‘Patents constricting the essential channels of online communication run afoul of the First Amendment’

So writes Judge Haldane Mayer of the U.S. Court of Appeals for the Federal Circuit, concurring in Friday’s panel majority opinion in Intellectual Ventures, Inc. v. Symantec Corp. I’m swamped right now and can’t go into more detail; I’m also not a patent law expert. But I thought the issue would be very interesting to many readers, so here’s the heart of Mayer’s First Amendment argument — you can also read the rest of the opinion (and the majority and partial dissent), which discuss the patent law issues in more detail:

“The Constitution protects the right to receive information and ideas… . This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) (“The distinction between laws burdening and laws banning speech is but a matter of degree.”); see also In re Tam, 808 F.3d 1321, 1340 (Fed. Cir. 2015) (en banc) (explaining that the government may impermissibly burden speech “even when it does so indirectly”).

Although the claims at issue here disclose no new technology, they have the potential to disrupt, or even derail, large swaths of online communication. [The “’050 patent”] purports to cover methods of “identifying characteristics of data files,” whereas [the “’142 patent”] broadly claims systems and methods which allow an organization to control internal email distribution. [The “’610 patent”] describes, in sweeping terms, screening a communication for viruses or other harmful content at an intermediary location before delivering it to an addressee. The asserted claims speak in vague, functional language, giving them the elasticity to reach a significant slice of all email traffic. Indeed, the claims of the ’610 patent could reasonably be read to cover most methods of screening for harmful content while data is being transmitted over a network.

Suppression of free speech is no less pernicious because it occurs in the digital, rather than the physical, realm… . Essential First Amendment freedoms are abridged when the Patent and Trademark Office (“PTO”) is permitted to balkanize the Internet, granting patent owners the right to exact heavy taxes on widely-used conduits for online expression.

Like all congressional powers, the power to issue patents and copyrights is circumscribed by the First Amendment. In the copyright context, the law has developed “built-in First Amendment accommodations.” Specifically, copyright law “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” It also applies a “fair use” defense, permitting members of “the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.”

Just as the idea/expression dichotomy and the fair use defense serve to keep copyright protection from abridging free speech rights, restrictions on subject matter eligibility can be used to keep patent protection within constitutional bounds. Section 101 creates a “patent-free zone” and places within it the indispensable instruments of social, economic, and scientific endeavor. Online communication has become a “basic tool[]” of modern life, driving innovation and supplying a widely-used platform for political dialogue. Section 101, if properly applied, can preserve the Internet’s open architecture and weed out those patents that chill political expression and impermissibly obstruct the marketplace of ideas.

As both the Supreme Court and this court have recognized, section 101 imposes “a threshold test,” one that must be satisfied before a court can proceed to consider subordinate validity issues such as non-obviousness under 35 U.S.C. § 103 or adequate written description under 35 U.S.C. § 112. Indeed, if claimed subject matter is not even eligible for patent protection, any pronouncement on whether it is novel or adequately supported by the written description constitutes an impermissible advisory opinion.

The public has a “paramount interest in seeing that patent monopolies … are kept within their legitimate scope.” Nowhere is that interest more compelling than in the context of claims that threaten fundamental First Amendment freedoms. “As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.” A robust application of section 101 at the outset of litigation will ensure that the essential channels of online communication remain “free to all men and reserved exclusively to none.”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/30/patents-constricting-the-essential-channels-of-online-communication-run-afoul-of-the-first-amendment/

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Why law prof Glenn Reynolds is leaving Twitter

After a controversial Tweet, for which he apologized, Glenn Reynolds explained here why he is leaving Twitter:

SO WHAT I’VE DONE WITH TWITTER is just to log out for now. The robo-tweets of InstaPundit content will continue, at least for a while. I may take down the widget on the sidebar, eventually. I haven’t moved to Gab, and I’m not sure whether I will or not. Basically, there are two problems with Twitter for me. One is that they don’t support their users — they pretty clearly suspend, ban, etc. using a political double standard even though they claim they don’t.

But the other problem with Twitter is that it’s the crystal meth of social media: Addictive, but unsatisfying. I’ve been spending a lot of time on it even though it doesn’t make me any money, and even though I kind of doubt it has much of an impact on anything. As I said a while back: “I think Twitter is overrated. It’s a good way to chatter with the chattering classes, but (1) it doesn’t drive traffic; (2) its impact outside the chattering classes is basically nil; and (3) it encourages people to think they’re being ‘activists’ when they’re really just tweeting to a few hundred people.”

That I’ve posted over 580,000 tweets in spite of saying that suggests to me that I’m not very good at following my own advice. Add to that the exposure to Justine-Sacco type shamestorms on a platform you don’t control, and I don’t see why I should keep working for them for free. And on that point, if I, a tenured professor whose university just admitted that his tweets are protected by the First Amendment, have concerns about this, I have to wonder why anyone whose job is less secure would stay on Twitter.

Of course, if you have a platform as popular as Glenn’s Instapundit you have options that others lack. Twitter and Facebook provides the other 99% with their own Instapundit-like platform. But, as others have noted, the thing about Twitter and Facebook is that they defeat the open access of the Internet itself, where anyone can post what they wish. Both platforms offer ease of posting, finding others, and reading along on cell phones in exchange for data collection and the controls of a gated private community, where there are rules. That may be perfectly fine, but when the regulated conduct in question is speech and the rules are enforced in a politically-biased and opaque fashion–as they have been on both platforms–then those whose speech is being (constitutionally) restricted need to consider their options, including denying such companies the revenue generated by their usage.

All of which is making me think I should blog more and Tweet less.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/30/why-law-prof-glenn-reynolds-is-leaving-twitter/

Why don’t we restore the Constitution so every election is not “make or break”?

Why does this and every election in recent years seem like a “make or break” election? One reason is that we have abandoned so many of the constraints imposed by the Constitution on our government that everything now rides on who holds office. No longer can we be confident that, when the government is controlled by the party we oppose, what it can do while in power will be limited by constitutional–rather than purely electoral–constraints. This was not the way it was supposed to be in a constitutional republic, and is not the way it needs to be in the future. The founders gave us a constitutional means to restore the constraints that the Constitution imposes on the national government: an Article V convention of the state. And we need not wait to hold one. We could restore constitutional government in just a year or two.

So what’s stopping us? For some, if not many, the fear is that such a convention would be dangerous and damaging.

I believe these fears–stoked mainly on the right by the Eagle Forum and the John Birch Society–are overblown. In an effort to address these concerns, last week, Citizens for Self-Government held an ambitious simulated Article V Convention in Williamsburg, Virginia, for which I served as a legal advisor.

The event drew commissioners–mostly elected state representatives–from all 50 states and was a heartening and rewarding experience for me and for all those who participated. Robert Natelson, one of the other legal advisors and the leading scholar on Article V conventions, has published an op-ed describing the event and the amendments that were approved by the Convention: What Would an Article V Convention of States Actually Be Like?.

Some have conjured up images of an amendments convention acting like a national party convention, with a mob of thousands of screaming attendees. This simulation was more realistic: It included 137 commissioners (delegates) from all 50 states. The number of commissioners was similar to the number (133) in the last national convention of states, the Washington Conference Convention of 1861. In practice, both bodies acted much like sober legislative chambers.

In Williamsburg, each state was represented by one, two, or three commissioners. The overwhelming majority were state lawmakers, but some delegations included non-legislators involved in public affairs. For example, California was represented by John Eastman, a well-known constitutional law professor and former candidate for state attorney general.

The agenda was fixed by the standard “convention of states” legislative application formally adopted by eight of the necessary 34 state legislatures. That application empowers the convention to propose amendments imposing fiscal restraints on the federal government, limiting the power and jurisdiction of the federal government, and fixing term limits for members of Congress and for federal officials.

The rules for the simulation were based on rules earlier drafted for a real convention. I drafted both sets, with input from Michael Farris, a noted constitutional attorney and educator. In crafting both sets of rules we relied heavily on the actual rules of previous conventions of states. The source for resolving issues outside the rules was Mason’s Manual of Legislative Procedure, the authority on parliamentary procedure for 70 of the 99 American state legislative chambers.

Natelson goes on to describe how the deliberations proceeded and the six amendments that were approved by the body. I was greatly impressed by the decorum that was brought to the deliberations by the state legislators who are accustomed to respectful collective deliberations. If you wish to watch all or part of the event, you can find it here. Here are the concluding remarks by Ken Ivory (R-Utah) the elected-President of the Convention.

But the most important point is this: if the federal government were once again held to its assigned powers–and these limits were reinforced by enhanced structural checks–we would have far less to fear from the election of our political opponents, who would be limited in what they can do if elected.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/30/why-dont-we-restore-the-constitution-so-every-election-is-not-make-or-break/

Why you shouldn’t talk to the police

Yesterday, the Cato Institute hosted a book forum on James Duane’s short new book, You Have a Right to Remain Innocent. He presented the thesis of his and I commented based on my experience working with police and interrogating suspects myself on the Felony Review unit of the Cook County States Attorney’s Office. In my comments (at 41:25) I explain why you need to buy and read the book, not merely agree with the bottom line. Professor Duane is a terrifically entertaining speaker and a really tough act to follow. You can watch the video here and decide for yourself if I held my own.

http://www.cato.org/longtail-iframe/node/66476/field_longtail_player/0

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/30/why-you-shouldnt-talk-to-the-police/

Did a federal judge accuse his colleagues of letting their ‘racist attitude’ control the outcome of a case?

In an interview with Mark Joseph Stern of Slate, Senior Circuit Judge Damon Keith of the U.S. Court of Appeals for the 6th Circuit appears to accuse two of his colleagues of having “racist attitude[s].” Specifically, Keith suggests that this attitude explains why a three-judge panel rejected a recent challenge to changes in Ohio election laws in Northeast Ohio Coalition for the Homeless v. Husted, a case in which Keith wrote a lengthy and impassioned dissent.

Here’s the relevant portion of the interview:

Your most recent dissent criticized a ruling that did not, in your view, provide equal justice. Why did you include a gallery of slain civil rights heroes?

I wanted to dramatize the racist attitude of the majority. Look at those pictures. These are men and women who died for the right to vote. I was really so hurt by the decision of the majority of the court. My grandparents lived in Georgia, and they were not allowed to vote because of racism. I thought about them.

And you know, I was so disheartened by the attitude of Judge Boggs and Judge Rogers [the judges in the majority]. Thurgood used to say to us at Howard Law School, “dissents are very important.” And indeed, he’d quote cases where dissents were used. And this may sound trite to you, but in a dissent, you don’t have to get that second vote!

From my read of this section, it seems that Keith is accusing the panel majority — i.e. Judge John Rogers and Judge Danny Boggs — of harboring a “racist attitude” and that this attitude explains their decision in the case. While it is possible that Keith was making a more generic reference to the majority in the state or the nation, that seems unlikely given the question focused on his dissent in this case and that it was his dissent that apparently prompted the interview in the first place.

Strong words are nothing new on the 6th Circuit. Back in 2002, judges on the court traded charges and counter-charges over alleged procedural irregularities in Grutter v. Bolinger and other cases. But it has been some time since intra-court discord has spilled into print.

The timing of Keith’s remarks are also interesting. Earlier this week, NEOCH filed for en banc review of the decision and simultaneously moved to recuse one of the court’s judges, Alice Batchelder. Might the state respond with a motion to recuse Keith? Given his comments, such a motion would not surprise.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/29/did-a-federal-judge-accuse-his-colleagues-of-letting-their-racist-attitude-control-the-outcome-of-a-case/

District court overturns magistrate decision rejecting ‘seize first, search second’ procedure for email warrants

Magistrate Judge David J. Waxse has been an active participant in the “magistrates’ revolt,” an effort by a handful of federal magistrate judges to advance more privacy-protective approaches to the Fourth Amendment and the statutory privacy laws. In March, Waxse handed down a decision rejecting a warrant to search several Hotmail email accounts on the ground that the two-step procedure used to execute email warrants violated the Fourth Amendment. Under the procedure, the warrant orders the service provider to hand over the entire account; the government then searches the entire account for the information sought in the warrant. Echoing his decision from 2015 about cellphone searches, Waxse held in March that this two-step procedure violates the Fourth Amendment particularity requirement unless the government includes a sufficient set of ex ante search protocols guiding the warrant.

The government then sought further review from the Article III district court.

District Judge Carlos Murguia has now handed down a new decision reviewing Magistrate Judge Waxse’s March decision. Judge Murguia does not engage a first-principles rethinking of the law as did Magistrate Judge Waxse. Instead, Judge Murguia mostly follows the decisions of other courts.

Most importantly, Judge Murguia concludes that the two-step email warrant procedure satisfies the Fourth Amendment’s particularity requirement without search protocols:

[T]his court concludes it was clearly erroneous or contrary to law for Judge Waxse to find it was not sufficiently particular. The warrant application identified with specificity the target email accounts to be searched and the evidence to be seized in connection with violations of 18 U.S.C. §§ 371 (conspiracy), 1029 (access device fraud), 1030 (computer intrusion), 1343 (wire fraud), and 2319 (copyright infringement), all occurring since September 7, 2008. The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant. The application also included an affidavit detailing the criminal scheme and explaining the relevance of the evidence to the investigation. Rule 41(e) (2) authorizes the “seize first, search second” two-step process, thus allowing the government to obtain all of the data to later search for relevant evidence. And while Rule 41(e) (2) leaves open the question of particularity when the government seeks ESI, the majority of case law relating to the search of an email account has upheld the Government’s ability to obtain the entirety of the account to then search for relevant evidence. Based on the current state of the law, this court finds Judge Waxse’s decision regarding particularity was clearly erroneous or contrary to law.

On the other hand, Judge Murguia agrees that probable cause was lacking in this application, and he refuses to consider the government’s updated application that had a broader basis of cause. So the government wins on the big issue, but technically it loses on this particular application (which it can then just renew with more evidence).

Also interesting, albeit in dicta, Murguia states that ex ante search restrictions are not per se prohibited:

Various courts have held that ex ante instructions are permissible, but not required under the Fourth Amendment. See In re Search Warrant, 71 A. 3d 1158 (Vt. 2012) (rejecting “any blanket prohibition on ex ante search warrant instructions”); see also In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d 386, 397 (S.D.N.Y. 2014), as amended (Aug. 7, 2014) [hereinafter, SDNY Email] (noting there was no requirement that a “magistrate judge approving a warrant application must or should impose ex ante restrictions pertaining to the later execution of that warrant” (emphasis added); United States v. Christie, 717 F. 3d 1156, 1166—67 (10th Cir. 2013) (discussing that the Fourth Amendment particularity requirement may or may not require limitations ex ante; however, “even if courts do not specify particular search protocol up front in the warrant application process, they retain the flexibility to assess the reasonableness of the search protocols the government actually employed in its search after the fact, when the case comes to court, and in light of the totality of the circumstances.”); United States v. Hill, 459 F. 3d 966, 978 (9th Cir. 2006) (“Moreover, in contrast to our discussion of the overbroad seizure claim above, there is no case law holding that an officer must justify the lack of a search protocol in order to support issuance of the warrant. As we have noted, we look favorably upon the inclusion of a search protocol; but its absence is not fatal”)

On the other hand, Judge Murguia “declines to rule on whether any [search restrictions], individually, are reasonable in this particular case”:

Although Judge Waxse included many options in his order, these were simply suggestions for the government in the future, not court-ordered ex ante instructions for the issuance of this specific warrant. Had Judge Waxse, for example, provisionally granted the warrant under the premise the government would submit a search protocol, or had he granted the warrant but ordered the use of a special master to search the data seized from the Provider, this court could then review those court-ordered ex ante limitations for reasonableness. Because no ex ante instructions were ordered, this court has nothing to review, and to comment on the reasonableness of each suggested limitation would result in this court issuing an advisory opinion.

Near the end of the opinion, Murguia summarizes his view of ex ante restrictions as follows: “[W]hile this court acknowledges that a judge may have the authority to impose reasonable ex ante instructions, it declines to comment on the ex ante instructions suggested by Judge Waxse.”

I think Judge Murguia’s discussion of ex ante search restrictions is mixing up some different issues. No one disagrees that if the government wants to include search restrictions, it is allowed to do so. Put another way, the magistrate judge can’t refuse to issue a warrant on the grounds that the government included ex ante restrictions. The question here raises the inverse issue: Can the magistrate judge condition issuing a warrant application on including an ex ante restriction, such that the application can be denied if the government refuses to include ex ante restriction?

My understanding is that the only precedent on this question is the 2012 Vermont case. It’s unfortunate that Judge Murguia appears not to question that precedent, as I think it’s wrong. But this is just dicta in the district court’s opinion, and the government won on the issue it had litigated. Given that, the legality of ex ante search restrictions remains uncertain.

The interesting question is what Magistrate Judge Waxse will do in response to the new opinion. Judge Murguia has now said that email warrants without search protocols satisfy the Fourth Amendment, but also that magistrate judges “may have the authority to impose reasonable ex ante instructions.” If you’re Waxse, do you now issue the warrants without search protocols on the grounds that such warrants are constitutional and Rule 41 states that you “must” issue the warrant accordingly? Or do you now just add your own search protocols — whatever feels reasonable to you — and then force the government to decide whether to seek review of those search protocols under whatever reasonableness standard the district court may later devise?

I’m guessing the latter, which means that there’s likely more litigation ahead. As always, stay tuned.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/29/district-court-overturns-magistrate-decision-rejecting-seize-first-search-second-procedure-for-email-warrants/

An open letter to Volokh Conspiracy readers who are Trump supporters

Donald Trump holds a rally with supporters in Waukesha, Wis., on Wednesday. (Jonathan Ernst/Reuters)

Some weeks ago, in one of my periodic postings about Donald Trump’s lack of fitness to be president of the United States, I dropped a casual remark to the effect that I assumed that none of my readers were misguided enough to take him seriously, or to serve as a volunteer in his campaign. Several commenters took me to task for the remark; “what kind of bubble do you live in?” one asked.

It’s a fair question, and fair criticism. It did make me reflect a bit on the “bubble.” It is true that, for the first time in my life, spanning more than a dozen presidential elections, a major-party candidate does not have support from a single friend of mine — or even from a close acquaintance. Maybe it’s just because I spend most of my time either in the District or Vermont, and finding Trump supporters in either of those jurisdictions is a very difficult task. I suspect, though, that it reflects something more insidious, and that we are really, finally, collapsing into separate camps, each with its own favored newspapers, and websites, and TV news channels, and so on, and across whose boundaries nothing passes.

So in the spirit of constructive engagement, let me ask a couple of questions, regarding things that I really do not understand in connection with Trump’s candidacy. I understand many people’s hostility to Hillary Clinton, though I don’t share it to a great degree, and I understand the desire for “change” in Washington, and the notion that the ruling elites have failed miserably to address many of our problems. And I understand that people can have different, and more Trump-friendly, views than mine on all sorts of policy questions, on everything from immigration to gun rights to international trade and the rest.

I get all that. But here’s what I don’t get.  Trump is unstable — what the Arizona Republic newspaper, in endorsing a Democratic nominee for the first time in its 126-year history, called his “inability to control himself or be controlled by others,” and his “reckless … lack of propriety” — and unstable people should not be put in command of our armed forces and our nuclear codes.  The U.S. commander in chief has awesome, and virtually unconstrained, power to commit U.S. forces to battle and to dictate to the generals — generals sworn to obey his orders — how those battles should be fought, up to and including the use of nuclear weapons.

For me, the election conversation really starts, and ends, here, before you get to immigration policy, or climate change, or SCOTUS appointments, or international trade, or law and order, or any of the other issues the next president will have to deal with, and I don’t understand how Trump supporters get past this point.

So my question is: Which part of that formulation do you disagree with? That he’s dangerously unstable? Or that it matters, as a dispositive criterion for choosing a president? Trump has a secret plan to deal with the Islamic State; you trust that he will act reasonably and prudently in pursuit of that plan because …?

I don’t mean these as rhetorical questions, and I’m not trying to be snarky or sarcastic.  I genuinely cannot imagine an argument in support of putting that kind of power — the power to kill, and to get American soldiers killed — into this guy’s hands.

And please, if you do care to respond, I ask that you NOT tell me about how terrible you think Hillary Clinton is. I get that; many of you think she’s an abomination. Many of you may even think that she’s dangerously unstable and shouldn’t be entrusted with the commander in chief’s power. Fine; put that all aside. My question isn’t “Whom do you like more, Trump or Clinton?,” nor is it “Why aren’t you supporting Hillary Clinton?” (or Gary Johnson, for that matter). It’s a much simpler question, and it’s just about Donald Trump. For purposes of this question, it doesn’t matter who he’s running against; the failings of other candidates don’t affect his standing on the one test that matters most of all. If you’re a supporter, I assume that you’ve satisfied yourself that he will exercise the rather awesome and terrifying powers of the U.S. commander in chief in a reasonable manner, and I’m curious as to how you’ve done that.

And I have a second question: What makes you think that you’re not being scammed?  This guy’s the master of the scam — it has been his M.O. for years.  Short of tattooing “CON MAN” on his forehead, how much more obvious could it be? Trump University! The Trump “Charitable” Foundation!! The Trump Institute!!! Every one of them is a con job. You can bet that in a quiet moment, talking with friends, he has a word to describe all the folks who shelled out their hard-earned money for his worthless junk: “suckers.” One born every minute, or so I’ve heard.

So even if you like all his policies, what makes you think he will follow through with anything he promises? Why would you believe that? Don’t you think that you’re going to wake up one morning during a Trump presidency and smack your forehead with your palm and say, “Damn! He conned us!”? If not, why not?

It’s a lousy feeling, the feeling that you’ve been taken in by a scam, as I can testify from personal experience. I fell for a scam once, more than 40 years ago; the experience seared itself in my memory, and I can recall it vividly to this day. I picked up a guy hitchhiking on Interstate 95; he was going back, he said, to his Army base after a weekend leave. Really good guy; we hit it off, had a really nice, earnest conversation about things, over the course of three or four hours.  I ended up lending him 50 bucks — a fair bit of money back in those days, at least for a grad student on a stipend that I think was around $1,800 a year. I think I may have even been the one who suggested the loan, which would enable him, by taking a bus back to base rather than hitchhiking, to be sure to arrive back in time. He promised, of course, to send me a check the moment he got back to his barracks — and he gave me his address in case there was any problem at all. Like a dope, I believed it, at least until I sent him a gentle reminder at the address he gave me — and it was returned to sender as undeliverable. At which point I had my palm-smack-to-forehead moment. Schmuck! You believed him!! Although I suppose in retrospect, 50 bucks was a small price to pay for the lesson in the need for healthy skepticism.

The thing that makes Trump’s con job so obvious, to me, is not just his history of scamming people, appalling though that is. It’s that even if he were being sincere in all the things he’s promising, he’s not going to deliver because he’s not going to be able to deliver, and he’s not going to be able to deliver because he hasn’t the faintest idea, and has completely surrounded himself with people who themselves haven’t the faintest idea, how to get anything done using the levers of the federal government.

It’s not a trivial problem. That’s the thing about the Constitution: Presidents (unlike, say, chief executives of privately held corporations) can’t just snap their fingers and get things done (except, terrifyingly in this case, in their role as commander in chief; see Question 1). All of Trump’s promises — to “overhaul the Tax Code,” to”unleash America’s $50 trillion in untapped shale, oil, and natural gas reserves,” to “deliver safe neighborhoods … all across this country [and] to make our communities safe again from crime and lawlessness,”  the whole lot of them — will require navigating a very complex world of law-making and law-applying, comprising 435 representatives, 100 senators, countless interest groups clamoring for their preferments, enormous federal agencies with complicated agendas of their own. We can all wish, perhaps, that it weren’t so; but it is so.

And while it is true that this affects all presidential candidates, all of whom make sweeping promises to do this or that, and then, when they get into office, are unable to just snap their fingers to get them done, there is a difference here: We have never, in the history of this country, had a major-party presidential candidate who knew less about how governments at any level function and actually get things done than Donald Trump. This ain’t Ronald Reagan, folks, who had spent eight years figuring government out as governor of California. It is fantasy to think that Trump is going to somehow miraculously figure it out. Trump will be very lucky if Congress and all those interests and bureaucrats don’t play him like a violin — implementing his agenda? Hard to imagine.

A cautionary tale: Trump is not the first snake-oil salesman or con man to seek high elected office. A few weeks ago, I read the first of the four volumes of Robert Caro’s sensational biography of LBJ, entitled “The Path to Power,” covering Lyndon Johnson’s boyhood and early political career (up to around 1940) in Texas. Caro’s book is peopled with all sorts of amazing characters I had never heard of or knew next to nothing about (John Nance Garner; Johnson’s father, Sam Ealy Johnson; Sam Rayburn; Herman Brown, a founder of the Brown & Root engineering and construction company; political operative Alvin Wirtz), a dozen or so of whom get full-blown mini-biographies inside of the overall narrative of LBJ’s life.

One of these characters was Wilbert Lee “Pappy” O’Daniel. O’Daniel was a salesman for the Burrus Mills Flour Co. who started, in the late 1920s, hosting a Burrus-sponsored half-hour radio show, featuring “hillbilly music” (by a group called the Light Crust Doughboys, which for a time included Bob Wills, later to become one of the legendary founders of Texas “swing”), songs that O’Daniel wrote and some religious homilies. He was, apparently, terrific at it — H.L. Mencken’s American Mercurymagazine called his on-air persona “Will Rogers and Dale Carnegie and Bing Crosby all rolled into one” — and the O’Daniel show became a statewide sensation. In 1935, he took some of the money he had made and started his own flour business — Hillbilly Flour (whose slogan, “Pass the Biscuits, Pappy!,” strikes me as a little more upbeat than “You’re fired”) — and began broadcasting as Pappy O’Daniel and the Hillbilly Boys.

He was Texas’s first real statewide media star. In 1938, he ran for governor.  The story is that Carr Collins — an insurance magnate, radio station owner and seller of Crazy Crystals, minerals that allegedly acted as a laxative when drenched in water — suggested to O’Daniel that running for governor would be a great way to market his flour. Pappy introduced the idea to his radio audience by reading a letter, supposedly from a blind listener, urging the broadcaster to enter the gubernatorial race. O’Daniel told his listeners that he’d run, but only if they wanted him to, and that they should send in a postcard giving their view on the question. On his next show, he announced the results: “Yes” carried the day, 54,499 to 4.

So Pappy and the Hillbilly Boys hit the road. His “platform” consisted largely of the Ten Commandments, and one central promise: a $30-per-month pension for every Texan older than 65.  His campaign rallies — which drew, to the amazement of political observers, enormous and frenzied crowds — featured a few words from the candidate, often including one of his homespun poems, a pitch for his Hillbilly Flour and a whole lot of free barbecue and music by the Hillbilly Boys. Nobody — certainly not any of the other 11 (!) candidates —  took him seriously for two seconds, until he beat them into the ground, garnering over 50 percent of the vote in the 12-man field.

Way to go, Pappy! Rich guy becomes media celebrity and parlays that into a position as chief executive.

Sound familiar? [Back in February, Jesse Walker, over at Reason, had a terrific piece on the Pappy/Trump parallels.]

But here’s the thing: Pappy never got anyone a pension. He was — surprise! — completely incapable of manipulating the levers of power at his disposal to get anything of substance done as governor. Other promises he had made from time to time on the campaign trail — to eliminate the poll tax and capital punishment — fell by the wayside as well. [You can read more about O’Daniel here at the Texas State Historical Association, and at Wikipedia here.]

It’s sad, really; a lot of people, played for suckers. A universal pension of even $30 per month would have alleviated a great deal of misery in Texas, and the state almost certainly had enough money to pay for it. The immense East Texas Oil Field — 5 billion barrels of oil, more oil than the geologists’ estimates of total global petroleum reserves at the time — started pumping out oil in 1930 and 1931, and by the time of Pappy’s triumphant entrance into Austin, there was lots and lots of money pouring into Texas.

But Pappy had no idea how to pull it off and failed to get much of anything done, because it turns out getting governments to get things done is a complicated business, requiring some cajoling, some threats, some compromise, the assembling of coalitions and all the rest. [And just to complete the tale, the senior citizens of Texas did, of course, eventually get those government pensions. It’s called Social Security, which began its payouts in 1940, and it took someone — many people, actually — who actually understood how governments work to make it happen.]

So that’s Question 2: Assuming you can get past the commander-in-chief problem, what makes you think that the outcome of Trump’s presidency would be any different from the outcome of Pappy O’Daniel’s governorship?

I’m looking forward to reading your responses.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/29/an-open-letter-to-volokh-conspiracy-readers-who-are-trump-supporters/