Payroll vote [Was Re: [ncdnhc-discuss] 2002 1st Adcom Meeting Report!]

[Michael Froomkin - U.Miami School of Law]

I've missed much of this thread because I killfile participants in it.
Forgive me if I repeat something said earlier.

It seems to me that the issue here is what in the UK was/is called the
'payroll vote'.  At the time of the American revolution, one of the many
evils that the revolutionists were concerned about was the way in which
the King could manipulate parliament by putting MPs on his payroll.

The concern about this means by which the executive could manipulate the
democratic process remained very much alive at the time the US
constitution was written.  For this reason we have the Incompatibility
Clause of the US constitution which not only forbids a member of congress
from having any paying job in the executive, it even forbids them taking a
post whose salary was increased while they were in office.

We have seen the end-state of this process in the modern British
parliament: the tradition is that MPs who are 'in' government must support
it.  The executive now has so many jobs to give out that it can pretty
well smother revolts in the party caucus, and thus is certain of winning
all party-line votes, ie. almost all of them.  

The analogy - and it's only that - seems strong here.  Giving the central
management the ability to control votes in the constituencies risks
deforming their outputs; people paid by ICANN shouldn't be forming the
policy decisions which those people should be implementing.  And, indeed,
there are some reasons to question how much they should participate: The
fact that ICANN is their day job gives them an enormous advantage in
debate - they can participate much more than most other people.  
Nevertheless, I think that staff should be encouraged to hang out on
mailing lists and answer questions relevant to their jobs. Indeed, when
that happens they should be commended for it. I personally bellieve that
they should be encouraged to voice personal opinions (although good taste
might counsel they reserve this for strongly-held ones so as not to
monopolize a debate), and official opinions, and to clearly label which is
which. But not vote. And not represent some external group either.

I rather doubt there are any formal rules anywhere on this subject. (Are
there?)  I'd suggest, however, that pending the appropriate body issuing
such a rule, it would be sound judgment for ICANN's CEO to so instruct his
subordinates, and to let it be known that he had.

If others agree, we might ask him to do so?

On Thu, 14 Mar 2002, James Love wrote:

> ----- Original Message -----
> From: "Dave Crocker" <dhc2 at dcrocker.net>
> To: "James Love" <love at cptech.org>
> Cc: "Kent Crispin" <kent at songbird.com>; <discuss at icann-ncc.org>
> Sent: Thursday, March 14, 2002 7:33 PM
> Subject: Re: [ncdnhc-discuss] 2002 1st Adcom Meeting Report!
> 
> 
> > James,
> >
> > Before a government employee is "allowed" to vote, must they first get
> > official permission of the government that they work for?
> >
> > And to the extent that you consider this comparison invalid, please
> explain
> > how.
> 
>      We let everyone (except for felons and non-citizens) vote for school
> board members, senators, presidents, etc.   We don't let everyone vote for
> everything.  For example, I don't vote for the Senator for California or a
> member of paraliment in Germany.   I don't vote in multiple DNSO
> constituencies, and some of the constituencies have rules against membership
> in more than one.    Some states have closed party primaries, others have
> open primaries.  In corporations they have different types of stock with
> different voting rights.  In the NCC some people cast votes that count twice
> (large organizations).    I don't know much about Kent's status in other
> DNSO constituencies, he seems to have his fingers in several.  But he is a
> apparently a full time and well compensated member of the ICANN staff, a
> group that is supposed to be carrying out some bottom up consensus.  I
> personally object to the staff voting in the DNSO constituencies... I think
> we have plenty of conflicts of interest without having the staff playing
> around in bodies that are supposed to be independent.  This is my opinion.
> It may not be Dave Crockers or Kent's opinion, and apparently it isn't
> Andrew McLaughlin's opinion either.  The question is, what rules will the
> NCC adopt?  In the end, this isn't a matter of opinion, but a matter of the
> rule.    I don't care if Kent votes in at large elections.     The way
> things are going, we might just end up with the staff being the board of
> directors, and no one else getting a vote in anything.
> 
> Jamie
> 
> 
> 
> 
> >
> > d/
> >
> > At 07:20 AM 3/13/2002 -0500, James Love wrote:
> > >Kent, just for the record, I take your contribution to mean that the
> ICANN
> > >staff officially permits you to be a member and vote in the DNSO
> > >constitutuencies?  Is that correct?   As you know, I have raised this
> issue
> > >directly with the ICANN staff, and was given an impression or two, but
> > >nothing that was very clear, until your recent post, and that could be a
> bit
> > >clearer on this point.   Jamie
> >
> > ----------
> > Dave Crocker <mailto:dave at tribalwise.com>
> > TribalWise, Inc. <http://www.tribalwise.com>
> > tel +1.408.246.8253; fax +1.408.850.1850
> >
> >
> 
> _______________________________________________
> Discuss mailing list
> Discuss at icann-ncc.org
> http://www.icann-ncc.org/mailman/listinfo/discuss
> 

-- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--