Wednesday, February 25, 2009

Obama: Proving to be Pre-Emptive

Further evidence that Obama is a pre-emptive--not a reconstructive--president:

Obama's speech very much drew upon both New Deal and Reagan political traditions. Government is a solution, but it has its limits. Obama's presidency will not shatter the old order or establish a new, longstanding political coalition.

Tuesday, February 24, 2009

Update on HB 546

House Bill 546, preventing HOAs from restricting the placement of political signs, passed on third reading today. The vote was 55-45. I can't believe this has become such a partisan issue, and we lost 3 GOP votes from the second to the third reading.

I will be re-tooling my testimony for the Senate to deal with some of the arguments raised by Republicans on the floor.

Stay tuned...

Wednesday, February 18, 2009

Dr. Parker goes to Helena

This will be an unusual post, because it is not going to be a political analysis post. Rather, I'm going to share a political experience that was simulatenously fun, gratifying, and empowering.

Today, I drove to Helena to testify on behalf of HB546, introduced by my Representative, JP Pomnichowski (D-Bozeman). The bill concerns Home Owner Association bylaws and convenants; specifically, the bill attempts to ban bylaw and convenant restrictions on the display of political signs. I've never done anything like this before, but I feel very strongly about this issue. The Founding Fathers believed strongly in an active and engaged citizenry, and in particular, a citizenry willing to disagree politically. I find it appauling that HOA's can and do restrict political discourse, and some folks unwittingly sign away their constitutional rights to freedom of political expression. I found in Helena a group of very active, involved, and engaged citizen-legislators who asked some tough and probing questions about the bill. I don't know how this will be resolved, but I sincerely hope that my and JP's testimony will result in a victory on the behalf of political speech rights. This is neither a Democratic or Republican issue. It is about core constitutional values.

On a side note, it was great to see my colleague, Dr. and Representative Franke Wilmer, in action in her legislative role. It's great to be a member of a department that believes in both the study of politics and its praxis.

I relay below my testimony on behalf of the bill. I'd love to know what you think:

"Ladies and Gentlemen, esteemed members of the committee, Good morning.

My name is David Parker, and I am here to speak on behalf of House Bill 546 at the request of Representative Pomnichowski.

By way of background, I am an assistant professor of political science at Montana State University. I teach American politics, and hold a doctorate in political science from the University of Wisconsin. I have published a book and two articles on congressional elections and Congress. I also worked on four campaigns during the 1995-1996 election cycle. Let me emphasize that I appear today as a private citizen of the state of Montana and the views I express are my own. My views do not reflect those of Montana State University, broadly conceived, or of the political science department.

HB 546 is an important piece of legislation because it aims to protect one of our most cherished political rights: the right to free speech. In particular, the Supreme Court has emphasized that political speech—above all else—receives the strictest protection from government interference. Any attempt by government to restrict speech must meet the test of strict scrutiny: in other words, government must not only show evidence of a compelling state interest to restrict that speech, but must also utilize narrowly tailored means in restricting that speech. Under this logic, the Supreme Court unamiously supported flag burning as free speech protected under the Constitution.

The bill before you today, however, has nothing to do with government restriction of free speech. It instead deals with the ability of home owners associations—commonly referred to as HOAs-- to restrict the political speech of home owners who are members of these associations.

I would like to make three general points demonstrating why this legislation is necessary. First, as subdivisions and condos increasingly become the preferred way to develop land, the constitutional rights of citizens are increasingly becoming circumscribed by covenants and bylaws these subdivisions develop. Second, these bylaws and covenants have the potential to form a majority tyranny and unduly suppress minority political speech. Third, there is no empirical evidence—to my knowledge—that restrictions on political signs have any positive effect on the property value of homes in associations with such restrictive covenants. I will now expound upon these points in turn.

In 2005, my wife and I moved to Granger, IN—a suburb of South Bend, IN. We purchased a home that was part of a home owners association but did not receive proper communication of that fact when we signed our closing documents. We were never presented with bylaws or covenants. It was not until after the fact, when we received notification of annual dues, that we knew we were in a subdivision and that the subdivision did indeed have bylaws restricting the placement of political signs. We were outraged, but there was nothing we could do. We had unwittingly signed away our constitutional rights to free political speech.

This brings up the obvious question: are such bylaws and covenants constitutional? The answer is generally yes. As I make clear to my students in American politics, the constitutional language is plain that Congress shall make no law abridging the freedom of speech. Later court decisions have, through the process known as incorporating the 14th amendment, applied these same individual protections against government action to the citizens of the various states. Private associations, however, can plainly restrict the speech of its members. Indeed, one implies consent when purchasing the house: you are agreeing to abide by the rules of the subdivision.

Nevertheless, these bylaws and covenants are clearly deleterious to civic health. Individuals who are more active in elections: wearing buttons, displaying signs, and volunteering in campaigns are generally more civically minded, more efficacious politically, more trusting in government, and more politically informed. It is no surprise that higher voter turnout in the 19th century was the result, in part, of the widespread campaign pageantry and engagement that was part and parcel of the 19th century campaign. Voter turnout topped 80, even 85% of the vote, in part because of spectacular campaign. It is no surprise that as these forms of organization and civic engagement have diminished, so too has citizen interest and voter turnout.

Can the state of Montana restrict the operation of home owner associations in this regard? Recall after 9-11 the huge outpowering of civic pride and patriotism. Flags appeared everywhere: on cars, in front of homes, in windows, and the like. Some aggressive home owner associations in some states, however, tried to limit or outright ban the display of the American flag as a violation of subdivision bylaws and covenants. Both California and Florida passed laws prohibiting home owner associations from banning the display of the American flag. This proposed law is very much in the same spirit.

While the courts have protected the right of an association to restrict the placement of signs (and this was most recently affirmed by the NJ Supreme Court in 2007), there is a definite problem with allowing associations to do so. In Federalist #10, James Madison warned us of the problems of majority tyranny trampling the rights of the minority. In communities with a majority constituting a particular party or ideology, one might think that the potential to utilize the HOA restrictions by some to suppress alternative viewpoints is too good to pass up. In 2002, I was living in Madison, WI in a condo that my wife and I owned. I happened to place a sign in my window supporting a particular candidate for governor. Let’s just say that this particular candidate was none-too-popular in Madison, and I soon found myself arguing with the condo association’s judicial committee about my sign. I did remove the sign but made the point that the individual who brought me up on charges was a member of an organization very much opposed to this particular candidate, and I wondered whether I would have faced a fine from the association had I been supporting the preferred candidate of majority opinion in the city of Madison. The right of Republicans in Missoula to engage in debate and civic discourse must be protected as much as Democrats in Eastern Montana, and I fear that HOA bylaws and covenants are all too often used to suppress an unpopular political opinion. Finally, it is interesting that renters generally have more rights in this regard than owners of property subject to HOA bylaws and covenants.

The final point I would like to make is the nature of the bylaws and covenants in subdivisions. Generally, these bylaws and covenants are established to protect the collective home values of property owners in the association. It is firmly established that the color of homes, the upkeep of yards, and the like not only affect the value of one home, but also affect the values of homes around them. Who wants to live next door to a slob who can’t mow their lawn? The logic of protecting home owner value is often cited in support of these covenants restricting the placement of political signs. But to my knowledge, there is no empirical evidence indicating that allowing political signs detracts from the value of a home. At least, I have not seen the evidence and do not know of any studies that have attempted to uncover a relationship. Indeed, if covenants put in reasonable restrictions, such as signs can only be displayed in the 60 days prior to an election, this would remove any yard clutter for most of the year that might seem unseemly or unattractive to a potential buyer.

In the end, I urge you to vote on behalf of political expression and freedom. In the end, these covenants and restrictions on political speech are agreed to by home buyers not because they support them, but because of necessity. Subdivisions and condo associations provide affordable choices for families and individuals, and many times—in places like Bozeman, Belgrade, Missoula, or Billings—families have little choice but to purchase homes that are part of home owner associations because they are the most affordable option in fast growing communities. In short, many families sign away their constitutional rights because they have to, not because they want to. As Dr. Evan McKenzie, author of the book “Privatopia” put it in a New York Times op-ed piece 15 years ago, “Constitutional protections are meaningless if they do not apply in your own home, and when powerful private organizations act like governments, they should be treated as such. Otherwise, each development should be required to post a sign: "Warning: You are leaving the jurisdiction of the U.S. Constitution. Check your rights here, and take them with you when you leave."

The Founders, above all else, hoped for a republic based upon lively and informed political discourse among the citizenry. Help restore individual speech rights and support HB 546."

Monday, February 9, 2009

Obama's first news conference

Sat down tonight to watch Obama's first news conference. I was impressed with the give and take, and learned a lot.

I remarked to my wife that it was nice to have a president who wasn't afraid of the facing the media in a news conference, thinking that Bush was loathe to do this. Well, turns out he wasn't as loathe to do a news conference than I had thought.

According to the American Presidency Project at UC-Santa Barbara, Bush held a total of 209 news conferences during his presidency, averaging just a shade more than 26. In 2008-09, Bush 29 news conferences alone.

While much fewer than Presidents Coolidge through Truman, Bush fares well compared to his contemporaries. He held more on year, on average, than Nixon, Ford, Carter, Reagan, and Clinton. Only his father exceeded the yearly average, holding more news conferences on average than any president since Truman.

Boy, was I wrong! And it just goes to show you that sometimes an impression fostered by the media (Bush as syntactically challenged and afraid of facing the media in unscripted events) can lead to the wrong conclusions about a president/presidency. Check out all the nifty graphs and charts at the website.