How Conservatives Weaponized the First Amendment – The New York Times

Good long read and analysis:

On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm.

The court’s five conservative members, citing the First Amendment, had just dealt public unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California lawrequiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion.

Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”

The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.

“The right, which had for years been hostile to and very nervous about a strong First Amendment, has rediscovered it,” said Burt Neuborne, a law professor at New York University.

The Citizens United campaign finance case, for instance, was decided on free-speech grounds, with the five-justice conservative majority ruling that the First Amendment protects unlimited campaign spending by corporations. The government, the majority said, has no business regulating political speech.

The dissenters responded that the First Amendment did not require allowing corporate money to flood the political marketplace and corrupt democracy.

“The libertarian position has become dominant on the right on First Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial and nonideological point. What’s now being called the libertarian position on speech was in the 1960s the liberal position on speech.”

And an increasingly conservative judiciary has been more than a little receptive to this argument. A new analysis prepared for The New York Times found that the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech. That is a sharp break from earlier eras.

As a result, liberals who once championed expansive First Amendment rights are now uneasy about them.

“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”

Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.

In 1977, many liberals supported the right of the American Nazi Party to march among Holocaust survivors in Skokie, Ill. Far fewer supported the free-speech rights of the white nationalists who marched last year in Charlottesville, Va.

There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.

“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”

Some liberals now say that free speech disproportionately protects the powerful and the status quo.

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

Changing Interpretations

In the great First Amendment cases in the middle of the 20th century, few conservatives spoke up for the protection of political dissenters, including communists and civil rights leaders, comedians using vulgar language on the airwaves or artists exploring sexuality in novels and on film.

In 1971, Robert H. Bork, then a prominent conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly in a law-review article that remains one of the most-cited of all time.

“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”

But a transformative ruling by the Supreme Court five years later began to change that thinking. The case, a challenge to a state law that banned advertising the prices of prescription drugs, was filed by Public Citizen, a consumer rights group founded by Ralph Nader. The group argued that the law hurt consumers, and helped persuade the court, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, to protect advertising and other commercial speech.

The only dissent in the decision came from Justice William H. Rehnquist, the court’s most conservative member.

Kathleen M. Sullivan, a former dean of Stanford Law School, wrote that it did not take long for corporations to see the opportunities presented by the decision.

Conservatives in Charge, the Supreme Court Moved Right

Justice Anthony M. Kennedy’s last Supreme Court term contained hints of his retirement and foreshadowed a lasting rightward shift.

“While the case was litigated by consumer protection advocates,” she wrote in the Harvard Law Review, “corporate speakers soon became the principal beneficiaries of subsequent rulings that, for example, struck down restrictions on including alcohol content on beer can labels, limitations on outdoor tobacco advertising near schools and rules governing how compounded drugs may be advertised.”

That trend has continued, with businesses mounting First Amendment challenges to gun control laws, securities regulations, country-of-origin labels, graphic cigarette warnings and limits on off-label drug marketing.

“I was a bit queasy about it because I had the sense that we were unleashing something, but nowhere near what happened,” Mr. Nader said. “It was one of the biggest boomerangs in judicial cases ever.”

“I couldn’t be Merlin,” he added. “We never thought the judiciary would be as conservative or corporate. This was an expansion that was not preordained by doctrine. It was preordained by the political philosophies of judges.”

Not all of the liberal scholars and lawyers who helped create modern First Amendment law are disappointed. Martin Redish, a law professor at Northwestern University, who wrote a seminal 1971 article proposing First Amendment protection for commercial speech, said he was pleased with the Roberts court’s decisions.

“Its most important contributions are in the commercial speech and corporate speech areas,” he said. “It’s a workmanlike, common sense approach.”

Liberals also played a key role in creating modern campaign finance law in Buckley v. Valeo, the 1976 decision that struck down limits on political spending by individuals and was the basis for Citizens United, the 2010 decision that did away with similar limits for corporations and unions.

One plaintiff was Senator Eugene J. McCarthy, Democrat of Minnesota, who had challenged President Lyndon B. Johnson in the 1968 presidential primaries — from the left. Another was the American Civil Liberties Union’s New York affiliate.

Professor Neuborne, a former A.C.L.U. lawyer, said he now regrets the role he played in winning the case. “I signed the brief in Buckley,” he said. “I’m going to spend long amounts of time in purgatory.”

To Professor Seidman, cases like these were part of what he describes as a right-wing takeover of the First Amendment since the liberal victories in the years Chief Justice Earl Warren led the Supreme Court.

“With the receding of Warren court liberalism, free-speech law took a sharp right turn,” Professor Seidman wrote in a new article to be published in the Columbia Law Review. “Instead of providing a shield for the powerless, the First Amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the L.B.G.T.Q. community, labor unions, animal rights advocates, environmentalists, targets of hate speech and abortion providers.”

The title of the article asked, “Can Free Speech Be Progressive?”

“The answer,” the article said, “is no.”

Shifting Right

The right turn has been even more pronounced under Chief Justice Roberts.

The Supreme Court has agreed to hear a larger share of First Amendment cases concerning conservative speech than earlier courts had, according to the study prepared for The Times. And it has ruled in favor of conservative speech at a higher rate than liberal speech as compared to earlier courts.

The court’s docket reflects something new and distinctive about the Roberts court, according to the study, which was conducted by Lee Epstein, a law professor and political scientist at Washington University in St. Louis; Andrew D. Martin, a political scientist at the University of Michigan and the dean of its College of Literature, Science and the Arts; and Kevin Quinn, a political scientist at the University of Michigan.

“The Roberts court — more than any modern court — has trained its sights on speech promoting conservative values,” the study found. “Only the current court has resolved a higher fraction of disputes challenging the suppression of conservative rather than liberal expression.”

The court led by Chief Justice Earl Warren from 1953 to 1969 was almost exclusively concerned with cases concerning liberal speech. Of its 60 free-expression cases, only five, or about 8 percent, challenged the suppression of conservative speech.

The proportion of challenges to restrictions on conservative speech has steadily increased. It rose to 22 percent in the court led by Chief Justice Warren E. Burger from 1969 to 1986; to 42 percent in the court led by Chief Justice William H. Rehnquist from 1986 to 2005; and to 65 percent in the Roberts court.

The Roberts court does more than hear a larger proportion of cases concerning conservative expression. It is also far more likely than earlier courts to rule for conservative speech than for liberal speech. The result, the study found, has been “a fundamental transformation of the court’s free-expression agenda.”

In past decades, broad coalitions of justices have often been receptive to First Amendment arguments. The court has protected videos of animal cruelty, hateful protests at military funerals, violent video games and lies about military awards, often by lopsided margins.

But last week’s two First Amendment blockbusters were decided by 5-to-4 votes, with the conservatives in the majority ruling in favor of conservative plaintiffs.

On Tuesday, Justice Clarence Thomas wrote for the majority that requiring health clinics opposed to abortion to tell women how to obtain the procedure violated the clinics’ free-speech rights. In dissent, Justice Stephen G. Breyer said that was a misuse of First Amendment principles.

“Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech,” Justice Breyer wrote.

On Wednesday, in announcing the decision on public unions, Justice Samuel A. Alito Jr. said the court was applying settled and neutral First Amendment principles to protect workers from being forced to say things at odds with their beliefs. He suggested that the decision on public unions should have been unanimous.

“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” he wrote. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.”

In response, Justice Kagan said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.” The United States, she said, should brace itself.

“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

via How Conservatives Weaponized the First Amendment – The New York Times

Ottawa pay mess shows how hard it is to fire anyone in this town: McKenna

Valid critique over the lack of accountability. Surprised that no one has been leaking the names:

It is one of the lamest whodunits in Canadian history.

We know that three senior bureaucrats badly botched the creation and roll-out of a new pay system for nearly 300,000 federal workers. The trio left behind a trail of misery, including a relentless stream of pay errors, disrupted lives and hundreds of millions of dollars in cost overruns.

But Ottawa won’t say who the three are or how they were disciplined. We do know that no one was fired. And two of the three officials still work for the department that runs the pay system, Public Services and Procurement Canada; the other retired.

The identity of the trio − including an assistant deputy minister and an associate assistant deputy minister − must be the worst-kept secret inside the bureaucracy. Auditor-General Michael Ferguson laid out exactly what happened in a scathing report, calling the new Phoenix payroll system an “incomprehensible failure of project management and oversight.” Anxious to stick to a schedule and stay on budget, the three officials launched the system in early 2016 even though they knew it was not working properly and had dangerous security holes, the report found.

The department of Public Services isn’t naming names, citing “internal matters.”

Nor is Privy Council Clerk Michael Wernick, the government’s top civil servant and the de facto chief operating officer of the bureaucracy. Appearing last week before a parliamentary committee that is investigating the failed system, Mr. Wernick was more interested in taking swipes at Mr. Ferguson for smearing the integrity of the public service than laying blame.

Surely, the buck-passing has to stop somewhere. How can Canadians have faith in their government if no one is ever held accountable for the biggest mess ups?

Absent that, Mr. Ferguson is right. The culture inside the federal government is broken.

The mysterious Phoenix trio ignored dire warnings from outside consultants and officials in other departments that they were hurtling toward disaster. They failed to do a pilot test and had no back-up plan in place if anything went wrong. And they stripped the system of 100 key functions, such as paying employees who switch jobs or who file for back pay. They knew the system would not work properly and then apparently kept their own bosses in the dark about these problems as the system went live. All of this was done in the name of expediency and saving money, according to the Auditor-General.

Paying its employees is one of the most basic functions of any organization, and the federal government failed miserably. A system that was to have cost $310-million has soared to more than $1-billion, and the price is still rising as the government struggles to make the system do what it’s supposed to do – pay people what they are owed. Virtually every government worker has been touched in some way by the resulting mess, including tens of thousands of workers not paid for months and others paid too much (and then were overtaxed).

Given all that, you might expect heads to roll. Not in Ottawa. Public Services and Procurement Canada says only that the performance of senior officials was “assessed and appropriate measures taken.” The department did confirm that the officials involved did not get their bonuses in the year Phoenix was launched.

But what about the years before, when they made a series of fatal errors that condemned the launch to failure?

In the private sector, these would almost certainly be firing offences. Federal government leaders want to be paid on par with executives in the private sector, and many are. But they also enjoy a lot more job and pension security.

Mr. Wernick, the Clerk of the Privy Council, acknowledged that it’s extremely hard to fire anyone below the deputy minister rank for poor performance, citing protections provided by Public Service Employment Act. And he suggested that the government’s bonus and incentive system for senior managers may cause some to focus too much on cost over function.

That’s hardly confidence-inspiring for most of us who work in the private sector, where bonuses are rare and people frequently get fired when they mess up.

via Ottawa pay mess shows how hard it is to fire anyone in this town – The Globe and Mail

Top bureaucrat rejects auditor general’s ‘opinion piece’ on broken government culture

Fairly combative appearance, perhaps reflecting ongoing frustration with auditor general reports. Phoenix, however one looks at it, is a classic large-scale bureaucratic failure.
My memory is long enough (as it the Clerk’s!) to remember the universal classification system (UCS) initiative in the 1990s that consumed an enormous amount of time in reviewing job descriptions and criteria only to be abandoned. IMO there are cultural factors that make such large-scale transformations high risk, and there is enough collective experience to be more wary about proposing these kinds of initiatives given the implementation challenges:
Top bureaucrat Michael Wernick has rejected the auditor general’s assertion last month of a broken culture in the federal government that enabled the Phoenix pay system disaster. While there’s room for improvement, and Phoenix was a failure, the kind of deep malaise that Michael Ferguson described in his message accompanying his spring reports to Parliament does not reflect the reality of the public service, the Clerk of the Privy Council said during a House of Commons committee meeting Tuesday,.
“I believe it contains sweeping generalizations, it’s not supported by evidence, and it does not provide you any particular guidance on what to do to move forward,” Wernick said in his opening comments to the committee, calling the auditor general’s message “an opinion piece which I take issue with.”
Wernick told the parliamentarians who comprise the public accounts committee, many of whom greeted his words with skepticism, that he saw Phoenix as a “perfect storm,” the culmination of multiple factors that have already been laid out in two auditor general reports and an independent study by consulting firm Goss Gilroy Inc.
David Christopherson, a New Democrat MP and committee vice-chair, challenged Wernick on his conclusions.
“With all due respect … either we have a (Clerk) of the Privy Council who has his head buried in the sand and is in complete denial with what the cultural problems are, or we’ve got an auditor general that is off the rails. “Where does that leave us?”
But Wernick said that contrary to what the auditor general observed, the public service does not have a pervasive problem with deputy minister turnover. Of the 33 deputy ministers over which Wernick said he has some influence and the last three terms they’ve each completed, 49 of 99 were more than three years, 27 more than four years, and 16 more than five years.
And Public Services and Procurement Canada, the same department that oversaw the botched Phoenix rollout, delivered parliamentary precinct construction projects on time, on budget, and fully-functioning, he said. “I’m not saying the public service culture is perfect … We are risk-averse, we are process and rules-driven, we need to be more nimble, we need to be more creative, we need to be more assertive,” Wernick later concluded.
“What I take issue with is the insinuation that it is a generalized broken culture, which implies a generalized broken public service, and I have to contest that.”
He registered his belief that the public service needs structural reform. It has too many layers, he said, having climbed 15 of them to get to the position he holds today. The hundreds of classification groups and thousands of special pay groups and allowances make building an effective pay system extremely challenging, he said.
He also recommended the committee consider the incentive structure under which public servants operate. There are numerous layers of oversight and feedback around the senior bureaucrats, Wernick said, and almost all are negative. The exceptions are performance pay and promotion.
“Culture is shaped by incentives and disincentives,” he said, and there are opportunities to create those “which reward innovation, creativity, or that stifle it.”
But MPs continued to raise the question of a larger cultural crisis throughout the bureaucracy. Conservative MP Lisa Raitt pointed out that Ferguson isn’t the first to come to this conclusion.
Last year, public service integrity commissioner Joe Friday flagged a culture of fear silencing public servants from speaking out about wrongdoing. And Kevin Sorenson, committee chair and Conservative MP, cited letters his office had received from public servants “saying this culture has to be fixed.”
Wernick pointed out these letters and emails come from those motivated enough to write, and “officers of parliament have their role and have their opinion, but they are outside observers.”
For the most part, Canada’s public service is free of nepotism, corruption and partisanship, he said.
“It’s important in this day and age that Canadians have some confidence in their public institutions, and I am committed to making them better as we go along.” But, he cautioned, “be very careful on the diagnosis before you start prescribing remedies. There are a lot of governance quacks out there, and I think it’s important to listen carefully to people with some expertise.”
Wernick also extended some cultural advice of his own to the committee: create a space in which questioning the auditor general is possible. For a decade or more, he said, government was taught the only way to respond to auditor general recommendations was with agreement. “It should be OK to challenge the analysis and the findings of the auditor general. It will make for a healthier, richer debate.”

Source: Top bureaucrat rejects auditor general’s ‘opinion piece’ on broken government culture

Fixing a broken culture: public service in the wake of Phoenix

Good representative set of comments. Minister Brison has a valid point: service delivery is a very poor cousin compared to policy and communications, with most senior execs having moved up the ladder largely on their ability to deliver on policy:

In no uncertain terms, auditor general Michael Ferguson laid bare last month his belief that a “broken government culture” enabled the Phoenix pay system fiasco to play out, despite bureaucratic safeguards that should have been enough to prevent the failure.

However, after explaining the “why” of Phoenix — “an obedient public service that fears mistakes and risk,” unwilling or unable to hear and convey “hard truths” — in a message accompanying the audit of its building and implementation, Ferguson left it up to the federal government to puzzle out a remedy.

That solution depends on who you ask.

THE FORMER PBO: New leadership needed Kevin Page, president and chief executive of the Institute of Fiscal Studies and Democracy at the University of Ottawa, proposed a stark fork in the bureaucracy’s road forward. “You either get rid of the top echelon of the public service — all the deputy ministers in the central agencies go, and replace them with a new group that we feel confident have the competency and the values and make sure that this stuff won’t repeat over and over again, or we just wait for the next generation.” Page, who served as Canada’s first parliamentary budget officer, and at various central agencies during a 27-year federal public service career, called Phoenix a “failure of values.” While they might not always be emphasized, he said, qualities such as integrity, stewardship and excellence comprise a public service “code.”

In his eyes, the negligence of executives charged with the Phoenix project — cancelling a pilot run, pressing forward without an adequate contingency plan — speaks to a deeper disregard for the values that should underscore public service. “It’s not just a few project managers. It cuts right through all the work that’s done by senior managers and central agencies who are responsible to support decision-making and oversight for the executive,” Page said. “There’s going to have to be new leadership in the public service.” While the current cadre of senior executives could ostensibly have a “come-to-Jesus moment” in which a post-Phoenix reckoning leads to commitment to examine these underlying values, Page said he’s not hopeful. Despite the AG’s self-professed “bleak” assessment of its workplace culture, Page said he works with many students who continue to aspire to public service. In fact, he said, it’s possible that this recent bit of bad press could actually spur on those who believe they can be part of a culture and values shift in the bureaucracy. “The time to buy is when the market is low,” Page quipped.

THE EXECUTIVES: It’s time to move forward The head of the association that represents the more than 6,000 executives — typically directors and above — in the federal public service, sees things very differently. “The executive community is as frustrated as any other group with this, and we’re being tarred with a brush with respect to Phoenix,” said Michel Vermette, CEO of the Association of Professional Executives of the Public Service of Canada.

The auditor general made some important recommendations, Vermette said, including the need for project oversight and independent review mechanisms for government-wide IT projects — to which Public Services and Procurement Canada and the Treasury Board of Canada Secretariat have agreed for all such projects, moving forward. Ferguson’s comments about public service culture have also provided a “good reminder” to executives about the nature of their job — to provide advice to ministers, and implement the decisions those ministers ultimately make, according to Vermette. But after two AG reports and an independent study by the Goss Gilroy Inc. consulting firm, Vermette said, it’s time to move forward, implement the audits’ recommendations, and work on fixing the pay problems Phoenix has given rise to. He rejected calls from the Public Service Alliance of Canada for a public inquiry into the project’s failure, and a freeze on executive performance bonuses until employee pay issues are resolved. “That’s damning an entire community of people who are working hard to make sure their staff get paid, but have little control over the system.”

THE PUBLIC SERVANTS: A public inquiry Meanwhile, PSAC national president Chris Aylward says a national public inquiry into Phoenix is the public service’s only hope for changing the culture of “incomprehensible failures” that Ferguson cited. PSAC, the largest union representing federal public-sector workers, will submit a formal request for an inquiry in the coming weeks.

“We need people to be compelled to come and testify under oath to say exactly what had happened,“ Aylward said, describing a culture that often discourages public servants from speaking out about perceived or possible flaws. “I think the broader issue is that workers don’t want to come forward and say, ‘Hey there might be an issue here,’ because they’re afraid of reprisal. “Then, a lot of times, the senior bureaucrats at the deputy level or the assistant deputy level, they don’t want to hear it because they’ve got the political pressure coming down from their ministers and from parliamentarians saying, ‘This has to get done,'” Aylward said.

THE EXPERT: Change the reward structure The subjugation of the bureaucracy by political priorities was among Ferguson’s grim observations about what ails today’s public service. It’s something Christopher Stoney, an associate professor at Carleton University’s School of Public Policy and Administration, has observed. “When it comes to culture, it seems to be very top-down as a hierarchy,” he said. “It cascades down from the political priorities and timing to the managerial, then it goes down to the public service themselves, who are then under pressure to try and meet these deadlines, which may be unrealistic.” With Phoenix, Ferguson pointed out that executives were “more focused on meeting the project budget and timeline than on what the system needed to do,” as evidenced by decisions such as removing pay processing functions from Phoenix, compressing the project schedule and reducing the number of employees assigned to it, rather than asking for more time or money. Stoney said this kind of perversion of priorities is enabled in part by the reward system in the public service. “I would do away with performance bonuses, I think it gets too much tied into what we call goal displacement, so the people start trying to achieve things for the wrong reasons and the public interest gets lost because of self-interest and short-term thinking.” In 2015-16 — the most recent period for which figures are posted by the Treasury Board of Canada Secretariat — more than $75 million was spent on performance pay for nearly 5,500 executives. The value of the Phoenix experience, Stoney said, lies in the insight it has offered into the public service culture. “There are some projects that are so important, so big, and so time-sensitive vis-à-vis elections,” that the cracks start to show, and what lies beneath is laid bare and talked about. “Otherwise how the heck do we know what it is?”

TREASURY BOARD PRESIDENT: Tend to the plumbingThis underlying “plumbing of government,” said Scott Brison, president of the Treasury Board, is what his government has been working to improve since taking office in 2015. “The two shiny objects to which people are attracted in government are usually policy and communications,” the longtime parliamentarian said. The Liberals, according to Brison, are delving deeper.

“We have taken and continue to take concrete actions to strengthen the culture of the public service, and to encourage a culture of experimentation and innovation,” evidenced, he said, by such policies as the “unmuzzling” of government scientists and new standards for government digital projects. According to Brison, the public service needs to look less hierarchical, more agile and innovative in its approach to problem-solving and citizen engagement, and more enticing to millennials. As for why the Phoenix failure was not averted under his government’s tenure — the auditor general held accountable both the previous Harper Conservative government under which Phoenix was first approved, and the current Liberal government for the decision to green light the pay system’s launch — Brison said culture change doesn’t happen overnight. “We have made significant changes in the last couple of years, but we have a lot of work to do.” “We feel actually the auditor general’s report helps reaffirm that we are heading in the right direction.”

Source: Fixing a broken culture: public service in the wake of Phoenix

The Phoenix disaster was predictable – and preventable: Hutton

Problems go deeper than ineffective whistle blower legislation:

Federal Auditor-General Michael Ferguson’s scathing report on the Phoenix pay project reveals that, far from being an accident, this disaster was manufactured: The project was set up for failure from the start.

This process began in 2012 with a big lie – that the project could be completed successfully with about half the budget that the contractor estimated to be necessary. This magic was to be achieved by removing 100 functions from the product (including many that proved later to be vital), slashing the development staff, reducing the testing and compressing the schedule. IT professionals have a saying for this approach: “If the product doesn’t have to work, we can meet any budget and any schedule.”

Once told, this big lie had to be sustained, and the executives in charge of Phoenix boldly and successfully kept this up for years – until the truth couldn’t be hidden any more. They achieved this by seizing control of all the supposedly mandatory oversight mechanisms, such as independent reviews and audits, and keeping their superiors in the dark. Mr. Ferguson’s report states categorically that there was no oversight – zero.

In 2015, shortly before the fateful decision to launch the rollouts, the Phoenix executives received an independent report commissioned by the Treasury Board, which raised a number of serious concerns, including incomplete testing and uncorrected errors, the likelihood of high call volumes, the short timelines and lack of contingency plans.

This report was not even shown to the minister responsible. So the massive rollout went ahead – with only partial function, incomplete test results, no fallback and no contingency plan. The result was entirely predictable.

Although Phoenix executives managed to hobble the normal oversight mechanisms, there was one more mechanism outside of their control that could have prevented this disaster, even though everything else had failed – the federal whistle-blowing system.

In other countries, this type of system has proven highly effective at exposing even massive frauds that powerful vested interests were desperate to conceal.

But the Phoenix executives didn’t have to hobble the whistle-blowing system – the government had already done this for them.

Created in 2007, the system is supposed to work as follows: Honest employees who see evidence of misconduct go to the Integrity Commissioner (who is an officer of Parliament, like the Auditor-General), confident that they will be protected from reprisals; the Integrity Commissioner conducts an independent investigation into these allegations, with all the considerable powers of the Inquiries Act at his disposal; if wrongdoing is found, the Commissioner reports his findings – which are public – directly to Parliament. One can only imagine what such a report would have done to the big lie, and how quickly the axe would have fallen on this troubled project and its perpetrators.

Unfortunately, this could not happen because our federal whistle-blower-protection system simply doesn’t work – and everybody in Ottawa knows it. We have a deeply flawed law, unchanged for 11 years, and a succession of integrity commissioners who, far from being protectors, have proven to be a whistle-blower’s worst nightmare since they rarely investigate anything. And no whistle-blower has ever prevailed at the tribunal that is supposed to compensate them for reprisals they have suffered.

In 2017, the government asked a parliamentary committee to review this system. Shocked at the dysfunction they found, the members unanimously recommended sweeping changes. But government’s response was to give the committee the brush-off – none of the recommendations were implemented.

In general, there’s no lack of honest public servants willing to come forward and expose fiascos such as we just experienced with Phoenix. But under the current system, they would never have a chance.

Since the government seems determined not to help whistle-blowers – even after this debacle – Ryerson’s Centre for Free Expression is doing what civil society has done in other countries: We are going help them ourselves. We are setting up a free confidential advice centre that they can go to for help, which we expect to be staffed and operational by the fall.

We have also decided to conduct our own investigation of the Phoenix project – to find out what happened to those honest employees who tried to blow the whistle, and to learn how others were deterred from speaking out at all.

via The Phoenix disaster was predictable – and preventable – The Globe and Mail

Centrists Are the Most Hostile to Democracy, Not Extremists @NYTOpinion

Interesting and somewhat counter-intuitive set of data (have just highlighted the first data set – Centrists most sceptical of democracy, other sets are: Least Likely to
Support Free and Fair Elections, Least Likely to Support Liberal Institutions, Most Supportive of Authoritarianism (Except for the Far Right), Percentage of Americans who support strongman leaders):

The warning signs are flashing red: Democracy is under threat. Across Europe and North America, candidates are more authoritarian, party systems are more volatile, and citizens are more hostile to the norms and institutions of liberal democracy.

These trends have prompted a major debate between those who view political discontent as economic, cultural or generational in origin. But all of these explanations share one basic assumption: The threat is coming from the political extremes.

On the right, ethno-nationalists and libertarians are accused of supporting fascist politics; on the left, campus radicals and the so-called antifa movement are accused of betraying liberal principles. Across the board, the assumption is that radical views go hand in hand with support for authoritarianism, while moderation suggests a more committed approach to the democratic process.

Is it true?

Maybe not. My research suggests that across Europe and North America, centrists are the least supportive of democracy, the least committed to its institutions and the most supportive of authoritarianism.

I examined the data from the most recent World Values Survey (2010 to 2014) and European Values Survey (2008), two of the most comprehensive studies of public opinion carried out in over 100 countries. The survey asks respondents to place themselves on a spectrum from far left to center to far right. I then plotted the proportion of each group’s support for key democratic institutions. (A copy of my working paper, with a more detailed analysis of the survey data, can be found here.)

….

What Does It Mean?

Across Europe and North America, support for democracy is in decline. To explain this trend, conventional wisdom points to the political extremes. Both the far left and the far right are, according to this view, willing to ride roughshod over democratic institutions to achieve radical change. Moderates, by contrast, are assumed to defend liberal democracy, its principles and institutions.

The numbers indicate that this isn’t the case. As Western democracies descend into dysfunction, no group is immune to the allure of authoritarianism — least of all centrists, who seem to prefer strong and efficient government over messy democratic politics.

Strongmen in the developing world have historically found support in the center: From Brazil and Argentina to Singapore and Indonesia, middle-class moderates have encouraged authoritarian transitions to bring stability and deliver growth. Could the same thing happen in mature democracies like Britain, France and the United States?

via Opinion | Centrists Are the Most Hostile to Democracy, Not Extremists – The New York Times

Hungarian PM Accused George Soros of Fueling Anti-Semitism, MTI Reports – Bloomberg

Might be time for former PM Harper to reconsider his congratulatory message in his capacity as head of the International Democrat Union (IDU):

Hungarian Prime Minister Viktor Orban accused George Soros, the Jewish billionaire philanthropist who survived Nazi persecution, of fomenting anti-Semitism by helping immigrants come to Europe, MTI state news service reported.

Soros and his Open Society Foundations, which funds dozens of NGOs in Hungary, “bear responsibility for the increase in anti-Semitism in Europe,” Orban said in a letter to Ronald S. Lauder, the president of the World Jewish Congress, MTI reported Friday. Soros, 87, who eventually emigrated to the U.S. after World War II, said last year that Orban used Nazi-era propaganda methods to try to discredit him in a national billboard campaign.

Orban has built a border fence to keep immigrants out in a vow to protect Hungary from people he’s called “Muslim invaders.” In the letter, he said immigrants to Europe included those whose “political and religious views markedly increased the sense of insecurity in Jewish communities.”

Orban won a fourth term as prime minister last month and has become a ringleader for anti-immigrant populist forces in Europe. Open Society Foundations said this week that it was moving its staff from Budapest to Berlin, citing a government crackdown on NGOs.

via Hungarian PM Accused George Soros of Fueling Anti-Semitism, MTI Reports – Bloomberg

The case against transparency in government AI

Useful note of caution regarding the risks of manipulation as Facebook’s experience indicates:

Governments are becoming increasingly aware of the potential for incorporating artificial intelligence (AI) and machine-assisted decision-making into their operations. The business case is compelling; AI has the ability to dramatically improve government service delivery, citizen satisfaction and government efficiency more generally. At the same time, there are ample cases demonstrating the potential for AI to fall short of public expectations. With governments continuing to lag far behind the rest of society in the adoption of digital technology, a successful incorporation of AI into government is far from being a foregone conclusion.

AI itself is essentially the product of combining exponential increases in the availability of data with exponential increases in computing power that can sort that data. Together, the result is software that makes judgments or predictions that are remarkably perceptive to the point of even feeling “intelligent.” Yet, while the outputs of AI might feel intelligent, it’s perhaps more accurate to say that these decisions are actually just very highly informed by software and big data. AI can make decisions and observations, but in fact AI lacks what we would call judgment and certainly does not have the capacity to make decisions guided by human morality. It is only able to report or make decisions based on the training data it is fed, and thus it will perpetuate flaws in data if they exist.

As a result of these technical limitations, AI can have a dark side, especially when it is incorporated in public affairs. Since AI decision-making is easily prone to propagating the biases of others, AI risks making clumsy decisions and offering inappropriate recommendations. In the US, where AI has been partly incorporated into the justice system, on several occasions it has been found to propagate racial profiling, discriminatory policing and harsher sentences for minorities. In other cases, the adoption of AI decision-making in staffing has recommended inferior positions and pay rates for women based solely on gender.

In light of such cases, there have been calls to drop AI from government decision-making or to mandate heavy transparency requirements for AI code and decision-making architecture to compensate for AI’s obvious shortcomings. The need to improve AI’s decision-making processes is clearly warranted in the pursuit of fairness and objectivity, yet accomplishing this in practice will pose many new challenges for government. For one, trying to rid AI of any bias will open up new sites for political conflict in spaces that were previously technocratic and insulated from debates about values. Such questions will spur a conversation about the conditions under which humans have a duty to interfere with, or reverse, decisions made by an AI.

Of course, discussions about how best to incorporate society’s values and expectations into AI systems need to occur, but these discussions also need to be subject to reasonable limits. If every conceivable instance of AI decision-making in government is easily accessible for dispute, revision and probing for values, then the effectiveness of such AI systems will quickly decline and the adoption of desperately needed AI capacity in government will grind to a halt. In this sense, the cautious incorporation of AI in government that is occurring today represents both a grand opportunity for government modernization and also a huge potential risk should the process go poorly. The decision-making process of AI used in government can and should be discussed, but with a keen recognition that these are delicate circumstances.

The clear need for reasonable limits on openness is heading into conflict with the emerging zeitgeist at the commanding heights of public administration which favour ever more transparency in government. To be sure, governments are often notorious for their caution in sharing information, yet at an official level and in the broad principles recently espoused at the centre of government (particularly the Treasury Board), there has been an increasing emphasis on transparency and openness. Leaving aside how this meshes with the culture of the public service, at a policy and institutional level there is a growing reflex to automatically impose significant transparency requirements on new initiatives wherever possible. In general terms, this development is long overdue and a new standard that should be applauded.

Yet in the more specific terms related to AI decision-making in government, this otherwise welcome reflex to ever greater transparency and openness could be dangerously misplaced. Or at least, it may well be too much too soon for AI. AI decision-making depends on the software’s ability to sift through data which it analyzes to identify patterns and ultimately arrive at decisions. In an effort to make AI decisions more accountable to the public, over-zealous transparency can also offer those with malign intent a pathway to tainting the crucial data for informing decisions and inserting bias in the AI. Tainted data makes for flawed decisions, or as the shorthand goes, “garbage in, garbage out.” Full transparency about AI operational details, including what data “go in”, may well represent an inappropriate exposure to potential tampering. All data ultimately have a public source and if the exact collection points for these data are easily known, all the easier for wily individuals to feed tainted data to an AI decision system and bias the system.

A real-world case in point would be “TayTweets”, an artificially intelligent Twitter handle developed by Microsoft and released onto the Twitterverse to playfully interact with the public at large. TayTweets was known in advance to use the Tweets directed at its handle as its data source, which would permit it to “learn” language and ideas. The philosophy was that TayTweets would “learn” by communicating with everyday people through their Tweets, and the result would be a beautiful thing. Unfortunately, under this completely open approach, it did not take long for people to figure out how to manipulate the data that TayTweets would receive and use this to rig its responses. TayTweets had to be taken down within only 24 hours of its launch, when it began to voice disturbing, and even odious, opinions.

Presumably AI-enabled or assisted decision-making processes in government would be much more cautious in the wake of TayTweets, but it would not take long for this kind of vandalism to occur if government AI adhered to a strict regime of openness about its processes. Perhaps more importantly, a failure like TayTweets would be hugely consequential for a government and its legitimacy. Would any government suffering from a “TayTweets”-like incident continue to take the necessary risks with technological adoption that would ultimately permit it to modernize and stay relevant in the digital age? Perhaps not. A balance indeed needs to be struck but, given the high risk and potential for harm that would come with government AI failures, that balance should err on the side of caution.

Information about AI processes should always be accessible in principle to those that have a serious concern, but it should not be so readily accessible as to be a source of catastrophic impediment to the operations of government. Being open about AI decisions will be an important part of ensuring that government remains accountable in the 21st century, yet it is wrong-headed to assume that successful accountability will be accomplished for AI processes under the same paradigm that has been designed to govern traditional human decision-making processes. The principal of transparency remains a cornerstone of good governance, but we are not yet at the point of truly understanding what transparency looks like for AI-enhanced government. Assuming that we already are is a recipe for trouble.

Source: The case against transparency in government AI

Cohen: Why we ought to worry about democracy’s retreat globally | Ottawa Citizen

Good commentary by Andrew Cohen, including Rosalie Abella’s fears for the independence of Israel’s judiciary:

Justice Rosalie Abella of the Supreme Court of Canada lives on public platforms. She lectures often, at home and abroad, and collects laurels celebrating her shimmering career (including 38 honorary degrees) like loose change.

As a decorated jurist of 42 years, she contemplates law and society as a quotidian challenge. So there she was two weeks ago, at the Hebrew University of Jerusalem, on the 70th anniversary of the founding of Israel, addressing the country’s democracy.

It was an extraordinary speech – a cri de coeur, really – brimming with erudition and urgency. It was also brave. Abella laments the assault on the independence of Israel’s judiciary, whose stature she has long admired.

“As a Jew, it has made me particularly sad to see the judiciary’s noble mission and legacy under rhetorical siege here,” she said. “To me when an independent judiciary is under siege, democracy is under siege, and when democracy is under siege, a country’s soul is being held hostage.”

She is alarmed by the effort to “delegitimize the judiciary … in the name of patriotism.” She finds this “perverse.” After all, she asks, doesn’t patriotism mean reflecting national values, which, in Israel, means being Jewish and democratic?

For defending those values, she sees a judiciary “demonized by some for being independent from political expedience and immune to political will.” Judges are not there to comply with the will of politicians, she warns; those who think patriotism means doing only what politicians want “are the biggest threat to Israel’s values, because they misconceive democracy as majoritarian rule.”

Abella doesn’t name the right-wing politicians targeting the judiciary. What makes her warning timely – like a siren in the night – is that she is addressing the erosion of democracy, in fundamental and disturbing ways, across the world. As Foreign Affairs magazine asks in its current issue: “Can Democracy Survive?”

It’s not hyperbole. Democracy is under its greatest strain since the 1930s. Assaults on the press, free and fair elections, minority rights and civil liberties are common. Look around: the rise of authoritarianism is everywhere.

Having liberalized after the fall of Communism, Russia is an authoritarian state under Vladimir Putin, who fixes elections, jails opponents and kills journalists. In China, which showed signs of liberalization leading up to Tiananmen Square in 1989, the leadership may serve for life.

Poland, Turkey and Hungary have lurched into authoritarianism. That Stephen Harper could tweet congratulations to Hungarian Prime Minister Viktor Orbán on his election was so brazen it was thought a joke; alas, it was not.

The man who once refused to shake Putin’s hand – “You need to get out of Ukraine,” Harper told him – now embraces Orban, who is silencing critics and attacking institutions in Hungary.

Freedom House tracks the state of democracy around the world. In 2017, it found that democracy declined in 71 countries and advanced in just 35. “Democracy in crisis,” it declares.

In old democracies such as France, Germany, Austria and the Netherlands, right-wing populists are gaining traction, appealing to anti-immigrant sentiments and shunning civil liberties or the rule of law. Surveys show that while support for democracy remains strong among those over 65, those under 35 care less about it. This is particularly disturbing.

Rwanda, Venezuela, Mexico, Kenya and Honduras are among the countries where democracy has eroded. The same in Nepal, Eritrea, South Sudan, Libya, Egypt and Yemen. In Myanmar, led by a Nobel Peace Prize laureate, ethnic cleansing is horrifying.

In the United States, the president declares the media “the enemy of the people,” and attacks the judiciary and law-enforcement agencies. He refers to “my justice department” and its failure to “protect” him.

In Canada, the threat to democracy comes through bots and fake news filling social media, which will play out dangerously in the next federal election.

For Abella, in Jerusalem, the attack on the judiciary in Israel reflects something larger: an attack on our humanity: “Without democracy there are no rights, without rights there is no tolerance, without tolerance there is no justice, and without justice, there is no hope.”

via Cohen: Why we ought to worry about democracy’s retreat globally | Ottawa Citizen

Employment Equity in the Public Service of Canada for Fiscal Year 2016 to 2017: 2016-17 data delayed

Highly unusual for the EE data not to be included in the annual report (can’t recall this happening in recent years). The report’s explanation suggests that this is collateral damage of the Phoenix pay system.

That being said, better to take the necessary time for data verification than publish inaccurate data:

The 2016 to 2017 annual report features a 10-year trend analysis of the representation of the 4 designated groups and reports on results of initiatives that advance employment equity, diversity and inclusion. (Data for 2016 to 2017 will be provided at a later date and included with the report as an annex.) Over the past 4 years, the representation of each employment equity group in the core public administration has exceeded workforce availability. However, gaps persist in some departments and in certain occupational groups. We will continue our efforts to close these gaps.

…. Statistical tables for the 2016 to 2017 fiscal year in 7 areas will be published following:

  • retrieval of data from the Phoenix pay system
  • reconciliation of data with sources from the Public Service Commission of Canada and from departments and agencies
  • validation of the accuracy of the data to be published

via Employment Equity in the Public Service of Canada for Fiscal Year 2016 to 2017 – Canada.ca