Do you have a right to drive with your cell phone? Apparently someone in San Francisco thinks so.

Christopher Null at Yahoo! Tech—one of my favorite tech bloggers—posted yesterday about a billboard in San Francisco protesting California’s law prohibiting cell phone handset use while driving. The billboard, according to Null, is a bit of a mouthful:

Senator Joe Simitian: Your cell phone law sucks. Amazing how 1 man’s bad idea can screw over & inconvenience millions of people in CA. Let’s overturn this law in the next election & protect what rights we still have left.

Try reading that at 65 MPH.

But what struck me about it was the last phrase about protecting rights. Apparently, Grant Paulson believes that he has a right to use a cell phone while driving.

That’s not entirely surprising. Americans seem to believe that we have a right to just about anything. And that’s a problem.

What does it mean to say that one has a right to something? In his book Taking Rights Seriously, Ronald Dwarkin perceptively noted two different ways in which we use the term “rights”:

• Some action by an individual which we (as individuals, a society, or a government) would be wrong to interfere with (the “strong sense”).
• Some action by an individual that the actor would not be wrong in doing (the “weak sense”).

Too often we conflate these two meanings, arguing that the government has no right to interfere with those actions which we would not be wrong in doing. Perhaps if we took an astoundingly strict interpretation of John Stuart Mill’s harm principle (government may limit an individual’s liberty  only to prevent that individual from harming others) one could maintain such an argument. But in practice we widely accept that government may act to bring about the good and not only to prevent harm. That leaves the weak sense of rights primarily a matter of individual ethics, not of politics.

Paulson’s idea that we have a right to use a cell phone strikes most people as absurd, but similar arguments are often made on other issues. Smokers’ rights are based on the same argument: since I am not doing wrong to anyone but myself the government has no right to keep me from smoking. And like the smokers’ rights argument, Paulson can’t even claim that he is doing no wrong, since he is endagering others by using his cell phone while driving.*

So Glen Paulson doesn’t know what rights mean. He seems to argue that he has a right to have his preferences permitted. Is that a big deal? If it merely led to people making asses of themselves, I’d say to go right ahead. The entertainment is fun.

But the real problem is that this approach to rights misunderstands rights in the strong sense as well. The strong sense of rights creates the basic protections for democracy, liberty, and political equality in the United States. When we link them to the weak sense, we turn the fundamental protections for our most cherished political values into mere expressions of someone’s preference. That makes us more likely to pursue violations of those rights because we prefer the outcomes that result.

In other words, we stop taking rights seriously.

NOTE:

*One could make an effective point about the fact that a law prohibiting hand-held cell phone use doesn’t matter, because hands-free use is equally distracting. That is a good point for the legislature to consider in writing the law, but it wouldn’t affect the question of a right to phone and drive.

We’ve now discovered that, contrary to company policy and National Transportation Safety Board recommendations, Continental 3407 was on autopilot in icing conditions when it went down in Buffalo last week.

The immediate thought that one jumps to is why the pilot violated regulations. That would be a mistake, though. Because there are no regulations, only recommendations.

The NTSB recommended that pilots fly manually in icing conditions after a remarkably similar crash in Roselawn, Indiana 15 years ago. But the NTSB’s authority extends only to investigating accidents and recommending regulatory changes. The various agencies that regulate the mode of transport involved in the accident—in this case the Federal Aviation Administration—must actually turn recommendations into regulations that must be followed.

The FAA hasn’t.

This despite the fact that the icing regulations have been on the NTSB’s “most wanted” list since 2003, and the fact that it considers the FAA’s response to some of its recommendations “unacceptable.”

Why would the FAA ignore these recommendations? A comment in the Aviation Daily story linked above is telling:

NTSB officials have recommended that autopilots be turned off when flying in known icing conditions, on the grounds that the autopilot’s functioning can lull the crew while ice accretes on the airplane and stall margins melt away. Some operators counter that turning off the autopilot increases pilot workload. (emphasis added)

Aviation regulations are a classic example of an Iron Triangle: a close relationship among an agency, the industry that it regulates, and the congressional committees that oversee the agency that results in the agency regulating in the interest of the agency rather than in the interests of the public. When I teach Iron Triangles, the FAA and the Federal Communications Commission are the two classic examples that I use.

That seems to be exactly what happened here: the FAA, in considering the NTSB recommendations after the Roselawn crash, opted to go with smooth operations, a primary concern of the airlines, rather than enhancing passenger safety. (Don’t make the mistake of thinking that a regulation that increases costs but avoids crashes are automatically in the interest of the airlines. Crashes are insured losses. Labor costs aren’t.)

But don’t blame the FAA entirely. One of the most common reasons that Iron Triangles emerge is legislation that gives an agency conflicting goals. The FAA is charged by Congress with regulating to promote both the safety of passengers and the economic interests of the aviation industry.

The latter is much more powerful than the former, both for insidious reasons like campaign contributions to committee members but also because a small group that is well defined and has clear interests has inherent advantages in organizing over “the public.”

The upshot of all of this is that 50 people are dead in Buffalo because the FAA has been “captured” by the airline industry. But if you want to do something about it, throwing the bums out isn’t enough, and neither more nor less government solves the problem. There is a lot of structural work to be done.

So it looks like we’ll have an economic stimulus package. Let’s be clear up front: however much a mess the process has been—laws, like sausages, right?—we need (most of) this bill.

Which makes President Obama’s handling of the bill so interesting. This was a bill written less by the administration than by Congress. That’s very much how a Senator might approach a major piece of national legislation: negotiate, cooperate, and compromise until there’s a majority on board.

Congress is set up to work that way. The process of making a law is a process of multiple veto points: many places where a different majority can stop a bill. Committees, filibusters, procedural floor votes, and of course the President’s veto are all places where a majority can kill a bill. The only way to pass a bill is negotiation, cooperation, and compromise to get the required majorities.

Of course, we set up Congress to represent local interests, not national ones. Even the leadership must be re-elected by their local districts; as Tip O’Neill liked to say, all politics is local. As a result, the way bills are often assembled is by bringing in pork to get the necessary votes.

But that’s how Congress get’s things done. The other end of Pennsylvania Avenue works very differently. The President’s formal legislative powers are weak: he can only recommend, not introduce, legislation, and the veto can only stop legislation. Really his legislative power is, as Richard Neustadt famously observed, the power to persuade.

Nonetheless, we call the President the chief legislator. He is exceptionally persuasive because of the unity and centralization of the office. There’s only one President, he’s the only person elected by the entire nation (you didn’t really vote for the Vice-president, did you?), and everyone in the executive branch revolves around him. This gives him a very powerful negotiating position compared to the fragmented and decentralized Congress.

The President—any president—is in a position to set the basic terms of a major piece of national legislation, especially in response to a crisis, and especially at the beginning of his term. President Obama should have been able to control the issue, keeping the bill focused on stimulus rather than wastefulness. Instead, he let the Speaker of the House take the lead, with predictable results.

That’s what a Senator would do: have his say but defer to his colleagues. Bring people aboard by giving them something in the bill. Turn it into a Christmas tree. The pork in this bill isn’t the democrats’ fault. It is the predictable outcome of letting Congress run the show.

Senator Obama needs to realize that his promotion changes his game. Like many people who get a promotion, he’s still trying to do his old job from his new office. Here’s hoping he figures out the new position quickly.

Political parties in the United States aren’t groups of like-minded individuals. It shouldn’t be surprising that the President’s party universally supported a major goal of a new administration. That’s good for them as well as the President.

But the opposition? They don’t vote together on such an issue. Fighting a popular President is costly at home, and doing nothing about a major crisis looks irresponsible. Especially when your state’s governor has joined other governors of your own party to support the bill. Only if the minority leadership is pushing party unity does a vote like this come up on party lines.

The pork excuse doesn’t fly. The Republicans have been using the same definition of “pork” that I give my students: money spent in someone else’s district. Construction stimulates the economy, but money for school construction in Milwaukee was one of the chief examples of pork to which the Republicans are opposed as “non-job creating.”

Bipartisanship? Ask John Boehner or Mitch McConnell about it.