Monthly Archives: July 2016

Thankfully, a Lot of People Don’t Find Redistricting Boring….

The second meeting of Indiana’s Interim Study Committee on Redistricting, of which I am a lay member, was held yesterday. Despite the fact that it was a Thursday afternoon, and the meeting started at 1:00, there were well over 100 citizens present; they filled the House Chamber and from where I was sitting, it looked like they filled the balcony too.

The purpose of this meeting was to hear expert testimony. (Discussion leading to the committee’s recommendations will come at the next two meetings. I’ll blog the dates and times when I know them.)

There were two presentations; one from a lawyer with the Brennan Center for Justice, affiliated with New York University Law School, and the second from the Senior Legal Counsel to the Iowa LSA–the person responsible for directing Iowa’s redistricting process.

The Iowa presentation was a description of that state’s use of an independent commission to draw district lines–from all reports, a very successful effort to draw districts in a fair, transparent and nonpartisan way, and one that has earned the strong approval of most Iowa voters.

The first presentation, by Michael Li of the Brennan Center, focused upon the negative consequences of gerrymandering, and the current efforts of several states to reform their processes. He included a couple of interesting points that tend to get lost in discussions about gerrymandering’s more obvious effects.

Li pointed out that the redistricting “nitty-gritty”–the drawing of the lines–isn’t handled by local politicians; instead, the national parties send in teams of “experts” whose expertise is in manipulating data and computer programs, and who know little about the politics or culture of whatever state they are carving up. This dependence on national party operatives facilitates the contemporary shift of power and influence from state policymakers to national ones– further nationalizing America’s political parties.

Li also noted that although redistricting reform might not effect much change to the partisan composition of a state’s legislature, especially in very Red or Blue states, it does tend to change the nature of the partisans who hold those seats. (Social science research supports that observation; in states using independent commissions, Representatives of both parties tend to be less rigidly ideological and more willing to work across the aisle.)

This last observation is particularly important, because one of the arguments used by defenders of the current system (like Senator Hershman today) is to claim there are states where redistricting reform has changed a very minimal number of seats, and that shows the current system isn’t really a problem.

As Li quite properly responded, partisan shift is not the metric we should apply. In Republican states like Indiana, redistricting reform is unlikely to change control of the Senate, for example. If fewer elections are decided in the primaries, if fewer general elections are uncontested, if new people emerge to challenge incumbents, and –when those incumbents die or retire–if there is genuine competition for the open seat, then reform has worked.

When Senator Pat Miller challenged the notion of “nonpartisan” commission members–making the point that everyone has political opinions–Li agreed that most people have what we might call “political orientation,” although he noted that there is a difference between redistricting done by people who are deeply involved in the political process and that done by people who are not politically active. He compared the process to the composition and operation of juries; people serving on juries have prejudices and opinions, but most who serve take their responsibilities very seriously, evaluating the evidence and following the judges’ instructions.  ( I found the comparison compelling because when I was a practicing lawyer, I saw juries in operation, and saw the same seriousness of purpose.)

The one thing that seemed clear in the wake of the meeting was that Senators Hershman and Miller are not going to be voting for reform of any kind. But I have high hopes for the rest of us.

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Crime and Punishment

When I was practicing law, I often heard people complain about judges and prosecutors when those officials reached conclusions with which they disagreed. In most instances, the complaints were based on a lack of understanding of the facts of the case, the legal rules involved, or both. That was particularly true of criminal accusations.

Let’s say you are texting and driving. You know better; Public Service Announcements tell you how dangerous it is. Your mother tells you how dangerous it is. But your state has no law against it, and you think you’re in control. While you are texting, you crash into another car, injuring a passenger and totaling the vehicle.

Or let’s say you made the potato salad for the family’s picnic. It’s a really hot day and the sun is beating down. You know that foods with mayonnaise shouldn’t be left in the heat, but you are tending to other things. When everyone finally sits down to eat, several people get violently ill and it’s traced to the spoiled mayo.

Or let’s take a far more serious situation: you are one of those “good guys” with a gun. You bought it legally and have a permit to carry it. You have it in a holster, and for some reason, when you sit down, it discharges, killing a bystander.

In each of these scenarios, you have been responsible for harm. In none of them have you committed a crime, because criminal acts require something the law calls mens rea–criminal intent. In order for the state to charge you with a crime, it must have evidence that you intentionally committed a criminal act. Negligence and stupidity are not crimes.

That is not to say that your actions cannot be punished. In each of my examples, the persons harmed can bring civil actions against the negligent person who caused the harm, and can recover damages. In addition, your actions can be reported by the media, censured by your neighbors and provide reason for your boss and others to lose confidence in your judgment.

The FBI investigated Hillary Clinton’s use of her own email server, and found no evidence of intentional wrongdoing sufficient to charge her with a crime. The investigation found (and severely criticized) carelessness–both in Clinton’s handling of her emails and in what the agency characterized as the “culture” of the State Department. The conclusion was not that she hadn’t done anything wrong; the conclusion was that the wrong was not criminal in nature. (Click here for a more extensive explanation of the legal standards and relevant statutes.)

Individual voters can–and will–decide for themselves whether they think this particular breach of judgment makes Clinton unfit to be President. If she weren’t running against a certifiable psychopath, it might well cost her the election; but even if it doesn’t, even if she wins handily, it will cost her significant political capital (indeed, it already has) and will give additional ammunition to those who despise her.

Although it does not excuse her breach, the investigation’s discovery that many other State Department officials (including but not limited to Colin Powell and Condoleeza Rice) have used and continue to use personal servers because of the ponderous nature of the “official” system should lead to a formal review of the agency’s technology systems, and to an effort to improve the State Department’s evidently unwieldy system.

Rather than Congressional action that might reduce incentives to bypass the rules, however, we have Paul Ryan’s announcement that the GOP will now “investigate” the FBI for reaching a conclusion partisans dislike.

The FBI investigation was conducted by a Republican appointed by George W. Bush, a man with a reputation for independence and unimpeachable ethics. Ryan’s willingness to besmirch that reputation and impugn the credibility of the FBI in order to make political points is something we might expect from Donald Trump, but is exceedingly disappointing (albeit not surprising) coming from the Speaker of the House.

At some point, it would be nice if our political actors focused upon making government work better, and left toxic gamesmanship behind. But I’m not holding my breath.

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While We’re Talking About Patriotism…

Among Monday’s Fourth of July reliable pieties were many exhortations to “support the troops.” We heard little or nothing about what really supporting our troops would look like.

A commenter on my Fourth of July post advocated reinstitution of the military draft; the comment reminded me of a book review I read awhile back, so I dug it out. In the New York Times, Matthew Crawford reviewed Tribe: On Homecoming and Belonging by Sebastian Junger. Junger had previously directed two well-received documentaries about an American platoon stationed in a small village in Afghanistan. In those films, Crawford tells us, we see

…the recalcitrant realities of killing. We see the joys and depravities of a cell of men released from the neutering moral regulation of American society. That society has a mission for them to do, but it cannot avow the means by which it is to be accomplished and must avert its gaze from the appalling maleness of it all.

In Tribe, Junger asks: how do you return home from such an experience, an experience where the qualities demanded of soldiers, the qualities cultivated by war, are “fundamentally at odds with our public principles”? How do you reintegrate these young people into a society largely indifferent to and unaware of the nation’s foreign entanglements, let alone the realities of combat?

In his review of the book, Crawford points out that the problems of re-entry and reintegration into society in countries (like Israel) where the burdens of national defense are widely shared–and much less remote from the collective consciousness of the general public–are much different from the problems faced by returning American soldiers.

There are strengths and weaknesses to a volunteer army. I would suggest that the weaknesses are significant–and corrosive–and that they outweigh the strengths.

Our “volunteers” are mostly recruited from marginalized populations and those who have few other educational or employment options. To be blunt (and not “politically correct”), that reality–and America’s extensive use of “contractors” (aka mercenaries)– makes it easier for lawmakers to authorize military actions. They need not come back to their districts and face constituents whose sons and daughters have been conscripted and sent into danger.

I have previously written about the negative consequences of “outsourcing” patriotism. In the concluding paragraph of his book review, Crawford underlines several of my concerns.

The self-deceptions of contemporary society that Junger elaborates run too deep to be relieved by exhortations to “support the troops.” The conclusion one reaches upon finishing Tribe is that we should bring back the draft and have universal, obligatory military service. It is hard to think of a public policy reform that would do more to heal the growing chasm of social class, affirm our shared destiny as citizens and at the same time discipline our foreign policy. A nation of 320 million will never be a tribe, but if after such a reform we still have enthusiasm for putting “boots on the ground,” those boots will belong to “us” rather than “them.”

I couldn’t agree more.

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Well, No One Ever Accused Pence of Being “Politically Correct”…

The Donald’s 2016 Presidential campaign is looking more and more like a really bad comedy–one of those films that tries to be clever and just ends up being an embarrassing groaner. Or maybe the appropriate comparison is to a train wreck.

Whatever it is, you want to look away–to just hide somewhere until the whole thing is over–but you really can’t take your eyes off the continuing farce…

The latest speculation is that The Donald might tap Indiana Governor Mike Pence to run as his vice-president. According to the Indianapolis Star, the two met over the weekend.

Marc Lotter, Pence’s deputy campaign manager, was not able to say whether the two talked about the possibility during the meeting.

“They talked about policies that are working in Indiana and the future of this country,” Lotter said. “Nothing was offered during the meeting, and nothing was accepted.”

Pence endorsed Trump in May, after first endorsing Sen. Ted Cruz ahead of the state’s May 3 primary election. Cruz dropped out of the race the day after losing Indiana to Trump, who received 53.3 percent of votes.

“I’m fully supportive of our presumptive nominee, and I do think Donald Trump will do well in the State of Indiana,” Pence said at the time. “I’m going to campaign hard for the Republican nominee because Indiana needs a partner in the White House.”

If they discussed policies that are working in Indiana, it was a very short meeting.

A political commentator on CBS, asked to discuss Trump’s likely VP choice, noted that Republicans who would be remotely credible had all made their disinterest in going down with this particular ship quite clear. That leaves Newt Gingrich, Chris Christie…and Pence. (Interestingly, all three have approval ratings in the 30s–just like The Donald.)

Evidently, the “calculus”–if anyone on the Trump train can spell calculus–is that Mikey would help shore up the religious right vote. (He certainly wouldn’t help with women or minorities or those pesky “elitists” who want their elected officials to understand the Constitution.)

Pence cannot run both for re-election and the Vice Presidency, so if he’s tapped and amenable, he will have to withdraw his gubernatorial candidacy.

I find this scenario fascinating and oddly satisfying. It would spell the end of Mike Pence’s political career (one small step for mankind…). A last-minute switch of the GOP’s candidate for Governor would probably assure John Gregg’s victory in November. It would give a lot of Hoosier voters an additional reason to reject Trump–not that they don’t have plenty of reasons already.

Most of all, I would love to see the inevitable political ads featuring clips from Pence’s disastrous RFRA interview with George Stephanopolous.

“Now George.” “Now George.” “Now George.”  Not a Sarah Palin performance, perhaps, but close enough.

This all really is like very bad comedy.

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Birthday Wishes…

Today is our nation’s birthday, and birthdays are a time to take stock.

If the 4th is a day to focus on America and its government “of the people,” it may also be a day for considering the sources of our various dysfunctions.

Like gerrymandering. (Yes, I know I talk about that a lot. But it’s more important than most of us realize.)

While I was on vacation, I read a book with a title that cannot be fully shared: “Ratf***cked” tells how operatives of the Republican party raised money, gathered experts and manipulated the redistricting process across the nation after the last census–totally outsmarting Democrats. (Democrats emerge from this story as disorganized and feckless, at best.)

The book is worth reading; it was written by a political reporter who interviewed most of the central “players” and followed the process in the most gerrymandered states (including Indiana). The obvious moral of the story is that in politics, attention to process matters hugely–and that the disinterest of most citizens in our democratic processes enables the sorts of chicanery that the book documents.

But there is a rosier side to this story, at least for those of us who are into irony, and it falls under the heading of be careful what you wish for.

The Congressional representatives elected from the large numbers of “safe forever” seats have made it impossible for their enablers to govern. They have no party loyalty; they are not team players in the appropriate sense of that term. They know that the only threat to their continued electoral success comes from their right flank back home–not from the party, not from the Speaker, not even from the party’s big donors.

If you don’t believe me, ask John Boehner. Or Paul Ryan. Or closer to home, Brian Bosma. Those oh-so-safe districts created by mapmaking whiz kids have given each of them a group of wholly intransigent lunatics to deal with, officeholders accountable to no one but the most rabid members of the party base in their home districts. Those zealots have made it nearly impossible to pursue the party’s legislative goals.

The success of the GOP’s “ratf**cking” (otherwise known as redistricting) is why most political observers do not think the Democrats can retake the House in 2016, even if they win the Presidency resoundingly. As one of the effort’s technicians put it, it would take a Democratic sweep of 5 or 6 points to reclaim the House, and victories of that scope are highly unlikely.

Of course, the party operative making that observation didn’t anticipate Donald Trump…

Happy birthday, America! Maybe your citizens can get you a reformed redistricting system for your next one…

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