Author Archives: Sheila

The Founders And The Filibuster

Among the many forgotten lessons of America’s past is the abysmal failure of the nation’s first constitution, the Articles of Confederation. Thanks to the widespread absence of effective civics instruction, much of the public is unaware of the very existence of America’s first effort at nation-building, let alone the reasons that initial effort failed.

The Articles had numerous flaws–mostly attributable to the reluctance of the colonies to cede authority to a central government. Probably the best-known weakness of that first effort was the inability of the new central government to levy taxes. The central government could ask for revenues–for example, monies to retire debt amassed during the Revolutionary War–but if a state didn’t want to pay, it didn’t pay, and the federal government could do nothing about it.

The lack of a dependable revenue stream wasn’t even the worst of it. Under the Articles, any changes to the structure or operations of government needed a unanimous vote of the 13 colonies–and most other policies required the concurrence of a super-majority. Those provisions made governing impossible. When the Founders met in Philadelphia to replace the fatally-weak Articles with the Constitution, changing that unworkable super-majority requirement was  high on their “to do” list.

What we know of that history and the Founders’ antagonism to government by super-majority should inform our approach to the current iteration of the Senate filibuster.

Ezra Klein recently hosted Adam Jettleson, a longtime Senate staffer, on his podcast, and reported their conversation in a column for the New York Times. Jettleson pointed out that one of the biggest misconceptions about the filibuster is the idea that it promotes bipartisanship.

In fact, it does the opposite because it gives the party that’s out of power the means, motive and opportunity to block the party that’s in power from getting anything done. And when the party that’s in power doesn’t get anything done — when voters see nothing but gridlock from Washington — they turn to the party that’s out of power and try to put them back in office.

Republicans are well poised to take back majorities in both the House and Senate — all they need is a handful of seats to do so. So they have every rational, political incentive to block Biden from achieving any victories. A program that would cut child poverty massively would be a huge victory for Biden. And the ability for Biden to pass it on a bipartisan basis would be a huge victory for his campaign promise to restore bipartisanship and unity.

Jettleson reminded listeners that the Framers had anticipated this very situation. They identified this huge drawback with supermajority thresholds in 1789, when they had direct firsthand experience with the Articles of Confederation.

In Federalist 22, Alexander Hamilton addresses this misperception head-on. He says, “What at first sight might seem a remedy,” referring to a supermajority threshold, “is in reality a poison.” You might think it would cause compromise, but really what it does is it provides an irresistible temptation for the party that’s out of power to make the party in power look bad.

As Klein observed, bipartisanship is something the majority wants, but the minority has no incentive to give–something  Mitch McConnell certainly understands. During the first years of the Obama administration, McConnell knew he could win the majority back by sabotaging its ability to govern–that the majority party will inevitably get the blame for gridlock, no matter how unfair that may be.

The mischief being done by the current iteration of the filibuster has become obvious. It continues to prevent the Senate from functioning properly–for that matter,  as Jettleson documents in his recent book, “Kill Switch,” it pretty much keeps the Senate from functioning at all.

A mountain of evidence suggests that it is long past time to get rid of the filibuster.

The question, then, is why Democratic senators like Joe Manchin and Kyrsten Sinema continue to defend it.

Comments

The New Confederacy

Little by little, as media sources obtain access to previously unavailable information, Americans are learning the true extent of the criminal and racist activities of the Trump administration–and far more concerning, we are now seeing how far gone, how amenable to those characteristics, today’s QOP remains.

One example among many: in the final, lame-duck days of the administration–after the election but before Biden’s inauguration–the Justice Department moved to undo what the Washington Post called “decades-long protections against discrimination,” by
moving to change the interpretation of Title VI of the 1964 Civil Rights Act.

Title VI bars discrimination on the basis of race, color or national origin by recipients of federal funding.  The rules apply to the recipients of some six billion dollars of annual federal aid, and provide that actions will be considered discriminatory if they have a demonstrably discriminatory effect on protected groups. That’s what’s known as a “disparate impact.”  Under the new version, only intentional discrimination would be prohibited.

Intentional discrimination is incredibly difficult to prove, as lawyers who bring cases under the Equal Protection Clause of the 14th Amendment can attest. (In order to succeed, challenges brought under that clause must show evidence that at least a part of the challenged law or action was intended to be discriminatory.)
 
According to the Post’s report, the Trump administration had been considering the change for over two years, but had waited until its final weeks to try to put it into effect. It was one of William Barr’s last efforts before his welcome departure as Attorney General.

And as usual, the Trump administration ignored the required procedures for making  significant policy changes.

Typically regulations of this magnitude are published first as proposals and the government collects public comment before publishing its final version. It would be unusual to publish a final regulation — particularly one of this magnitude — without going through that process, but the document says that its proposal falls under an exception and therefore the administration is not required to seek public comment.

Conservatives have long argued that allegations of discrimination should require proof that any disparate effects were intentional. If this argument is accepted, it allows the defense to deny the existence of structural racism: if person X doesn’t have a conscious animus, then what he does isn’t racist. So the bank officer who declines a mortgage under his bank’s redlining criteria, the police officer who participates in “stop and frisk” activities only in “certain” neighborhoods, the HR department that hires applicants based upon “cultural compatibility,” the City Council that paves streets far more frequently in the “nicer” areas of town–all are off the hook.

If no one is burning a cross on a Black person’s lawn, or screaming the “n” word, there’s no racism.

The Trump administration’s effort to bolster structural barriers to equality is just one of many examples of what has become distressingly clear during the past four years: today’s QOP is our contemporary version of the Confederacy. It is dominated by White Christian male supremacists intent upon doing whatever it takes to protect their historic hegemony–intent upon ignoring/excusing the operation of systems developed and maintained over the years that lock in White advantage without demonstrating cruder, more obvious bias.

It is not a coincidence that those willing to engage in that cruder racism–the “out and proud” racists of the KKK and Proud Boys and neo-Nazis– flocked to Trump and today’s Republican Party.  The efforts of more “respectable” members of the party to maintain plausible deniability–to distance themselves from their Confederate motives– is increasingly unconvincing.

The problem, as I have repeatedly noted, is that a two-party system needs two adult parties. It will be interesting to see if the embryonic efforts to form a new center-right party to replace the cult that is the current QOP go anywhere….

Comments

The World’s Worst Legislature

During his too-brief life, former NUVO editor Harrison Ullmann was best known for his repeated assertion that Indiana had the “world’s worst legislature.” Participants in the current session are once again demonstrating the accuracy of that label–and given the number of other legislative bodies that could plausibly win that title–especially, after yesterday, the United States Senate– awarding it to the Hoosiers in the Indiana Statehouse is really saying something.

The current session has seen a steady stream of bills by sponsors who haven’t even tried to obscure outrageous conflicts of interest: efforts by real estate developers to eliminate environmental protections like wetlands, a bill from a homebuilder/legislator that would disallow local design oversights. (Respecting the environment and following minimum design standards costs money, you know…)

An obscene number of measures take aim at Indianapolis.

I have previously pointed out that municipalities in Indiana have no genuine home rule–that the same lawmakers who bemoan “unfunded mandates” from Washington are perfectly happy to impose ridiculous constraints on Indiana’s cities and towns. It certainly won’t surprise anyone living in Indianapolis that our legislature– dominated by rural interests– has once again aimed its animus at the state’s largest city. But this year, the effort to spit in the face of the state’s economic driver–to punish Indianapolis for being “blue”–has gone into overdrive.

One bill would remove the police department from the control of the mayor and city council. Another would remove the city’s legal authority to provide bus rapid transit. Yet another would prevent the city from regulating the placement of 5G wireless devices.

A truly despicable bill that seems likely to pass is a legislative smackdown of a city ordinance that provided (minimal) extra protections for tenants. That measure, which passed previously, was vetoed by Governor Holcomb; legislators now propose to override that veto.  Indiana  law has historically and unfairly favored landlords; the Indianapolis City-County Council had begun to redress that imbalance.

As Michael Hicks recently wrote in a column for the Howey Report,

These are unusual issues for a state legislature to become involved in, but there’s more. One bill would prevent Indianapolis, or any other city, from changing its name. To be fair, that bill might be targeted at Russiaville, Toad Hop or Slab Town, not Indianapolis. Another would limit the powers of Indianapolis to undertake land-use authority within its city limits… 

This flurry of legislation aimed at the heart of Indiana’s largest municipal government seems to signal that something unseemly is happening in Indianapolis. 

What is “unseemly,” of course, is that Indianapolis is now a reliably Democratic city in a reliably Republican state.

The proposed punitive legislation wouldn’t just affect Marion County. (For those readers who don’t live in Indiana, the city limits have been essentially coterminous with the county’s since the early 1970s.) This is, as Hicks noted, different from the Indianapolis Metropolitan Statistical Area, which includes the surrounding counties. Much of the proposed legislation would affect both the City of Indianapolis and the surrounding metropolitan area that depends upon the success of the city.

Hicks also notes that–far from demonstrating “unseemly” governance,  the metrics show that Indianapolis has been far more successful than the rest of the state.

 Indianapolis has been responsible for the lion’s share of state population growth.

Since 2000, the Indy metro area has grown by 35%, the City of Indianapolis by 12%, and the whole rest of the state by 2.1%. The City of Indianapolis saw more population growth this century than the 80 non-Indy metro counties combined. So, whatever concern about crime, zoning or building design residents have about Indy, they are worse everywhere else. 

What about jobs?

Since 2000, the Indianapolis metro region has added some 154,000 jobs. Of those jobs, the City of Indianapolis can account for 18,000 new jobs over the same time period. Here’s the rub; over the same time period, all the rest of Indiana lost a whopping 151,000 jobs. 

Speaking of economic impact, Hicks tells us that, annually, residents of Marion County send a net of more than $500 per person in tax revenues to residents of the rest of the state.

All told, 20 Hoosier counties pay more taxes to the state than they receive in tax revenues from the state. Five of those are in the Indianapolis metro area. So, just to summarize it clearly, Indianapolis, and the Indianapolis region as a whole, are growing leaps and bounds faster than the rest of the state. At the same time, they bear a greater state tax burden, of which a significant share is sent to other counties. They get far less back in tax dollars than they spend.

In the World’s Worst Legislature–coming to citizens courtesy of extreme gerrymandering–resentful representatives of dwindling rural areas are intent upon killing the goose that sends them the golden eggs.

Comments

Blast From The Past Makes Me Happy!!

On family excursions into nature–admittedly, not my strong suit, but hey! grandkids–I became aware of the lasting contributions of FDR’s Civilian Conservation Corp. That program not only offered employment to some three million Americans who had found themselves out of work during the Depression—it also built lasting improvements to the nation’s parks, roads and forests.

Workers enrolled in the CCC planted more than three billion trees. They paved 125,000 miles of highways, and built  3,000 fire lookouts.. Trails and structures from the Grand Canyon and the Pacific Coast Trail to the Smokey Mountains remain in use today.

According to The Guardian, Joe Biden has taken a leaf from the CCC–one of FDR’s most popular and successful efforts.

As part his recent climate policy spree, Biden announced the establishment of a “Civilian Climate Corps Initiative” that could harness the energy of the very generation that must face – and solve – the climate crisis by putting them to work in well-paying conservation jobs.

After Biden’s omnibus executive order, the heads of the Department of the Interior, the Department of Agriculture and other departments have 90 days to present their plan to “mobilize the next generation of conservation and resilience workers”, a step toward fulfilling Biden’s promise to get the US on track to conserve 30% of lands and oceans by 2030.

This is exactly the sort of effort we need right now. Not only will this Civilian Climate Corp provide gainful and undeniably useful job opportunities at a time when the economy is reeling from COVID, not only will it provide training to young people who participate, not only will it be an important part of America’s response to climate change, but it will offer the demonstrable benefits that attend national public service programs.

This is far removed from “make work” programs. This CCC will work on projects that are clearly and substantively important. The article quotes Mary Ellen Sprenkel, head of the National Association of Service and Conservation Corps, for the range of issues such a Corp can address:

Far beyond just planting trees, a new conservation corps could pour money into tackling a bevy of other environmental problems, too. According to Biden’s website, projects will include working to mitigate wildfire risks, protect watershed health, and improve outdoor recreation access. Sprenkel thinks the effort could also include more activities at the community level, like urban agriculture projects and work retrofitting buildings to be more energy-efficient. And as Sprenkel pointed out, the federal government owns and manages thousands of buildings that need help to become more energy-efficient. The buildings “could even become sources of renewable energy generation with solar or wind power installations”, she added.

This reconstituted and reimagined CCC can and should provide apprenticeships and on-the-job education equipping participants for long-term employment. But even more important, at a time when Americans live in very different realities and occupy informational and residential “bubbles,” it will provide the democratic benefits offered by public service programs by bringing young people from widely different backgrounds together.

Back in 2014, I advocated for a new GI Bill that would require young people to enroll in a year of civil service between high school and college or trade school. Among the many benefits of such service would be an appreciation for the role of government; another benefit would be the experience of working with Americans from diverse backgrounds and communities. The original CCC was segregated by race and gender–realities that detracted from its otherwise positive influence. Biden’s CCC, to the contrary, would build non-corporeal bridges along with the physical ones–and it would do so at a time when the bonds of citizenship have become deeply frayed.

My youngest grandson is currently taking a year with Americorp, and as I watch his progress, I can attest to the maturation and  flourishing–and cross-cultural understanding– that occurs in such programs.

I say three cheers for the three Cs!

Comments

Policy Versus Personality

A major benefit of the transition from Trump to Biden is that we have an opportunity to leave the politics of personality and return to boring and oh-so-welcome debates about public policy. Rather than acrimonious exchanges pitting those of us who were appalled by the buffoon and his incompetent mafia appointments against those who endorsed his assault on American values, we are gradually returning to arguments about lawmaking.

I thought about that change as I was going through some of my old teaching materials, and came across notes for my lecture on the requisites of good public policy. Since the demotion of Mitch McConnell means we may actually see policies enacted rather than stymied, I thought I’d share them.

Consider it a framework for further discussion….

The first question lawmakers must address is firmly rooted in political philosophy: does this proposal lie an area that government should control or even be involved in? Americans have very different ideas about the proper scope and authority of the state, and those ideas will affect the perceived legitimacy of any policy chosen.

One of the reasons that issues like equal civil rights for LBGTQ citizens and women’s control over their own reproduction are so salient and contested is because they begin with a profound disagreement over the legitimacy of government laws that are seen (I believe correctly)as privileging some religious beliefs over others.

This question—the right of government to decide certain matters—underlies many other policy debates. (Masks, for example.)To what extent should government dictate business practices? What areas of the economy should be left to market forces, and what services should be delivered collectively?

Disagreements about the propriety of government action are at the heart of many policy debates.

Once there is agreement that government action is appropriate, however, there are four further elements that will determine whether the policy that emerges is sound.

First, we need to agree upon both the existence and nature of the problem. Is the growing economic gap between rich and poor a problem, or simply an expected attribute of market economies? If it is problematic, why? What accounts for its growth and existence, and why and how is it damaging? Is there unacceptable racism in American policing? How do we know? If so, why has it persisted? If those making policy cannot agree that a situation or condition or existing law is a problem, and cannot agree on why it is a problem, correcting it is obviously impossible.

Second, once policymakers concur on the existence and nature of the problem, they will need to come to some agreement on the efficacy of proposed solutions. If there is agreement that the gap between rich and poor is impeding economic growth and generating social unrest, they will need to determine the probable causes of that gap, and analyze the probable consequences of the various steps being advocated to diminish it. Which “fixes” are likely to accomplish the goal? What does the available evidence suggest?Do the policymakers even agree upon the outlines of that goal, let alone the likelihood that a specific approach will accomplish it?

Third, does government have the ability to implement the solution that is chosen? Does the unit of government making the decision have the authority to impose it? Is the chosen remedy something that government can do? Would enforcement violate Constitutional principles or democratic norms?

If a proposed policy meets these standards—if there is agreement on the existence and nature of the problem, agreement on a chosen remedy, and the ability to implement it without doing violence to the country’s legal framework—a fourth necessity (and one most often ignored) arises: Are policymakers willing to evaluate the consequences of that policy? Are they willing to monitor its effectiveness and modify or reverse it if it doesn’t work, or has unanticipated negative consequences?

As I used to tell my students, Ideological, cultural and economic interests make each of these steps difficult. But difficult is not impossible–if  we elect people of good will who understand that their mission is to advance the common good.

Okay…we need to work on that last bit…

Comments