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IP: GTE's $3.3 billion wireless purchase an unusual venture
From: Dave Farber <farber () cis upenn edu>
Date: Mon, 19 Apr 1999 03:01:59 -0400
Date: Sun, 18 Apr 1999 23:41:34 -0400 From: Declan McCullagh <declan () well com> [From an electronic newsletter published by UCLA law prof Eugene Volokh. Subscription info (if you are so inclined) is at the end. --Declan] ====================================================== "Minority Stakes" by James Surowiecki, from Slate, http://www.slate.com Copyright 1999 Microsoft Corp.; all rights reserved. Ordinarily, last week's announcement that Ameritech would be selling half of its wireless telephone operations to GTE for $3.3 billion would have occasioned little notice. Ameritech is being acquired by SBC Communications, and in order for that deal to pass muster with the FCC, Ameritech had to sell its wireless operations in Chicago and St. Louis, where SBC also offers service. So the sale was a foregone conclusion. What wasn't quite as expected was that the deal would, as the New York Times put it, end up being "the first major telecommunications acquisition to be described as a 'step forward' for racial diversity." That's because GTE offered Georgetown Partners, a private investment firm whose managing director is black, 7 percent of the equity in the wireless business in exchange for $60 million in cash. Georgetown Partners has no previous experience in the telecommunications business, and even if it did have any experience it's hard to see what influence the owner of a 7 percent minority stake of one division of a company the size of GTE could possibly have. Of course, GTE wasn't looking for a noisy partner. Actually, all indications are that it wasn't looking for a silent partner, either. But SBC was looking for a way to look good in front of FCC chairman William Kennard, who has said that he wants to increase minority participation in the telecom industry. So GTE decided that owning the wireless operations with Georgetown was better than not owning them at all. This is, in other words, exactly the kind of thing that gives affirmative action a bad name. In the Times yesterday, Davenport happily admitted that he was the recipient of preferential treatment, arguing that if he had been white he would already have "100 times more money than I have." But even if that were in fact the case, William Kennard -- and Jesse Jackson, whose Wall Street initiative seems to have played some role in this deal -- has better things to do than help someone worth $100 million become worth $10 billion. Affirmative action, whatever its flaws, had the noble goal of giving a chance at real success to those who wouldn't otherwise have had that shot. We're all ill-served when it's turned into a mere spoils system, and when it consists of giving someone who's already really successful the chance to be really really successful. That's especially true in this case, where Georgetown is literally bringing nothing important to the table: no telecom experience, no managerial experience, and no real marketing experience. Even the money is essentially irrelevant, since GTE hardly needed a partner to come up with that extra $60 million. All this is is an unearned gift. Now, Wall Street is hardly the home of pure economic rationality, where nepotism and connections play no role at all. The Street still in many ways relies on an old-boy network, and insofar as that locks out black financiers and entrepreneurs, we're all hurt (both morally and economically). But there's a difference between something like AT&T's recent bond offering, in which the black-owned Blaylock & Partners was named a co-manager, and the GTE-Ameritech deal. In the former case, Blaylock & Partners was competing against its peers for business that it was qualified to do. If race played any part in AT&T's decision to say yes, it was only to ensure that race didn't play a part in a decision to say no. If Georgetown hadn't been included in the GTE deal, no other investment firm would have been. I don't know what you call it, but it's certainly not equal opportunity. The really astonishing thing about all this is the nakedness of SBC's ploy. In a statement it released on the day the deal was announced, SBC actually said that creating diversity was an important goal "for a number of parties, not the least of which is the FCC," then described the deal as allowing the company to do "good by achieving the goal of expanding diversity within the ranks of industry ownership." Even if you set aside the use of the words achieving and ownership to describe a 7 percent stake by a company with no telecom background, this statement is painful precisely because SBC makes no bones about the fact that the only reason it's including Georgetown is because Kennard wanted it to. SBC might just as well have said: "OK, Bill. Are you happy now?" The only question that remains is whether the parties to this deal are self-deluded about the supposed virtue of their action or else deeply cynical. Actually, I think we know the answer. * * * James Surowiecki is contributing editor at Fortune, staff writer at Talk, and the author of Slate's Moneybox. Check out the Web version of this article on Slate -- one of your editor's favorite publications -- at http://www.slate.com/Code/Moneybox/Moneybox.asp (It's the entry for 4/13.) While you're there, check out the various links provided at the end of the article. ====================================================== "Guns and the Constitution" by Eugene Volokh, from the Wall Street Journal A federal judge in Texas has just done something no federal court had done in more than 60 years: He held that the Second Amendment protects people's right to keep and bear arms. If this decision is affirmed by the Fifth Circuit Court of Appeals, the case has a very good chance of going to the Supreme Court, which hasn't yet resolved this issue. And behind the narrow Second Amendment matter lies a deeper question about the utility of a written Constitution. As in many constitutional cases, the defendant -- Timothy Emerson, a San Angelo doctor -- isn't the best of fellows. During Dr. Emerson's divorce proceedings, his wife claimed he had threatened to kill her lover. The state divorce court apparently made no findings on this, but entered a boilerplate order barring Dr. Emerson from threatening his wife. Though this state order said nothing about firearms, a little-known federal law bars gun possession by people who are under such orders. Dr. Emerson not only failed to dispose of his guns, as the law required, but eventually brandished one in front of his wife and daughter. He was then prosecuted under the federal law, though for gun possession rather than gun misuse. The instinctive reaction here is that Dr. Emerson is the very sort we'd like to disarm, trouble waiting to happen. But when the divorce court issued its order, Dr. Emerson hadn't been found guilty of anything. Had he been convicted of a felony, all agree he would have lost his right to keep and bear arms as well as his right to remain at liberty. Here, though, there was no trial, no conviction, no finding of misconduct or future dangerousness. So when the federal law barred Dr. Emerson from possessing guns, he was a citizen with a clean record, just like you and me. Hence his Second Amendment defense. The hot constitutional question is whether the Second Amendment protects only states' rights to arm their own military forces, or whether it protects an individual right. If the states-rights view is correct, Dr. Emerson could have been disarmed with no constitutional worries -- and so could anyone else. But the Second Amendment's text and original meaning pretty clearly show that it protects individuals. The text, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," says the right belongs to people, not states. And in the Bill of Rights "the right of the people" refers to individuals, as we see in the First and Fourth Amendments. Moreover, the Second Amendment is based on the British 1688 Bill of Rights and is related to right-to- bear-arms provisions in Framing-era state constitutions. The British right must have been individual; there were no states in England. Same for the state constitutional rights; a right mentioned in a state Bill of Rights, which protects citizens against the state government, can't belong to the state itself. So in the Framing era, the "right to bear arms" meant an individual right. What about the militia? The Second Amendment secures a "right of the people," not of the militia; but in any event, as the Supreme Court held in 1939, the Framers used "militia" to refer to all adult able-bodied males under age 45. Even today, under the 1956 Militia Act, all male citizens between 18 and 45 are part of the militia. (Women are probably also included, given the Supreme Court's sex-equality precedents.) "Well-regulated militia" in late 1700s parlance meant the same thing -- "the body of the People capable of bearing Arms," which is how an early propsoal for the amendment defined it. And the individual-rights view is the nearly unanimous judgment of all the leading 1700s and 1800s commentators and cases. Based on this evidence, federal Judge Sam Cummings concluded Dr. Emerson's gun possession (though not his gun misuse) was constitutionally protected. If the Second Amendment is to be taken seriously, then Judge Cummings was right, and the other lower court cases holding the contrary were wrong. If, that is, the Second Amendment is to be taken seriously. The notion of a written, binding Constitution tells us it should be, but cases like this lead some to wonder. Why, they ask, should today's decisions be bound by the dead hand of the past? If we have a "living Constitution" onto which courts may graft new rights, why can't they prune away obsolete ones? These are genuinely tough questions, which go far beyond just the Second Amendment, and which have been raised in past controversies by conservatives as well as liberals. Let me give a few responses. First, government entirely by the sometimes hyperactive hand of the present also has flaws. The benefits of liberties, however real, are often less visible than the costs. When we see Dr. Emerson before the court, accused of making violent threats, it's tempting to treat the right to possess guns as a nuisance. But we don't as easily see the hundreds of thousands of people who use guns each year in self- defense, including separating spouses who defend themselves against would-be abusers. Second, modern innovations that restrict traditional liberties are often oversold. Realistically, people willing to violate laws against violent crime will rarely be deterred by laws against gun possession. Conversely, if Dr. Emerson is the poster child for why some shouldn't have guns, he is equally an example of how the law could effectively punish people for misusing guns (by brandishing them in a threatening way) rather than just for having them. Maybe ignoring the Constitution is neither so valuable nor so necessary. Third, while some think gun rights are "obsolete," others disagree. Since 1970, 15 states have enacted new state constitutional rights to bear arms or strengthened old ones; 44 constitutions now have such provisions. In the mid-1980s, nine states let pretty much all law- abiding adults get a license to carry concealed weapons; now the number is 31. A conclusion that the right is obsolete thus doesn't rest on any unambiguous consensus; it can rest only on the judge's personal policy preferences. Do we trust judges that much? And finally, do we trust judges to determine when other provisions -- the Establishment Clause, the privilege against self-incrimination, the jury trial, the freedom of speech -- become obsolete, too? * * * Eugene Volokh is your loyal editor; you can find links to his Second Amendment-related articles at http://www.law.ucla.edu/faculty/volokh/index.htm#GUNCONTROL He has collected a large set of original sources on the Second Amendment, available at http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm For the opposite view of the Second Amendment, see http://www.handguncontrol.org/ (Handgun Control, Inc.'s Web site), especially http://www.handguncontrol.org/legalaction/C2/c2rtarms.htm ====================================================== CENTER-RIGHT is edited by Eugene Volokh, who teaches constitutional law and copyright law at UCLA Law School (http://www.law.ucla.edu/faculty/volokh), and organized with the help of Terry Wynn and the Federalist Society. To subscribe, send a message containing the text (NOT the subject line) SUBSCRIBE CENTER-RIGHT to submit () center-right org To unsubscribe, send a message containing the text UNSUBSCRIBE CENTER-RIGHT to cancel () center-right org To communicate with us about other things, send us a message at mail () center-right org CENTER-RIGHT, a low-traffic, high-quality electronic newsletter of centrist, conservative, and libertarian ideas. -------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology To subscribe: send a message to majordomo () vorlon mit edu with this text: subscribe politech More information is at http://www.well.com/~declan/politech/ --------------------------------------------------------------------------
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- IP: GTE's $3.3 billion wireless purchase an unusual venture Dave Farber (Apr 19)