2020 Election Ethics Train Wreck Update: Ethics Zugzwang In Pennsylvania

pennsylvania-scaled

[Let me begin by apologizing for being so inconsistent in my spelling of zugzwang (or zugswang). Both are acceptable, but I should pick one, and I’m picking zugzswang, because it will score more points in Scrabble. I will eventually go back and change the many “zugswangs” in previous posts.]

Oh-oh.

A Pennsylvania state court judge yesterday issued a preliminary injunction preventing Pennsylvania from taking any further steps to certify the election, including the assignment of 20 electoral votes to Joe Biden,pending further court hearings and rulings. The ruling upholds an injunction from earlier in the week.

The opinion is here. The issue is whether legislative expansion of absentee balloting to universal mail-in balloting violated the Pennsylvania Constitution. (It sure looks like it to me.) The petitioners seek to preclude the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.

Here is the judge’s description of the claim:

In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.

The Judge found that the plaintiffs were likely to prevail on their state constitutional claims…

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The Great Ethics Train Wreck Of 1910

On this date, October 1, 110 years ago,  a massive explosion destroyed the Los Angeles Times building in the city’s downtown area, killing 21 employees and injuring many more. This obviously unethical act—though in the over-heated labor environment of the times, union activists would secretly defend it—set off a series of events in one of the great ethics train wrecks in U.S. history.

The explosion was a message to Los Angeles Times publisher Harrison Otis, a powerful opponent of the burgeoning labor movement in general and unions in particular. Determined to exploit the tragedy to turn public opinion against organized labor, he hired the nation’s most famous private detective, William J. Burns, to crack the case while his paper supplied an avalanche of anti-labor editorials and slanted news stories.  Otis, the leader of the Merchants and Manufacturing Association, a powerful group of business owners with extensive political connections, seemed less interested in justice for the dead than a decisive knock-out of the union movement itself.

Burns’ investigation led to the Bridge and Structural Iron Workers Union and their treasurer, John J. McNamara. Burns got a confession out of  a sketchy character named Ortie McManigal who had allegedly been the intermediary between McNamara and two bomb experts, and personally arrested John McNamara and his brother James in Indiana. Then Burns supervised the kidnapping and transportation of the brothers to California, where they could be prosecuted.

Convinced that the the McNamara brothers were being framed—some labor supporters even suspected that Otis had bombed his own building—Samuel Gompers and Eugene V. Debs pressured Clarence Darrow, then the premier labor lawyer in the U.S.,  to take on the McNamaras’ defense. Darrow had been ill and seeking to retire, but a recent stock market crash had left him broke as well. He agreed to take the case for the then unprecedented sum of $50,000 (about $1,368,000 today). The unions literally had children collecting nickels and pennies to build the defense fund.

The unions were Darrow’s clients under the existing legal ethics rules, but the brothers were also his clients, and their lives were at stake. This became a serious conflict when Darrow learned, within minutes of meeting with the McNamaras, that they were guilty.

Gompers had told him that the brothers had to be acquitted or the entire labor movement might be destroyed forever. The clients paying his fee, therefore, demanded a plea of “not guilty.” Darrow, however, became convinced that only a guilty plea would save the brothers from execution. Meanwhile, he knew that there was no way the McNamaras could get a fair trial. The Times was poisoning the jury pool daily. The prosecution was engaging in outrageous tactics, like bugging Darrow’s offices in L.A. They even had Darrow followed, and got incriminating photographs of the lawyer leaving the apartment of his long-time, off-and-on mistress, a female journalist covering the trial. Then they used the photos to try to force Darrow to withdraw from the case, threatening to show them to his wife, Ruby.

“Go ahead,” he said. “She knows all about Mary.” Darrow’s hands were hardly clean either: his agents had located the supply of dynamite in Indiana that the fatal charge had been taken from, and he hired a lawyer to hide the evidence in a safe. Continue reading

Morning Ethics Warm-Up, 8/4/2020: Three Out Of Four Positive Items!

Good morning to you!

1. Let’s start with some good news! In April of last year, I wrote about Massachusetts judge Shelley M. Richmond Joseph, who  was charged with obstruction of justice, along with another court officer, for helping an illegal immigrant (and criminal) elude arrest by the ICE. The story is here. It looks like the judge is going to trial.

U.S. District Judge Leo Sorokin has now denied the judge’s lawyers’ motions to dismiss in a July ruling. “After careful consideration, the motions to dismiss are DENIED because the Indictment alleges the elements of the offenses and sufficient supporting factual detail,” he  wrote . Joseph’s attorneys are claiming was that she is protected by judicial immunity, though that should only apply to actions a judge engages in under judicial authority and in the course of her duties. Instructing a court employee to help an illegal immigrant evade being taken into custody by ICE agents  after his hearing on criminal charges, including drug possession, is not known as “being a judge.” It is known as “obstructing  justice.” Even if the judge avoids punishment, her days as a judge are over.

Good.

2. What’s this? MORE good news? I have been looking for cracks in the monolithic mainstream media, with defections by individuals in the midst of the journalism’s abandonment of its duties to democracy in favor of news manipulation and partisanship. Less than a month ago, New York Timed editor Bari Weiss called out the oppressive culture of partisanship and conformity at the her paper, earning her Ethics Hero status.

Last month MSNBC producer Ariana Pekary quit the network, arguably the most unethical of all the broadcast news outlets, and yesterday she published a blog post explaining why. “I simply couldn’t stay there anymore.” She wrote:

“My colleagues are very smart people with good intentions. The problem is the job itself. It forces skilled journalists to make bad decisions on a daily basis….It’s possible that I’m more sensitive to the editorial process due to my background in public radio, where no decision I ever witnessed was predicated on how a topic or guest would ‘rate,’ The longer I was at MSNBC, the more I saw such choices — it’s practically baked in to the editorial process – and those decisions affect news content every day. Likewise, it’s taboo to discuss how the ratings scheme distorts content, or it’s simply taken for granted, because everyone in the commercial broadcast news industry is doing the exact same thing. But behind closed doors, industry leaders will admit the damage that’s being done…I understand that the journalistic process is largely subjective and any group of individuals may justify a different set of priorities on any given day. Therefore, it’s particularly notable to me, for one, that nearly every rundown at the network basically is the same, hour after hour. And two, they use this subjective nature of the news to justify economically beneficial decisions. I’ve even heard producers deny their role as journalists. A very capable senior producer once said: “Our viewers don’t really consider us the news. They come to us for comfort.”

She claims to want to be part of a solution to this dire situation. We shall see. I reached out to her in an email yesterday, offering my guidance and expertise, gratis of course.

3. On the theory that transparency is good news, it was nice to see Democratic Rep. Karen Bass, supposedly one of the top contenders to be Joe Biden’s running mate, demonstrate how dim-witted she is and unqualified to be President, though at this point even she could probably beat poor Joe Biden in a spelling bee. Over and over, on several Sunday news shows, she repeated her previous explanation for praising Fidel Castro , telling Chuck Todd on “Meet the Press,” for example, regarding calling the brutal dictator’s death a “great loss to the people of Cuba,” that she “wouldn’t do that again. Talked immediately to my colleagues from Florida and realized that that was something that just shouldn’t have been said.”

Astounding. She wouldn’t say that what she said was wrong, outrageous for a member of Congress and demonstrated inexcusable ignorance, but that she should have kept the opinion to herself.  Todd, of course, being one of the worst hacks in captivity, didn’t bother to press her on the point for the benefit of members of his audience who can’t recognize signature significance when it’s right in front of them.

Biden, or whoever his ventriloquist is, is officially trapped in ethics zugzwang. The only reason Bass is even being considered is that Biden has to select a black (George Floyd!) woman (#MeToo!) as his VP, and all of his remaining options are horrible by any objective standard. This will be a flaming lesson in the foolishness of placing physical characteristics over ability, experience and character, a perfect example of  why affirmative action doesn’t work and will never work. Bass is a light-weight, but Biden’s two other options are Kamala Harris ( whose ugly Ethics Alarms dossier is here), and <ack! choke! yecch! barf! gag!> the even more horrible Susan Rice, Barack Obama’s ethics-free acolyte. Her dossier is here. She would be the most sinister Vice-President candidate since Aaron Burr.

I have to poll this: Who is Joe’s best choice among this unethical trio?

I’m not going to allow “None of the above,” because I don’t think he has that option, or at least doesn’t have the integrity to insist on choosing a qualified candidate who has the wrong tint or chromosomes.

4. Finally, to end on a downer, the Unethical  Non-Trump Tweet of the week.  Orlando Magic forward Jonathan Isaac was the only NBA player not to kneel during the National Anthem, and also refused to wear a “Black Lives Matter” warm-up like  the rest of his teammates. In Sunday’s game, he tore his ACL, a season-ending and career threatening injury. ESPN radio host Dan Le Batard then ran a poll on Twitter asking, “Is it funny the guy who refused to kneel immediately blew out his knee?” 

When the poll was pulled, about 45% of respondents said that it was funny, which tells you all you need to know about NBA fans and Black Lives Matter supporters—the genuine kind, not the grovelers. Le Batard issued a phony apology, Level 10 on the Apology Scale.

“We apologize for this poll question,”  he wrote. “I said on the front and back end of the on-air conversation that I didn’t think it was funny. Regardless of the context, we missed the mark. We took the tweet down when we realized our mistake in how we posed the question to the audience.”

Lies and more lies. They took the tweet down when it was clear they were getting slammed for it. If he didn’t think a young athlete getting injured was funny because he dared to oppose the BLM mob, why would he think anyone else would? When is someone getting hurt who has done nothing wrong and who did not do something foolish to cause the injury ever funny?

There Are Worse Things Than Racism, Part I: The Tina Fey Dilemma

The Kennedy Center embarrassed itself in 2010, giving an affirmative action (gender division) honor to Tina Fey. She received its Mark Twain Prize for American Humor, which the Center has awarded every year since 1998 to individuals who have “had an impact on American society in ways similar to” Twain…you know, like Tina Fey.

The Center realized that it was short on female honorees (because humor, historically and now, is a field dominated by men), and because it can only give the award to the living, so it settled on Fey as a weaker than weak addition to the pantheon. I compared the award at the time to Obama winning the Nobel Peace Prize and added,

If she vanished tomorrow, Tina Fey would at best be a footnote in the history of American comedy. Her qualifications for the Mark Twain Prize in 2010 appear to be 1) she is a woman, and there aren’t many women in comedy 2) she is a comedian, though not an especially funny one, 3) she is a writer, though neither of the screenplays she has authored would be called deathless classics, unless you think “Mean Girls” is on par with “Adam’s Rib,” and 4) she looks like Sarah Palin, which allowed her to do a popular impression mocking Palin during the 2008 campaign, and the people who give out the award really, really dislike Sarah Palin.

In short, she didn’t deserve the award in the first place, and the Mark Twain Prize lost its integrity and credibility by her receiving it. Thus there is some condign justice in that decision coming back to bite the Kennedy Center now, along with a second bad decision eight years later.

That year, the Kennedy Center decided to rescind Bill Cosby’s Mark Twain Prize, which the Cos had more than earned in 2009. Cosby did have impact on culture and humor comparable to Twain, and his achievements dwarf those of Fey like “War and Peace” dwarfs “Valley of the Dolls.” Again virtue-signaling to feminists, the Kennedy Center revoked Cosby’s honor after his conviction for sexual assault (which was just accepted for appeal this week).

I didn’t write about it at the time, I guess because there was nothing new to say that I hadn’t said in this post, where I observed,

[L]ast I heard Bill Cosby was still recognized as a major trailblazer in stand-up, TV comedy, and television integration (remember “I Spy”?), an important positive cultural force for race relations and black community self esteem, and a spectacularly talented comedian with a unique voice and presence. None of that has changed. Those were the achievements that prompted Cosby’s bust’s inclusion in Disney’s Academy of Television Arts and Sciences Hall of Fame Plaza, along with celebrities such as Lucille Ball and Oprah Winfrey who, like the Cos, have been inducted into the Television Academy Hall of Fame. O.J. Simpson is still honored in the College Football Hall of Fame, because he was one of the greatest college stars ever. His post-career hobby as a murderer, like Bill’s extra-curricular activities as a serial rapist, have nothing to do with the honor, just as Cosby earned and still deserves, his honor for what he achieved on stage and screen.

That still applied in 2018, and it is true today.

But Bill was deemed unworthy nonetheless. Now, in the midst of the George Floyd Freakout, the frenzied statue-toppling, cancelling-happy, race-offense vengeance-obsessed mob has targeted Tina Fey. During her acclaimed NBC show “30 Rock,” which she created, often wrote, and appeared in, blackface was used for comic effect four times. This week, always seeking to follow the crowd, Fey said her mea culpas and had Hulu pull the shows from circulation, thus putting herself in the cross hairs. (I must note that this censorship, like all censorship, impedes knowledge and reflection, since it is impossible to assess what the use of blackface was. I never watched the show because mega-ass Alec Baldwin was a regular, and I would prefer chewing off my fingers than supporting anything he’s involved in.) Continue reading

Now THIS Is Ethics Zugzwang! The Unfixable Catch-22 Of Sexual Harassment Law

A recent question to the New York Times workplace column “The Workologist” perfectly illustrates a permanent flaw in sexual harassment law. Believe it or not, I have no recommendation regarding how to fix it. I don’t think it can be fixed.

Here was the question:

I work at a blue-collar job, and I am one of four women in a crew of 40. The guys never touch or harass me, or any of the women, as far as I know.They do, however, constantly hug and grab and bump each other in a friendly way. It’s not unusual for one of the guys to go through a whole short meeting (a stand-up “huddle”) with an arm around another guy’s shoulder. No one ever touches me, and it’s not that I want them to. That would be weird. But I almost feel left out. Should I let this “bro contact” bother me?

I love it. Perfect. This is what using the law to dictate ethics can result in, and does result in frequently: hypocrisy, confusion, and a double-bind.

Let’s begin with the last sentence: “Should I let this “bro contact” bother me?” The whole point of “hostile work environment” sexual harassment law is to make sure no woman has to ask this question. A boss who responds to a female employee’s complaint of a hostile work environment-creating unwanted sexual attention in the office with “Don’t let it bother you!” has breached his or her duty under the law.

So what’s going on here? The men in the company have adopted the current fad (Yechhh.) of hugging each other to express a range of things—support, congratulation, sympathy, platonic affection—and quite properly do not hug the few women in their midst, lest one of the females, reasonably or not (or perhaps intentionally, to grab some power or cash) be made “uncomfortable,” take the physical contact as unwanted and sexual in intent, complain, and perhaps sue. By not hugging them, however, the men isolate the women, exclude them from the social fabric of the “team,” and, in essence, discriminate against them by signalling that they are “the other,” thus creating a hostile work environment.

Even if some of the women announced their consent to be treated as “one of the guys,” it would not solve the dilemma. One of those bro-hugs could still turn into a copped feel, or be perceived as crossing lines by the female huggee. Then there is the looming  third party harassment problem: a woman who has not consented to being hugged might see her female colleagues being man-handled (but completely innocently, of course) and assume that consenting to unwanted physical contact was a condition of employment, or that they would be adversely affected if they did not agree to participate enthusiastically in the hug-fest. Not treating the women in the company like the men is discrimination; treating them the same is an open invitation to a sexual harassment lawsuit. Continue reading

Review: Ethics Alarms Concepts And Special Terms

Recently updating the Ethics Alarms list of concepts and frequently used terms reminded me that I had been meaning to post them for review and assistance to those relatively new here. Of course, the link has always been right there at the top of the home page, but I have this sneaking suspicion that it isn’t visited very often.  Here, then, is the up-to-date list.

CONCEPTS

Non-Ethical Considerations: Defined above, non-ethical considerations are important because they are often the powerful impediments to ethical conduct, and the cause of many conflicts of interest. Non-ethical considerations are many and diverse, and include:

  • The need and desire for shelter, health, wealth, fame, security, self-esteem, reputation, power, professional advancement, comfort, love, sex, praise, credit, appreciation, affection, or satisfaction
  • The desire for the health, comfort, safety, welfare and happiness for one’s family, loved ones, friends, colleagues, an co-workers
  • The pursuit of vengeance or retribution
  • Hunger, lust, pain, ambition, prejudice, bias, hatred, laziness, fatigue, disgust, anger, fear
  • …and many more

Ethical Dilemma: This is an ethical problem in which the ethical choice involves ignoring a powerful non-ethical consideration. Do the right thing, but lose your job, a friend, a lover, or an opportunity for advancement. A non-ethical consideration can be powerful and important enough to justify choosing it over the strict ethical action.

Ethical Conflict: When two ethical principles demand opposite results in the same situation, this is an ethical conflict. Solving ethical conflicts may require establishing a hierarchy or priority of ethical principles, or examining the situation through another ethical system.

Ethical Gray Area: Gray areas are situations and problems that don’t fit neatly into any existing mode of ethical analysis. In some cases, there may even be a dispute regarding whether ethics is involved.

Reciprocity: The ethical system embodied by The Golden Rule, and given slightly different form in other religions and philosophies. It is a straight-forward way of judging conduct affecting others by putting oneself in the position of those affected. Reciprocity should always be available in any ethical analysis, but it is frequently too simple to be helpful in complex ethical situations with multiple competing interests.

Absolutism: Absolutist systems do not permit any exception to certain ethical principles. The champion of all absolutists, philosopher Immanuel Kant, declared that the ethical act was one that the actor was willing to have stand as a universal principle.

One principle of absolutism is that human beings can never be harmed for any objective, no matter how otherwise worthwhile. Absolutism has the advantage of making tough ethical calls seem easy, and the disadvantage of making debate impossible. One sees absolutism reflected today in the controversies over war, torture, abortion, cloning, and capital punishment.

Utilitarianism: Utilitarianism accepts the existence of ethical conflicts and the legitimacy of some ethical dilemmas, and proposes ethical analysis based on the question, “Which act will result in the greatest good for the greatest number of people?’ It entails the balancing of greater and lesser goods, and is useful for unraveling complex ethical problems. Its drawback, or trap, is that utilitarianism can slide into “The ends justify the means” without some application of absolutist and reciprocity principles.

Consequentialism: In formal ethics, utilitarian schools of philosophy are sometimes lumped together as “consequentialism,” in that the ethical decision-making is based on seeking the best result. Here we just uses the above term, utilitarianism.  Consequentialsm, in contrast, is the flawed belief that the rightness or wrongness, or even wisdom, of chosen conduct is measures by its actual results rather than its intended results. If “if all worked out for the best,” in other words, the conduct that created the desirable result most have been ethical, whatever its intent or however the conduct was determined to be necessary or desirable. This is a fallacy.

Cognitive Dissonance:
Cognitive dissonance is a psychological phenomenon first identified by Leon Festinger. It occurs when there is a discrepancy between what a person believes, knows and values, and persuasive information that calls these into question. The discrepancy causes psychological discomfort, and the mind adjusts to reduce the discrepancy. In ethics, cognitive dissonance is important in its ability to alter values, such as when an admired celebrity embraces behavior that his or her admirers deplore. Their dissonance will often result in changing their attitudes toward the behavior. Dissonance also leads to rationalizations of unethical conduct, as when the appeal and potential benefits of a large amount of money makes unethical actions to acquire it seem less objectionable than if they were applied to smaller amounts.

Moral Luck: The common situation where an unethical act is only discovered, noticed, or deemed worthy of condemnation due to unpredictable occurrences that come as a result of the act or that affect its consequences. Moral luck is the difference, for example, between two mildly intoxicated drivers, one of whom arrives home without incident, while the other has an unwary child dash in front of his automobile, leading to a fatal accident that he couldn’t have avoided if completely sober. Yet the unlucky driver will be a pariah in the community, while the more fortunate driver goes on with his life.

SPECIAL TERMS USED ON ETHICS ALARMS

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The Tamir Rice Fiasco And “Ethics Zugzwang”

Gun comparison

There are circumstances in which all ethical options have been eliminated by poor choices and bad luck. Henceforth Ethics Alarms will refer to this dilemma as ethics zugzwang, zugzwang being a chess term for the situation where a player must make a move, and any move will worsen his position.

By the time the killing of Tamir Rice got to the grand jury, it was ethics zugzwang. The grand jury’s decision not to charge the two officers involved is troubling, and a decision to charge would have also been troubling. To get anything out of this utter and fatal fiasco, a lot has to change, and we have to recognize what in order to make those changes occur. It won’t be easy. I think it may be impossible.

There is no way that the justice system can do its job objectively and well when every police shooting involving a black victim is instantly labelled racist and murder by vocal activists, pundits and and social media, with the implied threat of civil unrest. If an indictment is handed down as in theFreddie Gray matter in Baltimore, it appears as if mob passions are manipulating the system, and, in the Gray case, it was. Such a result, in turn, makes it more difficult for the next accused cop to get justice. It estranges the police force from the government entity it serves, and makes police wary and less likely to assume the risks associated with their vital and inherently dangerous  job.

These considerations create their own impetus making a failure to indict more likely. A city cannot afford to be seen as not supporting the police, even when they make a deadly mistake in judgment. District attorneys are on the same team as police, and automatically share their perspective; it is important that the police recognize that. The police receive the benefit of every doubt, and the deserve that. Yet a failure to indict, especially now that police shootings have become high profile matters that every blogger and pundit prejudges according to their own biases and agendas, will inevitably be used to indict the system instead. Continue reading