Berkeley Political Review Winter 2013

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Berkeley Political Review

Widespread smoking bans in Berkeley

Party politics and gun control

Prosecution, incentives, and justice in finance

The extradition of drug cartel members

volume xii, nO. 2 / WINTER 2013

EUROPE’S TURN

TO THE RIGHT


EDITOR’S NOTE

Rights for whom? Dear Reader, Civil rights such as freedom of speech and assembly are the basis of the constitution of the United States, and are also protected by law in the European community. However, what if freedom of speech is used for the expression of hate speech against immigrant and minority populations? In other words, how should one assess the rise of the far right in the United Kingdom (British National Party), France (Front National), Austria (Freedom Party of Austria), and Greece (the infamous Golden Dawn)? Alex Duran draws our attention to this turn to the right in Western Europe’s economically struggling democracies (page 14). Catalyzed by social discontent, far-right parties are riding a populist wave of Islamophobia, anti-immigration sentiments, and Euroskepticism. The British National Party currently occupies two seats in the European parliament, with the proclaimed goal of demanding “an immediate withdrawal from the European Union (British National Party Manifesto 2010).” This rise of public support for far right movements is worrisome, even though the parties will likely remain on the fringe of the European political spectrum. Chances are that center parties will shift their political programs to the right in an effort to secure broad public support. In the United States, the managers and institutions co-responsible for the 2008 crash have yet to be sufficiently held responsible. In “Making Markets Moral” (page 9), Woody Little takes a look at the state of the U.S. financial system five years after the bursting of the real estate bubble. Despite limited achievements such as the recent JPMorgan settlement, most individual managers have not faced legal consequences for their actions, and systemic reform has been limited at best. In fact, Wall Street banks that were bailed out for being “too big to fail” have only gotten bigger since 2008. Pointing out a similar case of compromised legal action in face of overwhelming financial power, Wendie Young in the Opinion section critiques the lack of international oversight of multinational oil corporations (page 20). With economic discontent precipitating an increasingly polarized political arena in Europe, and the institutional mechanisms of the 2008 crash still in place in the U.S., global stability seems tenuous. However, the current situation also offers an opportunity to return to, strengthen, and expand the civil rights at the basis of our society. Sincerely,

Elena Kempf Editor-in-Chief

MASTHEAD EDITOR-IN-CHIEF Elena Kempf MANAGING EDITOR Ha Duong BUSINESS MANAGER Tanay Kothari DEPUTY BUSINESS MANAGER Nikhil Kotecha BERKELEY EDITOR Shayna Howitt CALIFORNIA EDITOR Allison Arnold DEPUTY CALIFORNIA EDITOR Maria Buxton U.S. EDITOR Matthew Symonds DEPUTY U.S. EDITOR Viveka Jagadeesan WORLD EDITOR Ada Lin DEPUTY WORLD EDITOR Jessie Lau OPINION EDITOR Tina Parija DEPUTY OPINION EDITOR Carrie Yang ONLINE EDITOR Anna Bella Korbatav DEPUTY ONLINE EDITOR Maria Salamanca DESIGN DIRECTOR Ha Duong ADVISERS Susan Rasky Ethan Rarick STAFF Ankit Aggarwal, Jingwei Li Angel, Gabriella Armato, Efe Atli, Madeleine Ayer, Disha Banik, Rebecca Berman, Deborah Choi, Samhita Collur, Zac Commins, Erin Delaney, Alex Durán, Brenna Fitzpatrick, Lani Frazer, Peter Gao, Zachary Grimmett, Daniel Haidermota, Adeeba Hasan, Hilly Hess, Mekhala Hoskote, Ray Tang Hou, Angel Jennings, Edward Johnston, Claire Kaufman, Sophie Khan, Nicholas Kitchel, Elizabeth Lanier, Jae Ho Li, Woody Little, Lindsey Lohman, Alexander Mabanta, Priyana Mohanta, Stacey Nguyen, Eric Michael Oakley, Brendan Pinder, Abhik Kumar Pramanik, Harkaran Singh, Lucy Song, Giacomo Tognini, Varsha Venkatasubramanian, and Wendie Yeung. The content of this publication does not reflect the view of the University of California, Berkeley or the Associated Students of the University of California (ASUC). Advertisements appearing in the Berkeley Political Review reflect the views of the advertisers only, and are not an expression of the editorial opinion or views of the staff.

www. bpr.berkeley.edu


Berkeley Political Review Volume XII, No. 2 / Winter 2013 Mekhala Hoskote

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Madeleine Ayer

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Stacey Nguyen

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Ray Hou

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Claire Kaufman

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Lucy Song

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Woody Little

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Samhita Collur

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Nicholas Kitchel

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Jae Ho Lee

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Sophie Khan

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Alex Durán

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Giacomo Tognini

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Jing Wei Angel

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Abhik Kmar Pramanik

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Gabriella Armato

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Ankit Aggarwal

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Wendie Yeung

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Erin Delaney

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Lani Frazer

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BAY AREA Widespread smoking bans around Berkeley Weighing public safety over civil liberties. CALIFORNIA Guns don’t kill people, politics do Legislators lose their seats voting for gun control. Aborting misconceptions Tensions within Californian sexual healthcare. Can we build the hyperloop? The legal and political viability of Elon Musk’s dream. The plague of glitches Covered California’s turbulent ride to effective health care coverage. Torture in the name of prison security California lawmakers to investigate solitary confinement in California prisons. U.S. Making markets moral Prosecution, incentives, and justice in finance. Cash or check Campaign finance limits face a new challenge in McCutcheon vs. FEC. The new race to the top Incentivizing affordability and quality in education. Driving under the influence How marijuana will be regulated on the road. A brief history of judicial activism WORLD

(COVER STORY) Re-emergence of the European far right Right-wing populism in European politics. The brave reformer A new vision for Italy. Game over? The end of Switzerland’s secrecy banking system. Libya and leaving the fortress The assassination of Ambassador and the practice of diplomacy. An enriched Iran? Will nuclear talks make or break Iran?

OPINION Cartel blanche Should drug cartel members be extradited to the U.S.? Invincible Oil International regulations needed to hold oil companies culpable to crimes. The politics of impunity The I.C.C.’s Cases Against Kenyatta and Ruto. Abortion access for teens Foster child in legal limbo reveals problems with anti-abortion laws. Cover photo by Matthew Lloyd.

www.bpr.berkeley.edu


BERKELEY

Widespread smoking bans in Berkeley Weighing Public Safety Over Civil Liberties BY MEKHALA HOSKOTE

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n January 9, 2012, former UC president Mark Yudof mandated that all UC campuses become smoke-free by January 2014 to create a healthy campus environment. Some UC campuses, such as UCLA and UCSF, have already transitioned to a tobacco-free environment. In response, the Berkeley City Council is discussing ordinances that ban smoking in multi-unit housing complexes. These policy decisions have caused uproar among smokers on campus and in the city. Six to ten percent of Berkeley students smoke and three to nine percent of Berkeley employees smoke, making smoking a salient issue to students on campus and in the community. UC Berkeley has formed a Tobacco Free Steering Committee, composed of groups such as the ASUC, University Health Services, City of Berkeley Public Health, and the International House, which has been creating and implementing the smoke-free policies. Currently, smoking is only allowed 25 feet away from university buildings. However, the new, stricter policy prohibits all smokeless tobacco and unregulated nicotine products, such as e-cigarettes, on campus. This comprehensive ban complies with a tobacco-free policy as opposed to a smoke-free policy. According to the American Lung Association, 422 colleges and universities have implemented 100 percent smoke-free policies. The UC system is going a step further, banning all tobacco products regardless of whether they emit smoke or not, in an attempt to improve public health. In addition to campus-wide smoking bans, the Berkeley City Council has been discussing ordinances to ban smoking in multi-unit housing to prevent involuntary exposure to secondhand smoke. Multi-unit housing includes apartments, fraternities, and senior living facilities. The ordinance stipulates that a nonsmoking clause will be added to all housing contracts and that tenants who do smoke will be fined up $250. From a public health standpoint, these bans on smoking will benefit the community. Smoking is one of the leading causes of preventable deaths in the United States. Less smoking will improve the community’s health by reducing secondhand smoke and thirdhand smoke, residual smoke that clings on indoor surfaces. Dr. Joel Moskowitz, the director for the Center for Family and Community Health at the UC Berkeley School of Public Health, says, “Secondhand smoke is known to increase the

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risk of lung cancer, almost 3,000 cases a year. of the city ordinance. Enforcement relies on Many more people are affected by cardiovascu- neighbors filing complaints about their smoklar disease with almost 50,000 cases a year.” ing neighbors. After two neighbors have filed Dr. Moskowitz is also a co-chair of the complaints, the smoking resident is given an Tobacco Steering Committee. When asked infraction citation. But the enforcement mechwhether the purpose of the tobacco-free policy anism is only through neighbors, which pits is to reduce secondhand smoke or to motivate neighbors, specifically students, against each smokers to quit, he claims that both are the other. case. “You have so many documented harms As student Saihaam Khan says, “Smokfrom smoking, particularly to the smoker, that ing is one of my individual rights and the toit is not unreasonable for a university system to bacco free policy criminalizes me for exercising help people to quit. One way to get people to my right.” With widespread smoking bans on quit is by saying that they cannot smoke in the campus, in multi-unit housing, and in buildings, university,” explains Dr. Moskowitz. smokers will eventually have nowhere to smoke For the university-wide policy, puni- in Berkeley. tive measures have not been finalized yet. Dr. Individually, UC Berkeley’s tobacco free Moskowitz states, “The intention, though, in policy and the Berkeley City council’s ordithe first year, is that the enforcement will be nance have good intentions regarding the pubthrough education and there will be no coercive lic health of the community. However, when measures. If there is a problem beyond that, the enforced together, they restrict a smoker’s campus does have the right to punish, probably civil liberties. A compromise with a designatin the form of fines issued by the campus po- ed smoking area or looser smoking policy to lice. That would be seen as a last resort.” It is respect smokers in Berkeley should be conhard to say whether simply education and smok- sidered to preserve smoker’s rights while still ing cessation resources will be enough to get protecting the community. ■ smokers on board with the policy. Even if the policy is successful for the first year, afterwards, the fact that the campus police will have the power to issue fines is concerning, especially with a student body that does not have a positive experience with the UCPD. The tobacco-free policy mostly affects international students who are from countries where smoking is common. The new policy calls for them to change their lifestyle for the short amount of time they are at Berkeley. The purpose of the policy is to “change the social norms around smoking,” as Dr. Moskowitz claims. Smoking is not just a social issue, but also an important health issue. The fact that smoking is harmful justifies this policy and the lifestyle changes that may occur from it. University Health Services is also providing more resources to help smokers quit such as free nicotine replacement therapy kits, one-on-one help to make quit plans, and assistance hotlines. UC Berkeley’s new anti-smoking mandate aims to make the There have been some issues campus entirely smoke-free by January 2014. Oxfordian Kissuth/ regarding the potential enforcement Wikimedia Commons


CALIFORNIA

Guns don’t kill people, politics do Legislators lose their seats voting for gun control BY MADELEINE AYER

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Party politics have overridden the gun control debate, leaving many Americans caught in the crossfire. Michael Leunig

n the aftermath of the Aurora movie theater and Sandy Hook Elementary School mass shootings, it seemed within reason that some form of gun control would be on Colorado’s legislative agenda. Colorado, a historically gun-friendly state that was the site of not just the Aurora shooting, but also the Columbine High School Massacre, passed legislation last spring that banned magazines from exceeding fifteen rounds and required universal background checks on all private sales. After the legislation was passed, a sea of outside groups unleashed a flood of money to recall two democratic state lawmakers who favored gun control: Senate President John Morse (D-Colorado Springs) and Senator Angela Giron, (D-Peublo). Although Morse and Giron raised around $3 million to defeat the recall, they were ultimately defeated by the N.R.A., gun rights groups, and the Koch brothers, whose spending totals remain nebulous. Because the Koch brothers used their nonprofit-status group Americans for Prosperity to channel money into the recall election efforts, they did not have to report their spending to the Federal Elections Commission. However, the recall election push had little to do with guns, but much to do with Morse and Giron being pro-tax and pro-health care. The incident reveals that the ongoing debate on guns is less about gun violence or gun rights, but rather about increasing party rancor and intensifying polarization. California recently signed gun control legislation into law as well, and is now the newest target of a recall election. The recall effort is being organized by Free California, another

nonprofit-status group founded by a Republican involved in the Colorado recall, as well as Gun Owners of California and several state legislators, including Tim Donnelley, who is running for the 2014 gubernatorial nomination. In order to stage a recall in California, the number of signatures collected must equal 12 percent of the total number of votes cast in the previous state election, according to state law. The gun control law Governor Jerry Brown signed on October 11 was not very far-reaching for the state that has the strictest gun laws in the country. It included banning lead ammunition for hunting—perhaps the most sweeping part of the bill—as well as punishing negligent storage of firearms that are near children, extending background checks to 30 days, banning the sale of repair kits that can convert magazines to ten rounds, and mandating psychotherapists report threats of violence to authorities within 24 hours. Brown, however, vetoed one of the toughest gun laws in the country, which would have prohibited semi-automatic rifles with detachable magazines, typically of three to four rounds. He also vetoed laws that would have given Oakland the ability to enact stricter gun laws, as well as a bill that would have barred those with substance abuse convictions from owning a firearm for ten years. The California recall push will target Democratic lawmakers seen as vulnerable, including Speaker John Perez, Senator Norma Torres, Senator Ben Hueso, and Assemblywomen Sharon Quirk-Silva and Lorena Gonzalez. These lawmakers were recently elected, and thus seen as more easily targeted, though all but one won

by a huge margin. “They also all happen to be Hispanic,” remarked one Berkeley professor. However, not a single one of these California districts looks even moderately similar to a district in Colorado that voted for the recall. Why, then, would California spend millions of taxpayer dollars (special elections cost upwards of $2.5 million) in a recall election so close to a regularly scheduled election when the state is overwhelmingly blue? The answer is not because the Republican Party is truly up in arms about banning lead ammunition for hunting, which is just as expensive as, if not more than, non-lead ammunition. It is, rather, the same reason Colorado led its recall push: to take down the rival party and to further their commitment to their own candidates and ideology. Likely, Donnelly wants to increase his publicity; though he is unlikely to succeed in a recall, he will succeed in amassing much media exposure for his gubernatorial run next year. Colorado, meanwhile, may be set to recall another Democrat, Senator Evie Hudak, if enough signatures are garnered. If the recall is successful, control of the Senate may be shifted into the hands of the Republicans. Of course, federal lobbying records show that gun rights groups are at the forefront in defeating gun control legislation. So many other groups, and voters themselves, are blind to the facts, figures, and Constitutional argument all of which should be taken into consideration. Instead, the advancement of one’s own party ideology holds the most significance in the ongoing gun debate. Guns don’t kill people, but politics, with its ideology, polarization, and money, does. ■ Berkeley Political Review | 4


CALIFORNIA

Going against the tide, California seeks to expand abortion access. Gerry Broome/AP Photo

Aborting misconceptions Tensions within californian sexual healthcare

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BY STACEY NGUYEN

n the realm of public health, California holds the reputation of being a sexual healthcare champion; its progress in abortion laws has been influential to the nation as a whole. Still, the less clear-cut matters are who gets access to abortion services and reproductive health education, as well as what the quality of such services are. Despite California’s progress in sexual healthcare, the lack of family planning resources to specific populations, including female prisoners, Catholic university employees, and LGBT youth, threatens the state’s reputation as an advocate of sexual health. Knowing California’s historical context is necessary for understanding its role in advancing national reproductive healthcare. In the 1960s, a group of OB/GYNs in San Francisco performed in-hospital abortions, vague on the legality of their actions. These doctors found themselves with lawsuits after they performed abortions on women who were infected with rubella during early pregnancy. Yet, they received solidarity from both the medical community and those who were frustrated with deaths and medical complications from illegal abortions. In response, Ronald Reagan, governor of California at the time, signed the 1967 Therapeutic Abortion Act, lighting the fuse for the landmark Supreme Court Decision of Roe v. Wade in 1973. Moreover, in 2001, Senator Deborah Ortiz (DSacramento) authored SB 780, the California F.A.C.E. Act, which protects physicians and abortion providers and patients from violent protests. Forty years after Roe v. Wade, California became one of the few states to expand surgical abortion service provision to nurse practitioners, physician’s assistants, and midwives through AB 154. AB 154 broadens early term abortion services, predicated on evidence from the Bixby Center for Global Reproductive Health that supports the safety of early termination performed by advanced trained practitioners. How does expanding abortion provision help women? Well, half of the counties in California do not have an accessible abortion provider, forcing women to travel significant distances or wait for appointments to terminate pregnancies. The bill impacts both urban and rural women, who now have access to quicker services and will not have to wait for more complicated, expensive procedures in the case of a long-time wait. Coupled with AB 154, AB 980 also increases access to abortion, mandating 5 | Berkeley Political Review

the repeal of any sections of the California Building Standard Code that treats primary-care clinics differently if they do abortions. In a time of regressive reproductive health laws for many states, California undoubtedly breaks the status quo. “California is one of the rare examples of a state expanding access rather than limiting access to reproductive healthcare,” says Joanna Reed, lecturer in the Sociology department at UC Berkeley. Nevertheless, many institutionalized disparities in sexual healthcare remain swept under the rug. For example, California has a dark history of mistreating incarcerated women, particularly in terms of sterilization. In the 20th century, a third of involuntary sterilizations performed under eugenic laws in the United States took place in California. Sterilizations were a means of social control with a troubling historical context of racism and ableism. The Center for Investigative Reporting revealed in July that between 2006 and 2010, 148 female inmates underwent sterilization in California without state authorization. According to former inmates and prisoner advocates, inmates who seemed likely to be imprisoned again following childbirth were coerced into tubal litigation. Medical experts suggest that the more appropriate course of action should have been to offer female inmates long-lasting contraception. The lack of contraception in prisons alone should be concerning; California inmates have an HIV rate that is 10 times that of the California population. Additionally, another cause for concern is maternal health care in prisons. Only in 2012 did California finally abolish shackling of pregnant inmates. Moreover, new mothers, many of whom are imprisoned for check or welfare fraud, are required to give up their children to a relative or foster care within 48 hours of birth. Furthermore, many California universities have been dropping abortion coverage. In October, three Catholic universities, Santa Clara University, Loyola Marymount University, and St. Mary’s, reassessed elective abortion coverage, citing inconsistencies with Catholic values. Catholic institutions began revisiting the issue after the U.S. bishops’ recent battle with birth control and sterilization coverage under the new national health insurance law, which lets employees restrict abortion coverage. At Santa Clara University, 500 employees signed a petition opposing the college’s recent decision to end insurance coverage of elective abortions. Some professors noted the lack of dialogue, unveiling a need for a communitywide conversation on the contentious topic of abortion. Though California’s public schools have improved the quality of sexual education and HIV/AIDS prevention, many districts continually teach inaccurate information that violates state law and fails to provide adolescents with important information. A quarter of districts do not discuss transmission and prevention of HIV, less than a third of school districts cover sexual orientation, and only a quarter of districts cover the topic of emergency contraception. And though teenage pregnancy rates have significantly declined, birth rates and rates of sexually transmitted diseases remain high, especially for youth of color and LGBT youth. Vital structural interventions that address socio-political and economic disparities include availability to testing and contraception, as well as comprehensive sex education that are inclusive of different gender and sexual identities. In the face of glaring issues of reproductive health, California remains active. Still, the lack of transparency in terms of sexual healthcare surrounding specific communities raises concerns. Although no single, comprehensive solution exists to address all the tensions within sexual healthcare, activists can push policymakers by promoting transparency and expanding the dialogue surrounding the aforementioned issues. ■


CALIFORNIA

Can we build the hyperloop? The legal and political viability of elon musk’s dream BY RAY HOU

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ast summer, inventor-entrepreneur Elon Musk sparked national hype with his Hyperloop transportation system. The proposal aims to link San Francisco and Los Angeles, replacing the high-speed rail system currently under construction. By creating a low-pressure tube for trains to travel in, the Hyperloop avoids the chief frustrations of highspeed travel: friction and air-resistance. According to Musk, the Hyperloop would provide significant benefits to Californians. With highways crowded and airways jammed, the Hyperloop would provide environmentally-sound transportation between Northern and Southern California. Unlike airplanes, the Hyperloop would also be immune to weather damages. By creating more commuting options, the system would increase the number of job opportunities for citizens in both Los Angeles and San Francisco. Elon Musk has made a career out of defying convention. Of the many companies he has helped create, two stand out: Tesla Motors, which sells fully-electric sports cars, and SpaceX, which launches private citizens into space. Both companies accomplished tasks that were possible, but considered commercially unviable. Yet the particular difficulties of regional transportation give reasons to suspect that this project will not be like the others. Musk’s cost estimates are so low that, if achieved, they would be breakthroughs in their own right. Musk projects the total cost of his project to be $6 billion; for comparison, the California High Speed Rail is expected to cost $53 billion. The savings seem particularly suspicious given the limitations of high-speed travel. Turns and slopes must be extremely gentle to prevent centripetal forces from crushing passengers in their seats. Musk proposes to mitigate these effects by elevating the track, thus limiting the changes in height. However, according to Michael Anderson, a resource economist at the University of California, Berkeley, building transportation is expensive because additional structures must be built to avoid existing infrastructure near cities. Anderson explains that “[the Hyperloop] is going to have high construction costs relative to a conventional line or freeway,” because it is elevated even in rural areas. Safety is another worry with the Hyperloop. Unlike cars and rocket rides, the Hyperloop would have exposed infrastructure that is vulnerable to sabotage. Operating costs would have to include the cost of securing its track from terrorists or troublemakers. Furthermore, Anderson notes that “everything is right on the margin of safety tolerances,” and is not comparable to the safety standards in rail or aviation. Musk’s proposal seems to indicate that TSA screening and emergency braking will suffice for all situations, but with bodies moving at just under the speed of sound, even the slightest error could be fatal. Even if Musk can accomplish all the technological feats, he has much of his work ahead of him. Acquiring land for transportation projects is difficult even in the best of situations, Californian voters overwhelmingly supported high-speed rail in 2008, but now that construction has begun, opposition has grown fierce as Californians realize that their farms and stores must make way for it. While the California High Speed Rail Authority projects that trains will run by 2029, lawsuits filed by aggrieved citizens continue to delay construction. Governments at least have the option of eminent domain—the compulsory sale of private property to the government—to acquire land. In Kelo v. City of New London, the Supreme Court upheld the govern-

ment use of eminent domain to acquire land for private redevelopment, but California has outlawed this practice. Musk cannot dodge the issue by building along Interstate 5, as he claims; the system must still deviate from the interstate where the highway turns too rapidly. To acquire the property for the Hyperloop, Musk must first overturn the statute forbidding eminent domain on his behalf. “Realistically there is no way it would ever happen,” says Anderson. “The political capital of the people building would not be sufficient to overcome the huge backlash that would come through the communities being affected.” Inevitably, the Hyperloop would compete against the California High Speed Rail. As a result, Musk would face entrenched interests in the form of the existing California high-speed rail lobby. Musk’s opponents will have the political winds in their favor; by connecting Fresno and Bakersfield to the larger economies of San Francisco and Los Angeles, highspeed rail advocates can claim to be helping economic development in the Central Valley. Musk cannot, as the Hyperloop relies on gliding, and would be significantly slower if it had to decelerate and reaccelerate to accommodate additional waypoints. Critics will say that by leaving cities in the Central Valley unconnected, citizens in the path of the Hyperloop pay its price without any benefit. Without a good response, it is hard to see Musk winning this political battle. However, the fiercest resistance to the Hyperloop may come from a different quarter. “It would probably kill the Los Angeles to San Francisco air market,” Anderson predicts. “Once [travel times] get below two and a half hours or so, air cannot compete, because the access time to the airport is long enough that it is just not very attractive.” The Los AngelesSan Francisco route is particularly valuable: a Brookings Institute report found that it is the second-busiest flight corridor in the country. The aviation industry will fight fiercely to protect its market, presenting another obstacle for Musk. Political obstacles notwithstanding, Hyperloop would have limited environmental or economic impact. “The capacity of the system is very low,” states Anderson. “It would not be able to create new trips that were not there before.” While the loop could potentially produce enough trips to eliminate air travel, the Hyperloop’s limited capacity could only affect the high end of the market, benefiting business travelers but not average citizen. Highway traffic, a major source of pollution, would remain untouched. Despite the exciting images of futuristic travel, Musk’s proposal is unconvincing. Even if he resolves the considerable technological challenges, the Hyperloop faces legal and political obstacles that Musk has yet to address. While the advertised product may seem worth the hype, upon serious consideration, the project raises more questions than it answers. For the foreseeable future, the Hyperloop remains a pipe dream. ■

Elon Musk’s Hyperloop evokes past images of future travel with its high tech design, environmentally friendly production, and speedy results. James Vaughn

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CALIFORNIA

The plague of glitches Covered California’s Turbulent Ride to Effective Health Care Coverage BY CLAIRE KAUFMAN

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n March 23, 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (A.C.A., otherwise known as “Obamacare”) into law in an attempt to rework our country’s failing health care system. While our nation has traditionally high quality healthcare, it has low access and sky-high prices. Currently, 15 percent of the American population does not have health insurance. The goal of the A.C.A. is to increase the number of insured Americans through the optional expansion of Medicaid, the insurance program for the poor, called Medi-Cal in California. The other half will come from those who buy insurance from Health Benefit Exchanges. These exchanges are similar to online marketplaces where “customers” (individuals or small businesses) can browse providers to find the plan that fits their needs best. The federal government will also use tax money to provide subsidies based on income level so health insurance can be affordable for all. The Obama administration gave states the option to set up their own exchanges or use the federal government’s exchange (healthcare. gov). Since the A.C.A. was approved, California has been invested in setting up its own exchange and has since been separated from the near-meltdown of the federal government’s health exchange, which serves 36 states. Covered California, California’s exchange which is run by UC Berkeley graduate Peter Lee, “is doing a relatively good job,” according to Professor John Ellwood of the Goldman School of Public Policy. Data released November 13, 2013 by the US Department of Health and Human Services placed California as the national leader in enrollments during October. While California enrolled 35,000 people, the 36 states relying on the federal website enrolled fewer than 27,000. Nevertheless, Covered California has encountered its share of difficulties and its enrollment numbers are still well below its goal of insuring 2.2 million people by the end of next year. Health exchanges across the country have run into multiple, mounting obstacles since their launch date of October 1, 2013. Covered California was no exception, and was taken offline October 9 to deal with error messages and general slowness. The “Find Your Doctor” tool, an

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Peter Lee, Executive Director of Covered California. Rich Pedroncelli/AP Photo

online directory of hospitals and doctors, was taken down the day after it was released (October 15) because of significant inaccuracies: obstetricians were labeled as ophthalmologists, doctors were incorrectly described as fluent in Russian and Farsi. However, the directory was fixed and reinstated on the website October 22, and has been functional since. Critics of the A.C.A. have been using these glitches as ammunition for attacks on Obamacare. “The government is setting up these exchanges in an environment where one political party, the Republican Party, is completely hostile to these exchanges,” said Ellwood. House Majority leader Eric Cantor (R-Va.) stated, “Obamacare’s problem is larger than a website failure, and it will take more than a ‘tech surge’ to fix it. The website does serve as stark evidence that the federal government is ill-equipped to centrally manage our nation’s healthcare.” Although the launch of the website was premature and the government was unprepared for the response, technological difficulties are not an insurmountable obstacle and do not translate into the failure of the A.C.A. “It’s got glitches; they all have glitches, and they will get better over time,” said Ellwood. The huge number of people who flocked to these websites additionally reflect the fact that the demand for affordable and secure health coverage is larger than expected. Criticisms specific to Covered California have focused on lack of transparency. “What kind of person running an organization in our democracy does not put a premium on transparency?” asked health policy expert Robert Laszewski, president of Health Policy and Strategy Associate and Peter Lee’s biggest critic. There have been three central criticisms of Lee. First, he failed to tell the public that their existing coverage would be discontinued if it does not comply with the new law, which has affected about 1 million Californians to date. Second, Lee withheld that the number of doctors and

hospitals in some plans would be reduced to keep insurance rates on the exchange low. Finally, Lee did not release official numbers until mid-November. The success of the Affordable Care Act is deeply interwoven with the success of Covered California, as demography makes our state particularly influential. California has the country’s largest health insurance market, as well as approximately six million uninsured residents and immigrants. The Obama administration also depends on California to provide a good chunk of the estimated 2.6 million young and healthy individuals needed to keep costs down. However, the enrollment data showed that most enrollees in October were older and had previously been denied coverage. The implementation of government backed health care is an extremely important turning point for our nation. “For liberals, this is the last big piece of the welfare state,” said Ellwood. The excuse of “premature release” for the technical issues is too trivial for such an important and impacting system. While Covered California still has a long way to go, it is certainly not a failure. “It is evolving. It will not be instantaneous because it is so big and complex,” said Ellwood. In other words, these exchanges are just getting started, and Covered California said sign-ups have accelerated to about 2,400 people a day so far in November. As Louis Brandeis said, “States are laboratories of democracy,” and watching how the ACA continues to roll out in California will be an important indicator for the nation. We are ultimately the people that these health exchanges serve, and, specific to UC Berkeley students, we represent a subgroup that could greatly influence the success of the A.C.A. Once transparency issues are addressed, Covered California will be a platform in which individuals throughout the state will be able to aquire healthcare regardless of condition or income. ■


CALIFORNIA

Torture in the name of security Lawmakers to investigate solitary confinement in California prisons BY LUCY SONG

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ne might view solitary detainment as a violation of humanity that only occurs in third world countries with political instability and flawed justice systems. However, Security Housing Units (S.H.U.) in California prisons currently hold 4054 of the state’s approximately 120,000 prisoners for almost 24 hours a day, some for up to 30 years, in solitary confinement without any forms of human contact. Justified by American federal courts, S.H.U. is a euphemism for small cells designed for solitary detainment. Prisoners are detained because they are believed to pose a threat to other prisoners by prison authorities. In protest of S.H.U. and its conditions, 30,000 California prisoners held a mass hunger strike that spanned from July to September 2013, making it the largest hunger strike in history of California. This massive demonstration led California legislators to organize public hearings aimed to reform the use of solitary confinement in prisons, beginning October 9th, 2013. Long-term solitary confinement fails to achieve its purpose of prison security while clearly violating the rights of prisoners. This is a chance for this form of torture to be abolished in California, once and for all. S.H.U. has always been a contentious topic met with much opposition since its advent in 1983. Professor Keramet Reiter, a specialist in solitary confinement at the University of California, Irvine, explained that lawyers challenged the constitutionality of solitary confinement conditions when California first opened the Pelican Bay State Prison, its main maximumsecurity prison for solitary confinement. In the 1970s and 1980s, there were also lawsuits that challenged the detainment of prisoners in their cells for 23 hours or more per day. Despite lawsuits against it and human rights violation accusations that surround this practice, American federal courts can still justify the use of prolonged solitary confinement. “According to federal courts in the United States, solitary confinement is constitutional, as long as certain procedural protections are in place, like documenting why prisoners are there, reviewing their continued confinement, and avoiding the placement of mentally ill in solitary confinement,” said Professor Reiter. The more recent movements include the Center for Constitutional Rights’ lawsuit against the state of California for

its practice of solitary confinement in the Pelican Bay prison in May 2012 and the aforementioned prisoners’ hunger strike. The 2013 prisoners’ hunger strike highlights the maltreatment of prisoners during solitary confinement. The prisoners outlined five core terms that would be presented during the scheduled set of hearings. They include the elimination of both indefinite solitary confinement and group punishment for individual misbehaviors, modification of the definition of gang status, access to adequate food, and better conditions for S.H.U. inmates. Solitary confinement does not exist to rehabilitate prisoners and guide them towards a path of redemption and correction. Instead, “it has always been justified by correctional administrators as a necessary tool to maintain prison-wide safety and security, isolating prisoners whom the prison system has no hope of rehabilitating,” stated Professor Reiter. Most importantly, it remains unclear exactly how prison administrators select the prisoners who are believed to pose a threat to prison security. Professor Barry Krisberg, the former President of the National Council on Crime and Delinquency and the director of research and policy at Berkeley Law School, explained that S.H.U. was originally designed to isolate dangerous prisoners. However, this has evolved into a process of almost random picking. Many inmates are held in solitary confinement because other prisoners accuse them of gang affiliation. Furthermore, there is no systematic way for prisoners to be released from S.H.U. once they enter. Juan Mendez, a reporter on torture for the United Nations, is currently hoping to investigate Californian prisons to ensure the protection of the rights of prisoners. According to the United Nations special reporteur on torture, solitary confinement of more than 15 days is considered to be inhumane treatment in violation of the international prohibition against torture. “It is extraordinary to consider how detrimental prolonged solitary confinement is. It is the infliction of severe pain for punitive purpose,” said Dr. Vincent Iacopino,

a medical expert on the health effects of victims of torture. The physical and mental consequences of long-term solitary confinement include anxiety, panic attacks, and obsessive thoughts that continue even after the prisoner’s release. Prisoners who have preexisting mental health problems, such as depression, or anxiety disorders are much more affected, explained Dr. Iacopino. The hearings held by the California Senate and the Committee on Public Safety mainly serve to investigate the conditions of S.H.U., the effects of long-term solitary confinement, and determine more humane alternatives to S.H.U. Reforms to the S.H.U. system are not only possible but also effective. The Department of Corrections in Maine managed to reduce the number of inmates held in prolonged solitary confinement by nearly half through reforms that include a 72-hour limit on inmates held in isolation and the removal of prisoners who are held in solitary confinement unnecessarily. According to Professor Jonathan Simon of UC Berkeley Law School, “For long existing gang leaders who are locked away for decades, there is no present justification to keep them in the current level of isolation. They could be held in ordinary maximum security level four prisons.” With much evidence that solitary confinement infringes upon the rights of prisoners and with far better alternatives available, there is no reason for solitary confinement to exist in California prisons any longer. ■ Solitary confinement can lead to serious psychiological damage. Amnesty International


U.S.

Making markets moral Prosecution, incentives, and justice in finance

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BY WOODY LITTLE

eadlines from the past few months would suggest that justice is finally being served for the 2008 financial crisis. The Justice Department recently reached a record $13 billion settlement with JPMorgan for fraudulent lending practices. A Bank of America manager may even go to jail over similar charges. However, even the record size of the JPMorgan settlement is tiny compared to the damage done: more people below the poverty line than ever before in the measurement’s history, tens of millions unemployed, and $19.2 trillion in wealth destroyed, according to an April 2012 report by the Treasury Department. In a February 2013 Senate Banking Committee hearing, Senator Elizabeth Warren (D-MA) asked federal financial regulators when they last took a large financial institution, a “Wall Street bank,” to trial. None of them were able to answer precisely because the practice is so uncommon. Rather, government-negotiated settlements have been the dominant tool used to address the crimes central to the financial crash and Great Recession. Sasha Werblin, Economic Equity Director at The Greenlining Institute, a racial and financial justice advocacy group, takes issue with the focus of these settlements. She points out that by not forcing banks to admit wrongdoing, most settlements restrict the ability of consumer litigants to pursue their own cases. Additionally, the money that actually finds its way to the consumer is generally small compared to the harm done. As Werblin puts it, “The implementation to make consumers whole is lacking.” The settlement model has some potential if its focus shifts. Werblin points to the Independent Foreclosure Review program, created in a federal settlement not only to provide monetary restitution to victims of foreclosure fraud but also credit score readjustment, which would, among other things, help them find a new home. This approach was ultimately abandoned in favor of a larger cash settlement, demonstrating how regulators have prioritized extracting money over addressing the harms done. Even well-crafted settlements are not enough. In the same February 2013 hearing, Senator Warren noted, “If [banks] can break the law and drag in billions in profits and then turn around and settle, paying out of those profits, they don’t have a lot of incentive to follow the law.” She also points out the effects on regulator credibility: “if a party is too timid to go to trial… then the consequence is they have a lot less leverage in the settlements that do occur.” As Phil Angelides, former California State Treasurer and Chairman of the Financial Crisis Inquiry Commission (FCIC) points out, “institutions as institutions don’t engage in wrongdoing.” Even if wrongdoing is pervasive, he points out, settlements targeting the organization only end up taking money from shareholders. “There need to be consequences for individuals,” he claims. “Otherwise there’s no deterrence.”

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Avoiding prosecution also creates unacceptable inequality under the law. In a 2010 interview, then-Treasury Secretary Timothy Geithner, a key architect of the federal response to the financial crisis, decried calls for prosecution of those responsible as the pursuit of “Old Testament justice” which would have undermined public “[confidence] in the future.” Angelides calls that argument “morally bankrupt” and points out in an ideal system “someone’s importance has nothing to do with how they’re handled by the law.” Though prosecution is important in terms of equity and accountability, creating a just financial system ultimately requires systemic change. The Consumer Financial Protection Bureau (CFPB), created by the 2010 Dodd-Frank financial reform bill, is an important step. Especially important, Werblin notes, is the CFPB’s monitoring of credit markets, which have long been allowed “to play by their own rules.” She adds that in terms of transparency and accessibility, the CFPB sets a “new precedent for other regulators to model themselves on.” Much more reform remains necessary. Extremely high leverage rations, the amount of assets a bank has for every dollar in capital, were a chief cause of the financial crisis. Angelides claims that the problem persists and that banks remain “businesses that banks wouldn’t led to,” calling for capital requirements from Dodd-Frank to be cleansed of loopholes and raised. Even if doing so raised interest rates marginally, he claims it would be “worth it if they protect the country from cataclysm.” According to Stephen Gandel, senior editor for CNN, the five largest banks control 37% more assets than they did five years ago, with only 8% more assets in the system as a whole. Since being bailed out for being “too big to fail,” the biggest banks have only gotten bigger. The 21st Century Glass-Steagall Act, sponsored by Senators Warren (D-MA) and John McCain (R-AZ) would address this problem by separating traditional banking from riskier financial services, which would force banks to downsize and make any one failure less damaging to the whole system. Private sector reforms are also important. Werblin points to new financial products that banks promise to back directly, calling increased accountability central to creating “affordable, sustainable banking systems… moving forward.” Executive compensation is another area that needs reform. Current practices distort executive incentives away from those of society, Angelides claims, by over-rewarding risk and providing huge bonuses when risky bets pay off without large reductions in pay, so-called clawbacks, when deals turn sour. He also asserts that total compensation should be reduced to a “rational” size, putting the onus for both reforms on shareholders, especially powerful ones like pension funds. Outsized profits have concentrated power to a dangerous degree. “These banks have more power than God in Washington,” Angelides declares. He describes how a single bank’s lawyer earned more than the entire FCIC budget. This influence, also projected through campaign contributions and lobbying, is a huge impediment to effective reform and helps explain why only about 40% of the rules required under Dodd-Frank have been enacted three years later. Financial intermediation is an important service, but something is wrong when it morphs from an economic lubricant into a casino. As Angelides describes, if you’re a banker, the system is like “a blackjack game you can only win. So why are you going to leave the table?” ■


U.S.

Alabama businessman Shaun McCutcheon (left) is leading the latest challenge to campaign finance law, arguing aggregate limits are unconstitutional. Susan Walsh/AP Photo

Cash or check Campaign finance limits face a new challenge in McCutcheon V. FEC. BY SAMHITA COLLUR

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ormer U.S. Senator Mark Hanna once stated, “There are two things that are important in politics. The first thing is money, and I can’t remember the second one.” As money has come to dominate the political stage, more and more people are forgetting the second one. The 2010 Citizens United ruling was illustrative of a growing trend toward deregulation in the campaign arena. This trend has presented itself once again in the Supreme Court’s latest case, McCutcheon v. FEC. Campaign contribution limits have been part of the American political scene since the 1860’s. But ever since the 1970s, the government adopted a more stringent approach to financial contributions. The 1971 Federal Election Campaign Act (FECA), along with the Revenue Act, formally institutionalized contribution limits. Both acts called for public disclosure of all campaign contributions, placing basic limits on advertising and media spending. Watergate signaled yet another turning point. In response, Congress strengthened the anti-corruption mandate by creating the Federal Election Commission, a formal body in charge of managing campaign-related issues. As the post-Watergate frenzy has subsided over the years, government drive to enforce limits on campaign contributions has followed suit, Citizens United signifying a major turning point for the campaign finance regime. After the conservative lobbying group violated the Bipartisan Campaign Reform Act by airing a film critical of Hilary Clinton, the Supreme Court ruled in favor of fewer limits. On the basis of the first amendment, the Court decision found govern-

ment restrictions on politically independent expenditures by corporations, associations, or labor unions unconstitutional. Sean McCutcheon, an active member and financier to the Alabama Republican Party, initiated campaign finance’s latest saga, McCutcheon v. FEC. In the 2012 election cycle, McCutcheon contributed $33,088 to a total of sixteen Republican congressional candidates and thousands more to various independent organizations. McCutcheon was barred from donating more to the Republican Party by the federal government’s aggregate limit statute. The 1974 Supreme Court ruling, in Buckley v. Valeo, established a distinction between base limits and aggregate limits. Base limits place restrictions on contributions to individual candidates. The current base limits stand at $2,600 per candidate, $10,000 per state political party, and $32,400 per national political party. Aggregate limits place a cap on the total amount of money that can be donated in a two-year election cycle. This limits the number of candidates who can receive donations from any given entity, preventing donors from circumventing base limits. Currently, the limit stands at $48,600 for candidates and $74,600 for political parties. Citizens United has created an unrestricted financial channel for independent organizations such as Super PACS and 527s. As a result of the Citizens United ruling, McCutcheon has argued that aggregate limits are an unnecessary formality that simply complicates the campaign contribution process. Without aggregate limits, an individual donor could theoretically donate to all 468 House and Senate candidates. Some hypothesize that such large financial influence will undoubtedly

lead to policy influence. But the Supreme Court, as well as regulation critics, have consistently pointed out that the nation has seen no visible instance of bribery or corruption. Regulation proponents who cite corruption fears may be relying on theoretical, rather than empirical, evidence to support their claims. In fact, the Supreme Court has consistently upheld the principle that contribution limits are First Amendment violations unless they work to “fight corruption or prevent the appearance of corruption.” This sort of justification gives rise to a certain tension, pointed out by Vincent Hutchings, an American Politics Professor at the University of Michigan, who asserts “When money is free speech in a capitalist society, the government is saying that some people have more speech than others.” Corruption aside, campaign contributions have a series of other implications. Public funding advocacy group Americans for Campaign Reform finds that no more than .05 percent of Americans donate the maximum amount to any congressional campaign, and less than one percent of Americans donate more than $200 to a political campaign. Furthermore, a study conducted by Princeton University’s Larry Bartels confirms the widespread belief that politicians are more responsive to affluent constituents than they are to constituents of more modest means. The findings represent one of the first systematic studies conducted on the relationship between money and ideology. More importantly, this serves to illustrate an increasing disconnect between the majority of the population and the government that serves to represent this population. While wealthy individuals are not explicitly buying offices, the real correlation between money and political action creates a sense of unfair influence among those with money. Public funding seems to be the obvious solution to the campaign contribution dilemma. In fact, from 1976 to 2008, all general election campaigns have been funded publicly. Essentially, individuals volunteer donations by checking a box on tax forms, and the government will match donations up to $250. At the state level, a total of fourteen states currently offer public funds for political candidates and political parties. These public funds, part of a larger drive to create “Clean Election” campaigns, rely on candidate volunteerism as well. While public funding seems to be a hefty calling, more robust state level public funding programs can work to create a stronger financial connection between voters and politicians. It is possible that the second tenant of politics in America, as forgotten by Mark Hanna is representation. As the connection between money and politics grows stronger, creating a more inclusive and representative campaign finance structure becomes increasingly important. ■ Berkeley Political Review | 10


U.S. White House and Congressional Republicans find common ground. Bipartisan support for the Wyden-Rubio-Warner bill is further evidence that a compromise may be possible, although many House Republicans remain opposed. If the data does indeed become available, the next question is how the Obama Administration will use it. The president’s plan would tie financial incentives to his scorecard system which makes defining “value” a touchy subject. Many different metrics could indicate an institution’s value. The organization Affordable Colleges Online recently released rankings based on their interpretation of the President Obama discusses his higher education plan at the University of Buffalo in August. Jewel Samad/Getty Images Obama Administration’s edufederal government to collect data on individual cation plan, deeming UC Berkeley fifth in terms students’ records throughout their educational of access and affordability. By comparison, the careers. In particular, a federal unit record sys- U.S. News & World Report focuses primarily on tem would allow the government to account for quality, considering criteria like academic reputransfer and part-time students, which the cur- tation, graduation rates, faculty resources, and rent system doesn’t monitor. It would also link selectivity. In their report, UC Berkeley ranks with Social Security and other databases to allow 20th. These ranking systems use different criIncentivizing affordability and for more accurate tracking of graduate earnings. teria, but the disparity between scores illustrates quality in education Proponents of this system – including Sen- how significantly the president’s system may alators Wyden (D-OR), Rubio (R-FL), and War- ter how we compare university quality. BY NICHOLAS KITCHEL ner (D-VA), who sponsored a bill that would reMany higher education leaders have exolleges and universities in the United vive it – claim that it us the only effective way to pressed concern about Obama’s proposal. ReStates are becoming more expensive and ascertain whether educational institutions drive cently, UC Berkeley Chancellor Nicholas Dirks students are going further into debt. The educational and economic achievements. How- met with Education Department officials in Obama Administration thinks that a new “race ever, a federal unit record system was banned Washington, D.C. to discuss the plan. Dirks said to the top” among higher education institutions during the last reauthorization of the Higher he had mixed feelings, but the bottom line is would address many of these issues. Education Act in 2008. Critics of this system that “value” should not be a metric based on In August, the Obama Administration in- – which have historically included private col- alumni earnings. This would penalize schools troduced its plan to improve higher education leges, Congressional Republicans, and the Na- like UC Berkeley, which produce a high number affordability and quality. The centerpiece, a tional Association of Independent Colleges and of much-needed public servants, who do not scorecard system, aims to redefine what it means Universities – raised concerns around it being necessarily have high salaries. to be a “good college.” The White House’s defi- a violation of students’ personal privacy. These An alternative solution might be to crenition places an emphasis on affordability and groups claim there is already sufficient informa- ate separate scorecards for different purposes. value. If their education plan were to be imple- tion available on enrollment and financial aid, One could be more inclusive, with the goal of mented, colleges with a high quality-to-cost ra- and that digging deeper may infringe on civil simply providing insight on “value.” A second tio would receive high scores and more federal liberties. scorecard could focus more on affordability and aid. The president claims college costs have spiThe national Higher Education Act is set institutional quality, while not relying on graduraled out of control, and that his plan would ad- to be reauthorized again in 2014. In the reau- ate earnings. This might be a fairer system when dress college affordability at its core. thorization, Congress could remove the federal determining financial incentives. The problem with the scorecard system is unit record ban, which would allow the presiRegardless of exactly how the data is inthat there is insufficient data available to make dent to collect the information necessary to terpreted, the first step in addressing higher assertions about the value of attending specific construct a comprehensive new rating system. education issues in the United States is allowing colleges or universities. For instance, there is This would require a compromise between unit the government to collect more comprehensive data available on graduation rates, cost of at- record critics and the Obama Administration. data. As long as the data is strictly guarded, its tendance, and economic makeup of student Such a compromise appears to be possible. Re- practical value will exceed privacy concerns. bodies, but not much data available on student cently, more Congressional Republicans have Once this data is available, the government will outcomes, like graduate earnings. been supportive of a federal unit record system. be able to determine more effective ways to In order to obtain sufficient data, Con- The day after the 2012 presidential election, promote affordability and quality. Perhaps then gress would need to authorize a federal unit House Majority Leader Eric Cantor stated that a new scorecard system will become a viable record system. Such a system would allow the this might be one of the only areas where the next step. ■

The new race to the top

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U.S.

A police officer administering a breathalyzer test to a driver. John Giles/PA Photos

Driving under the influence How marijuana will be regulated on the road

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he legalization of marijuana in Washington and Colorado has opened up a whole can of interesting administrative conundrums. The question, “How high is too high while operating a vehicle?” has has been the subject of public inquiry. Colorado, under House Bill 1114, has licensed five nanograms of detected delta-9-tetrahydrocannabinol (THC) to be the legal limit while driving. A similar policy for issuing driving while under the influence of drugs violations (DUIDs) has been implemented by the state of Washington via the Washington initiative 502 amendments. The scientific effects of marijuana on human functionality have been subject of much study. Dr. Marilyn Huestis’s research at the National Institute of Drug Abuse (NIDA) has illustrated a wide range of effects marijuana has on the body. THC, the active “ingredient,” of marijuana links to cannabinoid receptors in various parts of the brain from the cerebellum to the prefrontal cortex inducing measurable changes is one’s ability to drive safely. Huestis has demonstrated THC affect in balance, motor control, and executive function. It is clear marijuana has at least some effect on a person’s ability to drive. Still, many recreational and medical marijuana users profess worry about the new limit noting that some users have some active THC in their bloodstream on a daily basis. A 2004 report by the National Highway Safety Administration revealed that not much is required to break the five-nanogram limit. Many marijuana users have strongly advocated pushing the bar for the legal limit higher.. Also, THC-active is fat-soluble

BY JAE HO LEE

which means that even after initial use, some of the molecules will linger for a prolonged period. THC is able to stay within fat cells of the body and may trigger a false positive even if the substance user is not under the influence. Still, Dr. Huestis claimed that having “latent THC” may actually hinder some muscle coordination. Research by the NIDA suggested that none of the tested frequent marijuana users were reported with over a 5 nanogram/milliliter THC content after twenty-hours of sobriety, which by many accounts is very unfair to those that are sober. But Washington State Patrol spokesman Dan Coon, emphasized that in order for a patrol officer to pull a car over he or she must detect signs of impaired and unsafe driving, so the nanogram limit remains largely a legal standard to help prosecution of those that have exhibited dangerous driving patterns and other signs of extensive marijuana use before taking the wheel. Also, many people fail to realize that although the legal limit is low, house bill 1325 of Colorado law remains a “permissible inference measure.” Thus, having THC blood content over 5 nanograms/milliliter does not necessarily mean automatic conviction like DUI laws for alcohol. The law remains contentious: it is not entirely ideal, but remains the most expedient current state solution to Department of Justice demands for thorough regulation. With the laws, leniency remains key to resolving many situational cases involving medical marijuana and heavy users who have built up strong tolerances, but many still fear that this leniency may cause increases in state legal expenditures as court processes become long and tedious.

Police roadside standard procedure remains under question. The process of gaining a legitimate sample to test for THC concentration remains ambiguous at the current state. Blood sampling presents a thorny issue with drivers potentially dodging tests via “personal beliefs exemption” while other methods of oral test do not provide consistent results. Dr. Stephen Kahn of Loyola University School of Medicine gave a statement that oral fluid testing would probably be practical “eventually” but that such testing remains unable to relate observed THC metabolite to standard levels of physical impairment because everyone responds slightly differently to THC being in their bodies. Also, due to the lag time between taking oral samples and processing, the THC concentrations would be in flux: not quite representative of the driver’s original dosage. Advocates of increasing the legal dosage for DUIDs have reserved feelings about the legitimacy of this legal limit and the science behind the policy measure, but the policy measure is one made in good faith. Because the science is not yet conclusive, Colorado and Washington’s policies towards DUIDs should hold distinct level of caution. Due to the Federal government’s previous warnings about lack of regulation, Colorado and Washington State governments must toe a fine line. However, currently the measure is the most practical and expedient, though these policies may be subject to change as more comes to be understood about the specific effect of THC on the brain. ■

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U.S.

The Supreme Court turns over much fewer decisions now than it has in the past. Reuters

A brief history of judicial activism BY SOPHIE KHAN

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he Supreme Court has the ability to create a lasting impact on American society with each decision it makes. That is why it is important to consider how willing each court is to overturn laws and create policy. Earlier this year, Justices Ruth Ginsberg and Antonin Scalia both described the current Supreme Court under Chief Justice John Roberts as “activist.” Ginsberg told The New York Times, “If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.” On the other hand, in a discussion at George Washington University, Scalia labeled his fellow judges “activist” because they granted rights, such as abortion, that were not explicitly stated in the Constitution. Judicial activism is the idea that judges can interpret the Constitution to fit the needs of today’s society. In doing that, they may overturn laws if they feel that the government is not serving current needs, becoming policy-makers in the process. By that definition, both Ginsberg and Scalia are correct in calling this court activist. A recent example of the Roberts’ court’s activism is the decision in Shelby County v. Holder. In declaring Section IV of the Voting Rights Act unconstitutional, and thus deeming Section V unenforceable, the court practiced judicial activism. The majority opinion written by Chief Justice Roberts, joined by Scalia, Kennedy, and Alito, with Thomas writing a con13 | Berkeley Political Review

curring opinion, echoed the belief that the law was outdated: “There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” The decision showed that the majority believed it was the court’s job to get rid of the law and demand new policies to be made. However, by this measure the claim that this court is one of the most activist courts in history is not accurate. Well-known activist courts, such as the Burger court and Warren court, overturned laws in nine percent and seven percent of their cases respectively, while the Rehnquist court, led by Chief Justice William H. Rehnquist, a staunch believer in judicial restraint, overturned laws in 6.4 percent of its cases. The Roberts court has a rate of only four percent. While looking at how many laws a court has overturned is one metric of activism, activism can also mean expanding or narrowing the meaning of a law. Malcolm Feeley, Professor at UC Berkeley School of Law, stated, “Judicial activism could mean breathing very broad meaning into some laws. For instance, you might have an anti-discrimination principle that is aimed at racial minorities, and activism may expand that to religious minorities, ethnic minorities, or women. That’s what the court did with its interpretation of equal protection in the Fourteenth Amendment.” As mentioned above, one of the prime examples of an activist court is the liberal Warren court (1953-1969). According to a study by Duke University Law School, the Warren court actively ruled in accordance with their anti-authoritarian leanings. This was shown with decisions like Brown v. the Board of Education, which desegregated public schools, and Miranda v. Arizona, which mandated that suspects be read their rights before questioning.

Comparing the current court with the Warren Court, Berkeley Law professor Daniel Farber said, “The Warren Court made big changes to the law in a lot of areas. I don’t think the Roberts Court has been engaged at that level. Most of what they do, to my mind, has been guerilla warfare; it hasn’t been as big. It’s not going to change society to the same degree.” In response to the activism of the Warren court, Nixon appointed what he thought to be four of the most conservative justices during his first term as President. The most activist court in history turned out to be the conservative Burger court (1969-1986). The most controversial decision handed down was Roe v. Wade, stating that a woman’s right to an abortion was protected by the Constitution. However, the court’s decisions did not just disappoint conservatives; liberals were disappointed with multiple decisions, such as Milliken v. Bradley, which deemed busing unnecessary and slowed desegregation. Courts are often accused of being activist when either conservatives or liberals do not agree with the court’s decision. Charles McClain, Lecturer in Residence at Berkeley Law, said, “The term ‘activist’ is most often used in a critical way, meant to convey that the judge in rendering a decision has gone beyond the boundaries of what the Constitution permits. But the Constitution has some extremely broad language, which leaves a lot of leeway for judges. I think that styling an opinion ‘activist’ in this negative sense may mean sometimes simply that the commentator doesn’t like the outcome.” Recently, the perception of judicial activism has changed. Many conservatives are now preaching the merits of judicial activism, using the term “judicial engagement,” instead of activism because of the latter’s perceived negative connotation. However, there is no technical difference between the two. Clark M. Neilly, an attorney for the Institute for Justice and part of the Center for Judicial Engagement, wrote a book that came out earlier this month called Terms of Engagement, which has been praised by the Cato Institute. In the book, Neilly argues that judicial engagement is needed because judges should not just affirm laws passed by the government; they should strike down laws when they believe the government has acted unconstitutionally. This is a modern update on the idea of originalism that came about during the Rehnquist era, which emphasized the original intent of the Constitution. Whether one uses the term activism or engagement, it is safe to say that the Roberts court is not at the top of the list. While the Roberts’ court has been activist in the past, Justice Ginsberg has overstated to what extent, especially when compared to other courts. Though it may be called activist by its detractors, this court has not overturned as many laws or had as much of a lasting impact on society yet. ■


WORLD

A young woman illustrates the tensions between her religion and nation. Agence France-Press

Re-emergence of the European far right Right-Wing Populism in European Politics BY ALEX DURÁN

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alking through a neighborhood in England while campaigning for the 2010 parliamentary elections, Gordon Brown encountered Gillian Duffy, a loyal Labor Party voter. Brown, former Prime Minister and leader of the Labor Party, was likely expecting a normal campaign meet-and-greet with voters. However, the situation quickly deteriorated when Duffy questioned Brown, “But all these Eastern Europeans that are coming in, where are they flocking from?” Brown aptly maneuvered around the question, but after entering his car, , he was recorded saying, “She was just a sort of bigoted woman.” Brown lost the election, ending Labor’s thirteen years in power, and many commentators argued that his encounter with Duffy played a large part in his loss. The exchange was more than simply a gaffe on Brown’s part though, it was symbolic of a changing landscape in English and European politics more broadly. Numerous far-right movements have spawned in Europe in recent years, but the groups that provide the most interesting examples are the United Kingdom and France. Parties like the National Front in France and the British National Party (B.N.P.) and the United Kingdom Independence Party (U.K.I.P.), have all played increasingly important roles in the political discourse. The National Front has re-emerged as a competitive party on the national level winning a couple of seats in the National Assembly, and the B.N.P. and U.K.I.P. have won seats representing Britain in European Parliament. But questions of how and why these parties have regained a position in the national debate are still yet to be answered. Often these parties capitalize on disaffected voters who believe they are not represented by mainstream political parties. These dedicated voters are probably right in that respect. These communities are largely working class and have been left behind in the post-industrial economies of Western Europe. Welfare programs for working class groups in these countries have been dismantled, and labor protection has been eroded. Much populist rhetoric is employed by far-right parties in their efforts to organize voters, appealing to themes of broad and ambiguous promotion of welfare for the domestic working class. However, this rhetoric lacks

substantive proposals for meaningful structural changes to their respective economies. Instead, they place the blame, more often than not, on immigrants and Islamic culture. Despite their limited size and influence in European politics, these parties have not been ineffective in achieving their presumed goals. Marc Morje Howard, Professor at Georgetown University, measured the relationship between far-right parties and citizenship policy. Howard found a relationship between the presence of these parties and policy outcomes which reflect a generally more restrictive policy toward immigration. He argues that this is a result of parties being able to more readily mobilize a latent sentiment against open immigration policies. The limited, but very real, success of these parties, with their anti-immigrant platform, is evidence that they represent a devoted bloc of voters. This communicates a general antiimmigrant sentiment to European politicians who would otherwise favor open immigration and citizenship policies. Curiously, in Britain, political pressure from the far-right has meant that the left has had to re-evaluate its rhetoric and political platforms. Intuitively the fact that a far-right group causes political difficulty for the left makes little sense. But the constituencies that these farright parties mobilize come from a background that has historically voted with the political left, the working class, not the wealthy. Labor, which has been seen as the party in Britain to defend liberal immigration laws, has had to re-evaluate its political platforms and rebrand itself as a more restrictive party when it comes to immigration in Britain. Broad social anxieties over the influx of new ethnic groups are not particular to Britain either. The French ‘Jacobin’ attitude favors cultural assimilation, and frowns upon multiculturalism. But the support that the National Front has garnered has made these issues more salient in the French discussion, and more politically consequential. Maybe the most notable result of pressures from the French far-right is the infamous French ban on conspicuous religious symbols in schools. Although the law is said to apply equally to all religions in France, it primarily affects non-Western religious groups. Critics have argued that the policy is merely an appeal to the sectors of society that the National Front has garnered support from. There are a number of explanations for why these parties have reemerged. Some argue that the European far-right is a result of economic down-turn, which makes sense with parties like the BNP emerging on the European scene almost spontaneously. However, these arguments fail to account for why issues of ethnicity become so politically salient. A number of other factions could also emerge on the basis of economic downturn. However, surveys of European countries attitudes toward immigrant groups help provide insight. Eurobarometer surveys suggest that Europeans are already somewhat hostile to policies favoring multiculturalism and open immigration. Forty-five percent of Europeans believe that immigrants constitute a threat to security, while only 37 percent believe otherwise. Forty-nine percent of Europeans believe that immigrants increase unemployment, while 36 percent do not. Thus economic downturn only accounts for part of the story; genuine underlying currents of ethnocentrism already exist, which allows for successful employment of intolerant rhetoric by the demagogues leading these far right groups. The recent downturn has provided the conditions in which ethnocentric policies have been a relatively strong political strategy. With economic growth looking dismal in Europe, it should be interesting to see how these parties cultivate their support. Elections for European Parliament in 2014 will be of huge importance for these parties, as they gained a great deal of electoral support in the previous elections for European Parliament. If far-right parties continue to succeed, the political calculations made by major, mainstream parties will adjust accordingly, which in turn will likely lead to the disenfranchisement of minorities in Europe. ■ Berkeley Political Review | 14


EDWARD JOHNSTON

WORLD

The brave reformer A new vision for italy BY GIACOMO TOGNINI

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acing -2.1 percent GDP quarterly growth rate and 12.5 percent unemployment, Italian Prime Minister Enrico Letta’s problems continue. His government recently passed a new budget that reduced fiscal austerity and increased state spending. Letta’s next target is Italy’s constitution, a document that established Italy’s bloated bureaucratic public sector which continues to drain resources from the nation’s coffers. While political waters remain treacherous due to the coalition’s fragility and the power of labor unions, feeble signs of economic recovery have begun to appear since the economy hit a trough in the fourth quarter of 2012. There is a glimmer of hope that Italy’s much-needed and long-delayed constitutional reforms will finally become reality. Letta has two main goals: first, to abolish Italy’s provinces; second, to change the structure of parliament. Italy has three levels of administrative divisions: twenty regions, divided into 110 provinces, divided into over 1000 municipalities. Since Italy is a unitary state, the powers devolved to each level are limited and ultimate legislative power resides at the parliament in Rome. According to the International Monetary Fund, Italy’s public debt is 126 percent of GDP, meaning that the debt is more than double the size of the nation’s total yearly output. Much of the expenditure comes from a bloated and inefficient public sector. Estimates from Lettera 43, an independent news magazine, show that abolishing the provinces would save €9 billion a year. Mario Monti, Letta’s predecessor, and his technocratic government have already attempted to restruc-

15 | Berkeley Political Review

ture the provinces through a bill in parliament, but this was rejected by the constitutional court, leading to Letta’s effort to push for a constitutional amendment. State expenditure on provincial leaders, deputies, and politicians, drains the budget and is symptomatic of Italy’s traditional problem of an extensive and wildly expensive bureaucracy, vestiges of Mussolini’s Fascist regime. Today’s economic horror stories reported by the Italian press include the province of Catania, in Sicily, where average winter temperatures are around 50°F, employing 300 snow plowers, or the indebted region of Calabria, which is 5,820 square miles large, hiring 30,000 forest guards. The major barrier to reforms are the allpowerful unions, namely the hard-left Italian General Confederation of Labor (C.G.I.L.), which oppose the effort to reform the constitution on the grounds that hundreds of thousands of administrators, representatives, and other public sector workers will lose their jobs if provinces are done away with. This is not surprising, as in 2010, the Berlusconi government closed several mines in Sardinia, citing rising costs and decreasing competitiveness of the mines. The workers were given unemployment benefits equal to their monthly wages for two years. In 2012, at the conclusion of the two years of benefits, virtually none of the miners had found new employment. Simply giving benefits did not pay off, and the problem was not resolved. While reforms would undoubtedly reduce state spending, they would also cripple a large section of Italy’s working population, causing unemployment to rise. However, similar fears emerged in Great Britain in 1984 following Margaret Thatcher’s wave of mine closures despite virulent opposition from the miners’ unions. In response, she set up a government agency to help bring job opportunities to former mining areas, which by 1996 had created 131,000 jobs, well over the initial estimate of unemployment resulting from the mine closures. This approach,

rather than the one Italy tried with its own miners, could be far more effective in re-employing the provincial representatives. The second target of Letta’s plan is Italy’s parliament, which is composed of a 630-member Chamber of Deputies and a 315-member Senate, akin to the United States’ Congress. Power is shared equally between the two chambers, and any bill must be ultimately signed into law by the Prime Minister, a system of perfect bicameralism. Italy has faced a chronic problem: after elections, political parties wrangle for months over forming a coalition. When this finally occurs, new governments find it difficult to pass laws dependent on shaky alliances that could imminently collapse in one chamber or the other, killing their legislation. Italy has the dubious distinction of never having had a government see out its full five-year term since the republic was established in 1946. This year, for example, it took two months after elections in Febr uary for the current coalition to form. Another complaint is that having 945 representatives for a population of 60 million is a waste of public funds, especially considering the extensive benefits given to them and their subordinates. Prime Minister Letta has tasked a group of legal and political experts with designing the reform to perfect bicameralism. They have taken inspiration from Germany’s upper house, the Bundestag, which has far fewer members than the lower house, is politically weaker in terms of being able to enact legislation, and is composed of representatives of Germany’s sixteen federal states. A weaker and smaller senate composed of regional representatives would reduce the chances of gridlock and also devolve more power to the regions, a key demand of the Northern League, one of three main opposition parties. While still in recession, new data from the third quarter of 2013 indicates that Italy’s economy is slowly recovering, registering a low 0.8 percent inflation rate and stabilizing a rise in industrial production. In order to continue the trend and enter a full-fledged recovery, Mr. Letta has stressed the vital importance of his reforms. But even while Letta pushes for change, Italy’s shaky coalition government of the center-left Democratic Party and the center-right People of Freedom, erstwhile political adversaries, has just emerged from potential collapse. Former Prime Minister Silvio Berlusconi forced a vote in parliament to remove confidence in the coalition and precipitate fresh elections. Though his efforts were soundly defeated, it remains to be seen how far Letta can take his reforms. ■


WORLD

Game over? The end of Switzerland’s banking system Secrecy and the global anti-corruption movement

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BY JING WEI ANGEL LI

f you happen to lose track of a penny that was just in your pocket, U.B.S., a giant bank based in Switzerland might be a good place to look into. Since the Swiss Banking Act of 1934, U.B.S. is one of the many banks in Switzerland that has provided secretive banking accounts and helped clients evade billions of dollars in taxes by routing money through the country and other offshore havens. Switzerland’s banks house an estimated $2.1 trillion, 27 percent of global offshore wealth. This includes approximately $1.2 billion of dodged American taxes, countless amounts of transferred capital of corrupt leaders and entrepreneurs worldwide. However, with Switzerland set to end this system, the game of transnational banking corruption will soon be over. Last month, under combined international pressure, the Swiss government stated its intention to sign an international agreement sponsored by the Organization for Economic Cooperation and Development (O.E.C.D.), which will share its banking account information with nearly 60 other countries. Once ratified by Swiss Parliament, this notorious system will eventually come to an end. The transformation is expected to change completely the country’s financial landscape, as well as the corruption it shelters worldwide. Swiss banking has long been a lynchpin in the heart of the international network of black money influencing more than a single country. A rising developing nation, India, has over $1.4 trillion in black money stored in Swiss banks. China accounted for almost half of the $858.8 billion in dirty money that flowed into tax havens and Western banks in 2010, most of it arriving in Swiss banks. Luis Barcenas, a former treasurer of Spain’s ruling People’s Party, was found to have deposited 14 million euros in a Swiss account in 2005. American democracy suffers as well from Zurich with black money gushing in due to the problematic Citizens United decision. Even though Swiss banks have been repeatedly accused of corruption in recent years by U.S. authorities, they remain huge donors to American politicians and are a major lobbying force on Capitol Hill. In the last decade, they have tended to give more campaign money to Republicans, who have been actively seeking to roll back financial reforms. Other nation states have complained that cross-border tax investigations have been stymied by the complex routes used to hide funds. These difficulties have been exacerbated by the increased openness of fron-

tiers to capital flows led by Switzerland as well as the use of new technologies for transferring money. Many of these secretive accounts have been associated with financing terrorists, human trafficking, and other illegal activities. Pressure and negotiations by Europe and the U.S. have been underway for years. Change has happened incrementally. In 2010, the Swiss Parliament ratified an agreement with the U.S. allowing U.B.S. to transmit to authorities information concerning more than 4000 American clients suspected of tax evasion to American authorities. Frey & Co, which had assets of 1.9 billion Swiss francs ($997 million), was one of two private Swiss banks to be shut down in a month in 2012 due to Switzerland’s dispute over alleged tax evasion with the U.S. Department of Justice. However, this progress is not all without cost. There are essential ethical challenges that come with this ongoing change. First, while attempting to crack down on corruption, authoritarian states might abuse the ability to open account information, which puts individuals, organizations, and their political activities against autocratic countries at stake by sharing these confidential profiles. Most of the funds supporting these groups from the international community go into Swiss banks to avoid arbitrary government interference in the affairs of political dissidents. This incoming exposure of account information and potential requests from autocratic nations for shared data might have fundamental effects on their ways of dealing with dissidents and the future of these civil society movements. Secondly, the increased regulations imposed on Swiss banks will result in rising costs of deposits in Switzerland in the short term.

These policies proved to be a great turn-off for foreign banks; in May 2013, 16 foreign banks that had offices in Switzerland left, according to data from the Association of Foreign Banks in Switzerland. From 2008-2012, foreign bank assets decreased by $921 billion as clients withdrew money. This makes it impossible for small private banks to keep running, cracking the backbone of Swiss economy and inflicting further wounds on the already stumbling European economy. However, despite this incoming trauma on the private banking sector, in the long term, “Switzerland’s political stability and rule of law, would keep its banks attractive for international clients”, said Martin Naville, Chief Executive Officer of the Swiss-American Chamber of Commerce. It is very likely that the diversity of the Swiss economy would continue to prosper without its notorious secrecy. This groundbreaking move by Switzerland continues a global trend of open governance and transparency in the economic sector after the collapse in 2008. Leaders of major economies are increasingly focusing on ways to end money laundering, bank secrecy, and tax loopholes to prevent funds stolen from public coffers or earned through criminal activity from depleting the budgets of developing countries. More and more players, especially newly-rising industrialized nations, will require multinational companies to report their profits to prevent tax avoidance and to increase the enforcement of economic laws to terminate dirty transactions that jeopardize many democracies today. But money has feet. After U.S. revenue services forced U.B.S. to reveal American account holders, some clients chose to transfer their accounts to Singapore, an easy feat due to electronic money laundering and the cooperation and information exchange between tax havens. Bombarding one single country isn’t the ultimate dam to a flood. Other places, such as the Caribbean islands and Luxembourg, should join the efforts of building a more systemic mechanism of transnational cooperation in countering cross-border tax avoidance and corruption. ■

Swiss banks may no longer loom so ominously over financial systems. Alessandro Della Bella/AP Photo

Berkeley Political Review | 16


WORLD tacks on the World Trade Center, have resulted in the confinement of U.S. diplomatic personnel to heavily guarded compounds on the outskirts of major cities. This functional entrapment of U.S. diplomats in isolated fortresses impedes U.S. foreign policy by preventing D.O.S. personnel from engaging in cultural and individual discourse with local peoples, which is crucial to understanding and analyzing different regions. In the case of Yemen, Barbara Bodine, a former U.S. ambassador to the country, notes that the secluded location of the embassy in Sana’a prevents American diplomats from forging the “essential relationships” with local actors that are critical to mitigating the risk of terrorism. Furthermore, the isolation of American officials in heavily fortified consulates may spark violence, rather than prevent it, as this isolation further entrenches the perception of a narcissistic U.S. that believes in its own exceptionalism. This may reinforce terrorist propaganda of a nefarious American empire that cares only for its own economic and political interests, as American diplomats chose to Behind the gates an armed guard stands the U.S. Embassy. Angelo Carconi/AP Photo remain within their bunkers, rather than engage with local people. Likewise, this may also confirm the (disputably) unfounded foreign hatred of the United States and allow terrorists to rationally justify the murder of U.S. civilians. To rectify this trend, the Obama administration has introduced the concept of “expeditionary diplomacy” into the foreign policy lexicon. This concept was first introduced in the 2009 Quadrennial Diplomacy and Development Review, which recognized the need for the D.O.S. to What the assassination of Ambassador Stevens a more active role in conflict-resolution, amid growing complaints in Benghazi means for the practice of diplomacy take from senior diplomatic officials. In practice, expeditionary diplomacy entails the deployment of D.O.S. personnel to potentially unstable regions BY ABHIK PRAMANIK to meet as many local leaders and organizations as possible, despite the n September 11th and 12th 2012, US Ambassador J. Christopher security risks involved. Stevens and three other Americans were slain at a diplomatic vilThough this move represents a positive step for the D.O.S., the pola and a nearby security compound in Benghazi, Libya. The mur- litical storm created by the death of the Ambassador threatens to upset der of Ambassador Stevens was the first successful assassination of an this development. In the wake of the attack, Congressional hearings into American ambassador in decades, and set off a Republican-led witch-hunt the tragedy devolved into a fiery political contest to score foreign policy to assign blame for the lapse in security, potentially forging a death knell points for Republicans rather than a lucid assessment of the assassination. for the State Department’s recent “expeditionary diplomacy” initiatives. Although Ambassador Stevens’ death was undoubtedly a tragedy, there In wake of the tragedy, many conservative leaders pointed fingers must be a recognition among Congressional officials, that for diplomacy at Secretary Clinton and President Obama for failing to anticipate the to be effective, an element of risk must always be at play. According to attack. The GOP also contended that the Department of State (D.O.S.) Anthony Cordesman, the Strategy Chair at the Center for Strategic and provided inadequate security for Ambassador Stevens and his team and International Studies, for the diplomatic corps to be most effectual, casucalled for the further securitization of American embassies throughout alties will be inevitable. Ambassador Stevens understood that, and actively the Middle East and North Africa. The initial release of the Accountabil- chose to leave the heavily guarded compound in Tripoli because he beity Review Board report, the official administrative summary of the causes lieved he would have a much greater impact in the field. and consequences of the Benghazi incident, recommended that the DOS Rather than recognize the achievements of Ambassador Stevens and continue to buffer U.S. embassies, rather than increase security for those applaud his audacity in leaving Tripoli, the GOP instead chose to publicly diplomats, such as Ambassador Stevens, who choose to operate outside shame Near Eastern security advisors at the highest level. The harsh repof these “security-platforms.” rimanding of the officers involved potentially creates a “chilling effect” The Republican proposal to increase the security of U.S. embassies that will deter other diplomatic security officers from making the high-risk in response to the Benghazi crisis is not without precedent. In 1979, the decision to allow Foreign Service Officers (F.S.O.s) to leave the chancery State Department was rocked by the Iran hostage crisis in addition to the and enter the field. This chilling effect will most likely reverse the work of burning of US Embassies in Islamabad and Tripoli. In 1983, the bomb- the Obama administration to promote expeditionary diplomacy as lowing of the American Embassy in Beirut killed 63 people, including most level security officers will actively avoid making the high-risk, high-reward of the CIA’s staff in the region. These tragic events led to the creation of decision to place their charges in potential danger, for fear of losing their the Inman Report, which called for new security benchmarks at all U.S. careers. embassies. Thus, the GOP-led Benghazi hearings not only threaten to roll back The report’s recommendations included creating a “100-foot set- the diplomatic initiatives of the White House but also ignore the fact that back” from the perimeter of diplomatic complexes to their main build- diplomacy is a dangerous business. The modern security paradigm of abings, as well as the relocation of US embassies from capital cities to the solute security, though laudable, comes at the expense of a loss of mobilmore easily defensible suburbs. According to Philip Giraldi, a former ity for our diplomatic corps. In the end, though the deaths of a few F.S.O.s CIA case officer, the intent of the reforms was to transform American may be prevented due to the GOP’s new security proposals, America may diplomatic outposts into modern fortresses that were both invasion- and find itself militarily intervening in a conflict that could have been avoided bomb-proof. Over the past decade, these events, combined with the at- with a few more diplomats on the ground in the first place. ■

Libya and leaving the fortress

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WORLD

An enriched Iran? Will new nuclear talks make or break Iran? BY GABRIELLA ARMATO

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he international hysteria regarding Iran’s nuclear ambitions has been a pervasive topic in foreign affairs since Iran went public with its program in 2002. Major players in the global community, such as the U.S. and the E.U., have been hurling sanctions, embargos, and condemnations at Iran in an attempt to stymie the development of its nuclear program. The Iranian government adamantly claims its nuclear facilities are for peaceful purposes, not for the creation of nuclear weapons. However, the tone circulating around Iran’s nuclear program has abruptly changed over the past couple of months. After a summit in Geneva in early October between Iran and the P5+1, the five permanent members of the Security Council and Germany, many of the international leaders at the conference boasted of progress in the negotiations, including Iran. Muhammad Javed Zarif, the Iranian Minister of Foreign Affairs, stated they could mark the “beginning of a new phase in our relations”. An involved US official stated that the conference has seen unprecedented, “detailed, straightforward, and candid conversations” with the Iranian government. Party talks were planned to reconvene throughout November. A historic “first step deal” resulted where advancements in Iran’s nuclear program were limited in exchange for easing some of the economic sanctions on Iran. However, this is currently only to last for a period of six months; meanwhile, Iran is still insistent on having its “right” to enriched uranium recognized internationally, and France is unyielding in its resolve to have tight regulations placed on a heavy-water reactor in Arak. But parties on both sides of the table continue to praise the unprecedented levels of openness that has been demonstrated by the Iranian and American governments and what this could mean for future international relations. One factor that may account for this political twist is the recent change in the Iranian administration. Newly appointed president Hassan Rowhani campaigned on the platform of increased moderation at home and the reconstruction of relations with the rest of the world in order to decrease sanctions, which have been debilitating to the Iranian people. Since 2006, the United Nations has issued six separate

Israeili Prime Minister Benjamin Netanyahu illustrates exactly how much information is known about Iran’s nuclear energy project. Keith Bedford/Reuters

resolutions, wielding sanctions against Iran for not complying with International Atomic Energy Agency (I.A.E.A.) protocols and perpetuating its enrichment of uranium despite demands from international bodies to halt production. This, in addition to punitive actions taken by the U.S. and the E.U., focused on undermining Iran’s energy sector and debilitated Iran’s primarily oil-based economy. These sanctions have resulted in a major devaluation of Iran’s currency, the rial, alongside 40 percent inflation and soaring food and fuel prices. Although Iran has been able to dig its heels in against all of the sanctions in the past, the trouble at home may be putting pressure on the government to compromise. If Rowhani holds true to his platform, Iran may soon be emerging from its cocoon of international isolationism as a different regime, ready and willing to negotiate. But the final say as to what is to be done with Iran’s nuclear program comes from Ruhollah Khamenei, Iran’s less moderate Supreme Leader and the highest-ranking political and religious authority in Iran. Despite his conservative reputation, Supreme Leader Khamenei shocked the international community by backing Rowhani’s position in the nuclear negotiations, causing Iranian conservatives to follow suit. While the majority of the Western world is sweating bullets over the prospect of Iran obtaining nuclear weapons, even as Iran seems ready to compromise, some scholars believe that a nuclear Iran would actually stabilize the Middle East. Kenneth Waltz, the father of neorealist political theory, argues that Iran achieving nuclear weaponry would actually be the optimal outcome to the situation. Waltz asserts that the international community erroneously views Iran as an irrational actor that would engage in

policies contrary to its best interest and selfpreservation. Based on the concept of nuclear deterrence, having another power in the Middle East in addition to Israel would ease much of the political tensions caused by this unitary pole of power. Although many claim that Iran’s acquisition of nuclear weapons would be destabilizing and result in a nuclear arms race, Waltz uses Israel’s development of nuclear technology as a counterexample, as it did neither, despite the fact that it developed nuclear weapons during a time of war with its neighbors. Ultimately, Waltz claims that Iran’s possession of nuclear weapons would mitigate any chance of conflict, due to the fact that “there has never been a fullscale war between two nuclear-armed states.” There appears to be an internal battle between Iran’s desire to perpetuate its nuclear ambitions and its need to assuage economic burdens at home. The change in administrations may have been the catalyst the Iranian government needed in order to engage in negotiations more openly with the international community and to be more aggressive in finding a compromise to alleviate the economic crisis at home. However, regardless of the direction of these nuclear negotiations, it is unlikely that the world will be faced with apocalyptic consequences in the event that dialogues turn south and Iran decides to develop its facilities anyway. Much of the mania revolving around Iran obtaining nuclear weapons is founded on fear perpetuated by the media. Although Iran obtaining nuclear capabilities would not exactly be in the best interest of major international players, especially considering America’s vested interest in its ally Israel, there is no compelling reason to think that such a circumstance would destabilize global politics. ■ Berkeley Political Review | 18


OPINION

Francisco Javier Arellano Félix is arrested by the Drug Enforcement Administration (D.E.A.). WikiMedia Commons

Cartel blanche Should drug cartel members be extradited to the U.S.?

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BY ANKIT AGGARWAL

ecently, clowns at a children’s birthday party in Los Cabos gunned down Francisco Rafael Arellano Felix, the eldest brother of the Tijuana drug cartel’s former leader and himself a former cartel member. Everything about this story smacks of Hollywood, including the part where he was extradited to the U.S. after being nabbed by Mexican authorities and then released early from American prison. Should the U.S. federal government be able to lay prosecutorial claim over foreign citizens who may have never even stepped foot in the U.S.? Currently, as part of its highly controversial War on Drugs, the U.S. does claim jurisdiction over foreign persons who facilitate the distribution of drugs in the U.S., which is the only remotely worthwhile aspect of said war. The answer to the question of how to approach prosecution and extradition will be contentious and complicated, as it delves into a murky world of constitutional rights and the application of U.S. law outside its borders. We can find some precedent for this issue in the late 20th century, when the U.S. government was dealing with a huge influx of cocaine from Colombia due to the efforts of exceptionally powerful drug cartels. These organizations had local governments at their mercy, engaging in bribery, racketeering, and extortion to impose their wills on local authorities who were often powerless to stop them. In fact, the powerful cartel leaders conducted a terrorism campaign to protest a 1982 U.S. extradition treaty with Colombia, inflicting incredible bloodshed to the point that the 1991 Colombian Constitution specifically banned extradition. During that period, the growing violence made it difficult for the Colombian government to retain control as the cartels wantonly killed police officers and other 19 | Berkeley Political Review

authorities. In a notorious instance of the cartel’s power, commandos of M19, the guerrilla arm of Escobar’s Medellin Cartel, seized the Palace of Justice (Colombia’s Supreme Court) and took the justices hostage. Half the Supreme Court was dead by the time the standoff ended. Cartel members who ended up in prison were easily able to conduct operations from within their cells and ensure their relatively speedy release through intimidation tactics like the notorious “coin or bullet” choice, which threatened death to officers who would not take bribes. Once the Colombian government reestablished the extradition treaty with the U.S. in 1991 and actually started to extradite traffickers, the Colombian government had a convenient outlet of prosecution. With the renewed cooperation of U.S. federal agencies and Colombian anti-drug authorities, drug kingpins were apprehended and their organizations quickly rendered impotent, and the growth of specially trained security forces significantly reduced the power of terrorism to influence extradition policy. This also meant that drug traffickers who were sent to the U.S. were no longer able to intimidate witnesses since they were not able to effectively contact their compatriots. Miguel Ángel Treviño Morales and Jesus Enrique Rejon Aguilar, leaders of Los Zetas, perhaps Mexico’s most brutal cartel, were just recently extradited to the U.S. in 2013 and 2012, respectively. Los Zetas is notorious for massacring migrant workers and torturing villagers to death. These crimes cannot be prosecuted within the U.S., but there are other avenues of drawing up enough grounding to justify cartel prosecution within U.S. borders. Generally, there would be sufficient legal backing from drug smuggling evidence to put them behind bars, as well as more potent charges that tend to involve smugglers, like the murder of U.S. residents in border towns. There have been several instances where suspects can be arraigned on the border crime charges if the smuggling evidence is too tenuous for an outright conviction. That the U.S. extradition treaty encourages Mexican authorities to legitimately pursue and prosecute even the most notorious criminals is a point in favor of enabling this agreement. There are drawbacks to all this, however. The U.S., unlike the countries in which cartels tend to operate, frequently offers plea deals (i.e. more lenient sentencing) in exchange for information on other targets. These deals are often given to some of the most notorious operatives, which is why Francisco Arellano Felix was at a child’s birthday party and not a U.S. prison facility. The issues involved with prosecution in the U.S., in fact, have led Colombia to recently reevaluate the terms of their extradition with the U.S. to ensure more domestic prosecution, especially since Colombian authorities are in a considerably better position to combat drug violence now than they were in the late 20th century due to the consolidation of government forces into a highly cohesive and competent force. Mexico, however, is far from ready for domestic prosecutions, so they tend to view extradition as among the best of a panoply of less-thandesirable options. As long as the drug war persists, we may as well use it to do some good and prosecute those responsible for so many instances of cross-border violence. But if the government were to end the drug war altogether, we would significantly undermine the financial solvency of these organizations. This option seems best over the long run, as it also counters the very real danger of the U.S.-backed government becoming an autocratic police state overzealous in its pursuit of drug smugglers. For instance, Human Rights Watch notes that Alvaro Uribe, the president of Colombia from 2002 to 2010, inserted brutal paramilitary members into his military operations against cartels so that they would carry out a campaign of brutality. We should not, in pursuit of justice for violent drug traffickers, compromise our commitment to the ideals upon which democracies are based. However, we should dismantle the apparatus of the failed War on Drugs, focus on rehabilitation for users, and, while drug laws remain in place, continue to prosecute cartel members who violate them. ■


OPINION

Invincible oil International regulations needed to hold oil companies Responsible For crimes BY WENDIE YEUNG

A burning oil wellhead in the Ogoniland village of Kpean in the Niger Delta. World of Matter

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il companies often make themselves out to be positive drivers of the world economy and human development. Shell calls itself the “future of energy,” while Chevron claims to be “finding newer, cleaner ways to power the world.” However, these optimistic slogans and visions are only a facade. The reality is that we live in a world of invincible oil in which the oil companies exacerbate poverty and increase environmental degradation in African communities, and any efforts to stand up to these companies have produced little change due to their immense power and wealth. In order to crack down on Big Oil, the international community needs to implement more stringent transnational regulations on oil companies to ensure more ethical dealings with the environment and human communities they impact. The frequency and seriousness of oil companies’ indiscretion calls for firmer corporate oversight on their environmental impact. When oil companies talk about “corporate responsibility” and “environmental friendly resources” while citing various donations to charities and nonprofits, it is nice to think that perhaps they are genuinely altruistic, and not at all interested in the tax breaks or preservation of their public image. If Shell or Chevron were truly invested in being “responsible” companies that implement “responsible” practices, you would think that Shell in Nigeria for instance, would be a little more concerned about the 1.5 billion-plus tons of oil they spilled in the past 50 years, or the gas flaring, the burning of natural gas resulting from oil extraction that “has contributed more greenhouse emissions than all other sources in sub-Saharan Africa combined.” Due to both the health and environmental concerns from the toxic chemicals in gas flaring, the Nigerian government ordered oil companies to stop this

harmful process back in 1984, but to no avail. Rather than following through with changes to their practices, oil companies have opted instead to incur the fines and continue gas flaring. The oil spilled is now equivalent to Exxon Valdez spills and has caused extensive damage to vulnerable ecosystems such as the Niger Delta wetland, one of the most important ecosystems in the world. Additonally, oil spill cleanup is executed inadequately, often involving a superficial turnover of the land to temporarily cover the oil. These practices continue because the Nigerian government essentially has no power over these wealthy oil companies, subjecting the Nigerian people to serious human rights violations. Over 60 percent of the Delta communities are heavily dependent on this contaminated land for sustenance. With the destruction of their lands and waterways, the Niger Delta people are forced to farm, fish, and wash with contaminated soil and water, while the companies reap the dirty profits. Not only are Niger Delta communities facing these health and safety issues, the political conditions of their region have worsened and become destabilized due to growing unrest at the treatment of their land. As a result, movements have arisen out of the Delta calling for resource control and protesting the presence of oil companies. However, they have been suppressed by joint actions by the companies and Nigerian government. Although these movements started out peacefully, violent reactions from the government military have prompted these groups to take up arms. These violent clashes have led to increased conflict and instability in the region, further impoverishing the Niger Delta people. These movements are often unfairly branded as terrorist attacks, but such simplistic characterizations ignore the

complex history and context of the Niger Delta situation. Various international human rights organizations have charged Shell and the other oil companies of exploiting the Delta communitie, but have been unsuccessful as the oil companies funnel money into public relations campaigns and hire top lawyers to escape relatively unscathed. With the oil companies wielding their wallets as their greatest weapon and in cahoots with the government, the Nigerian narrative is one story that demonstrates the enormous power that oil companies possess as well as the destruction they can cause. There needs to be stricter international regulations to control these oil companies as the African communities directly affected have no agency, government fines are ineffective, and charges of human rights abuses have created no change. Our world essentially runs on oil, and we need oil companies and the services they provide. However, it is entirely possible for oil companies to carry out their operations while being more environmentally responsible and respectful of the communities they impact. Reigning in the power of oil companies will require actions from international organizations, national governments and Big Oil itself. The U.N. and other transnational N.G.O.’s should intervene on behalf of the human rights abuses that have occurred and put pressure on oil companies and countries to start cleaning up their act. Boasting billions of dollars in profit, oil companies need to start investing in taking care of the lands they have contaminated and work with African governments to give those communities a fair share of their resources. Oil companies have been able to get away with too much for far too long. It is time big oil started living up to its claims of environmental and corporate responsibility. ■

Berkeley Political Review | 20


HILLY HESS

OPINION

The politics of impunity The ICC Cases Against Kenyatta and Ruto BY ERIN DELANEY

T

he International Criminal Court (ICC) was designed to ensure that impunity was no longer an option for those accused of heinous crimes. And yet, the recent commotion over the trials of Uhuru Kenyatta, now President of Kenya, and William Ruto, his Deputy President, show how vulnerable the I.C.C. really is. In an attempt to delay or end their trials, Kenyatta and Ruto managed to secure a motion in the Kenyan National Assembly urging Kenya to leave the I.C.C. However, they did not stop there. In October, the African Union (A.U.) met to discuss whether or not to withdraw from the I.C.C. as a group, and decided to issue a letter to the I.C.C. requesting the trials of Kenyatta and Ruto be delayed because they are they sitting head officials in Kenya. Kenyatta and Ruto are accused of crimes against humanity in the wave of violence that hit Kenya following the 2007 elections. This violence killed approximately 1,100 people and displaced around 600,000. While it appears that some of the violence was a spontaneous reaction to the election results, aspects of it were orchestrated by politicians, allegedly including Kenyatta and Ruto, in an attempt to grab power by targeting opposition ethnic groups. Kenyatta and Ruto ran and won Kenya’s March 2013 election by claiming that the I.C.C. is an imperialist institution that specifically targets Africans, and that their own trials are a result of such 21 | Berkeley Political Review

racism. Since their election, though Ruto has complied with the I.C.C. and attended his trials, their anti-I.C.C. rhetoric raises uncomfortable questions about impunity for the politically powerful. The A.U. echoes Kenyatta and Ruto by saying that the I.C.C. is an imperialist institution unfairly targeting Africans for prosecution while ignoring conflicts in other regions. In pushing to delay the trials, the A.U. says that prosecuting the sitting leaders of a nation is an affront to national sovereignty and interferes with Kenyatta and Ruto’s ability to run the country. They also fear, given the instability and frequent conflicts in the region, that convictions would leave a dangerous power vacuum that could reignite violence in Kenya. Of the 54 countries comprising the African Union, 34 are signatories of the Rome Statute, which created the I.C.C. Threatening a mass withdrawal on the basis that the I.C.C. is racist puts considerable pressure on the Court to address these issues. After all, the I.C.C. relies on state participation to voluntarily hand over alleged perpetrators for prosecution. If states in a region as prone to conflict as Africa withdraw from the jurisdiction of the I.C.C., it would undermine the legitimacy of the I.C.C. by fostering a safe haven for impunity. For that reason it is critical that the I.C.C. performs its legal obligation of prosecuting those responsible for the most heinous, widespread, and systematic of crimes, and not engage in political grandstanding. That is exactly what it is doing regarding Kenyatta and Ruto. Despite the accusatory and inflammatory rhetoric coming from its critics, the reality is that the I.C.C. is not targeting Africa because of imperialist intentions. The I.C.C. is currently investigating situations outside of Africa. Additionally, Kenya volunteered to become a signatory to the Rome Statute to ensure that anyone responsible for atrocities would be held accountable. Claiming that it is operating out of some imperialist drive is further undermined by the fact that the case was handed over to the I.C.C. by the African Union commission tasked with creating a tribunal to deal with the postelection violence after their efforts stalled. While the claims that Kenyatta and Ruto need to be present in Kenya to run the country are not without merit, especially following the Westgate Mall terrorist attack, this has to be weighed against the aim of the ICC: to provide justice by ending impunity. Although this issue seems overly complicated by the fact that this is the President and Deputy President of a nation, the real problem here is that people accused of crimes against humanity were somehow put in positions of formal power after their crimes. Often we assume that once conflicts have ended, those guilty of terrible crimes have been removed from power and that the morally justified prevailed. However, this is really never the case. In mass crimes usually both sides of a conflict are guilty to some degree, so prosecutions are not limited to those who failed to seize power. Our naïve instinct that good triumphs over evil makes it all the more troubling that Kenyatta and Ruto were elected to their posts after being accused of funding and orchestrating mass violence against their own people. The I.C.C. is being called on to weigh the political costs of inaction against its prescribed duty to fight impunity. While some critics of the I.C.C. are calling the elections of Kenyata and Ruto a referendum on the I.C.C.’s case against them, the I.C.C.’s job is not to do what is politically popular, but to carry out its legal obligation when it is clear that justice would otherwise go unanswered. If the I.C.C. bowed to these threats and pleas from the A.U., as well as Kenyatta and Ruto themselves, it would not be merely providing leeway for a President and his Deputy, but rather it would be paving the way for impunity on the basis that the accused are politically powerful. Instead, the focus must be on seeking justice, regardless of how much power the accused have amassed, so that the victims know that they are protected from future injury, and that the crimes against them were wrong. Leaving the accused men in power to alleviate political demands is simply not an option for the I.C.C. as it would render the I.C.C. an institution vulnerable to political whims, instead of a ballast of justice. ■


OPINION

Abortion access for teens

Foster child in legal limbo reveals problems with anti-abortion laws

Tim Boyle/Getty Images

BY LANI FRAZER

P

ro choice advocates were infuriated earlier this month when the Nebraska Supreme Court ruled that a 16-year-old foster child could not get an abortion without parental consent. The girl, referred to only as “Anonymous 5”, was deemed too immature for an abortion and therefore did not meet the standards for judicial bypass of consent. Nebraska is one of eight states with notarized parental consent laws for minors. These laws present complex and lengthy legal barriers, and Anonymous 5’s case demonstrates why they are counterproductive. Laws restricting access to reproductive services do more harm than good, and lead to women having children they cannot take care of. Alternatively, they turn to dangerous underground operations to terminate pregnancies. As such, these rigid restrictions on abortion cannot cast aside the needs of countless women in the United States. Anonymous 5, a ward of the State Department of Health and Human Services, was recently put into foster care along with her younger siblings after her biological parents lost parental rights on grounds of abuse. At Anonymous 5’s court ruling, the Nebraska teen displayed sufficiently mature arguments demonstrating her ability to make decisions for herself. She expressed that an abortion would be the best solution for the well being of her siblings, and that she could not properly raise a child in her circumstances. According to court documents, Anonymous 5 stated that involving her foster parents in her pregnancy would make them so angry that housing for her and her two siblings could be jeopardized. She also testified

that she was not in an appropriate emotional or financial state to become a parent, and does not believe that adoption is a plausible possibility due to her own negative experience in the foster care system. Anonymous 5’s defense attorney, Catherine Mahern, and dissenting judge William Connelly both agree that according to an administrative code in Nebraska Department of Health regulations, Anonymous 5 is legally in the care of the state and not her foster parents. Thus, her foster parents are not in a position to give consent as her guardians. However, the final court ruling leaves the teen with two options: having a child despite not being able to sufficiently care for the baby, or getting around the law. Thirty nine states have laws requiring some degree of parental inclusion in a minor’s decision to have an abortion. Most of these states mandate the consent or notification of one parent, and often provide alternative options such as judicial bypass procedures. However, according to the Guttmacher Institute, a nonprofit for advancing reproductive rights, some states demand consent from both parents and will not grant exceptions for abuse. These states make it very difficult for minors to legally get abortions, which cause teens to turn to worse alternatives. U.S. citizens were shocked by the discovery of Kermit Gosnell’s House of Horrors operation in West Philadelphia earlier this year, complete with rusty, outdated equipment, bloodied floors and furniture, and fetal remains. Though Pennsylvania offers judicial bypass alternatives for minors, there are not special exceptions for victims of abuse. Furthermore, parental con-

sent – not simply notification – is required to go through with an abortion. With such heavy restrictions, it is not surprising that women turn to options like Gosnell’s operation. Laws limiting access for minors create situations like that of Anonymous 5: a teen supposedly too immature for an abortion, but fine to raise a kid, and no parents to influence her decisions. They also result in cases like Kermit Gosnell’s House of Horrors. To prevent these situations, teens must have sufficient access to and education about birth control options—an issue the U.S. is failing to address appropriately. For example, teen mom Gloria Malone, a blogger for Teen Mom NYC and guest writer for the New York Times claims she learned that birth control pills would give her cancer and condoms are ineffective anyway, and that the misinformation ultimately led to her pregnancy at age 15. When harsh laws prevent minors from accessing resources like abortion clinics, and teens are not encouraged to use birth control, it should be no surprise that teen pregnancy is through the roof in some parts of the U.S. Some New York City public school health centers offer birth control options for teens, and though critics argue that this leads to irresponsibility, it prevents minors from having to choose between finding ways to get an abortion or having a child they cannot raise. Thirty seven states require abstinence based sex education, and teens in those states are 60 percent more likely to get pregnant. If lawmakers don’t want minors having abortions, they should be pushing sex education and access to reproductive services for teens, rather than imposing harsher restrictions. ■ Berkeley Political Review | 22



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