The system may not always work, but it does take its revenge. ~ Charles Krauthammer
The Last Word - 03/15/17
The concepts logical and politics rarely go together, but Bill Ganz was the logical choice for mayor this election cycle. Ganz is a living encyclopedia of Deerfield Beach government. With eight years of commission service and many more years of study, Mr. Ganz probably knows more about the history and inner workings of the city than almost anybody. His main opponent, the newbie, judging from his statements and scatter-brained plans to solve the sober-home issue, was simply not ready to be mayor — by a long shot. The voters obviously agreed.
I was surprised at the strength of the two black candidates for mayor. Together, they garnered around 35 percent of the city-wide vote, only a couple of hundred votes shy of the winning candidate, Bill Ganz, but far exceeding the vote for his main opponent, Ken Wayne.
It was a dirty election — the dirtiest I've seen in some time, instigated mainly by the anti-Ganz contingent. Soon-to-be Mayor Bill Ganz and the other candidates, to their credit, kept their civil cool throughout the campaign even though some of the propaganda leveled against Mr. Ganz bordered on libel. It might be worth investigating further the more-or-less anonymous Deerfield Beach Solutions, which claims to be a group (defined by law as two-or-more persons) to determine if it should be registered as a PAC and make the required disclosures as to who they are and who bankrolls their effort.
It is a person's right to express his opinions anonymously, or under a made-up name, but if it is a group, as claimed, that raises and/or spends more than $500, electioneering, it is required to register as a PAC (state law) and make full disclosures.
In any event, the tumultuous era of Jean Robb politics is over. I look forward to the the city commission conducting its affairs in a more civil and business-like manner in the coming years. Maybe not as entertaining, but just better.
As a footnote, I would like to see the commission take up the subject of term limits. There are compelling arguments on both sides of this issue. See if the voters would like the chance to keep people they like on the commission beyond the now-mandated eight years.
Ken Wayne's Insurgent Campaign - 03/08/17
Ken Wayne is the insurgent candidate in this election. He's allied himself with Mayor Robb and apparently with that small group of people who gripe about just about everything the city does. He is supported by the anonymous attack group, Deerfield Solutions, which even had to retract one of its inflammatory, in fact, defamatory articles about Bill Ganz.
The Sun-Sentinel summed up Mr.Wayne this way: "He's not what Deerfield needs at the top."
Mr. Wayne's written platform contains all the routine good government promises. Of course, everybody supports ethical, fiscally responsible city government, lower taxes, etc. The question, therefore, is not so much what the candidate is for, but how he can achieve these things as a member of a collaborative legislative body. Nothing in Wayne's résumé suggests he is any better qualified than any of the other three candidates for mayor. In fact, his lack of experience and obvious lack of knowledge about Deerfield Beach city government would seem to make him the least qualified.
To achieve anything, any mayor or commissioner must work well with and build consensus with the city manager and the other commissioners. This was one of the failings of Mayor Robb, who managed to alienate most of her fellow commissioners, not even to mention city staff. Bear in mind that the mayor is one vote of five, is not in charge of the city, and can't do very much alone without commission support and a good working relationship with the administration.
Not in his published platform, but elsewhere, he's called for the ouster of the city manager, Burgess Hanson (Next Door post, Jan. 10). Going to war with the city manager, with whom he has never worked, would not be a constructive start, it seems to me, to building any sort of collaborative effort among the commission or with the public. Calling for Mr. Hanson's termination would only create havoc and discord ... and for no good reason that Mr. Wayne has articulated.
Elimination, or at least containment, of sober homes is apparently Mr. Wayne's key objective as it is the only area where he's made any concrete proposal. It seems, however, he has moved away from his "dubious" moratorium scheme to a different proposal. "Although we must be compassionate in caring for those struggling with addiction," he writes, "We must enact zoning laws to prohibit a construction or establishment of a new 'sober' house or drug treatment facility within three miles of a school, playground, daycare or residential community with at least one hundred units of housing." [Emphasis added.]
If the moratorium idea was legally questionable, this is down-right crazy, and hardly compassionate. Such a zoning law would be, essentially, an out-and-out ban, clearly violative of the matrix of federal laws and regulations requiring "accommodation." I cautiously assume that Mr. Wayne knows the difference between a sober home and drug treatment facility, which are governed by separate rules. Presumably, putting recovering alcoholics into the same category as, say, convicted sex offenders, would be prima facie evidence of a discriminatory intent against a protected class when the law suits roll in.
To win this, the city would have to prove it has a very high compelling interest to keep sober homes and treatment facilities far away from schools. I don't see it. School children face far more danger from drunk drivers than from recovering alcoholics.
I have to wonder whether Ken Wayne came up this new idea all on his own or it was planted by one of his more imaginative supporters. No question that sober homes present problems to the city, but tackling these problems requires sound and — forgive the pun — sober thinking. This plan sounds to me like it was the product of tee many martoonis and not-so-subtle bigotry against a particular group of persons.
What the city needs now (and always for that matter) is sound thinking by people who actually know what they are talking about — sober homes and myriad other city issues. What we least need are screwy plans that will never pass anyway from someone who drops out of the woodwork and has absolutely no experience with and little knowledge of the city, but thinks he is the future of Deerfield Beach by appealing to the zany complaints of a handful of chronic complainers. I can only hope that the 12 or 15 percent of voters who actually show up to vote see it that way.
Jean Robb for Mayor? - 02/21/17
Mayor Jean Robb seems to be the main champion of Ken Wayne. Is she running for mayor or is Ken Wayne?
The other day I received a flier in the mail and whose picture was on it? Jean Robb's. Wayne's was on the other side. I also received a letter from Ms. Robb promoting Wayne's candidacy. Is Ken Wayne running as Jean Robb Light? It kind of looks like it.
I have no doubt that but for health reasons Robb would be running for reelection. I don't know if she actually likes Wayne, but she would back anyone who has a snowflake's chance of beating out her arch rival, Bill Ganz, who called her out on her ethical missteps. This is how Mayor Robb operates. Revenge, revenge, revenge. In this election, Ken Wayne is the snowflake.
Wayne persists in his call for a moratorium on sober homes. He's using as his model Boynton Beach, which has imposed a six-month moratorium. Legal experts have publicly declared that Boynton's action is illegal and would be overturned if litigated, possibly at some cost to Boynton Beach (see my previous article).
Based on his emails to me, Wayne is under the impression that the city is doing nothing about sober homes in light of the recent HUD/DOJ guidelines. Not true. The city attorney is reviewing the guidelines and closely monitoring how other cities might implement them. He has also discussed the new guidelines with at least some of the commissioners. There is no reason for a moratorium and a moratorium is not under consideration, according to my sources. It would accomplish nothing except expose the city to lawsuits.
No one is really for sober homes, especially in single-family neighborhoods. But the law is the law. Nothing in the new guidelines — people should understand this — is going to stop the proliferation of legitimate
sober homes in our town. They might give the city a bit more control.
I also received a letter from the Republican Party suggesting I vote for Wayne because he's a Republican. I thought this was a nonpartisan election.
To this I say: I am a life-long Republican, but when I enter the voting booth I'm not a Republican or Democrat or Pink Panther. I vote for the candidate who I believe is the best qualified even if he or she is (ugh!) a Democrat. This is true even in partisan elections.
Anyone can register as a Republican or Democrat or whatever. This alone does not make him qualified for anything.
In this election, I find nothing that convinces me that Wayne is the best qualified candidate for mayor or that he even has a working knowledge of the city's operations. I'm going for the most experienced and knowledgeable candidate, who actually understands how the city operates under the city manager system and what it needs to focus on in the coming years. By any measure, that's Bill Ganz. In any event, we don't need a trainee as mayor. And after four years of tumult, we certainly don't need Jean Robb Light.
I'm casting my vote for Mr. Ganz.
Mr. Wayne's Perilous Plan - 01/26/17
One of the candidates for mayor, Ken Wayne, has proposed a "Moratorium on Neighborhood Sober/Drug Homes."
We all understand that the intrusion of sober homes (that are, after all, businesses) into single-family neighborhoods is a vexing problem for people directly impacted by them. If only it were so easy just to ban them. But then, there is Reality.
Recovering alcoholics and addicts are protected. They are disabled or handicapped persons under federal law. The Fair Housing Act, 42 U.S.C. § 3604(f)(1), is very clear. It makes it unlawful to
discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap[.]
Suppose that the city were to impose a temporary ban, moratorium, or total ban on sober homes in family neighborhoods. The owners of sober homes and possibly some residents of sober homes would sue. The city would lose. The city could incur substantial litigation costs and could be held liable for damages.
The city of Newport Beach, California, tried something like what Mr. Wayne proposes. The resulting controversy stretched out over seven painful years. The case went all the way to the U.S. Supreme Court, then down again. Newport Beach lost. It finally settled the case, agreeing to pay the plaintiffs $5.25 million for damages. It spent $4 million in legal costs. And, guess what, Newport Beach still has at least 25 sober homes according to The Orange County Register.
Mr. Wayne needs to rethink his perilous sober-home plan. It is foolish and impractical. It could cost the city a lot of money.
Of course, the legal aspects of the sober-home issue are a bit more complicated than what I've explained. There are people — experts — who are looking for solutions with HUD and DOJ that will better protect impacted cities. But the basic laws, outlined above, are probably here to stay.
The Last Hurrah - 01/24/17
One of the most important issues in the coming years for Deerfield Beach government in the coming years is how we pay for it. The city provides hundreds of services — almost too many to count — for its residents. Some are clearly needs, like public safety. Many more are, in cold-analysis terms, wants, like a well-maintained beach. But we want these things because we imagine they enhance our life. The list of wants is almost infinite, but the money to pay for them is not.
So the year is 2047, 30 years from now. It's Feb. 19, the third Tuesday in February, and the city commission of Deerfield Beach is about to convene. For the last time.
A few years before, the city got into trouble. It could no longer pay for its programs and services and meet its obligations. As a last resort, it filed Chapter 9 bankruptcy. As a result of that litigation, the city and state reached an agreement that, effective Mar. 1, 2047, all of the property, assets, debts, and instruments of government of the City of Deerfield Beach would be transferred to Boca Raton, one of the four boroughs of the newly-formed South Florida Regional Authority (SOFRA), a new experiment in municipal government.
A major reason for this situation is the tremendous expansion of population resulting in ever increasing demands on the city — basic services, water, law enforcement, parks, etc. that the city just could no longer afford without horrendous taxes, outrageous user fees and assessments, considerable outside funding, outsourcing, and privatization.
The meeting is called to order at precisely 6:45 by the mayor. This meeting, the last, is largely ceremonial, transferring power from Deerfield Beach to a much larger and more remote urban entity. It's the last hurrah for small-town Deerfield Beach.
While the foregoing scenario may seem improbable, it makes the point that big changes could be coming to Deerfield Beach in the coming decades that may significantly change the way we govern the city and provide our services. Whether a regional government will come about within the next 30 years remains to be seen, but I am certain it will be discussed (possibly implemented) as it has been in other metropolitan areas. We've already seen some movement in that direction with the consolidation of municipal services at the county level and with interlocal agreements between municipalities to provide services. Little question that our population will continue to expand (it's now projected to be 80,000) and a good part of the expansion will be so-called minorities and foreign-born workers, as well as retirees and younger people in the service sector.
In 1950, the population of Deerfield Beach was less than 3,000. It could aptly be described as a small Southern town. But it wasn't destined to remain a small Southern town. Large metro/resort areas were developing both to the north and south of us. The whole area, including Deerfield Beach, was becoming a Mecca for retirees seeking winter refuge from colder northern climes, and Deerfield had plenty of reclaimable land to accommodate them.
On the political front, the school desegregation decision, civil rights laws, the Voting Rights Act, the Home Rule Act, the Charter of 1979, and, later, single-member districts, term limits, and ethics laws brought about profound changes to local government and politics. There is no reason to believe that equally profound changes are not going to happen in the coming years. Certainly, how we finance our local government in the future without strangling taxes will be a core issue for years to come and will require some innovative ideas.
Which brings us to now, 2017. In a few weeks, we will have a new city commission. We will have a new mayor, a new commissioner in Dist. 4, and possibly a new commissioner in Dist. 3, where the low-key incumbent, Richard Rosenzweig, is being challenged by the swaggering head of the Democratic party club in Century Village, Bernie Parness. Perennial candidate Caryl Berner has also filed in Dist. 3.
In Dist. 4, attorney and Ganz ally Todd Drosky has a distinct advantage over his chief opponent, Joe Hines. Hines is mainly a talker, frequently speaking before the commission. Drosky has hands-on experience as chairman of the Planning and Zoning Commission and as head of the West Deerfield Community Alliance. Drosky also served on the ad hoc ethics advisory committee several years ago, which drafted some changes to the ethics code.
The mayor's race, a city-wide election, could get interesting, or it could be a crushing bore, depending on how you feel about the negative propaganda, mostly anonymous, already being put out by the anti-Ganz faction. Well, we kind of know who they are. Ganz is attackable, if that's a word, because he's actually done something in Deerfield Beach (which invites criticism, sometimes, and makes enemies), unlike his main opponent, Ken Wayne. The more Mr. Wayne says the more we know how little he knows about the history and workings of the City of Deerfield Beach.
Anyway, history is on Ganz's side. Every single elected mayor of Deerfield Beach had prior commission service. Ganz has served eight years on the commission and was deeply involved in local affairs before he was elected. In other words, he knows something about city government. In fact, I can tell you, because I've had several meetings with him, that Mr. Ganz knows a whole lot more about Deerfield Beach government than most of us. So far as I know, Mr. Wayne has no record of service for Deerfield Beach and no special expertise applicable to this city. Commission service may be grade school, but the mayor's position is not, or shouldn't be.
As for the other two candidates for mayor, Ben Preston and Gwendolen Clarke-Reed, I see no path to victory for either. Both are capable people. Both have served as commissioners from Dist. 2 and Clarke-Reed served in the state legislature. Mr. Preston, especially, has lots of good ideas and would be a fine mayor. However, to be elected mayor, a candidate has to reach beyond his home district and neither shines enough to do that this time around.
Submitted, what the city needs now is public officials who know what city government does, what it can do, and what it can't do, advised by professionals who understand the laws and the realities, not by the crackpot faction who work under the cover of anonymity in some cases.
If I were to advise a candidate for public office, especially a "newbie," I would suggest he or she reads, and re-reads, the city charter from front-to-back. He should be familiar with the Sunshine laws and laws that relate to official conduct. In the case of Deerfield Beach, he needs to know about the laws concerning sober homes and understands that the residents of such are a protected class under federal law. Unfortunately, one of the mayoral candidates, in his statements, has demonstrated an almost total lack of knowledge about these issues, or has been wrongly advised.
In the upcoming election, this is the bottom line. To get back to my original point, the first priority is how we pay for the City of Deerfield Beach in the coming years. The answer to this very complicated question and to many other problems the city faces should rest with competent and experienced people, not with people who fall out of nowhere and think they can run city government just because they can find City Hall.
The Jean Robb Dilemma - 09/22/16
Mayor Jean Robb is and has been something of a problem for the city commission since she took office nearly four-years ago — in terms of the way she conducts commission meetings, in some instances, and her personal behavior in certain others. Do they censure her (again)? Can they kick her out? Probably not, the latter, but it makes for interesting discussion.
The latest flap occurred when she stormed out of a commission meeting when a motion she proposed failed to gain a second. The commission has since censured her, after some discussion, by a unanimous vote. This is not the first time the commission has reprimanded the mayor, both formally and informally, and it hasn't worked.
Censuring Mayor Robb is a bit like my getting my cat off the computer desk, like right now. I can say, "Be a good boy and get down" or resort to physical force to get him off my keyboard. In either case, it leads to a stand off, which I generally lose. In the case of Jean Robb, historically, censures have gotten us nowhere fast.
Presumably, Jean Robb like the rest of us, wants to leave a positive legacy when she passes the torch or passes on from life. I'm afraid Mayor Robb's legacy will not be very good.
It's a darned shame, too, because Jean Robb is not all-bad. We can admire her for her many, many years of public service, her willingness to dive into the rough-and-tumble of local politics, and her continued interest in city government. In that sense, we need more people like her.
For several years after I launched this website, Ms. Robb and I carried on an active correspondence via email. Sometimes we disagreed, but it was usually friendly and civil, and I learned a lot about the history of local politics from her. Still, I voted for and endorsed the reelection of Mayor Noland, with whom I had numerous disagreements, because I feared that another Robb term would reprise what one newspaper called the "chaos" of the earlier Robb Era (1980-1993).
I could have been wrong. I hoped I was wrong, but unfortunately, my fears were justified. I would not necessarily call it "chaos," but the way she conducts meetings and her occasional shenanigans like the latest incident are simply not good. We can do a whole lot better.
I'm deeply saddened because it could have been different — better. But Mayor Robb's conduct, the ethics complaints, and her refusal to reform herself only serves to undermine the trust and confidence residents have in their city government. The only effective answer is to make sure her fourth term as mayor (this one) is her last.
Citizens Disunited - 05/07/16
Congress shall make no law...abridging the freedom of speech, or of the press.... ~ First Amendment
By now, most everyone has heard about "Citizens United." What the heck is it, anyhow? Word of advice: Don't believe everything you hear or read about it. But because of the words above, you are perfectly free to form your own opinion about it and to talk about it to as many people as you want.
To constitutionalists, the First Amendment says what it means and means what it says: Congress shall make no law abridging (or interfering with) freedom of speech. In other words, the government cannot censor speech in most cases, and it cannot ban certain people or organizations from speaking, especially on political and social issues.The utility of this prohibition is self-evident in a representative, open-government democracy, which is dependent on the widest possible exchange of ideas and opinions. Undeniably, there are consequences to this "absolutist" approach to the First Amendment. It means that some people will say things we don't like. It means that people with lots of money have greater ability than the rest of us to advocate their causes or support or oppose candidates for public office to a larger audience. It is because of the almost inherent inequality that money brings to the political system that some far-left politicians, including Senator Bernie Sanders, want to discard or weaken the "antique" idea that the First Amendment freedom of speech clause affirms a fundamental, inalienable right, applicable to everybody, the Congress and states simply cannot fiddle with very much — to run over the First Amendment, if necessary, to rein in the power of big money in politics.
The problem began, I surmise, when humans learned to talk and learned that value can be exchanged for value. "I'll do this for you if you if you do that for me." In politics, money, as a species of value, talks. Then we discovered that sound could be converted into electromagnetic radiation and be transmitted over great distances to multitudes of people. No question that sweeping advances in technology and mass media have enlarged the problem that big money talks loudest. In the olden days, we called it graft or Tammany Hall — now we call it negative advertising.
Suppose the city commission of Deerfield Beach were to pass an ordinance prohibiting people other than candidates or newspapers from using the Internet or social media independently to advocate for or against candidates for commission or mayor within 60 days of the general election in March. Violators could be fined or even jailed. Even if somehow justifiable, would that fly?
It's not an exact analogy, but this is what Congress tried to do, in effect, with the Bipartisan Campaign Reform Act of 2002 (BCRA) (also known as McCain-Feingold), 2 U.S.C. § 441b, to shut down some well-funded advocates around election time. Specifically, § 441b prohibited corporations or trade unions from using their general treasury funds to "electioneer," that is, to support or oppose candidates for federal office, using mass media, within 30 days of a primary election or 60 days of a general election. This provision was struck down as unconstitutional by the Supreme Court in Citizens United v. Federal Election Commission, in 2010.
Nearly every time he speaks or interviews, Sanders rails against "Citizens United," which he calls "disastrous." The president and also Sanders' opponent in the Democratic presidential race, Hillary Clinton, have spoken out against the Court's decision, while, interestingly, their supportive PACs and super-PACS, so called, have taken full advantage of it. In fact, in the 2012 election, Obama's PACs raised $131 million and, this year so far, Clinton-friendly PACs have garnered $76 million. (Source: MSNBC)
Meanwhile, Senator Sanders calls for Citizens United to be overturned. He sponsored a constitutional amendment to reverse the case. He says that the decision enables "billionaires" to gain undo influence over public officials. This is like saying water is wet, unless it takes the form of ice. Of course, people support candidates in any number of ways hoping to get the ear of the candidate if he is elected to office. You know, value for value. So, the solution in Sanders opinion, is to freeze or cool down the rights of individuals, corporations, and other organizations to make independent expenditures on behalf of candidates for federal office. In the case of McCain-Feingold, it was not how much people could spend, but when they could spend it.
I would be willing to bet that no more than one-out-of-100 of his supporters have the foggiest notion what Sanders is talking about. He is talking about the Citizens United decision, of course, but probably far fewer than the one-out-of-100 have actually read the case.
The late Justice Scalia once said in an interview that people who criticize Supreme Court decisions should at least read the Court's opinion. He may be right, but the fact is few people do. Court decisions are written mostly for lawyers and judges. They can be lengthy and academic. Citizens United would certainly fit that description. Bedtime reading, it is not. It is my personal opinion that Senator Sanders has misrepresented the decision to his followers in certain respects. Whether this is intentional or not, I don't know, because he is not a constitutional scholar, but the fact remains that not many people know what the case was really about.
Having made that claim, it is my purpose to provide a simple, compact overview of the case. It may be useful, however, to start with what the case was not about.
First, it was not about direct campaign contributions. Pre-Citizens United limits on campaign contributions at the federal level remain intact and apply equally to billionaires and poor slobs alike. The Supreme Court has upheld most campaign contribution limits in numerous decisions. As a point of interest, there is a case rattling around in the D.C. Circuit challenging campaign contribution limits based on the Citizens United rationale, but it remains to be seen how far this case goes.
What Citizens United was about is independent expenditures (i.e., money spent for advocacy in no way connected to any political campaign) and not just any independent expenditure, only those made for "electioneering" within the 30-60 rule. There was no limitation in the law before Citizens United on what individuals, corporations, trade unions, or other associations of people can spend advocating on issues that have nothing to do with a political campaign for office at the federal level.
Second, the case was not about "billionaires." Both pre- and post-Citizens United, "billionaires" can spend any amount of their personal funds, and however they want, to advocate for their causes and candidates, as long as it's not a direct campaign contribution. In that respect, nothing changed by this decision.
Third, the Supreme Court did not declare that "corporations are people," in this or in any other case, as some people seem to believe. In fact, the Court has a long history of cases (some of which are listed in the opinion) holding that corporations, as associations of people, have certain rights under the First Amendment just as they have due process rights under the Fifth.
What, then, was Citizens United actually about? The plaintiff in the case below, Citizens United, was a PAC organized as a non-profit corporation, that received some of its funds from business corporations. This was not a secret. Citizens United produced a movie during the 2008 election cycle unfavorable to Hillary Clinton. Clinton was a candidate for the Democratic Party nomination for president at the time.
The movie was to be made available on on-demand cable for whoever wanted to watch it and was not broadcast over the air waves. However, what the PAC wanted to do in addition is broadcast ads or trailers for the movie on regular channels during the 30-60 limit. But given the complications of § 441b and the implementing FEC rules, it was not clear if they could do this without facing criminal penalties. The FEC said they could not, and a three-judge district court sided with the FEC. Citizens United appealed directly to the Supreme Court. Except for one part, the Supreme Court reversed in a 5-4 decision. Justice Kennedy wrote the Court's main opinion.
There were a number of issues in this case, but two were most relevant to this discussion: (1) Can Congress decide that advocates who happen to take a corporate form be banned from "electioneering" simply because they are a corporation, or, for that matter a trade union? The law did not say that people who associated in a corporate form or as a trade union could not advocate for causes when and how they wanted or even to advocate for or against candidates for public office at the federal office, only that they could not do so within a particular time frame in proximity to an election. But it wasn't that simple, because the rules set down by McCain-Feingold and the FEC regulations as to what constituted "electioneering" were so complex and difficult to navigate that, in practice, a group like Citizens United would have to seek permission of the FEC in advance to avoid criminal prosecution. Several groups have been fined for violating these rules. So (2) can Congress decide that certain groups cannot support or oppose candidates for federal office, if indeed it constitutes "electioneering" under the rules, within 30 days of a primary election or 60 days of a general election?
In both instances, the Court said no. The Court held, first, that § 441b's prohibition on corporate expenditures is an outright ban on political speech, backed by criminal sanctions not permitted by the First Amendment. Because speech is an essential mechanism of democracy — it is the means to hold public officials accountable to the people — political speech must prevail against law that would suppress it by design or inadvertence. Laws burdening speech, to be constitutional, require the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.
Premised in mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The government may also commit a constitutional wrong when by law it identifies certain preferred speakers. "We find no basis," Justice Anthony M. Kennedy wrote for the Court, "for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion."
With respect to the second issue, the Court determined that while the regulatory scheme (the 30-60 rule and the complicated rules to determine if proposed speech is "electioneering") may not be a prior restraint by design, the complexity of the rules may require a speaker wishing avoid criminal prosecution when in doubt, to seek permission of the FEC in advance. The restrictions thus function as the equivalent of prior restraint, which is not permitted by the First Amendment. The case at issue is an example. In other words, it is long-standing and fundamental First Amendment jurisprudence, that while consequences can flow from what people say (e.g. libel), in most instances they cannot be told what to say or not to say it or be required to seek advance permission.
The underlying message of Citizens United, I think, is that the First Amendment cannot be degraded or lightly cast aside in the area of political speech no matter how noble the cause. Justice Kennedy's concluding words:
Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the "purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value" in order to engage in political speech [under the McCain-Feingold law]. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design.
Some members of the public might consider [the movie about Hillary Clinton that Citizens United produced] to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. "The First Amendment [quoting a previous Court decision] underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it." [Citations omitted]
Justice Kennedy also wrote this: "When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."
So what do you think?
Rethinking Land-Use Policy - 12/26/15
I recently read a thought-provoking article—somewhat challenging to the way we usually think about this issue—concerning land-use regulation by cities across the United States. It seems there is a growing school of thought among some legal scholars and other experts in the field (from both sides of the ideological spectrum, I might add) questioning the effective impact of some land-use policies. For example, do restrictive zoning patterns in some cities discourage the development of housing most people can afford? I would reframe the question: Is the purpose of zoning, as an example of land-use regulation, to protect residents of these cities from "bad" development, or to encourage and facilitate higher-end development to the effective exclusion or even displacement of more affordable housing? There's a big difference. Look down the street at Fort Lauderdale beach.
Let's look at this question as it may specifically apply to our city, Deerfield Beach.
The purpose of our city government is quite clearly stated in the preamble of the city charter. It is "to protect the health, welfare and safety of its residents, and promote honorable, efficient and responsive government...." This is also the basis of the city commission's vast, though not boundless, legal authority. I would argue that the part of the statement I've italicized is one constraint. Residents come first. Developers and other special interests, somewhere down the list. But how does this work out as a practical matter, not only as it applies to land use, but to the exercise of its other powers?
The city fulfills the charter in many ways. It provides for the public safety. It provides a multitude of useful public services. It prescribes land-use regulations, but to get back to the central question, are these rules really designed to protect residents from incompatible development or to promote development? As a general proposition, I think it cuts both ways depending on how the commission decides on a case-by-case basis.
After the commission passed its famous "puppy-mill" ordinance, just recently, a reader asked me, "Who do these people think they are?" The announced purpose of this ordinance was consumer protection, to protect consumers from unscrupulous animal breeders who allegedly breed and transport their animals under inhumane conditions and sell them through local pet stores. This sort of thing has appeal because hardly anyone, especially pet owners, I included, want to see animals mistreated. A major problem with this ordinance is that it probably does very little to stop these practices, but it may effectively put a couple of local businesses out of business.
So, then, who do they think they are (the "they," I assume, refers to the city commissioners)? One common mindset of our duly-elected officials, I believe, is that they know they have considerable power, the exercise of which is rarely challenged. I'm not questioning motives. But as a practical matter, they can do almost anything they want in the name of the common good, economic development, or whatever, regardless.
Take the case of the Cove Hotel. A fair reading of the current rules, formulated by the commission itself, would make it almost impossible for this project to be approved. The commission approved it anyway, throwing out the Land Development Code, pursuant to an agreement that nobody with legal standing would challenge it in a court of law. Now, the Cove Hotel may be the best-damned thing ever to happen in Deerfield Beach for all I know, but the problem is, if they can do it in this case, they can do it anywhere, because there are other best-damned things out there ready to happen. So much for the "rules," and, for that matter, the rule of law.
Back to the central question, posed by the law professors, what purpose, then, do zoning and other land-use regulations serve or even matter, and whom do they serve? I don't think anyone is suggesting that zoning and other land-use rules be scrapped altogether, because they are necessary and constitutional.
What we need, in my opinion, is a thoughtfully written Land Development Code designed by the city to protect the best interests of its residents, which achieves an almost constitutional-like status in the sense it is actually adhered to.
Okay, I admit, this is an overly simple view of a complex issue. This is not the ideology of the mayor and commissioners, past and present. They are all for growth, "progress," and so-called economic development. One of the commissioners recently stated that Deerfield Beach should not consider itself a bedroom community. Seriously? Of course, we have a considerable amount of commercial development, but we also have 75,000 people who live here, most, I assume, by choice. I don't see our future city as a jumble of office buildings, warehouses, and gigantic hotels. Since the inception of this website, some 15-years ago, I have advocated a land-use (development) policy to ensure that Deerfield is a place where people live, want to live, and can afford to live. Mine is obviously a different view from the one that currently prevails.
Meditations on Another Year Gone By - 10/01/15
This website was born 15 years ago today, on Oct. 1, 2000. It was born in the midst of a conflict that involved an extravagant development plan for the city's revered beach area. In turn, this plan exposed a radical divide in how people envisioned the future of Deerfield Beach. And it revealed, also, just how far the city's elected and appointed officials and friendly media would go to transform the coastal part of the city in their vision. No lie is too big to sell a really bad idea.
People ask me why I do it — write this website — why even bother? I do it because of my intense interest in local government, and I like to write, for starters.
Beyond that basic, I continue to think city government in Deerfield Beach could be stellar if the political will existed. Sometimes, it looks like a lost cause, I admit. I also believe that we do not have to become a concrete, traffic-congested jungle like many of the other coastal cities in this region. Developers, after all, work for their investors (which is fine) and have no specific obligation to serve the public in a good way, either individually or as a community. Despite flowery claims of job creation and such, no intelligent mind could possibly believe that anyone wants to build something to employ people or widen the tax base.
The sole obligation of city government, on the other hand, is to the residents, so there can be real tension between what developers want to do and public opinion, as the Ocean Park referendum issue in 2000 clearly demonstrated. The current hotel proposal for the Cove business district is another case that serves to show the divide. A lot of people oppose the proposal, but, unfortunately, they won't get to vote. Against them is that powerful element within city politics that thinks that "growth" is absolutely the right way to go as a matter of public policy, regardless of the social consequences and even if the rules that are supposed to protect the residents have to be broken or simply repealed. Over the years, most of our elected officials and top administrators have bought into this vision. It seems to be the prevailing view at the present time.
Another current issue is the emerging plan to sell the city's historic Fire Station No. 4 for private commercial development. In this case, the people will get to vote. I will be writing a lot about this as the discussion unfolds, I'm sure.
Local government has many functions. It provides for our safety and offers many services that make our lives as residents more convenient and potentially more enjoyable. And its purpose, according to the charter, "to protect the health, welfare and safety of its residents," implies an awesome power that can be abused if we citizens allow it to happen. The charter also says, lest we overlook it, to "promote honorable, efficient and responsive government."
City government can help make the lives of residents better, but it can't make us happy all the time. In fact, there are plenty of people who are unhappy. One angry resident says Deerfield Beach resembles a third-world country and advocates for scrapping the rules that contain development. I'm willing to forgive hyperbole in political commentary, but seriously?
Thanks to Uncle Sam, I lived in a country for a while that was, at the time, third world compared to ours. No sewers in most places. No trash collection. In the area of law enforcement, due process wasn't even a concept. Let's get real. Deerfield Beach, whatever its imperfections, does not resemble a third-world country.
Of course, there are places that could stand improvement. The Dixie Corridor comes to mind. But it would take a lot of investment, and the money people who could bring it about aren't interested. Developers would rather build hotels and condos for the rich on the ocean side of the city. As a resident of the coastal district, I sometimes wish they would go [the blank] away.
Still, I believe, perhaps naively, that the city could do a whole lot better in our governance. I don't mean better than our past and present self, or just mediocre, I mean better than the rest. If you think that Deerfield Beach is the only city beset with unethical conduct among its public officials, lack of civility, special-interest and vendetta-style politics, you're not keeping up with the news. We can rise above that, I feel, first, by making ground rules for right conduct (that many public officials resist) and holding officials accountable for their actions; second, by electing persons of high integrity to office; and third, by setting the example for really good government.
The land-based elites, of course, see "better" differently. They want Deerfield to look like Boca Raton or Fort Lauderdale or even Pompano Beach at whatever cost. Growth is the name of the game. And the growth-machine mentality buys into it hook, line, and sinker.
Development can be a good thing if it provides for, as an example, the commercial needs of the community — or housing that most people can afford. But keep in mind, most development is not oriented this way and it rarely results in tangible benefits to the ordinary citizen. And if it degrades and disrupts the lives of residents, it's not a good thing.
Take the proposed Cove Hotel, mentioned above and already a topic of discussion on this site. The idea of a boutique hotel in the Cove Shopping Center is not a bad one, necessarily. But this proposal is flawed. First, to approve it will require the commission to disregard or, in effect, to abrogate most of the rules applicable to construction in this area. If they can do this here, in this case, they can do it in any case. What's the point of the rules?
The Cove Hotel issue is not only about a very big building, but about how we elect to govern our city. By the rule of law or by working around it?
Second, the city attorney's office says this would not establish a legal precedent. I'm not sure about that. It's not the circumvention of the laws that sets the precedent, it's the reason — the hardship. So, any developer who wants to build something of similar scale — perhaps anywhere in the city, not just the Cove — can invoke the same hardship. How can he be denied?
Third, the construction of the hotel over a period of one-to-two years will likely disrupt and possibly destroy a number of businesses in the Cove. Moreover, ordinary residents get no real benefit from this project. Do we really believe that property taxes will plummet and hundreds of unemployed Deerfield residents will get high-opportunity jobs? It won't happen.
The mayor has her own plan, apparently. Repeal all those laws and allow for higher and more massive construction in the business districts. Rule of law, Deerfield-style: Change the rules to accommodate special interests. I'd like to see a different direction for the city of Deerfield Beach, Florida.
Deerfield Beach presents a unique opportunity because, at this point in history, it is largely developed, but in a mostly good way, and is uniquely positioned geographically. We have a truly beautiful beach resort area. It doesn't have to be Boca or Pompano. It doesn't have to be snarled with traffic, overrun by population, or a place where only the rich can afford to live.
With right thinking, Deerfield Beach could be a great place for people of all income levels to live and raise families, to feel safe in their lives, and not to live in a perpetual construction zone, fearing they will be next to be displaced by somebody's building scheme.
For years, the vision statement for the city's annual tax-and-spend plan presented in the budget has read: "To be the most dynamic South Florida Coastal Community in which to live, work and play."
Suppose, instead, it read: "To be the best South Florida Coastal Community in which to live, work and play."