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Privacy and Government Surveillance in the Twenty-First Century

January 13th, 2011 Comments off

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The complex question of how society should strike a balance between an individual’s need for privacy and the government’s use of surveillance to protect its citizens from harm is best explained by example. In 1986 in Minneola, Florida, fourteen-year-old Glenn Williams died from what appeared to be a drug overdose. Suspecting foul play, the police chief had officers take photographs and video of the autopsy. One of the officers took the video home and showed it to other officers and friends. The Orlando Sentinel then published an article describing the viewing as a party where the audience joked and laughed (Mills 252).

No one disputes the necessity of photographs and video in the apprehension and conviction of criminals, but the case of Williams v. City of Minneola highlights the potential for abuse by members of a government agency in the use of surveillance. Although the family was ultimately denied any recompense, the court determined that “…reckless infliction of emotional distress can lie for outrageous conduct involving pictures of a dead body. ” (Mills 253). Mills points out the importance of this case because it grants a right to privacy for family members and allows them to bring a claim for reckless acts.

In our technological, modern era, the idea of privacy is so broad that to have a meaningful discussion of it, it first should be defined. Scolio, in his book Transforming Privacy: A Transpersonal Philosophy of Rights, divides privacy into four categories: physical, decisional, informational, and formational. Physical privacy indicates that one has control over one’s home as well as one’s body. Decisional privacy relates to personal control over one’s choices, and with the modern development of this category came the phrase “the right to privacy” which first appeared in the Supreme Court case Griswold v. Connecticut in 1965 (“Privacy, right of”). Informational privacy concerns the control of information about a person, including information kept in computer databases. Finally, formational privacy refers to the right of the mind “to be left alone” from the onslaught of media, advertising and mass culture. (Scolio 2. The issue of privacy and government surveillance needs only concern itself with the physical and informational categories.

The history of privacy in America goes back to colonial times and the social conditions which led the authors of the Bill of Rights to include the Fourth Amendment. It reads “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. ” (Taslitz, 6. The searches of homes and seizures of papers and effects of persons were authorized primarily by the English authorities under laws such as The Stamp Act of 1765, which “levied a tax…on nearly every form of paper used in the colonies. ” (Taslitz 24). Mobs of American colonists responded to the passage of the act with riots which eventually brought about a repeal. Taslitz suggests that while the riots were aimed at the tax itself, a large part of the anger was due to the history of the English authorities who would search people’s homes for smuggled goods, on which, of course, no tax had been paid.

Where the Fourth Amendment was concerned with the physical privacy of the home and personal effects of a person, the notion of informational privacy came about as a result of the technological advances which began in the Industrial Revolution and culminated in the invention of the computer.

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Privacy and Government Surveillance in the Twenty-First Century (Part 2)

January 13th, 2011 Comments off

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The development of photographic film by George Eastman and scientists at Kodak in 1888 made the previously cumbersome development of photographs available to the masses. The camera was now available for use in surveillance and the photograph as evidence in the courtroom. Once Alexander Bell’s telephone, invented in 1877, became the norm in every household and office, it was now possible for another person to surreptitiously eavesdrop on previously private communications.

The modern electronic computer began as an entirely mechanical machine that came into use in response to a particular problem of the U. S. Government in the 1890’s. Prior to that decade, the immense growth of industry and a rapidly changing population due to immigration made effective national government a challenge. (Agar 147. The 1880 census had taken 7 years to tabulate by hand, and it was expected that the 1980 census would take even longer. In response to a competition announced by the census director, Herman Hollerith offered a machine that would sort and tally information stored as holes punched into cards. Finally, in 1971, Intel Corporation developed the microprocessor, an entire computer on one small integrated circuit or chip which made the personal computer and the Internet possible. Thanks to the ubiquitous use of computers in business and government, the police are now able to instantly track the use of a credit card, for example.

The issue of privacy and government surveillance is controversial and generates heated emotional debate because of the potential for great harm. Lack of security can result in injury, loss of property, and ultimately death. Intrusion of privacy can inflict emotional distress and destroy reputations, relationships and careers. The following four articles each highlight one aspect of the delicate balance between privacy and security and present an argument somewhere between granting government greater latitude in providing security or instituting tighter controls for protecting privacy.

The most neutral approach is presented in Orin S. Kerr’s “Do We Need A New Fourth Amendment? ” This article was written as a response to Christopher Slobogin’s book Privacy at Risk: The New Government Surveillance and the Fourth Amendment. Slobogin argues that two types of surveillance are currently unregulated by the Fourth Amendment: public, such as closed circuit television, and transactional, which he defines as access to bank, telephone and business records. Slobogin’s proposed changes to the amendment depend on the degree of the intrusiveness of the surveillance. Whenever current law does not address a particular situation, Slobogin believes that the courts should turn to public opinion surveys to determine how intrusive any surveillance would be. Kerr argues that making legal proceedings dependent on public opinion weakens the law and that “measuring intrusiveness does not actually measure how much a [surveillance] technique infringes on civil liberties” (Kerr 959). Ultimately, Kerr concludes that the Fourth Amendment as it exists is more than adequate to the task of protecting civil liberties.

Where the first article argues for the status quo from a legal perspective, the second argues for acceptance of government surveillance from a political point of view. What makes Cathy Young’s article “Liberty’s Paradoxes” especially interesting is that it admits a libertarian bias but argues the conservative viewpoint that government surveillance of private communication is necessary to protect citizens from the grave threat of terrorism. Young states unequivocally that she doesn’t “like the idea of government snooping on e-mail or keeping track of Web addresses…” However, she concludes that to address the potential for abuse of information, “…we need to recognize that…surveillance of private communication is indeed a legitimate government activity” (Young 3).

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Privacy and Government Surveillance in the Twenty-First Century (Part 3)

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The last two articles in this casebook argue the opposite view: that government surveillance needs careful oversight and should be more restricted and controlled. “Group Privacy and Government Surveillance of Religious Services” by Travis Dumsday appeared in the philosophical journal Monist, so he approaches the issue from an ethical perspective. Like Young, he agrees that government surveillance is necessary from a standpoint of security, but he emphasizes the moral aspect of surveillance: it involves a violation (loss of privacy) and may include deception and breach of trust (in the case of a federal agent pretending to be a member of a group). Because of these violations, surveillance requires a “fairly strong justification” if it is to be done without acting unethically (Dumsday 182). This justification must be in the form of a specific indication that a crime is occurring, like a tip from a member of the community. Blanket surveillance without probable cause, Dumsday states emphatically, is morally wrong.

The final article “The Snitch In Your Pocket – Law Enforcement is Tracking American’s Cell Phones in Real Time Without a Warrant” by Michael Isikoff, unlike the other three, is a news article and presents its argument for legal control of government surveillance in a very personal manner. He begins personalizing the issue by pointing out that most of America’s 277 million cell phone users are unaware that phone companies can track them. Newer phones contain a GPS (global positioning device), while the phone call itself is routed through towers that can be used to pinpoint the origin of the call. To show the extent of the problem, Isikoff quotes Al Gidari, a telecommunication lawyer for several wireless phone companies who says that his clients receive “thousands of requests per month” for cell phone data. The article concludes with a dialog between Justice Department lawyer Mike Eckenweiler and appeals-court judge Dolores Sloviter. The judge pointed out that some governments, like Iran, would use cell-phone data to track political protesters.

“Now, can the government assure us,” she pressed Eckenweiler, “that Justice would never use the provisions in the communications law to collect cell-phone data for such a purpose in the United States? ” […Eckenweiler] finally acknowledged, “Yes, your honor. It can be used constitutionally for that purpose. ” (Isiskoff 2).

That brief moment in court neatly makes Isikoff’s argument for him. The potential for abuse of this type of surveillance is great.

Looking toward the future, the issue of privacy and government surveillance will continue to grow in importance. New technologies will continue to present us with newer challenges. The Department of Defense is working to develop a Total Information Awareness Program which would use new surveillance and analysis systems to protect citizens from terrorism. When this system is completed, it will provide a computerized record of a person’s entire life, including vital statistics, medical, financial, email, Internet, phone and travel records (Fischer and Green 14). The implications of such a database and the potentials for crime prevention as well as abuse are enormous. While the articles in this casebook present different arguments from a variety of viewpoints, they all agree one point: the need for judicial oversight is imperative for balancing the right to privacy and government surveillance.

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A Comparison of Socioeconomic and Institutional Methods of Explaining the Rise of Capitalist Democracy in England (Moore vs. North & Weingast)

July 18th, 2010 Comments off

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The arguments of Barrington Moore’s Social Origins of Dictatorship and Democracy and of North and Weingast’s Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England on the genesis of capitalist democracy in England mostly supplement each other by examining different variables and processes that relate to England’s evolution. Both works stipulate that England’s capitalist democracy entailed social elements that sought a free economy and did so by political means. Calling said elements the “commercial class,” Moore explains how this class emerged, came to power, and saw its policies implemented. North and Weingast, however, explain how political institutions evolved to allow a free market economy and how the commercial class’ interests translated into a fair, balanced, and checked English government. In a sense, Moore explains how initial conditions established the commercial impulse that would eventually drive free market democracy and how the impulse came to manifest itself politically and legally. North and Weingast, arguing on the precondition of the existence of the commercial class, explain how the evolution of political institutions, driven by economic motives, created a balanced, accountable government that led to a politically and economically free society. Thus the two arguments overlap in how the commercial impulse arrived at the doors of government, but supplement each other as one explains the cause chiefly using socioeconomic variables as the other explains the effects chiefly using institutional variables.

In attempts to explain the rise of capitalism in England, Moore uses socioeconomic conditions, the rise of the commercial impulse and availability of resources, whereas North and Weingast use institutional changes in government, the regularization of public finance. Thus the two arguments don’t necessarily contradict each other; rather, they examine different possible causes of the same phenomenon. Moore argues that market influences, the possibility of enclosing land, difficulty in finding cheap commodities, and the devolution of the connection between landownership and legal power all led to the emergence of the commercial impulse. The booming land, wool, and grain markets along with high food prices and a labor shortage, Moore argues, developed a need to make profit in English agrarian society. Moreover, the high price of resources and widespread availability markets inspired a once agrarian class of people to produce for economic gains rather than for sustenance. In addition, because “the land and tenurial relations based on it had largely ceased to be the cement binding together lord and man,” (Moore, 5) land thereafter came to be viewed as a source of revenue rather than one of political or legal power. Moore points to the burgeoning land market and rise of enclosures as evidence reaffirming his claim that public perception concerning land ownership shifted to one of capitalism. Furthermore, he asserts that the commercial impulse along with the aforementioned variables of resources were the chief causes behind the growth of a capitalist economy. Thus, Moore examines resource endowments and evolution of agricultural profitability to explain the growth and success of capitalist commercialism. On this point he and North and Weingast disagree.

To North and Weingast, the success of commercial capitalism was a result of government’s establishment of a “relevant set of rights…[and] a credible commitment to them,”(North and Weingast, 803) derived from their assertion that “the development of free markets must be accompanied by some credible restrictions on the state’s ability to manipulate economic rules to the advantage of itself and its constituents”(North and Weingast, 808). They argue that with restrictions on the Crown’s ability to practice arbitrary power in the pursuit of public finance and renege on loans, English government earned financial credibility and was therefore able to finance expenditures. This shift to free flowing credit to government trickled down to the public economy beginning when “the Bank of England began private operations…[along with] numerous other banks”(North and Weingast, 825). Thus North and Weingast argue that government credibility led to free flowing credit in the public economy. As a result of this influx of available credit, they argue, private enterprises were able to create new and grow existing businesses. Although the two arguments diverge when explaining the general reasons for capitalism’s success, Moore’s argument is mainly aimed at explaining why capitalism emerged in the first place whereas that of North and Weingast explains why capitalism boomed once it became embedded in the water supply. The two arguments have a more supplementary and overlapping relation when explaining why capitalist interests percolated government and succeeding in translating their philosophy into law.

While explaining how capitalist democracy came about in England, Moore examines how social changes affected policy and the composition of Parliament while North and Weingast examine how changes in financial policy and the new composition of Parliament affected English government. Thus, North and Weingast begin where Moore ends: at changes in financial and monetary policy and a new composition of Parliament. In Moore and North and Weingast’s arguments, these changes in government are viewed as an effect and cause, respectively. Moore argues that the disenfranchisement and resulting dissolution of the peasantry, royal infringement upon free market, and the transformation of Parliament from an exclusive body of hereditary nobles to a “committee of landlords” (Moore, 21) led to a Parliamentary opposition to the Crown that resulted in a government that promoted capitalist democracy. As land became increasingly necessary for successful agrarian capitalism, the practice of enclosing peasant-owned or common land became regular. This practice not only allowed resourceful peasants, or yeomen, to participate in commercial capitalism, but also led to rapidly decreasing peasant population that would have opposed modernization. Moore argues that the Crown strove to protect the peasantry from enclosures to ameliorate public discord by using prerogative mandates to reallocate the jurisdiction of property rights disputes from common law courts to the Star Chamber.

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A Comparison of Socioeconomic and Institutional Methods of Explaining the Rise of Capitalist Democracy in England (Moore vs. North & Weingast) (Part 2)

July 18th, 2010 Comments off

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However, Moore argues, because of the economic implications of enclosures and apparently self-serving practices of the Crown, commercial interests developed in opposition to the Crown. Moore further argues that “the wealthier townsmen turned against royal monopolies…as barriers to their own interests”(Moore, 13). As such, Moore asserts that the unilateral and regulatory nature of the Crown came to represent the final frontier before free market capitalism to an increasingly cohesive commercial class. This opposition came to the forefront of politics as Parliament came to represent the interests of the commercial class. In sum, Moore argues that economic motives drove Parliament to go against the Crown and was able to see its interests come to fruition due to the gradual disappearance of the peasantry and a lack of effective military, bureaucratic, and administrative bodies. Moreover, as Parliament began passing its reforms measures to ensure a free market, the Crown was now subject to a primitive form of impeachment, namely, beheading. On this point the two arguments agree completely. Moore argues that “the Star Chamber…[was] the general symbol of arbitrary royal power”(Moore, 17). Moreover, Moore argues that beside the Star Chamber, there was no major institutional reform because “a flexible institution which constituted both an arena into which new social elements could be drawn as their demands arose and an institutional mechanism for settling peacefully conflicts of interest among these groups”(Moore, 21) already existed. North and Weingast, however, assert that the evolution of English Parliament, monarchy, and court system comprised a near revolution.

The same changes in political institutions are described in both arguments, but North and Weingast treat these changes as much more significant to the development of free market democracy. Identifying that the “execution of public laws and expenditures was not subject to a public budgetary process,” (North and Weingast, 809) North and Weingast why they believe institutional change was sought after. Moreover, the fiscal irresponsibility of the Crown led to a coalition of the commercial class “seeking to preserve personal liberties, rights, and wealth”(North and Weingast). Thus the major impetus to reform was a budgetary one, but the nature of the reforms led to a system of government based upon checks and balances. North and Weingast identify several parliamentary measures taken to reform the budgetary process but in turn created a stable balance between Parliament and the Crown: the passage of the Statute of Monopolies and Triennial Acts, the abolishment of the Star Chamber, the reduction of legal legitimacy of royal prerogatives, and the modifications to land tenure laws. As a result of these changes in infrastructure, North and Weingast argue, the Crown’s ability to practice arbitrary was stripped. An important form of royal arbitrary power, they argue, was the disenfranchisement of political opposition in the form of gerrymandering, calling for detainment of political opponents and excessive bail thereof, and suspension of the writ of habeas corpus. Without such practices, one would face little to no threat of disenfranchisement and thus would be able to exercise political freedom. Thus North and Weingast argue that economically driven reforms to the budgetary process allowed for a balance of government and legitimacy of exercising political freedom. The two arguments overlap in explaining how parliament came to represent commercial interests. Moore, however, explains how the dissolution of the peasant class and rise of the commercial class established a strong, cohesive coalition that politically opposed the monarchy without going into detail as to how the commercial class went about accomplishing its goals. North and Weingast, on the other hand, focus on how the commercial class reformed English political institutions to establish separation of powers, a system of checks and balances, and a relatively laissez-faire government. In sum, Moore explains how socioeconomic trends translated into political trends as North and Weingast explain how political trends translated into legal and institutional trends.

Both arguments attempt to explain how capitalism and democracy emerged in England, and why they arose simultaneously. They both explain why the commercial class succeeded in bringing about a burgeoning capitalist economy, though they do so using distinct variables: Moore looks at socioeconomic trends, specifically the fall of the peasantry and the profitability of agriculture in England to explain the economic victory of capitalist forces, while only briefly examining institutional variables, the changing composition of Parliament, and the abolition of the Star Chamber to supplement his argument.

North and Weingast almost strictly use institutional variables in their assertion, namely the reform of the budgetary process to ensure the regularization of public finance which eventually trickled down into the public economy. Further, both arguments set out to explain how the commercial class arrived at the door of government and allowed for a democracy. Both make points backing up the assertion that commercial interests came to oppose the monarchy, though for different reasons. Moore depicts the opposition to an antidemocratic more as an apolitical opposition that gradually percolated Parliament and thus became political. North and Weingast lack any significant social commentary on this matter, instead relying on how Parliament’s desire to reform the budgetary process developed a balanced and democratic government to prove their point. In explaining both the rise of capitalism and that of democracy, Moore focuses on the cause and the phenomenon using socioeconomic variables whereas North and Weingast focus on the phenomenon and its effects by examining the evolution of English political institutions.

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Summary of The No Child Left Behind Act of 2001

June 28th, 2010 Comments off

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Although education is traditionally a state and local responsibility, the federal government first became involved with its policies in the mid-1960’s and remains an active component even today, thus giving way to a presidential proposal entitled “No Child Left Behind” in 2001. Up until this bill proposal, Washington had spent nearly $130 billion since 1965 and more than $80 billion in the past decade alone in an unsuccessful effort to close the achievement gap between disadvantaged students and their more affluent peers (see “Issue Summary: H. R. 1 Enhances Accountability”). A recent study by the American Legislative Exchange Council demonstrated that while per pupil expenditures had increased nationwide by 22. 8% over the past twenty years, little improvement has been made towards equity of education. From this data, it becomes clear that money is alone will not increase achievement, programs must be held accountable to obtain the desired results (“Issue Summary: H. R. 1 Enhances Accountability”). The No Child Left Behind Act of 2001 as proposed by President George W. Bush was designed to reduce bureaucracy, provide additional flexibility to states and school districts to “tailor spending to programs that meet the unique needs of students and eliminate programs that divert resources from school. ” (“Issue Summary: H. R. 1 Helps Close the Achievement Gap”), and to allow local school districts to transfer up to fifty percent of federal education dollars they receive as long as they demonstrate results in an effort to cut “red tape. ” According to a summary issued by the House Education and Workforce Committee, H. R. 1 (the No Child Left Behind Act) was designed to establish a comprehensive accountability system, asking states to build on their existing assessment tests by designing and implementing annual math and reading tests for students in grades three through eight with an amount of federal money designated to redesign tests already in place. Additionally, this act requires that school districts annually report to the public on academic performance as measured by these assessment tests in each school of their jurisdiction, providing information on how students are doing in comparison to those in other schools in the district and across the state, graduate raters, and teacher qualifications to assist parents in judging how their local school stacks up against others statewide. If a low performing school as defined by the state does not make adequate yearly progress after three years of poor testing, students in the failing school are eligible to receive a scholarship for outside private tutoring to transfer to another public school (“H. R. 1, Questions and Answers. ”). States that also fail to show adequate yearly progress will additionally be subject to losing a portion of their administrative funds. Thus, according to the issue summary “By establishing a system of rewards and sanctions for states and school districts to hold them accountable for increasing student achievement, H. R. 1 would, for the first time, demand real from public schools that receive federal education resources,” (“Issue Summary: H. R. 1 Helps Close the Achievement Gap”).

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The conception of and pathways utilized by implementing major legislation, one may assume, are labored over desktops in an intellectual public spectacle of a congress chamber; however, one may have never guessed that in reality the key principals of H. R. 1 were first discussed hundreds of miles outside of Washington in an Austin, Texas meeting room, when the President-elect, George W. Bush, invited members of both parties to discuss education reform, a prominent item at the top of his agenda (Lara). Moving away from traditional lawmaking and into a new era of “unorthodox lawmaking” as coined by Barbara Sinclair, the United States government is increasingly establishing foundations for, and resolving disputes on legislation in less formal settings. A statement given to the House floor by John Boehner, further affirms the existence of these surreptitious actions in stating “This process began last December – before President Bush was technically even “President Bush,” (Lara). Although this December 2000 meeting laid the groundwork for the President’s “No Child Left Behind” legislation, two key congressmen, George Miller, senior Democrat on the House Education Committee, and Senator Edward M. Kennedy (Austin) were left out of the proceedings, both of whom would later become significant components in the passage of this bill.

The results from this initial furtive meeting and many others materialized in the House of Representatives on Thursday, March 22, 2001 when Representative John A. Boehner of Ohio introduced H. R. 1, the No Child Left Behind Act of 2001 by simply dropping the bill into the “hopper” (Austin). Opening with a broad statement of purpose for this legislation, Mr. Boehner articulated a comprehensive legislation which served to reauthorize the Elementary and Secondary Education Act of 1965 under the terms specified by President George W. Bush. Also a noteworthy element of his opening speech included ensuring a definitive goal designed by the legislation to, “In short: H. R. 1 will give students a chance, parents a choice, and schools a charge to be the best in the world,” (Boehner). Following the introduction of this bill sponsored by House Education and Workforce Committee Chairman John Boehner and seventy original co-sponsors (Feehery) to the House of Representatives, House rules require that the piece of legislation be assigned a number and referred to a committee with appropriate jurisdiction. As announced on March 22, 2001, the date of legislative introduction, House Speaker J. Dennis Hastert stated, “I reserve H. R. 1 for the President’s education proposal because I believe that improving our schools should be a top priority for this Congress. ” (Feehery 1). The following day, as described by Sinclair, the parliamentarian determined a referral for the newly named H. R. 1 to committee under the supervision of the Speaker. In most instances, these bipartisan committees which take on a particular bill act as the primary “shapers” of the assigned legislation, thus placing a relatively high degree of importance on which committee(s) receives the bill upon its final legislative outcome. Rather than being sent to one committee in each chamber, many measures in the House, including H. R. 1 of the 107th Congress was considered by several committees sequentially.

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Summary of The No Child Left Behind Act of 2001 (Part 2)

June 28th, 2010 Comments off

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In 1975 the House implemented a policy which permitted referral of legislation to more than one committee, either to be examined by two or more committees at once or in a sequential manner, as a result of increasingly complex legislation being proposed which no longer fit neatly into a single committee’s jurisdiction. However, as portrayed in Sinclair’s examination of the legislative process, sequential referrals are no longer common following a 1995 rule, providing an example where H. R. 1 reverted back to a traditional process against the new legislative process featured in Sinclair’s Unorthodox Lawmaking. The first committee in which H. R. 1 received an assignment to was the House Committee on Education and the Workforce, and it consequently, had the largest legislative role over other committees of referral. Once assignment has been received, a full committee will most often hold hearings, inviting interested people to testify in person about the issue and proposals to deal with it, as did the House Committee on Education and Workforce with the consideration of H. R. 1 on March 29, 2001 entitled “Transforming the Federal Role in Education for the 21st Century” with a witness list including Mr. Keith E. Bailey, Chair, President, and CEO of Business Coalition for Excellence in Education among others (“Transforming Federal Role in Education for the 21st Century”). Once such hearings have concluded and a subcommittee decides to act on the bill at hand, this legislative body marks it up, drafting it line by line, and reports this to the full committee, which then can accept, reject, or amend the bill. H. R. 1 as approved by voice vote on May 8th as the markup opened May 2nd by subcommittee, created a division among party lines. While Republican conservatives complained of alterations in the legislation departing from the President’s original proposition, Committee Chairman and Sponsor of the legislation, John Boehner agreed to a dramatic increase in authorizing funding for education and toned down a GOP “Straight A’s” proposal that would have let states spend federal funds for nearly any educational purpose as long as these measures achieved better academic results. Frequently in the new legislative process, Sinclair suggests, that after a bill has been reported out but before it reaches the floor, major changes have been worked out through informal procedures, such as was the case of the “Straight A’s” provision in which President Bush assured DeMint, supporter of the provision, that he was “looking at a different strategy to accomplish this,” after its specifications had been removed from subcommittee markup (Austin). Subsequent to surviving markup, one of the few remaining conservative proposals which involved private school vouchers had been stripped from the measure by a 27-2 vote as sponsored by Rep. George Miller within just a few hours of approval. The full committee of House Education and Workforce accepted these modifications and others on May 9th by a reported vote of 41-7 in a delicate compromise worked out by Boehner and Miller (Austin 8-5) with major provisions including an authorization of $400 million to help states design and administer annual tests (“House Approves Landmark Education Reforms”). From here, the adapted H. R. 1 was referred sequentially to the House Committee on Judiciary on May 14, 2001 under specification that the committee must report within one day’s time or face automatic discharge, which is exactly what happened on May 15, 2001 at 4:43pm as the No Child Left Behind Act of 2001 was placed on the Union Calendar No. 38.

As per the basic structure of lawmaking in the House, majority party leadership schedules legislation for floor debate at the bottom of the Union calendar in the instance of major legislation. Sinclair argues however that the House has developed alternate methods of getting legislation to the floor to provide needed flexibility. “The primary ways of bringing legislation to the floor are through suspension of the rules and through special rules from the Rules Committee, both procedures that the majority party leadership controls,”(Sinclair 20), an action which allowed H. R. 1 to be brought to the forefront of House legislative activity during the spring of 2001. The Rules Committee in this instance allowed the measure to be taken out of order as cited in a statement known as a House Resolution, which also set the terms for the floor’s consideration, including how much time was designated for general debate, two hours, issued May 16, 2001 at 11:33pm. Additionally the rule may restrict amendments, waive points of order against what would otherwise be violations of House rules in legislation, and outline other special provisions to govern floor consideration. A restriction on amendments in H. R. 1 in the form of a modified closed rule as implemented in the House Resolution permits only amendments enumerated in the Rules Committee report to be offered (“House Rpt. 107-069: Providing for the Consideration of H. R. 1 The No Child Left Behind Act of 2001”) and falls in line with contemporary House measures which typically are somewhat restrictive to save time, prevent obstructionism, and eliminate uncertainty.

On May 17th, a majority of the full membership of the House approved the resolution specified by the Rules Committee and, thereby, resolved itself into the Committee of the Whole, a legislative body made up of every House member, but with more streamlined rules and quorum of one hundred where debate and amendment of the legislation takes place.

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Summary of The No Child Left Behind Act of 2001 (Part 3)

June 28th, 2010 Comments off

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In this setting, a member was recognized to speak for only five minutes with debate equally divided between the proponents and opponents of the bill and controlled by a presiding officer chosen by the Speaker. On May 17, 2001 the Speaker designated the Honorable Doc Hastings as this such presiding officer, and the majority floor manager, John A. Boehner, opened with a prepared statement detailing the purpose of the legislation. Overall throughout these proceedings, twenty-seven amendments were introduced off of the Rules Committee report, five of which failed by record vote, twelve passed by voice vote, and ten passed by record vote. Voice votes in this legislative process most often occur when a floor manager has no objections to the amendment, while a controversial vote will be conducted under recorded vote to obtain a precise ruling. The amendments as introduced to the floor were relatively narrow, contradicting the statement that more often in modern politics to obtain a particular outcome “[A] rule gives members a choice among comprehensive substitutes but bars votes on narrow amendments, to focus the debate on alternative approaches, on the big choices rather than the picky details,” (Sinclair 24). The most difficult challenge presented to the legislation occurred when Republican Rep. Peter Hoekstra attempted to expunge annual testing from the bill, and although receiving heavy support from conservative Republicans and liberal Democrats, the amendment was ultimately rejected as defeat was blamed on intense lobbying by White House officials in another behind-the-scenes maneuver similar to those mentioned prior (Austin). After general debate and amending have been resolved, the Committee of the Whole rises and reports back to the house, where amendments must again be voted on and approved by the House. At this stage, on May 23, 2001, Representative Owens moved to recommit the amended bill with instructions to the Education and Labor Committee in an effort to add money to renovate schools and reduce class size by hiring more teachers, but this proposal was rejected (Austin). The final version of H. R. 1 was passed by a recorded vote of 384-45 on May 23, 2001 with a total of thirty-four Republicans, ten Democrats, and one Independent voting against the package. Once the legislation was passed, a motion to reconsider was made and laid upon the table on May 23rd at 7:24pm to ensure that the issue could not be reopened, and from here, the legislation was then sent to the Senate.

On May 25, 2001 the No Child Left Behind Act of 2001 was received in Senate, read twice, and placed on the Senate Legislation Calendar under General Orders. The Majority leader, by motion as specified by Sinclair, removed the legislation to be considered from the calendar, and the measure was laid before the Senate floor on June 14, 2001. In this instance, legislation reported by the Senate committee on Health, Education, Labor and Pensions had already approved a seven year reauthorization bill (S1-S. Rept. 107-7) in committee which had included Bush’s provisions to test students in grades three through eight in reading and math, a companion to the House-passed bill H. R. 1 and thus allowed for bypass of committee referral, a frequent method of bringing legislation forward more quickly according to Sinclair’s description of the new legislative process. However, the modified measures essential to S. 1 as reported out of committee were not exactly congruent to H. R. 1 as sent out by the House, and therefore, many provisions were made to the House-born bill before full Senate approval could be accomplished. According to Austin, “despite bipartisan spirit, sharp differences emerged between Democrats and Republicans over how much leeway to give states in spending federal money and how many federal education programs should be consolidated,” (8 -3) both important discrepancies that surfaced between the Senate and House version of this bill. During the period in which the bill was being debated on the Senate floor, Senator James Vermont, Chairman of the Health, Education, Labor and Pensions Committee and the measure’s flood manager, quit the Republican party and thus shift control in the Senate to the Democrats and making Senator Edward Kennedy the new chairman (Austin). As a result of anticipation by Bush and congressional Republicans of a hard fought series of negotiations following this transition in majority leadership, the administration “opened a back channel” and ranking Republican Senators began meeting with centrist Democrats including Joseph Lieberman and Evan Bayh, yet another example of secretive negotiations that have increased in frequency in recent congresses (Austin). After approximately six weeks of floor debate, the Senate passed the No Child Left Behind legislation on June 14, 2001 by a vote of 91-8 after submitting the amended version for its own bill. Five days later, the measure was amended by the Senate by unanimous consent based on the principle that the Senate is not a majority-rule chamber like the House after passage. No holds as an obstacle frequently utilized by a more modern political process as described by Sinclair were enacted, and thus, the Senate was able to do this act of business as with many others by unanimous consent, “both an acknowledgement and an augmentation of the power of senators as individuals” as determined by Sinclair (45). As in this case, unanimous consent agreements have become increasingly individualized pertaining to a specific bill to accommodate individual senator’s demands in the modernized legislative process. Also according to Sinclair, major legislation is particularly likely to encounter an extended debate-related problem, such as a hold or filibuster, in recent decades; however, this did not occur with the No Child Left Behind Act of 2001. Additionally, it is proposed in Unorthodox Lawmaking that in major legislation, a high number of amendments are introduced and voted on by the recorded method, although such actions did not occur in this bill.

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Summary of The No Child Left Behind Act of 2001 (Part 4)

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After the bill had been drafted and approved, a conference was requested with appointments of conferees Kennedy, Dodd, Harkin, Mikulski, Jeffords, Bingaman, Wellstone, Murray, Reed, Edwards, Clinton, Lieberman, Bayhn, Gregg, Frist, Enzi, Hutchison, Warner, Bond, Roberts, Collins, Sessions, DeWine, Allard and Ensign, and this message on Senate action was sent to the House on July 11, 2001.

On July 18, 2001, Sponsor and Chairman of the Education and Workforce Committee, moved and was later approved 424-5 that the House disagree to the amendment placed on H. R. 1 and thus, a conference was organized. The Speaker of the House appointed conferees for consideration of the house bill and Senate amendment, and modifications committed to conference who included Boehner, Petri, Roukema, McKeon, Castle, Graham, Hilleary, Isakson, Miller, George, Kildee, Owens, Mink, Andrews, and Roemer on the afternoon of July 18th. Between July 19 and December 11, a series of conference meetings were held to reconcile the different bills produced in each chamber. Neither version of the bill as passed would have worked in the current political and education situation, as according to the Congressional Research Service, the Senate passed version would have deemed every school in both North Carolina and Texas a failure and subject to reorganization (Austin). As a result of this complication and based on the fact that while the Senate had voted to significantly increase the overall number of ESEA programs from fifty-five to eighty-none, the House passed version would have streamlined the overall number to forty-seven (“House-Senate Education Conference Approves President’s Reading Initiatives”), instead of melding the two agreements, the conferees were given the task of devising a new one. This particular conference worked in subconferences consisting of a small group of both House and Senate Republican and Democrat members, as specified in Sinclair’s description, due to the unwieldingness of such a large overall conference. By November 30, both houses had worked out all the major issues in dealing with testing, accountability, and financing, but had been encumbered with a small point. Conducted behind the scenes deep within the Capitol building as means of avoiding regulations specified by the Sunshine rules, enigmatic negotiations took place between conference leaders as does often occur when a stalemate often requires leadership intervention in modern politics described by Sinclair. On December 11, 2001, the conferees finally agreed to file the conference report, and two days later, the House passed agreed with the modified bill by a recorded vote of 381-41. The conference report was next considered in the Senate by Unanimous Consent on December 17, 2001 and was agreed to by a Yea-Nay vote of 87-10 the following day.

On January 8, 2002 H. R. 1, the No Child Left Behind Act of 2001 was signed into Public Law No. 107-110 by President George W. Bush in a ceremony in Hamilton, Ohio, the home district of Sponsor Rep. Boehner with the four principal negotiators Boehner, Miller, Gregg, and Kennedy on hand. “I decided to sign this bill in one of the most important places in America – a public school,” stated President Bush, pen in hand, “Today beings a new era, a new time for public education in our country. Our schools will have higher expectations – we believe every child can learn. From this day forward, all students will have a better chance to learn, to excel, and to live out their dreams,” (President Bush Signs Landmark Education Reforms into Law”).

Many of the modern lawmaking principles described in Barbara Sinclair’s Unorthodox Lawmaking were evident in the amendment and passage of H. R. 1; however, I feel that my case is a poor example of the new legislative process. Because the Senate is considerably smaller in membership, its less hierarchical and less formal nature, lending individuals great power was evident in this piece of legislation, but there were no threats of hold or filibuster, common obstacles in modern congresses. A sequential committee referral in the House rather than a simple designation of primary committee also diverged from Sinclair’s explanation of current politics. In the Senate, very few amendments were made to their version of the bill, and I did not encounter any queen or king of the hill provisions, and I found no instance of self-executing rule in the House.

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Summary of The No Child Left Behind Act of 2001 (Part 5)

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These elements of lawmaking in addition to others previously mentioned provide evidence that although the procedure implemented in the passage of H. R. 1 was that of a modern Congress, it did not fit much of the specific criteria outlined by Barbara Sinclair for her new legislative process.

Works Cited

Austin, Jan, ed. Congressional Quarterly Almanac Plus. Vol. LVII 2001. Washington, D. C. Congressional Quarterly,

Inc. 2002

Boehner, John “Is School Choice the Best Solution to Our K-12 Education Problems? We Must Close Achievement

Gap. ” Roll Call. 26 Feb. 2001. Academic Universe. Lexis-Nexis. University of North Carolina Lib. Chapel Hill. 20

Nov. 2004 <http://www. lexis-nexis. com>

Broder, David S. “Long Road to Reform; Negotiators Forge Education Legislation. ” The Washington Post 17 Dec. 2001,

(Washington, D. C. A-1. Academic Universe. Lexis-Nexis. University of North Carolina Lib. Chapel Hill. 20 Nov.

2004 <http://www. lexis-nexis. com>

Feehery, John and Pete Jeffries, “House Speaker J. Dennis Hastert (R-IL) Endorses President’s Education Proposal. ”

Speaker’s Press Office. 2001. 22 Nov. 2004 <http://edworkforce. house. gov/press/press107/first032201. htm>

“House-Senate Education Conference Approves President’s Reading Initiatives, Other Aggreements. ” News from the

Committee on Education and the Workforce. 2001. 22 Nov. 2004

<http://edworkforce. house. gov/press/press107th/hr1agreements92501. htm>

“H. R. 1, No Child Left Behind: Questions and Answers. ” House Education and the Workforce Committee. 22 Nov. 2004.

<http://edworkforce. house. gov>

“Issue Summary: H. R. 1 Enhances Accountability. ” House Education and the Workforce Committee. 22 Nov. 2004.

<http://edworkforce. house. gov>

“Issue Summary: H. R. 1 Helps Close the Achievement Gap. ” House Education and the Workforce Committee. 22 Nov.

2004. <http://edworkforce. house. gov>

Lara, Dan and Dave Schnittger. “Boehner Praises Education Reforms in H. R. 1 as Education Debate Begins on House

Floor. ” News from the Committee on Education and the Workforce. 2001. 22 Nov. 2004

<edworkforce. house. gov/press/press107/hr1boehnerfloor51701. htm>

Schnittger, Dave and Heather Valentine. “House Approves Landmark Education Reforms: No Child Left Behind

Measure ready for Senate Passage, Then President’s Signature. ” News from the Committee on Education and the

Workforce. 2001. 22 Nov. 2004 <http://edworkforce. house. gov/press/press107/confrepthousepass121301. htm>

Schnittger, Dave and Heather Valentine. “President Bush Signs Landmark Education Reforms into Law. ” News from the

Committee on Education and the Workforce. 2002. 22 Nov. 2004

<http://edworkforce. house. gov/press/press107/hr1signing10802. htm>

Sinclair, Barbara. Unorthodox Lawmaking: New Legislative Process in the U. S. Congress. Washington, D. C. CQ Press.

“Transforming Federal Role in Education for the 21st Century: Hearing on H. R. 1, H. R. 340, and H. R. 345. ” News from

the Committee on Education and the Workforce. 2001. 22 Nov. 2004

<http://edworkforce. house. gov/hearings/107th/fc/hr132901/w132901. htm>

United States. Cong. House of Representatives. House Rpt. 107-069: Providing for the Consideration of H. R. 1 The No

Child Left Behind Act of 2001. 16 May 2001. 107th Cong. House Bill 1. 26 Nov. 2004 <http://thomas. loc. gov/cgi-

bin/cpquery/? &db_id=cp107&r_n=hr069. 107&sel=TOC_0&>

United States. Cong. House of Representatives. To Close the Achievement Gap with Accountability, Flexibility, and

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