Friday, April 4, 2014

Oso, Washington Landslide: Too Bad There Was No Advance Warning. Oh, Wait--There Was.

When Mother Nature pitched a fit in 2004 and sent a massive tsunami thundering across the Indian Ocean, creating 100-foot waves that killed over 230,000 people in 14 countries, humanity  hung its head in sorrow and lamented the lack of an early-warning system that could have given victims the time to reach higher ground.  Since that tragic event, multiple nations have worked together to create a tsunami warning system similar to those that exist in the Atlantic and Pacific Oceans.

Ten years later, a new catastrophe has struck, this time in Oso, a small community on the banks of the Stillaguamish River in Snohomish County, Washington State.  So far 60 people are known to have been killed by a mile-wide wall of mud, rocks, and trees that slumped off the hillside dubbed "The Hazel Landslide" by geologists.

I don't know about you, but if I was looking to buy a piece of property on which to build a house, the last place I would look is anywhere near anyplace with the word "landslide" in its name.  Given the human penchant for self-preservation, it's a pretty sure bet that the Oso victims would feel the same.

So, the question is, did the victims know they were building their houses in a danger zone?  And if not, why not?

I fear the answer to why the victims would not have known of the danger boils down to money.  As in taxes the local community and county would have collected from the homeowners.  The money the contractors would have made by building the homes.  The income the real estate agents would have earned by selling lots.  The millions the developer would have received for developing the raw acreage into a subdivision.  And, of course, we cannot forget the loggers whose livelihoods depended on cutting down the trees located on top of the Hazel Landslide.

Geologist Dan Miller, like the rock hounds and engineers who came before him, was well aware of the danger posed by Hazel.  In a 1999 report prepared for the Army Corps of Engineers, Miller detailed Hazel's history of  landslides dating back to 1949.  Between 1949 and 2006, major hillside avalanches slumped off the mountain five different times: in 1949, 1951, 1967, 1988, and 2006.  Interspersed among these major events were more frequent, though less devastating, slips.  Miller prepared other reports detailing Hazel's instability for the federal government, the State Department of Ecology, and a timber company.

Miller's warnings were preceded in the 1950's and 1960's by other engineers' reports detailing the danger posed by the sandy soil that underlay Hazel's surface, and the river erosion that undercut her base.  Plans in the 1950's to reroute the river were scrapped in the 1960's, because the lands of the new route were already divided into lots for summer cabins.

Despite all these warnings, county officials continued to issue building permits for homes in Hazel's danger zone.  Indeed, when Miller returned to the area after the 2006 landslide, he couldn't believe the county was still allowing houses to be built right across the river from the slide.

To say that the various governmental entities with knowledge of Hazel's penchant for thundering off the mountain failed the Oso victims, would be an understatement--and a clear indication that those entities have forgotten what the Founding Fathers of this country knew so well: that the purpose of government is not to act as a chamber of commerce, but to "establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity...."

I'd say the officials in Washington State failed the Oso victims on all counts.

Wednesday, April 2, 2014

McCutcheon v. Federal Election Commission: Ignoring Precedent

The five justices of the Supreme Court appointed by Presidents Ronald Reagan (Antonin Scalia, Anthony M. Kennedy), George H.W. Bush (Clarence Thomas), and George W. Bush (Samuel Anthony Alito, John G. Roberts, Jr.), issued a decision today striking down another aspect of the campaign finance reform law that Congress enacted after determining that such regulation was needed to avoid corruption or the appearance of corruption in the electoral and political process.

No doubt the punditsphere will be rife with commentary on the type of regulation upheld (base limits), versus the type of regulation outlawed (aggregate limits).  The cynical will conclude that the five justices upheld the type of limit that restricts the amount of money regular joes can contribute to a candidate, while throwing open the floodgates for the multimillions that millionaires and billionaires can funnel into the campaigns of the politicians who tow their corporate lines.

But concentrating on the guts of Chief Justice Robert's opinion totally ignores the more egregious flaw in that decision, a flaw that would earn any first year law student a resounding "F" in constitutional law class.

Any fledgling law student, after poring over case after case after case during the first year of law school, learns one basic truth of the relationship between the Supreme Court and all lower trial courts: i.e., unless the question presented to the Supreme Court for decision is purely a matter of law, the Court will require that the lower courts conduct evidenciary hearings to develop adequate factual records upon which the courts can base their decisions.

Which means, as the four remaining justices emphasized in their dissenting opinion, because the lower court arrived at its decision before a full evidentiary hearing was held, the Court should have sent the case back to the trial court so evidence could be collected and a factual record made.  According to the dissenters: 

In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed [in the lower court] to determine whether the law served a compelling governmental objective. And, typically, that record contained testimony from Members of Congress ... explaining why Congress ... acted as it did ... If we are to overturn an act of Congress here, we should do so on the basis of a similar record ...

Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and applying significant discretion and judgment.  To what extent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it?

These kinds of questions, while not easily answered, are questions that Congress is far better suited to resolve than are judges. Thus, while court review of contribution limits has been and should be “rigorous,” ... we have also recognized that “deference to legislative choice is warranted.” ... And that deference has taken account of facts and circumstances set forth in an evidentiary record ...

The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one” ... But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental interest—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy. The plurality itself spends pages citing figures about campaign spending to defend its “legal” conclusion ... The problem with such reasoning is that this Court’s expertise does not lie in marshaling facts in the primary instance. That is why in the past, when answering similar questions about the constitutionality of restrictions on campaign contributions, we have relied on an extensive evidentiary record produced below to inform our decision ... 

Without further development of the record, however, I fail to see how the plurality can now find grounds for ... a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform....

Four justices of the Supreme Court appointed by Bill Clinton (Ruth Bader Ginsburg, Stephen G. Breyer) and Barack Obama (Sonia Sotomayor, Elena Kagan) joined in the dissenting opinion.

You can draw your own conclusions regarding the significance of the justices' split along party lines.