Engage! Mill’s "On Liberty" and the MSU Campus Smoking Ban

The Political Theory Consortium met last night to discuss John Stuart Mill’s On Liberty, particularly chapter four, “Of the Limits to the Authority of Society Over the Individual.” Our objective was to discuss how Mill helps us think about the recent 61-39% vote at Montana State to ban smoking on campus.

Let me start by saying this: I am no fan of smoking. As I said at our gathering this evening, I come from a family of smokers (some now ex-smokers, to whatever extent that is possible). I was always the one left in restaurants holding down the table after dinner while everyone else went outside to smoke. You would think that, at the very least, having to remember everyone’s dessert and coffee orders would have prepared me well for the job of waitress. It didn’t. My short stint as a waitress was a miserable failure. And it turns out that most people who work in the restaurant industry smoke, so even my breaks were kind of lonely.

My point is that I’m an odd defender of the so-called “right to smoke.” But after steeping myself in Mill (we read chapters 1, 2, and 3 of On Liberty in my Modern Political Thought class this week), I am having a hard time figuring just how this smoking ban is consistent with a commitment to individual liberty in those areas of life that don’t do harm to others.

In case you haven’t read Mill lately, here’s what he says:

“the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.”

This is famously known as Mill’s “harm principle.” He makes clear that he only has in mind purely self-regarding conduct here. So, for example, a person should be free to drink themselves silly if they want, but if this results in their physically injuring someone, or their failing to uphold their “distinct and assignable obligation” to others (say, this leads them to neglect their children), then it’s no longer purely self-regarding conduct. Importantly, though, we have no right not to be offended by others, and Mill rejects any claim to rights that “society” has against, for example, what it might deem morally deviant behavior that entails no identifiable harm.

Mill is kind of the thinking-girl’s Liberal (in the sense of “defender of liberty”), because he also had a strong sense of civic virtue, social responsibility, mass public education, and a deep commitment to an ideal of humans as progressive beings. He was an avowed feminist, against slavery, and just generally ahead of his time. He was no atomistic libertarian. For example, he wrote,

“Human beings owe to each other help to distinguish the better from the worse, and encouragement to choose the former and avoid the latter. They should be forever stimulating each other to increased exercise of their higher faculties, and increased direction of their feelings and aims towards wise instead of foolish, elevating instead of degrading, objects and contemplations. But neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it.”

We will inevitably shower admiration on those who live lives we think are “good.” And those whose conduct or character we deem deficient may rightly incur our loss of consideration (and not complain about it). But our loss of consideration cannot be justifiably turned into prohibition or prosecution, where no damage or definite risk of damage exists. A deep aversion to others is not, for Mill, a reliable guide for invoking the law against them or destroying their reputation and socially ostracizing them. Reading Mill is good therapy for anyone irked by the contemporary American inclination to moralize.

So what does all this have to do with the smoking ban at MSU?

A lot hinges here on the empirical evidence regarding whether exposure to second-hand smoke outside in the open air poses a health hazard. It may. Some studies suggest that exposure in outside spaces is not insignificant. These would be very localized spaces, but conceivably the five foot area immediately outside the door to a building would qualify, and since the 25 foot no-smoking zone around buildings at MSU is not respected by many smokers, the question of harm is relevant. If smokers routinely observed this smoke-free zone, the question of harm would not carry much water.

But if harm to others is the primary concern, then why does the pending ban also include smokeless tobacco? This seems to me to be classic self-regarding behavior. Perhaps the concern is that when people who chew tobacco spit on the sidewalk it is really gross. But so is spitting generally. Why not ban spitting? Or if the concern is more broadly to “promote health,” then why not remove soda machines from campus buildings, and only serve fried food at the Student Union one day a week? Why not make physical education part of the Core requirements? I wont even raise the obvious and intractable question of enforcing this ban, but it is certainly an issue.

Our discussion last night dug into all these matters and more. There was no consensus, I’ll say that. But we did arrive at an interesting question: How might this issue be dealt with creatively, in a way that didn’t invoke the force of law against a minority of people who are only potentially doing something that is other-regarding and harmful? How might “politics” – or the face-to-face confrontation about how we live together – come into play? What if smokers who respect the 25 foot no-smoking zone around buildings chastised those who fail to? What if non-smokers who were put out by the smell of cigarettes they encounter upon leaving the library, for example, said “I would really appreciate it if you all would move away from the door”?

There are lots of non-legalistic options open to us, but they require courage, responsibility, and on-going, and personal, negotiations about values, virtues and vices, and that is hard work. But if college is going to train students for life beyond the bounds of campus, this seems like as useful and important a lesson as any.

So stay tuned for the recap from our next meeting, where the topic will be “revitalizing the political.” When I say “engage,” I don’t mean lock and load. I mean On Liberty.

Jobs vs. the Environment: Again?

An effort to change the language in the Montana Constitution that guarantees a “clean and healthful environment” failed in the state senate this week by a vote of 26 for and 89 against. The change is promoted by supporters because the wording gets in the way of energy and other development in the state – it is either jobs or the environment. But is it?

A recent paper in the Journal of Economic Geography - The Rural Growth Trifecta: Outdoor Amenities, Creative Class and Entrepreneurial Context by some economists at the Economic Research Service and the University of Tennessee suggests otherwise. They wanted to look at the economic performance of counties that attract members of the “creative class” – Richard Florida’s label for those well-educated entrepreneurial types that engage in business startups and who possess high levels of social capital. The creative class includes professionals who work in high-tech sectors, financial services, the legal and health care professions, and business management; technicians working in materials engineering, medicine and research. They may be people who apply their problem solving skills to management or business processes. Creativity is a valuable commodity. The almost 40 million people that make up this cohort make twice the salary of the so-called “working class” or “service-class” worker.

Creative class workers are relatively footloose in their choice of where they live and work. They are drawn to places that offer interesting lives as well as interesting work. For many, not all, rural areas have a lifestyle appeal. If your income is generated by ideas, you can live almost anywhere you choose. With good access to the Web and the occasional airplane trip to do business, many rural locations are great places to raise a family and enjoy a healthy lifestyle in a desirable climate.

Here is what the authors found. Recruitment of creative class members was not in itself sufficient to explain economic well-being as measured by business startups and job growth. Rather, it was those counties with a high level of local outdoor amenities that demonstrated the highest levels of economic success. The counties that performed best were those with high numbers of members of the creative class, a very entrepreneurial context (i.e. friendly to small business) and high levels of outdoor amenities. Conversely, those counties that did not do well engaged in “smokestack chasing”. These low amenity counties rely on outside employers and access to low-cost labor and natural resource endowments.

The lesson for Montana is that preservation of our quality of life – a clean and healthy environment, diverse recreation opportunities, and intact scenic beauty, are good for our economy. I published a paper that demonstrated this fact almost 20 years ago, others have been reinforcing the point ever since. The tradeoff is not jobs or a clean environment. The lesson is that our constitutional right to a “clean and healthful environment” is good for Montanans and good for our economy.

There are things the legislature can and should do to ensure our environmental values leverage a healthy economy. I will address those in a future post.

Tester-Rehberg a Dead Heat: A follow-up

Politico has a story this morning about Senator Tester's vote on healthcare reform. The NRSC has put out a press release to "remind" Montanans that Tester was the "60th vote" and "deciding vote". You can read Politico's story here and the NRSC press release here.

According to Politico, Tester's staff responded with video showing that Tester was the 52nd--not the 60th--vote for the healthcare plan. The NRSC responds that with 60 votes needed for passage, every vote was critical.

This, of course, relates back to what I had posted earlier in the week. Note that the NRSC story calls the healthcare plan the "Obama-Tester" Overhaul. Obama is unpopular in Montana, and so is (depending on how you spin it) his healthcare plan. You'll see Tester constantly tagged to Obama by the Republican Party because the Obama brand isn't so hot at the moment. Senator Tester, meantime, needs to decide if he should pivot away from the healthcare reform or educate Montanans as to why his vote was necessary and good from the state. It would seem that Tester has decided to defend his vote and point out all the benefits the plan brings to the state.

Is this a good strategy? Again, it depends upon which framing of the issue sells among voters. Tester blasts Congressman Rehberg for defunding healthcare reform when he has a nice healthcare plan provided by government. This populist story line has the potential to work: it makes Congressman Rehberg look heartless. Rehberg, of course, will focus on the negatives of the plan: it costs too much, takes away too much control from patients/doctors, and places an undue burden on small businesses. This also can work. The key, I think, is which story will work with independent voters.

Tester-Rehberg a Dead Heat, says Billings Gazette

That's right, folks. The Billings Gazette has released the first poll for the 2012 Senate election and March 2011 isn't even over yet. Read the write ups of the poll here and here.

Generally speaking, polling a race this early does not tell us much. However, a race between two well-known incumbents can tell us a lot more than a poll in a race where either the challenger is not well-known or opponent has yet to emerge.

Here's how I read these data:

1. The Ground Game is hugely important in this race. Given the fact that both candidates are well-known and have strong bases of support in their parties (but see point 4 below), this election will be about turning out the vote. If the election were held today, the difference maker would be independents who--at the moment--are in Tester's camp (but, with sub-groups, it should be noted that the margin of error is LARGER than for the whole sample). Given that independents are less likely to vote and are likely to have softer levels of support for a candidate, each campaign will have to spend substantial sums persuading them AND convincing them to vote. These types of campaigns at the margins can be quite costly.

2. Rehberg will tie Tester to Obama. Tester will tie himself to Schweitzer. In 2006, Tester tied himself very effectively to The Schweitzer Machine in advertisements. Six years later, Governor Schweitzer is still quite popular and the unpopular administration is President Obama's instead of President Bush's. The poll makes clear that Montanans want national healthcare repealed (but they don't necessarily want the state legislature to block its implementation) and President Obama's approval rating is only 40 percent.

Congressman Rehberg, of course, wants this election to be a referendum on President Obama and healthcare--so he will do his best to convince voters to associate Tester with them. And, it should be easier to do this during a general election campaign. Senator Tester, alternatively, would be well-served to indicate how he is independent of the administration and many of its proposals. One way to accomplish this easily is to continue to stress his association with Governor Schweitzer.

3. Tester will tie Congressman Rehberg to the state legislature. It is clear that the state legislature is not popular in the poll: 61% rate the legislature's performance as poor. Of course, it is well-known that legislatures fair poorly in the aggregate when compared to the performance of individual legislators (this is called Fenno's Paradox in the trade). Nevertheless, some of the more interesting and controversial debates taking place in the state legislature--namely concerning nullification, defunding of healthcare, and amending the state's constitution--may prove problematic for Congressman Rehberg IF they remain unpopular. Congressman Rehberg needs the support of the Tea Party and the base of the Republican Party if only to avoid a primary challenge. He will need to walk a careful line during the general election, however--retaining the support of these voters without upsetting independent voters. Senator Tester is likely to paint Rehberg as an extreme voice for Montana as much as Congressman Rehberg will paint Senator Tester as an extreme voice. The difference, of course, is the direction of the ideological extremity!

4. It is noted in the Gazette article that both candidates have strong support among their respective partisan bases. I should note that in an election this close, the five point difference between the two among their bases is not insignificant. In other words, Tester's support among Democrats is five points better than Rehberg's support among Republicans. If a close election is about turning out the base, Tester is in a stronger position initially.

5. This race will as much about framing issues as it is about personality. Montanans are conflicted, and nothing demonstrates this more than how Montanans feel about energy policy. Montanans generally support the pursuit of alternative energy, they generally want to encourage the use of traditional fossil fuels, but they also generally want a clean environment. Which frame wins will, to some extent, determine this election. But equally important is how Montanans feel about both candidates. Style matters in the Senate more so than in the House, where elections tend to be more partisan affairs. In other words, who wins the likeability race and who appears to be the most, in the words of Richard Fenno, "one of us".

6. Finally, there is one important element missing from the poll. We don't know how STRONG the support for both Tester and Rehberg is. Intensity matters--especially in close elections. How persuadable are Republican and Democratic voters? Are they willing to walk through fire for their candidate? Or are they simply for their candidate because its early in the race and they haven't really tuned in yet?

Next week, I intend to blog about legislative productivity as a yardstick of congressional performance. This is an issue that both Senator Tester and Rehberg will raise: who is doing the most and the best job for Montana in Washington? A part of that equation is the types of legislation they have supported and pushed into law.

The New Trade Agenda: APEC Negotiations Come to Big Sky

Beginning May 7th meetings of the Asia Pacific Economic Cooperation Organization (APEC) will begin in Big Sky, Montana. This two week long gathering of trade ministers and officials from 21 countries is expected to bring an estimated 2,000 people to Big Sky. Senator Max Baucus advocated long and hard to bring this meeting home to Montana in anticipation of both immediate and future benefits. As member countries rotate hosting the meeting, the US has the opportunity of hosting it, and also influencing the agenda somewhat, about once every twenty years.

APEC is an organization 21 countries bordering the Pacific Rim. Members account for 41% of the world’s population, 54% of the world’s GDP and 44% of world trade. Sixty percent of US exports are destined for APEC members, which also account for 6 out of 10 of our top trading partners. US goods trade (both imports and exports) with APEC members was $1.6 trillion in 2009 and service trade was $303 billion in 2008. And these economies are growing fast, at about twice the rate of the US economy.

Since its inception in 1989 APEC has worked to promote free trade in numerous ways but it has not been a free trade area. The Obama administration has prioritized negotiations for a Free Trade Area of the Asia Pacific (FTAAP) as a key goal for APEC. The agenda for negotiations is focused facilitating trade through preventing the introduction of new non-tariff barriers to trade, policies and regulations that facilitate communication through new technologies, and steps that make it cheaper and easier for businesses to trade - with a new emphasis on small and medium size business.

Why tackle negotiations for a free trade area in Asia now? One reason is that negotiations for further trade liberalization for the 154 members of the World Trade Organization have been stalled for years. After eleven years of negotiations and a tremendous investment in the Doha Round, it remains unclear if and when the negotiations will produce an agreement and how meaningful it might be. Another reason is that the economies of East Asia have been developing and deepening their own regional trade agreements. Bergsten and Schott, key analysts of US trade and economic interests, argue that unless the US actively pursues a trade agreement in the region that a cleavage could develop between the US and East Asian economies. As FTAs by their nature favor member countries, US exporters and investors could find it more difficult to compete. APEC already has a good track record in regulatory harmonization, and this would be advanced in negotiations for the FTAAP. Regulatory harmonization is laborious and unglamorous, and the results of this work cannot be summarized with sweeping statements. However, this work makes trade easier and cheaper by agreements between nations on standards, technical regulations and conformity assessment. Rules of origin provide an example. While the negotiations in Big Sky will take time to bear fruit, I applaud APEC for conintuing to work to facilitate trade and to make it more accessible to smaller businesses.

Bergsten, Fred C. and Jeffery J. Schott. 2010. “Submission to the USTR in Support of a Trans-Pacific Partnership Agreement.” Peterson Institute of International Economics. Downloaded from http://www.iie.com/publications/papers/paper.cfm?ResearchID=1482.

Political Theory Consortium discusses the "Carceral State"

The Political Theory Consortium met last night to discuss Vesla Weaver and Amy Lerman’s Nov. 2010 American Political Science Review article, “Political Consequences of the Carceral State.” Coincidentally, yesterday my Contemporary Political Theory class discussed the first chapter of Michel Foucault’s 1975 masterpiece, Discipline & Punish: The Birth of the Prison. The effect of reading these two texts together was fascinating, and disturbing.

Foucault’s chapter traces the historical transition from one “penal style” to another across Europe. He starts with a gruesome accounting of a public execution in France in 1757, written by an officer of the watch in attendance. The horses on hand to quarter the criminal weren’t quite up to the task, so the executioner, “drew out a knife from his pocket and cut the body at the thighs instead of severing the legs at the joint.” Apparently that did the trick. Yuck!

Eighty years later, Foucault cites accounts of a sanitized “time-table” of punishment – hyper regimented, bureaucratized, “humane.” His point: in this new penal style punishment was no longer about public spectacle, and it was no longer about inflicting pain. Rather, “the body as the major target of penal repression disappeared.” Quite literally, the modern prison has functioned to disappear prisoners. We can see the arrest, the trial, and the sentencing, but the incarceration is out of view, and serves a certain disciplinary social function in so far as the idea of imprisonment works on our imaginations (unlike the visually horrifying spectacle of torture in execution, which leaves little to the imagination).

For Foucault, the body becomes a “vehicle” for punishment, but not its target. And since it is no longer the body that punishment targets, “it must be the soul.” Indeed, part of the justifying framework for the modern penal system is precisely this notion (which, it seems, many of us recognize as utterly fictional at this point) that incarceration rectifies or rehabilitates or “cures” the criminals that it “treats.”

But what does contact with the criminal justice system actually produce? Not rehabilitated persons, and not, as Weaver and Lerman demonstrate, functional citizens. Even minimal contact with the “carceral state” (by which they mean “the totality of this spatially concentrated, more punitive, surveillance and punishment-oriented system of governance”) has profound implications for trust in government, civic participation, and voting. And an increasing number of American citizens have their primary contact with the government by way of police, judges and wardens. As the authors write, “the scale of citizen contact with the American criminal justice system is now unmatched in modern history. For the first time, one in 100 Americans is incarcerated, topping all other countries in the world. If current trends persist, 11% of American men – and 1 in 3 black men – will at some point in their lives serve time in prison.”

Contact with the carceral state, as “a primary site of civic education,” produces a disenfranchised class. This is literally the case for ex-convicts in states with felony disenfranchisement statutes. But what Weaver and Lerman make clear is that states need not bother – serving a one year or longer prison sentence reduces by 33% the chance that the subjects of this study would vote.

So what does contact with the carceral state produce? Deactivated citizens. Societal opt-outs. Is it any surprise, then, that what the modern prison system actually produces is prisoners?

On the one hand, this is a stinging indictment of our system. If you happen to be a member of the private prison industry, however, this is good news! As recent investigative reporting on Arizona’s immigration law has revealed, the private prison industry sees stricter criminal justice laws as “good for business.” The Arizona law, which makes failure to carry immigration documents a crime, has created a whole new “customer base.” And if initial contact with the criminal justice system makes it vastly less likely that a person will vote, participate or have trust in the state, and vastly more likely that they’ll end up back in prison, then laws like this one have just generated a future clientele for companies like the Corrections Corporation of America and The Geo Group.

In fact, as the President of The Geo Group put it, when talking to investors about the Arizona law: “Those people coming across the border and getting caught are going to have to be detained and that, for me, at least I think, there’s going to be enhanced opportunities for what we do.”

So, the prisoner production system is good news for The Geo Group and the Corrections Corporation of America, as is the Arizona law. This should come as no surprise, though: they wrote the bill.

But this unfolding reality cannot be good for America. Your thoughts??

The First(?) Campaign Ad of the 2012 Senate Race?

I was driving to my daughter's elementary school yesterday and heard this on the radio:

"Script:
ANNCR: What do your kids, our congressman, and mercury poisoning have in common?
More than you might think.
You see after taking over four hundred and sixty thousand dollars from dirty energy companies - Congressman Denny Rehberg voted to block the enforcement of a vital mercury pollution law.
They buried it in a spending bill and passed it in the middle of the night. Letting polluters off the hook. And letting mercury back into our air and water. Mercury, that causes brain damage in kids.
Maybe Rehberg was hoping Montana parents wouldn’t notice. Well…we did.
And we don’t like politicians interfering in decisions that should be made by experts. Scientists whose job it is to protect the water our kids drink and the air they breathe. But Denny Rehberg thinks he knows better.
Congressman Rehberg should stop playing politics with our kids’ health. And start looking out for Montana families.
A message from Montana Conservation Voters."

Yes, it was first ad of the 2012 Senate election. And yes, it was March 1, 2011.

You can listen to the ad and read the accompanying press release here.

A couple of quick points.

1. This confirms my suspicion that the Rehberg-Tester race will receive a lot of attention from the national media and interest groups (see, for example, Mark Barabak's article on Montana here).
2. This will be a hotly contested race.
3. This advertisement is an issue advocacy ad. This means that the Montana Conservation Voters can raise and spend unlimited sums of money from virtually any source to air this advertisement. This is courtesy of several Supreme Court decisions, most notably Citizens United v. FEC and FEC v. Wisconsin Right to Life, which undercut the Bipartisan Campaign Finance Reform Act of 2002's ban on soft money and corporate advertising.
4. I should also say that this ad is a "negative" ad. I put the term negative in quotes because the way I--and other scholars--define negative ads is an advertisement which talks about an opponent. This ad focuses on one of Rehberg's vote and try to make a connection between that vote and the contributions he received from the energy industry. Putting aside the particulars of this ad, let me say that negative ads are not necessarily bad. They do tend to increase voter information and they do tend, according to some research (see Ken Goldstein's work in particular at the University of Wisconsin) increase voter turnout. Generally speaking, voters generally thing negative advertising is OK as long as it doesn't attack a politician on personal, family issues. While voters often bemoan negative advertising, I think it is important to stress again these key points.
5. Finally, let me also point out that the linkage between campaign contributions and the votes of members of Congress is not firmly established in the literature. Fifty plus years of research on the effects of campaign spending on votes on legislation has yielded--in the aggregate--mixed results at best. The key point here is that interest groups money tends to flow to allies who already support ideologically the group's mission. This makes sense. Why would a pro-life organization give a campaign contribution, say to Barbara Boxer? The small amount that the pro-life organization could give the Senator certainly would do little to dissuade her from her position on abortion. Congressman Rehberg, I think he would agree, is a friend of the resource extraction industry. He would claim that industry is important to the economic development of the state, and he was merely doing what he believed was best for his constituents.

Of course, the Montana Conservation Voters see the issue quite differently. But that's what campaigns are about: framing the issues and persuading voters that your particular frame is the best.

It has begun in earnest. Let's have fun this campaign season.