I See Ignorant (Elected) People

Fair-minded Americans have welcomed the recent wave of court decisions striking down bans on same-sex marriage. The LGBT community and its allies have been positively euphoric.

Of course, the homophobes and those who pander to them have had a somewhat different reaction.

Here’s the thing: people who don’t approve of gay people, or whose religious beliefs somehow require them to see gays as sinners and same-sex marriage as an abomination, are entitled to those beliefs. It’s a free country. And elected officials are entitled to disapprove of judicial decisions, although they are not free to disregard them. All of these debates over what is best for the country, what constitutes fair play, what discrimination looks like…all of the cacophony that surrounds social change is both predictable and within the bounds of democratic deliberation.

Abject ignorance is not.

Which brings me to Jan Brewer, Governor of Arizona, and her rant in the wake of court rulings that invalidated her state’s ban on same-sex marriage.

“It is not only disappointing, but also deeply troubling, that unelected federal judges can dictate the laws of individual states, create rights based on their personal policy preferences and supplant the will of the people in an area traditionally left to the states for more than two hundred years.

 Simply put, courts should not be in the business of making and changing laws based on their personal agendas. It is not the role of the judiciary to determine that same-sex marriages should be allowed.”

Sorry, Governor Brewer, but your civic ignorance is showing. Courts are absolutely “in the business” of “supplanting the will of the people” when that will violates the Constitution. As I pointed out on this blog yesterday, the Founders of this country created an independent federal judiciary (one that was not elected) and provided those judges with lifetime tenure, because judges were supposed to be responsive to the Constitution and the rule of law—not to the electorate.

Congress and the Executive branch were supposed to respond to majority preferences; the judiciary, however, was supposed to safeguard individual and minority rights and to ensure that the other branches did not violate the Constitution in their eagerness to pander to popular passions.

I have repeated this basic premise of American constitutional law over and over—in my columns, my blogs and my classrooms. Let me do so again.

The Bill of Rights answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these and other very personal matters—we individuals decide these things for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves, free of interference by government scolds.

The Bill of Rights also limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. A majority of your countrymen cannot vote to make you a Baptist or an Episcopalian; they don’t get to vote on your reading materials or your political opinions or your choice of a life partner.

People who don’t understand the most basic operation of our system—like Arizona’s Governor Brewer, or Indiana’s Mike Pence—misunderstand and misrepresent court decisions that uphold the right of individuals to live their lives as they see fit without sacrificing their right to equal treatment under the law.

The fact that we keep electing people like this is what I find “deeply troubling.”

Same-sex marriage doesn’t threaten the republic. What threatens the republic is the election of people who are totally ignorant of the Constitution they are sworn to uphold.

Wanna Buy a Judge?

Talking Points Memo recently ran an article about mysterious campaign contributions to a candidate for Judge in Missouri:

A month ago, Missouri GOP prosecutor Brian Stumpe had less than $100 on hand in his campaign to unseat Cole County Circuit Court Judge Patricia Joyce, according to the St. Louis Post-Dispatch. Now, just a few weeks later, he has received $100,000 — all of it funneled into his campaign by a national group, the Republican State Leadership Committee, which has spent a total of $200,000 so far in this race for a single state judgeship.

The article went on to speculate about the source of the money and the reasons for this effort to dress a favored candidate in judicial robes.

Whatever those reasons, and irrespective of the identity of the donors in this particular case, this is a perfect illustration of why we ought not elect judges.

There was a reason the Founders did not provide for electing the federal judiciary: judges were supposed to be responsive to the Constitution and the rule of law–not to the electorate. Congress and the Executive branch were intended to respond to the political will (within limits); the judiciary, however, was supposed to ensure that those other branches did not violate the Constitution in their eagerness to pander to popular passions.

An independent judiciary was seen as essential to justice.

There is also the matter of perception. When litigants walk into a courtroom and face a judge who’s won office using partisan campaign contributions, especially in cases with political implications or cases involving politically “connected” adversaries, they can be forgiven for worrying that the judge will be less than dispassionate.

No judge can be completely apolitical; humans have points of view and those worldviews come with them when they are elevated to the bench. But when we can’t trust that the administration of justice is as unbiased as our imperfect efforts can make it, we don’t just undermine respect for a particular judge, we erode respect for the rule of law.

There are a lot of unsavory aspects to our current political environment, but the ability to purchase a judge has to rank up there among the worst.

 

Trust, City Life–and a Meditation on Branding

One blog I follow is CityScope–an ongoing conversation about urban life and innovation around the globe. A recent post there focused on one of my preoccupations, the importance of trust in building social capital and facilitating city life, from a fresh perspective.

Obviously, trust has always been a social dynamic in cities. (So has mistrust. See Ferguson, Missouri.)  Today, some combination of technology, austerity and social transformation seems to be changing the conversation. The rise of mobile apps, social media and other web-enabled forms of communication are a big part of what’s going on. These platforms don’t create trust, but they do create new ways for us to discover trust and put it to work in cities.

The author of the post quoted Airbnb co-founder and CEO Brian Chesky, who described how his service, which lets people rent out their homes or spare bedrooms to strangers, had expanded to more than 34,000 cities in 190 countries in a mere six years.

“At its core, the thing that we invented wasn’t the ability to book someone’s home,” Chesky said. “What we invented was a very streamlined mechanism for trust.”

“Before us, essentially everyone was a stranger,” Chesky continued. “The only thing you could buy was from companies — those companies had brands, and those brands said the companies could be trusted. A person — you couldn’t trust. The moment identity got attached to people, suddenly the playing field was level. People could act as businesses. They could act as microentrepreneurs.”

I hadn’t really thought about the role of branding in creating trust, and reading this gave me one of those “aha” moments. Of course! That’s why people stop at a Wendy’s or McDonalds when they’re on a road trip–they “trust” what they’ll get; they’ll know what to expect. That’s why my husband orders his khakis from LL Bean when he buys on the internet; he knows what he will get in both quality and fit.  Creating and then fulfilling expectations is what “branding” is mostly about. (I do recognize that a large part of the preference for upscale appliances and identifiable designer clothing among those who can afford such things is not reliance on the inherent quality of the goods, but the message sent by flaunting the brand.)

Keeping one’s brand trustworthy is incredibly important to commercial enterprises. Public relations professionals sometimes specialize in “crisis management”–handling events that might reduce brand trust and thus loyalty. (NFL, anyone?) Companies that cannot manage these PR disasters find themselves in deep trouble.

Politically, we are about to see what happens when a political party’s brand becomes toxic to the nation as a whole, but the dynamics of the organization prevent cooler heads from “managing” the problem.

Recently, a Republican high in the party hierarchy admitted to a friend of mine that there is no way today’s GOP can win the Presidency; absent residential sorting, gerrymandering and voter “ID” laws, the party would not be able to win House seats. It may take another couple of election cycles, but the “brand” is increasingly toxic to younger voters, who “trust” it to take positions that are anathema to most of them.

When the old white guys who can be relied upon to support the brand no matter how repellent it has become die off, the Grand Old Party will face a choice: abandon its current radicalism and return to the center-right brand that sold well, or become irrelevant.

 

 

Out-of-State Money

Ah, campaign finance!

Anyone who follows politics–even slightly–knows what a mess our campaign finance laws are, and the multiple ways in which money has screwed up our politics and confused even the most local of campaigns. The most recent example of the latter is debate over the upcoming Indianapolis’ School board races.

Full disclosure: our daughter, Kelly Bentley, is running for her former seat on that Board. (She previously served three terms, then didn’t run four years ago.)

Kelly and other candidates have been endorsed by an assortment of organizations–among them the Indianapolis Chamber of Commerce, and a national group called Stand for Children. As I understand it, the Chamber made contributions to the campaigns of its preferred candidates.  Stand for Children did not–instead, it has done mailings urging support for those candidates that its local membership (consisting of IPS parents) endorsed.

As an independent organization, Stand for Children is legally prohibited from coordinating with its endorsees, and those candidates have no say in what Stand for Children does or says on their behalf. (I don’t like the current law, especially the fact that independent organizations don’t have the same reporting requirements as candidates, but it is what it is.) Stand for Children has given Kelly’s campaign exactly zero dollars, and has never even informed her of its activities on her behalf.

This endorsement by a national education reform organization has generated a broader discussion–in blogs, on Facebook and elsewhere–about the propriety of accepting “out of state” money.

My favorite example involved a $2,500 gift from a mysterious “New York based” donor, Stephen Suess, to Kelly’s campaign. Stephen, of course, is our son–Kelly’s brother. He’s a web designer, and the $2,500 in-kind contribution was the value of the work he did creating her campaign website.

More to the point, this is yet another debate generating more heat than light. Politics in 21st Century America is increasingly nationalized around philosophical issues: a woman’s right to choose, same-sex marriage, minimum wage….these issues play out in local arenas, but they are anything but local. My husband and I are not wealthy, but we often send small contributions to national organizations working in other states on issues that matter to us, and I’d wager that many of the folks raising red flags about out-of-state contributions do likewise.

If a candidate for a local office were to be entirely funded by people from elsewhere, that would tells us something useful, but when–as here–the bulk of the candidates’ contributions come from local folks, refusing to accept support from people living elsewhere who agree with your positions on the issues–or refusing help from your brother because he lives in New York– would be pretty silly.

If you live in IPS District #3 and you don’t agree with Kelly’s positions on education, or the path that IPS should be pursuing, don’t vote for her. But I can vouch for her integrity, her passion for focusing on the well-being of children, and her grasp of education policy.

Is a parent’s endorsement also “improper”?

 

 

Politics as Usual

Contemporary politics has a lot in common with tantrums in a nursery school classroom. So it is understandable, although not very helpful, to see every dispute between the City-County Council and the Ballard Administration characterized–and dismissed–by local pundits as “politics as usual.”

Not every difference of opinion between the Council and the Mayor–or between Congress and the President–can be dismissed as “playing politics.” Some reflect genuine disputes over what constitutes good policy.

Take the current dispute between the Mayor and Council over funding for expanded preschool. That dispute is not over the value of preschool or the need for expansion; it is about identifying a funding mechanism that is both reliable and fiscally responsible. It is about how, not whether. Both sides have principled arguments worth weighing; it would be nice if we had local journalists willing and able to help readers understand the different perspectives.

Instead, we get naive admonitions to “play nice.”

Which brings me to yet another unfortunate consequence of lawmakers’ decision to constitutionalize property tax caps.

A couple of weeks ago, this particular dispute sparked a friendly argument. I didn’t understand the Council’s reluctance to approve the Mayor’s funding proposal by eliminating a local property-tax credit. Why not? I asked. It’s not a biggie, and if it would fund preschool, great. My friend insisted that elimination of the credit would cause a revenue shift that would end up costing both IPS and the Library significant revenues, and would cost township schools nearly 3.9 million. But he couldn’t explain why.

I couldn’t see how that would be true, and refused to believe him, so he sent me an analysis by the Indiana Fiscal Policy Institute that confirmed those shifts, which are a result of whether individual property owners have or have not hit the cap.

Here’s the thing: I read the analysis, and another posted by Ed Delaney, several times. Call me dense (many do), but the operation of the tax caps on local property taxes is so complicated, I am still at a loss to understand precisely how it works. I gave the analyses to a colleague whose area is Public Finance, and he patiently explained it–but only after even he’d struggled to work through the formula.

When the operation of tax law is so complicated that even former lawyers and professors of public finance have trouble figuring it all out, you have a prescription for mischief–and worse. Transparency in government doesn’t only mean that citizens need to know what their elected officials are doing, it also requires rules that are comprehensible to most of us.

Until I looked at the issue, I simply did not believe the Councilors who said the proposed funding mechanism would shift money–would create winners and losers. Now, it may be that funding preschool expansion is worth doing even if it does take revenue from other units of local government, but that is a very different argument than the “should we/ shouldn’t we have preschool” debate portrayed by local media.

The moral(s) of the story:

In the absence of clear and understandable laws, We the People simply cannot make intelligent decisions about policy and policymakers.

In the absence of a local media capable of analyzing and reporting on the reasons for disagreements, we lack any basis upon which to render democratic judgments. We the People are not well-served by a media that characterizes even legitimate differences over policy as “playing politics,” and fails to do the hard work needed to understand and explain the arguments .