay an amount equal to first-class airfare. In his first days as president, Barack Obama instituted new lobbying rules such as banning aides from trying to influence the administration when they

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leave his staff. Those already hired are banned from working on matters they have previously lobbied on or to approach agencies that they once targeted. The rules also ban lobbyists from giving gifts of any size to any member of his administration. The new rules stipulate that anyone who leaves his administration cannot try to influence former friends and colleagues for at least two years. Obama called the rules tighter “than under any other administration in history.” These rules followed pledges made during his campaign to be strict about the influence of lobbyists in his White House. LOBBYING TODAY It can be argued that today’s lobbying is more complex than ever. Lobbying groups no longer come solely from Washington’s great law firms and associations, but also include public relations firms and consulting groups. These organizations engage in activities such as raising money for election campaigns, conducting studies, and polling with the goal of influencing the course of legislation and government policy. The televising of House and Senate debates, along with the rapid growth of electronic media and the Internet, have resulted in better-informed interest groups that communicate their messages ever faster to their members and legislators. The rise of “grassroots lobbying” methods such as flooding congressional offices with e-mails, telephone calls, and preprinted postcards, allows citizens to instantly communicate with their elected representatives. (Congress’s web servers have been known to crash in times of heated debate, when millions of e-mails pour into them at the same time.) Web pages allow lobbyists and the public to easily find out the status of bills, schedules of hearings, and information on issues. Today’s technology also makes grassroots lobbying easier since websites can invite viewers to send e-mail messages to public officials. People organize and lobby to have their voices heard by legislators. While the influence of a lobbyist over legislative decision making is difficult to determine, there are nonprofit organizations such as the Center for Responsive Politics that track money in politics and try to determine its effect on elections and public policy. Thi